IN THE COMMON PLEAS COURT OF PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
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Wednesday, May 25, 1983
Courtroom 253, City Hall
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Before: HONORABLE ALBERT F. SABO, J.
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MR. JACKSON: Good afternoon, Your Honor. We, of course, are here for post-trial motions that were timely filed on behalf of Mumia Abu-Jamal.
The motion that was originally filed and received by this Court back on July 9, 1982 has been supplemented by a memorandum that I believe Your Honor may have received a copy of. I delivered one also to Mr. McGill's office but, apparently Mr. McGill did not receive it. I have handed him one just today.
The memorandum merely supplements the allegations that were made in the motions for post-trial motions. I have summarized them to some extent. Although there were 34 originally listed, they have not been enumerated as such and they would be combined in the argument that I wish to make to the Court today.
Initially, I would point out to Your Honor that some time after Mr. Jamal was arrested but before the preliminary hearing, in fact, on January 5, 1982, we made a request to Judge Ribner at that time requesting a lineup. That lineup was founded upon the
representations that were made by the district attorney essentially alleging that the eyewitnesses, the alleged eyewitnesses, could in fact and did, in fact, identify Mr. Jamal as being the very same person that they saw shoot the police officer and when they subsequently saw him in the wagon, he was that same person.
At that time there were representations made by counsel that they never lost sight of him. I think the testimony was that, and I believe Your Honor is certainly familiar with the testimony of those eyewitnesses that testified, they did in fact lose sight of him. At various times they saw various aspects of someone who committed some act.
During the time of the alleged shooting, Cynthia White, as an example, said that she saw someone running across the street. First the person had a hat on and then later, she said that the person had dreadlocks. And at some point in time, she said that she lost sight of the man who was supposed to have committed the shooting. She said that she was some distance away and later moved forward.
But, in any event, later on the police officers took her to the back of the wagon, along with some of the witnesses and they identified Mr. Jamal.
We, of course, asked that a lineup be conducted to support and corroborate the reliability of that eyewitness testimony. When balanced against the inconvenience and burden to the Commonwealth, under those circumstances, I don't think it was at all an unreasonable request.
Throughout the motion to suppress, throughout the representations made by counsel as well, we have heard that, of course. Each and every one of the eyewitnesses has given contradictory information with regard to the description of the person who allegedly committed the shooting. Based on that, we feel that the Court was in error in not granting our request for a lineup, and I would ask Your Honor to order a new trial based on that and that alone.
I would ask Your Honor also, and it is pointed out in the memorandum, in United States
versus Wade, where, in fact, Justice Brennan noted that, "the vagaries of eyewitnesses identification are well known; the annals of criminal law are rife with instances of mistaken identification."
The reason for that, Your Honor, Justice Brennan recognized that eyewitnesses are whatever they are, they are eyewitnesses. They can certainly be mistaken. If, in fact, the Commonwealth has faith and confidence that their witnesses are indeed able to identify whoever it was that committed the act, it seems to me that it is little burden upon the Commonwealth to bring in those witnesses, and to select the defendant out of a lineup.
That is particularly true, I believe, in this case where we have a man who has been charged and convicted and now, of course, sentenced to death. That certainly would not have been an unreasonable burden on the Commonwealth and certainly no inconvenience to the Commonwealth to be offered as an argument against that. I would ask, for that reason, that the Court order a new trial.
THE COURT: You cited no cases.
MR. JACKSON: U.S. v. Wade, Your Honor.
THE COURT: What does Wade say?
MR. JACKSON: With regard to the eyewitnesses?
THE COURT: What were the facts of the case?
MR. JACKSON: In U.S. v. Wade, the facts and circumstances are completely different. There is no question about that. I am citing it simply for the proposition that eyewitness testimony is oftentimes mistaken.
THE COURT: That is common knowledge. Everybody knows that.
MR. JACKSON: I understand that.
THE COURT: That is for the jury to decide. That is a factual issue.
MR. JACKSON: It may be a factual issue to determine --
THE COURT: Did anybody say that you must have a lineup?
MR. JACKSON: No, there is absolutely no constitutional right to a lineup, I would agree. There is no constitutional right to a
THE COURT: In that case, there is no precedent for what you are arguing.
MR. JACKSON: I disagree with Your Honor, in that I am not suggesting that there is indeed a constitutional right to a lineup. There is indeed a constitutional right to a fair trial. I am saying that the refusal to grant that lineup caused Mr. Jamal to have an unfair trial.
THE COURT: Is there any case to support that?
MR. JACKSON: That he is entitled to a fair trial?
THE COURT: I am sure he got a fair trial. I mean the point that you are talking about, about the lineup?
MR. JACKSON: The Courts could point out circumstances where a lineup would be ordered. The Courts leave it within the discretion of the Trial Judge as to whether or not a lineup ought to be ordered and it points out several factors that the Court should consider, as to
whether or not a lineup should be ordered.
THE COURT: Did Judge Ribner consider those factors?
MR. JACKSON: Yes, Judge Ribner did indeed.
THE COURT: Did he make a decision?
MR. JACKSON: Yes, he did.
THE COURT: All right. Why is he wrong?
MR. JACKSON: Because it was an arbitrary and capricious decision based on, primarily, the representations made by counsel.
THE COURT: What factors did he consider? You said that he considered them.
MR. JACKSON: Yes, sir.
THE COURT: Why do you say --
MR. JACKSON: The offer that was made to Judge Ribner was in fact that the eyewitnesses never lost sight of the person who allegedly shot the police officer.
What I am proposing and suggesting to Your Honor is that there were several phases to this incident. One is that the witnesses claim that they saw a man run across the street, and
there was a break between that time and the time that they allegedly saw a man shoot the police officer. After the shooting of the police officer --
THE COURT: How much time?
MR. JACKSON: I don't know, Your Honor.
THE COURT: Hours?
MR. JACKSON: Not hours. Certain the entire incident took no more than two minutes, Your Honor.
THE COURT: The whole incident?
MR. JACKSON: The whole incident.
THE COURT: Therefore, he considered that factor. Go ahead.
MR. JACKSON: Well, he didn't have the benefit, Your Honor, of the entire testimony, and that is the point.
THE COURT: Nobody, no Judge ever has the benefit of the entire testimony until the trial comes.
MR. JACKSON: Absolutely, Your Honor. But what the Judge did was base his ruling on the representation of counsel that, in fact,
they never lost sight of the man.
THE COURT: True, if he had been arrested ten hours later, what you are saying would make sense.
MR. JACKSON: I am saying, even in this instance, in that Mr. McGill represented that the witnesses never lost sight of him, and that is not a fact. If that fact was brought to the attention of the Judge, his ruling may have been otherwise, Your Honor.
THE COURT: You mean even if I bring my eyes?
MR. JACKSON: That may be sufficient, Your Honor. That may be a ridiculous extreme that you are suggesting --
THE COURT: I am sticking specifically, strictly to the facts in this case.
MR. JACKSON: I understand that. Your Honor, if you consider the fact that we had allegations or representations made that there were at least two people there, Mr. Jamal and Mr. Cook, who had dreadlocks. And we had other testimony that there were --
THE COURT: Mr. Cook, you are talking about his brother?
MR. JACKSON: Yes, sir.
THE COURT: That is in the evidence.
MR. JACKSON: I understand that, but it is also in the evidence that there were other people who were there. There is a question as to what each individual did, whether they were talking about Mr. Jamal or Mr. Cook. And there was other evidence that there was at least one or several other people there.
We have the testimony of Veronica Jones who originally gave a statement to the police indicating that there were some other people, there. We have a statement from Debbie Kordansky who indicated that after the shooting, she saw some other people running. There was another witness who indicated that he saw somebody else running. We had Dessie Hightower who indicated that he saw someone else running from the scene.
THE COURT: And a jury had all of those
MR. JACKSON: Your Honor, no question. The jury had most of those facts.
The jury did not have the benefit of Debbie Rordansky, and I will get to that issue with regard to her testimony a little later. The jury, of, course, is the judge of the facts. I am saying that, as a matter of law, a lineup should have been ordered in the first place.
THE COURT: Why? Show me the reason why. If I gave you an example, where someone is picked up ten hours later or even an hour later --
MR. JACKSON: Because of the opportunity for mistake, Your Honor.
THE COURT: There was an opportunity for mistake?
MR. JACKSON: Yes, absolutely, if you consider that indeed there were not just two people there, but several people.
THE COURT: If he had not been shot and wounded, and had fled the scene, what you are saying would make sense.
MR. JACKSON: No, Your Honor. I think
it is that very point that makes all of this argument sense.
Your Honor, he was shot. He was at the scene. No one saw him shot and remain there at the scene. That is all the more reason that makes it relevant that a lineup should have been requested. If in fact he was there, if in fact he was shot --
THE COURT: The fact that you are arguing is that they would have to have a lineup in every case.
MR. JACKSON: Your Honor, personally, I feel that it wouldn't be a burden, but I am only arguing this case right now. I don't think that is a burden to the Commonwealth.
THE COURT: I am not saying whether it is a burden or not. I am asking you whether he is entitled under the Constitution or under any state law or decision by the Supreme Court that would guarantee him a lineup and, in fact, guarantee every defendant a lineup in every case?
MR. JACKSON: Obviously, there is not, Your Honor. There is no guarantee to a lineup.
There is only a guarantee to a fair trial.
THE COURT: When Judge Ribner made his decision, he based it solely on what information he had in front of him at that time.
MR. JACKSON: That's right. If that information was incorrect, then his ruling was incorrect. I am saying that based on that representation, and I made similar argument to Judge Ribner at that time, that he was mistaken and that the Commonwealth made inaccurate representations to the Court to bring about the ruling that the Court made.
THE COURT: Do you want to answer these individually or do you want to wait until he is finished?
MR. MC GILL: Whatever Your Honor would wish.
THE COURT: Maybe you could do it each time he brings up a point.
MR. MC GILL: Is that the way Your Honor wishes?
THE COURT: Yes.
MR. MC GILL: That's fine.
THE COURT: Would you answer his point.
MR. MC GILL: Yes, sir. Your Honor, in reference to the lineup question, there were various factors that were considered by Judge Ribner. We both were present at the hearing, obviously, Mr. Jackson and myself.
In considering, of course, Your Honor, sitting as a court en banc at this point, as a post-trial Motions Judge, will have to make a ruling on the appropriateness of that ruling. Your Honor, the primary consideration that was urged to Judge Ribner was, in fact, accurate. The underlying basis, which stated, in considering the facts, that is, in consideration of the factors, the cases such as Commonwealth v. Sexton, a Superior Court case, as well as the progeny of Sexton, certainly gave an outline of the type of situation where lineups are really required.
In that particular case, we had a situation where it was a robbery. An individual came into a store. No one in the store ever saw that individual. It was a matter of a very short time before the individual took the money. And
before this individual fled, a person in the store saw that defendant, Mr. Sexton, for a very short period of time, as a matter of fact, a number of seconds. That man then fled, ran down the block and left.
Also, the other cases that follow Sexton would indicate that in such a situation, a lineup would indeed be appropriate and it may well be in the police's discretion not to grant a lineup under those circumstances.
In the case of Mr. Jamal, I would state to Your Honor that this is an entirely different matter. The individuals involved, the identification witnesses, one being Cynthia White, which was the primary concern of Mr. Jackson, and also Mr. Robert Shobert (sic), as well as Mr. McGillton (sic), the situation or the facts surrounding their identification was entirely different. Whereas Cynthia White, while at the corner, saw the defendant running across the street, she then watched this entire incident at this point. Your Honor perhaps remembers the testimony well.
As Mr. Jamal was running across the
street, running and then shooting the officer in the back as he turned around and fell down. Then he went over and continued his shooting, after having been shot himself in between the first shot and his final shots. Ms. White then looked and kept her view right on that particular factual occurrence. At that point, the defendant, having been shot, moved over to the side and eventually fell down onto the sidewalk and remained there.
Almost immediately thereafter, the police officers arrived. Ms. White did not leave. Mr. Jamal did not leave. As a matter of fact, Ms. White then moved toward the incident, walking toward the incident from the corner to about two and a half car lengths east. Ms. White moved toward there because she wanted to let the police know that she saw this. Mr. Jamal, having been wounded and weakened, did not move at all.
When the police arrived, the first battery of police ran around him and stationed behind him. One stopped his brother at the corner, at the wall, and the other kept a
loaded gun on Mr. Jamal, after having kicked the gun that was near him out of the way.
The next portion or segment of this was when the police officers arrived and arrested Mr. Jamal. During this tine, Ms. White is moving toward them and actually being told to stay back because of this, because they were trying to secure the scene of this incident.
Mr. Jamal is then carried from where he was to a wagon which was on Locust Street, facing east, and he was immediately taken to the hospital. Ms. White has this in view as he is being taken from where he was seated or at the curb to the wagon. During that period of time, she moved up close to the wagon and observed the defendant. So during that period of time, if there was a moment where she lost that view, it truly would have been a matter of seconds.
This, Your Honor, was a far, far cry from the cases which support the position of Mr. Jackson, that a lineup would be appropriate. And since the standard is that it would have to be an abuse of discretion for the ruling Court's
decision, there was certainly none here, based on the factual scenario that I have just presented to this Court.
One does not need a lineup when the person is staying there. It is reminiscent of the many cases where you have the on-the-scene identification, where, for example, an individual having shot or robbed someone is observed for the first time by somebody and then they stay there. The defendant flees. He is caught by the police some four or five minutes afterwards. The police then pick him up, take him back to the scene and show him to the person who is right there and he says, "Yes, that's the person." The reason why that is so reliable and the reason why there is no identification needed then, is because it was so prompt.
The key in reliability, the key in the basis for the identification was the promptness of the on-the-scene identification, and there are a legion of cases which support that on-the-scene type of identification. So, indeed, it is a far cry from even that on-the-scene identification case where a lineup is
certainly not needed than this case that we have before us, because he didn't flee at all. He was always there to be identified.
So I would say, Your Honor, rather than an abuse of discretion, which would be the standard, it was a most appropriate ruling under all the case law.
MR. JACKSON: Your Honor, briefly, again I cite you to the Sexton case. That is in the brief. I would just point out to the Court that Mr. McGill makes a bootstrap argument, saying that he never left the scene and that is why it was appropriate. That presumes and assumes that, in fact, he was the one who committed the act.
THE COURT: That is, in fact, a question for the jury to decide.
MR. JACKSON: Very well, Your Honor. With regard as to when and what standard the Court is to use when a lineup is appropriate, again, I accept and acknowledge the fact that there is no requirement that a lineup be given. But there are certain factors that the Court must look to, that is, in deciding whether or
not to grant a defendant's request for a lineup, identification must be a substantial and material issue. I don't think there is any question that identification is a substantial and material issue in this case.
The second reason would be that there must be a reasonable likelihood that a lineup would be probative, of some value. I think it is probative of the ability of the eyewitnesses to, in fact, make that identification.
The third reason would be in the defendant's motion, that it should be as soon after the arrest or arraignment as is practical, and I don't think there is any question that it was not timely.
THE COURT: What about what he said, where somebody commits a robbery and flees. Five or ten minutes later he is apprehended and is brought back to the scene and the person says, "Yes, that's him." Is a lineup needed in that case?
MR. JACKSON: Under most circumstances, the Court has ruled no, it is not necessary. But it goes to how much time did the
person have to observe the person in the first place. We can't ignore that, Your Honor.
THE COURT: Let's say, for a few minutes.
MR. JACKSON: The question is, was there, in fact, sufficient time for the person to have made that observation. That is the very issue.
THE COURT: You have argued individual things, but you have to encompass the entire case.
MR. JACKSON: Certainly, Your Honor, there is no question. Generally, an on-the-scene identification is one of the most reliable identifications that can be made, depending upon the facts, of course, in each and every case. I am suggesting that, in this case, the eyewitness --
THE COURT: The young lady met the police officers and said, "I saw him shoot that cop." Isn't that an on-the-scene identification?
MR. JACKSON: That is an on-the-scene identification. I differ with you as to the facts as to how it was made though, Your Honor.
That is my very point.
THE COURT: That went to the jury. You brought out the factors as to how it was made, how much time she had to observe and everything else.
MR. JACKSON: I concede that there are issues which lie within the jury's province.
THE COURT: I am talking strictly law now. This witness said, "I saw that man run across the street and shoot that cop. He is the guy right there." It is an on-the-scene identification, isn't it?
MR. JACKSON: In the context that Your Honor places it, yes. But that isn't the way it happened in this trial.
THE COURT: Okay, go on to your next point.
MR. JACKSON: Your Honor, obviously, the next issue goes to whether in fact Your Honor should have denied the motion to suppress those identifications. The factual argument would be pretty much the same reasons, the reasons offered as to the lineup would be the
reasons for the argument in the motion to suppress.
I remember and recall specifically that Your Honor suggested that it was an issue of fact as to whether or not their eyewitness testimony was reliable or not. I won't burden the Court with that argument again, but I am suggesting that by virtue of the Court not granting the lineup to rule out --
THE COURT: You mean my ruling when the case was brought to trial?
MR. JACKSON: Yes, when we went to the motion to suppress before you, Your Honor.
THE COURT: You asked for a lineup at that time?
MR. JACKSON: Yes, we did -- no, no, no; I am not saying that we asked for a lineup at that time. We had a motion to suppress before you.
I am saying that the same reasons that we have argued for the lineup were many of the same reasons we have argued that Your Honor should have granted our motion to suppress.
THE COURT: A motion to suppress what?
MR. JACKSON: Essentially, that the eyewitness testimony was unreliable. Your Honor, of course, indicated that that is an issue of fact and not of law.
At that time, I suggested again that if, in fact, the Court had promptly considered the materiality of the eyewitness testimony and the need for a lineup --
THE COURT: But that had already been decided by Judge Ribner.
MR. JACKSON: The lineup, yes.
THE COURT: Right, that is what I am talking about. I can't reverse him.
MR. JACKSON: But you can suppress an identification.
THE COURT: I can't overrule him at that stage. I have to wait until the end of the trial.
MR. JACKSON: Judge Ribner never ruled on the identification. He just ruled on the lineup request. There was a separate request made by the defense that a lineup be granted. He denied that motion, fine.
Before you, during the motion to
suppress, among other issues that we had argued before Your Honor, and this was after a motion to suppress hearing, was, in fact, the in-court identification.
We argued that the only identification that Cynthia White, or any of the other alleged eyewitnesses made that was of any value was the one that was made in this courtroom during the motion to suppress, and we suggested that that was not a proper identification procedure.
THE COURT: No, that is not true. The identification they made was at the scene.
MR. JACKSON: All of the witnesses didn't make an identification at that time.
THE COURT: She made one.
MR. JACKSON: She was one of the witnesses that allegedly made an identification at the scene. Again, Your Honor feels that it is a factual question. I felt that it was a legal question.
Your Honor made your ruling, and I know I have a copy of Your Honor's opinion. That was dated the 4th of --
THE COURT: Are you talking about the
findings of fact?
MR. JACKSON: Yes, your findings of fact and conclusions of law. I have a copy of it and I am well aware of Your Honor's feelings with regard to it. I simply point out to the Court that I disagree.
The next issue, Your Honor, would be the Court's denial of the defendant's request for the respective names, addresses, and whereabouts of the witnesses. I intimated earlier that the issue with regard to Debbie Kordansky would be presented to you.
As you know, Your Honor, in Courtroom 613, Judge Ribner is the Assignment Judge for homicide cases. Judge Ribner has this policy where he will request, during discovery, that the district attorney present the names and the statements of the witnesses. However, he deletes or cuts out the addresses. That is his policy and most times, I would imagine, it does not work to the detriment of the defendant.
We have it in the notes of testimony, during this trial, that one witness in
particular, and perhaps Officer Wachell (sic) as well, but one witness in particular, Debbie Kordansky, we had her statement during the same time that all the other statements were given to us. However, we were never provided with her address.
During the trial we asked Mr. McGill to produce that witness, since we certainly had no means of doing that ourselves. He indicated that they had lost contact with the witness. Eventually, we were able to get Detective Morton and, I believe, another detective who were able to get a phone number, and back in Your Honor's Chambers, I called Debbie Kordansky and she said a number of things. Among other things, she said, "I am not coming into court, and I am not going to give you my address."
Her statement was consistent with the argument that we made before this Court that indeed there were other persons on the scene and other persons who were seen running away. Her statement says that. However, because we, were never given the address of
that witness, we were denied the opportunity to compel her appearance in court, not because of anything that Mr. Jamal did or his counsel did but because the Commonwealth had access to that witness and knew her whereabouts certainly at the time that the statement was taken.
They had access to that information. It wasn't given to the defense, and it has now worked to the detriment of the defendant. I am saying that based on the Commonwealth's allowance of Judge Ribner to follow that policy, it has worked to his detriment. I am suggesting to the Court that, as a result of that, it may have been one of the most crucial and important facts for witnesses on behalf of Mr. Jamal, and we were denied that information.
Conveniently, the Commonwealth was able to maintain contact with all of its witnesses that it presented. Of course, not only did we have a problem with Debbie Kordansky, but we had some problems with some of the other witnesses as well, but we were just talking about Debbie Kordansky at this point.
I am suggesting that if, in fact, the Commonwealth accepts that policy, that, "Yes, we will not give you that address, but we will provide it at the time of the trial if the Judge so orders," they have already then prejudiced the rights of the defendant.
If again we have a situation like Debbie Kordansky, where at the time of trial she is gone, we are not able to conduct a separate and independent investigation. We have to then rely upon the district attorney. We certainly can't introduce her statement; it is an unsworn statement.
THE COURT: Well, you finally did contact her.
MR. JACKSON: We contacted her by phone.
THE COURT: And she refused to come in?
MR. JACKSON: Yes, sir, and I couldn't compel her appearance.
THE COURT: Do you want to answer that?
MR. MC GILL: Yes, sir.
Your Honor, first of all, the purpose for the deletion of the addresses of Witnesses
is for their protection and privacy, but particularly the protection of the witnesses.
Judge Ribner, who handles all of the homicide cases through the Calendar Room, channels the cases through different courtrooms. There have been various specific incidents, one in which I was actually trying a case and a specific eyewitness, during the course of voir dire, received visits during the night and the door of the witness' premises was shotgunned and almost blown off. This is the primary purpose of that.
And during the course of this case, particularly, there also is a concern, naturally, because of the volitive nature and highly controversial aspects of this trial. Even I myself at times have received rather unfriendly phone calls and correspondence, et cetera, during the course of the trial. So there is indeed a good-faith basis for the deletion of such addresses.
With respect to this particular witness, this witness by the statement itself does not indicate on its face any direct assistance for
this defender, for example, as stated in the brief, speaking about, "saw a man run from the scene of the shooting after hearing the shots, the gunshots."
In the statement, the individual saw nothing at all in relation to the shooting itself. But even if you were to take the statement solely on its face, all it says is that, "a man run from the scene." In what direction, where, or at what time, or having anything in the person's hand or anything, none of this is part of the statement, simply because, if judging from the statement itself, this was not observed.
Going further than that though, at the request of the Court, as well as Mr. Jackson at the time when we did hear from him, despite the apparent irrelevance of the statement itself, of what this individual could offer, we offered to attempt to locate her. The address that was on the statement was not a good address. It was a bad address, meaning that it was an inaccurate address. We attempted at that address to have her brought in, but there was
no one there by that name. That individual was not there. We further, through various means, attempted to get a phone number. This was for the defense.
We finally did get a phone number of this witness provided to Mr. Jackson. As a matter of fact, as he has already stated, he was able to talk to her. I would also state that the police officers themselves in attempting to contact her were met with considerable opposition on her unwillingness to come in. We did not know where she was residing. We had a phone number without an address on it.
So from the time that we heard the information, that is, the request by the defense attorney, we immediately -- and I believe the Court may have also ordered us to try to find the witness for the defense, and we did, unsuccessfully. She had simply moved. Much like many times in cases, it is of extreme difficulty in getting witnesses in but we were ready, willing, and able. As a matter of fact, we even gave the phone number to Mr. Jackson.
The previous phone number was also wrong.
And, lastly, the evidence itself was not of a substantial basis, particularly as stated by the woman when she was finally contacted.
MR. JACKSON: Your Honor, I would only say that the Commonwealth still hasn't answered the question. That is, he points out limitations, if any, to the statement that the witness made. What direction the person would have run, if she was on the stand we could have found out what direction. How long she saw him, we could have found out if she were on the stand. We were denied the opportunity.
THE COURT: Is that statement part of the record in this case?
MR. JACKSON: No, it is not, sir, because we couldn't introduce it.
THE COURT: Maybe you would let the Court have a look at it.
MR. MC GILL: Yes, sir. I would be very glad to make that available, Your Honor. We will make that C-l. I don't have it
right now, but I will include it at Your Honor's request.
THE COURT: We will make it a court exhibit.
MR. MC GILL: Yes, sir.
THE COURT: Okay, the next one.
MR. JACKSON: The next issue, Your Honor, is a denial of adequate compensation to the defendant to retain the resources of experts. Your Honor knows the complexity of the case with regard to the scientific information that was explored, the forensic pathological testimony that was given by the medical examiner.
We will recall that the, medical examiner had not been certified at the time that he conducted the post-mortem on the officer. In addition to which, the medical examiner at that time, I believe, had been on the job for about one year and had not been certified at the time that he conducted the post-mortem.
We requested, and this, of course, was before Judge Ribner, compensation or at least an order to pay for the services of several
experts, among them investigators, photographers, forensic pathologists, and persons of that sort. Specifically, Your Honor, we requested an order to hire a pathologist. Judge Ribner signed an order for $150.00.
I talked personally to six forensic pathologists. The cheapest forensic pathologist that I spoke to indicated that there would be an initial fee of $300.00, up front, before he would do anything else. That amount did not include any examination, nor did it include any testimony.
For that reason, Your Honor, we are saying simply that by virtue of Mr. Jamal's being indigent, he was denied due process of law. In addition to which, Your Honor, again, consistent with the argument that was made with regard to Debbie Kordansky, I retained the services of an investigator, Robert Greer. Again, Judge Ribner approved an order for $150.00.
THE COURT: That is the initial amount. When you want to go for more, you go for more.
MR. JACKSON: Yes, sir. I am going to
get to that.
THE COURT: I have approved your bill for more than that.
MR. JACKSON: Yes, sir.
THE COURT: I have approved your bill for everything you have submitted.
MR. JACKSON: Your Honor, in order to pay the money to the forensic pathologist, there would be a $300.00 initial consultation fee and there would be a fee for the examination or whatever would be done, as well as a fee for testifying. I went back to Judge Ribner and made that indication to him.
I understand what Your Honor is saying, that maybe you can get the expert and say, maybe your fee will be paid and maybe it won't. I could not find a pathologist who would accept that, sir. That is my point.
THE COURT: All I can say is that I approved your bill. Whether you get it or not, I don't know. It is a substantial bill. How much are the taxpayers to pay?
MR. JACKSON: Your Honor, I don't know. How much is a man's life worth? I can't answer
THE COURT: How much is a man's life worth?
MR. JACKSON: It is worth at least the cost of a pathologist.
THE COURT: I agree with that one hundred percent. That is true of everybody that is charged with a crime.
MR. JACKSON: Your Honor, if Mr. Jamal had been a wealthy person -- I am saying that he is being denied the due process of law simply because he is indigent.
THE COURT: You are not a millionaire, and I doubt that you could afford the fees that you have submitted here.
MR. JACKSON: No, I could not, Your Honor. You are right. I have paid money out of my pocket. I could not afford to pay the other money as well as a pathologist.
THE COURT: What would a pathologist have shown?
MR. JACKSON: Your Honor, we could have gotten, I believe, at least some more specific testimony with regard to the entry of the wound,
and what happened to the bullets. He was the Commonwealth's witness, Your Honor.
THE COURT: You mean, he is prejudiced?
MR. JACKSON: I don't know if he is prejudiced, Your Honor.
THE COURT: You had a chance to cross-examine him.
MR. JACKSON: Yes, with my limited --
THE COURT: What would we have been able to do, exhume the body so that the pathologist could now look at the time of trial?
MR. JACKSON: Your Honor, I don't know. That's just the point.
THE COURT: I have to know what you are arguing about. You are asking me for certain things and I told you that I gave you everything you had asked for. What did you want me to do, exhume the body so that a pathologist could look at it?
MR. JACKSON: It wasn't you that made the denial. It was Judge Ribner that denied it. It was before the trial.
THE COURT: Even at the time that Judge
Ribner heard this matter, the man had already been buried. So what is a pathologist going to do, exhume the body?
MR. JACKSON: Your Honor, if there is reason to do that, yes. If a pathologist, one who is trained in forensic science, if in his reading, he reads the medical examiner's report --
THE COURT: Why didn't you let him read the medical examiner's report?
MR. JACKSON: Because he said I would have to give him $300.00 before he even talked to me.
THE COURT: To even read it?
MR. JACKSON: Yes, sir. I went back to Judge Ribner, and he said, "That is up to the Trial Judge." By the time we get to trial and the medical examiner's test, it is too late.
We had another issue, Your Honor with regard to the ballistician. At first, Judge Ribner approved it, Your Honor.
THE COURT: You asked for $350.00.
MR. JACKSON: Yes. He came back and
his bill is $750.00.
THE COURT: That is what you put here. I can't help what his bill is now.
MR. JACKSON: What his actual bill is, is not the point. It goes to my ability, and I am not wealthy at all. It goes to my ability to go out and separately and independently pay for these persons to provide their services.
A part of the ballistician's money, I did pay. We have an investigator whose bill is approximately $900.00. Judge Ribner approved $150.00.
I know what Your Honor has done, but that is after the fact.
THE COURT: Let me say this: I didn't even see this investigator and you put in a bill for $562.50.
MR. JACKSON: Yes, sir.
THE COURT: I don't know what he did, if he did anything.
MR. JACKSON: I understand, Your Honor. I am certainly prepared to present the results of his investigation.
THE COURT: We have a Photographer
here for $400.00, which I approved. I didn't even see him in the courtroom. I don't know what he did.
MR. JACKSON: There were two orders for the photographer; one was a forthwith order where he took some photographs of Mr. Jamal and later, he took photographs of the scene as well.
THE COURT: The only thing I see, you have to socialize the entire legal profession; otherwise, I don't know how I am going to answer your questions.
MR. JACKSON: Your Honor, that very well may be the answer. In the meantime, the case at Bar, I am arguing that Mr. Jamal has been denied an equal protection of the law simply by virtue of his indigence.
THE COURT: Show me a case that says he is entitled to all of this.
MR. JACKSON: The due process clause, Your Honor.
THE COURT: That doesn't say that to me. Show me a case. You show me a case that says what I have given to you in this case is not
MR. JACKSON: Your Honor, there obviously is no case that says Your Honor is required --
THE COURT: There is no case. If there is no case, I am not even going to consider it.
MR. JACKSON: Very well, sir.
THE COURT: Unless you can show me some cases, we are just going to stay here and argue all day for nothing.
MR. JACKSON: Very well, sir.
THE COURT: I don't know what more I can give you than what I have already okayed for you.MR. JACKSON: But, Your Honor, what you did is not the point, because what you did is approve after the fact. That's my point. It is what was done initially. I don't need to pay the investigators and the pathologist after the fact.
THE COURT: You are saying that the Supreme Court ought to change the rules.
MR. JACKSON: Absolutely.
THE COURT: Okay. You argue that to them, that we should give you x-number of
MR. JACKSON: Because his constitutional rights are violated.
THE COURT: How are they violated?
MR. JACKSON: Your Honor, if they say, "We won't come in and do anything until you pay us," and you say, "We will pay you after the fact, if they will wait." I choose, as court-appointed counsel, to wait for a year or so to be paid, but you try telling that to an investigator or a photographer or a pathologist.
They say, "Not on your life."
They won't do it. They have no obligation. They have no canons of ethics that require that they do that.
THE COURT: How about all of the money that was collected for him by this group?
MR. JACKSON: That was not for any defense purposes that I know of, sir.
THE COURT: What was it for, then?
MR. JACKSON: Let me beg your pardon. One fee for the photographer was paid out of that, $300.00, sir.
THE COURT: So we were also paying in
MR. JACKSON: Yes, that is an additional fee.
THE COURT: What did that photographer do? Why didn't you use that money for your pathologist?
MR. JACKSON: Your Honor, if there was a reason to use --
THE COURT: What did he do? What did that photographer do that we paid him so much of the taxpayers' money? I didn't see anything he did.
MR. JACKSON: If Your Honor please, I have the results of what he did. I don't know in advance, Your Honor, what photographs --
THE COURT: What did he do?
MR. JACKSON: He took photographs, Your Honor. He diagrammed the scene.
THE COURT: For this kind of money?
MR. JACKSON: Yes, sir. He also took photographs of Mr. Jamal as well.
THE COURT: He took photographs of him, what for?
MR. JACKSON: In the hospital, while
he was in the hospital. This was, I believe, even before the preliminary hearing.
THE COURT: And this is the kind of money they get paid?
MR. JACKSON: Your Honor, I am not a photographer; I guess so.
THE COURT: You are not moonlighting on the side. This is the taxpayers' money. There is only so much I could do with it.
MR. JACKSON: Mr. Jamal is a taxpayer too, Your Honor.
THE COURT: I know, and so is everybody else. We have x-number of crimes committed a year. If every one of them had to be paid the money that you are getting paid, I don't know where the money is going to come from.
MR. JACKSON: Your Honor, I don't think it is the fault of an individual defendant that the criminal justice is expensive.
THE COURT: It is not my fault either.
MR. JACKSON: I am not suggesting that it is your fault.
THE COURT: I can only go so far.
MR. JACKSON: Your Honor, my fault with regard to this issue is not with Your Honor.
THE COURT: What you are saying is that everybody should at least get $50,000.00 to start off with.
MR. JACKSON: No, I am saying, Your Honor, we are pretrial, and you are sitting to make a determination whether or not I need a pathologist --
THE COURT: How much money did this group collect for him in advance?
MR. JACKSON: I have no idea, Your Honor.
THE COURT: What did they do with the money?
MR. JACKSON: I believe it was used to benefit his family who were without funds, once he was incarcerated, but I do not know. I do not have control over those funds, Your Honor.
THE COURT: Go on. I have heard enough about the funds.
MR. JACKSON: Very well, sir. The next issue, Your Honor, would be the Court's denial of the defendant's request
for reasonable trial assistants, which was a violation of his constitutional due process.
Your Honor, we know that Mr. Jamal asked for John Africa to defend him, and Your Honor denied that. Mr. Jamal then asked for John Africa to be --
THE COURT: Wait a minute. What happened to that, for the record? It went up to the Supreme Court, didn't it?
MR. JACKSON: Pardon me?
THE COURT: Didn't it go up to the Supreme Court?
MR. JACKSON: Yes, sir.
THE COURT: What did the Supreme Court say?
MR. JACKSON: Your Honor, with regard to what the Supreme Court said, it is part of another issue.
THE COURT: What did the Supreme Court say?
MR. JACKSON: The Supreme Court made that you made that decision and --
THE COURT: The Supreme Court said that my decision was valid, that John Africa can't
MR. JACKSON: Yes, that he could not represent him. There is no question about that. I am saying that Mr. Jamal initially asked for John Africa to represent him. Then he asked for John Africa to be his counsel, to assist him, not to be his lawyer.
THE COURT: Well, the Superior Court recently ruled on that fact, a case in front of Judge Guarino, where a third year law student, an intern, wasn't permitted to sit in as defense counsel, and that was upheld. Do you want the citation on that?
MR. JACKSON: Yes, sir.
THE COURT: I have it here.
MR. JACKSON: I can distinguish that, I believe, Your Honor, but I will take the citation first.
THE COURT: He is not a third year law student, is he?
MR. JACKSON: Can I have one moment, Your Honor.
MR. MC GILL: Your Honor, I just asked
Mr. Jackson if he would take a look at the notes of testimony for a moment.
MR. JACKSON: Just one moment, Your Honor. I have to find some notes.
MR. MC GILL: Would Your Honor mind if we have one minute? If I can get a certain volume of notes which is referred to in the brief that I have just received today, I would like to look at them now during the course of the argument. It may save a recess later.
THE COURT: Yes.
MR. MC GILL: Thank you, Judge.
MR. JACKSON: Your Honor, you were about to give me the citation.
THE COURT: It is Commonwealth versus Michael Pinder, which was filed January 28, 1983.
MR. JACKSON: 1973?
THE COURT: No, 1983. January 28, 1983, and you will find that in 456 A2d 179, a 1983 case.
MR. JACKSON: Your Honor, I would agree, and I have no argument at this point.
THE COURT: That will apply to my ruling
dealing with Theresa Africa, was it?
MR. JACKSON: Yes, sir.
THE COURT: It is the same thing. That is right on point.
MR. JACKSON: Your Honor, at the risk of being wrong, I would make the argument that a Trial Judge has the discretion as to how a trial is conducted, as to who sits at counsel table and who does not.
Your Honor, it is certainly within your discretion to make that determination, and the issue would be whether or not you have abused your discretion. If there was in fact no one sitting at the prosecution's table, I think that Your Honor, quite frankly, may have more foundation to your ruling.
If Your Honor recalls, there was, in fact, a non-lawyer sitting at the prosecution's table who was permitted to do that automatically, without even a request.
THE COURT: During the course of the trial?
MR. JACKSON: During the course of the trial.
THE COURT: He said there was somebody sitting at your table with you, Mr. McGill.
MR. JACKSON: Yes, sir.
MR. MC GILL: Your Honor, at my table was Police Officer Gwen Thomas during the course of jury selection.
THE COURT: And that was the only time?
MR. JACKSON: No, sir.
MR. MC GILL: Yes, that was the only time that I can recall. Perhaps Mr. Jackson has better recollection than I.
Perhaps at the beginning of the trial Detective William Thomas may have been present in order to try to facilitate the volumes of material that I had.
THE COURT: I don't remember anybody sitting at your table during the trial, because we had had a side-bar conference and you agreed that nobody would sit there.
MR. MC GILL: Yes, I did sit, if not the complete trial -- as a matter of fact, I never usually sit with anyone anyway. But I think in that particular trial, Your Honor, almost the entire trial, I was alone. because
that is what we had agreed to.
THE COURT: As a matter of fact, I had allowed Theresa Africa to talk with him in the morning and in the afternoon.
MR. JACKSON: I have no disagreement with that, Your Honor. I am saying that that does not correct the problem.
THE COURT: I don't think she was entitled to sit there. I made that decision.
MR. JACKSON: I understand Your Honor made that decision.
THE COURT: Because, actually, all the trouble that I had with the defendant was at her instigation.
MR. JACKSON: Your Honor, I don't know that for a fact.
THE COURT: I know that for a fact, because when I asked if he would behave himself, he wouldn't give me an answer until he talked to her. After I gave him permission to talk to her, he came back and said, "I will behave myself." And he only did that after speaking to her.
MR. JACKSON: Your Honor, without
knowing the specifics of such, I can only argue that that may have been because of the Court's erroneous ruling.
THE COURT: I didn't make any erroneous ruling.
MR. JACKSON: With all due respect, Your Honor, if you had ruled that she could sit there, we don't know what would have happened throughout the rest of the trial. And I will get to that point where the Court --
THE COURT: Show me a case that says she has a right to sit there. If you have one, fine. If you are just going to argue without it, I stand by my decision.
MR. MC GILL: Just for one moment, Mr. Jackson. I will not interrupt you again. May we have a brief side bar, sir?
THE COURT: Sure.
(A discussion takes place at side bar, off the record.)
(The following takes place on the record:)
MR. JACKSON: Your Honor, in summary of that argument, I would point out factually, that
Officer Gwen Thomas sat throughout the jury selection process. Mr. Jamal made his request prior to the jury selection process. So again, the Commonwealth was permitted to have a non-lawyer at counsel table. The defense was not. There were times during the trial, as Mr. McGill correctly stated, where Detective William Thomas, who was a non-lawyer, sat at counsel table.
THE COURT: I don't remember such.
MR. JACKSON: Your Honor, I have specific recollection of that fact.
THE COURT: Unless it is in the record. You can show me where it is in the record and you called it to my attention. I have no such recollection. I know you brought it up, about that fact during the board hearing, but never during the trial. I think if you look at the record, in our side-bar conference, Mr. McGill agreed that no one would assist him at the trial.
MR. JACKSON: Your Honor, whether it is pointed out in the record -- my reading of the record doesn't reflect it.
THE COURT: That is all the Appellate Court looks at, what is on the record.
MR. JACKSON: Your Honor, for the basis of my argument, I don't think there necessarily needs to be a distinction between the voir dire and the trial itself. Both aspects of this trial are substantial.
THE COURT: I am saying that because that is the only thing on the record that can be substantiated. You are stating that somebody sat at that table during the trial, and that is not substantiated by the record and will not be considered by the Supreme Court. I am telling you that it will not be considered by the Appellate Court either because you can say one thing. He can say another thing. I can say something. If it is not in the record, they are not going to consider it.
MR. JACKSON: Very well, sir. I won't argue that during the trial, for the moment, that someone was there because I am not conceding that it is not in the record. But I will say, Your Honor, that during the voir
dire, which is obviously a significant and material stage of these proceedings, it was granted to the Commonwealth and denied to the defense. And I am saying that that constitutes a violation of his constitutional rights and it was just wrong, Your Honor.
Your Honor, I am sure, as well aware of the fact that we had investigators, social workers, experts, all kinds and numbers of persons sitting at counsel table from time to time, depending upon the circumstances.
And I think, particularly given the fact that Mr. Jamal at least at the voir dire stage was granted the right to defend himself, with no cost to the Commonwealth, he asked a reasonable request, that he be given the assistance of John Africa or Theresa Africa or anyone else, but it was denied. However, the Commonwealth says, "I need Officer Gwen Thomas," and Your Honor said, "Fine. That is okay."
I am saying that he has been denied equal protection of the law and for that reason, Your Honor was in error.
MR. MC GILL: Does Your Honor want me to respond to that?
THE COURT: Yes, if you wish.
MR. MC GILL: Just very briefly, Judge, I really cannot say that I do recall Bill Thomas staying for any length of time at all at my table. I know occasionally during the recesses he would come in, in case I needed some assistance, but I certainly, recall Officer Gwen Thomas. I believe it was during the voir dire.
The primary objection was that Mr. Jamal wanted John Africa to represent him. But irrespective of that, Your Honor had made a decision, so I will move on. However, I might add, Your Honor, not only the decision that Mr. Africa would not represent him as a lawyer, that was made before Judge McDermott in the Supreme Court, but also the issue of whether or not he could sit at the table was brought up to the extent that it was raised in front of the Supreme Court and Justice McDermott, as I recall, and the answer was that that is a Trial Court decision. So the ball, so to speak,
was back in your court in reference to that.
I will point out, for the record, and it is all over the record that the Commonwealth did not object to many things in reference to Mr. John Africa and Ms. Theresa Africa, or anyone else that he wanted.
Your Honor, I believe, did agree and allow the following things: We at no time said that John Africa could not see him, advise him, or talk to him or whatever. We suggested, as a matter of fact, that Mr. John Africa, who incidentally never appeared, would be permitted to sit in the audience. He would be permitted to go up to the cellroom, consistent with the regulations of the Sheriff Department.
That he would be permitted to consult with Mr. Jamal before the trial, during any time of the recesses, whether it be at lunch time or afterwards, and he could be in the trial if he wanted to. He could have sat in the first seat during the course of the entire trial. All of this was permitted.
It was not permitted and we did object to the fact that he would sit at counsel table
as a legal representative, as one who would represent him legally, because he was not a lawyer.
Secondly, and this was the primary concern of the Commonwealth in this case, in reference to Mr. John Africa, and as stated in the record: The reason for our decision to object to that was and still is the fact that during the course of the trial in a case of such magnitude and importance, that the fact of the matter would be that since Mr. Africa represents, to say the least, a controversial lifestyle, and I make no comment about its value, but it is indeed controversial -- and he certainly represents it by his name as well as by his doctrine, and has many followers of it -- to put that individual at counsel table, as far as the Commonwealth was concerned, and I believe the Court agreed that by doing that there was a fear of the Commonwealth that jury in listening to the evidence may well change the issue from the facts of the case to the lifestyle, sociology or philosophy of one individual, that being John Africa.
By doing that, we have said from the beginning and throughout that that changed the focus of what the twelve people were supposed to consider, and that was the facts as they hear them, based on the law as given to them by Your Honor.
Where there was possibly, at any time, a possibility that those jurors would change the focus from what their job was, which was the facts and the law to the controversial nature of Mr. Africa, and it may well have gone against Mr. Jamal, it was the Commonwealth's view then and it still is, that such a change of focus would not be fair to either party in this case.
We, however, have no objection if Mr. Africa wants to be here today or do anything, since a jury at this point in time will not change its focus. The Court, with its knowledge of the law, would certainly know how to handle the issues as they come up.
Thank you, sir.
MR. JACKSON: Your Honor, in brief response to that, with regard to another
argument I am going to make with regard to self representation. In United States versus Dougherty, Malone, and a progeny of cases, where the issue presented to the Court at that time was that there was a potential that the defendant may cause some disruption in the courtroom. There had been a request by the state that certain precautions be taken.
The United States Supreme Court said that there is the possibility that reasonable cooperation may be withheld by the defendant and the right later waived, meaning that later on he may be disruptive is not reason for denying the right of self-representation at the start, because something may happen later on may be the reason for the initial erroneous ruling.
So to say that something happened later on, that is a bootstrap argument. To say, "Well, there was disruption, so that was the reason why we shouldn't have done it in the first place." But maybe if the right decision had been made in the beginning, there may not have been any disruption.
I will just go into the next argument,
THE COURT: Do you want to answer that?
MR. MC GILL: Your Honor, may I speak to Mr. Jackson for a minute?
THE COURT: Yes.
MR. MC GILL: Your Honor, it is a discretional decision as to who would be at counsel table or for how long, and for what reason. I don't think there has to be an abuse of discretion to determine that. There may have been for whatever good reasons the Court would have, as I have mentioned before, that would certainly be valid and not be viewed as an abuse of discretion. I will point out that Your Honor permitted such assistance by individuals before trial and during the recesses and constantly during the trial.
Whether or not things occurred during the trial of a disruptive nature, you still continued allowing such a dialogue between Mr. Jamal and his supporters at any recess
that he wished consistent, of course, with the regulations of the Sheriff Department.
MR. JACKSON: Your Honor, the next argument would be with regard to the purported admissions of Mr. Jamal. I would like to initially direct Your Honor's attention to the motion to suppress stage where Inspector Giordano testified, among other things, that Mr. Jamal made purported statements to him. Your Honor's decision, written findings of fact and conclusions of law, addresses the issue with regard to Inspector Giordano.
Essentially, the Commonwealth argued and Your Honor accepted the argument that, in fact, Inspector Giordano was there to neutralize the situation. To the extent that Inspector Giordano, as a matter of law, was there to neutralize the situation, one must necessarily so look at the factual scenario.
At the time that Inspector Giordano arrived on the scene, the officer was on his way to the hospital. Mr. Jamal was in the wagon, handcuffed behind his back. He was
shot. The officers were busying themselves, preserving the scene, talking to witnesses and dispatching witnesses to 8th and Race.
Nevertheless, Inspector Giordano comes to the scene, opens the locked door, questions Mr. Jamal, and purportedly or allegedly gets a response from him.
I submit to the Court that if ever there was a situation that was already neutralized, it certainly had to be there when Inspector Giordano arrived. What was he neutralizing? There was nothing that he did other than ask a question, at best. The officers had taken the names and addresses of all the witnesses. The injured officer was already off to the hospital. Mr. Jamal was handcuffed, unarmed, in the back of a locked wagon.
To say that Inspector Giordano was there neutralizing the situation, I believe is straining the facts, Your Honor. There was nothing to neutralize. And, of course, if there was no circumstance for Inspector Giordano to neutralize, then, certainly, and
I think perhaps the Court could even concede that, certainly, anything that Inspector Giordano may have inquired about was certainly unconstitutional by virtue of his not giving Mr. Jamal any warnings.
So, Your Honor must look at the factual situation. And I think that I am correctly stating the factual scenario of when Inspector Giordano arrived there, and he certainly wasn't neutralizing the situation there at that time.
THE COURT: How about the rest of the statements?
MR. JACKSON: Your Honor, with regard to the security officer, Priscilla Durham, I am suggesting to the Court that if, in fact, the statement was made, "Yes, I shot the mother-fucker, and I hope he dies," that, if in fact, it was made, it was in response to a question; otherwise, the statement does not make sense.
"Yes, I shot the mother-fucker, and I hope he dies;" it sounds, it speaks of, it smacks of a response to a question and not something that someone would say. If he wanted
to say it, he would say, I shot -- and go on, yes, I shot him. That is what she says. The other person who says that that admission was made is Officer Bell.
We had requested and received discovery from the District Attorney's Office within the appropriate time for discovery. We then, on behalf of the defendant, requested that the police department conduct a separate and supposedly an independent investigation of the police misconduct allegation of Mr. Jamal, and there were a number of interviews taken pursuant to that.
At no time were we told that Officer Bell ever heard any statement made, whatsoever. And obviously, if, in fact, the Commonwealth intends to use a statement by any witness, they must bring them at the time of the motion to suppress, all statements, identifications, and things of that sort.
At the time of the motion to suppress there was no indication, whatsoever, that Officer Bell was going to testify that he heard an admission. And, of course, Officer
Bell testified at the time of trial, over my objection, that, in fact, he was there with Security Officer Durham and heard the statement, "Yes, I shot the mother-fucker, and I hope he dies."
Assuming arguendo that the statement was made, that statement was not given to the scrutiny of a pretrial hearing and, for that reason, it should have been inadmissible. It was admitted into evidence, over my objection, and I suggest to the Court that it was erroneous and constitutionally invalid, Your Honor.
THE COURT: Mr. McGill.
MR. MC GILL: First of all, Your Honor, the statement of Inspector Giordano that Mr. Jackson remembers, as part of his argument, Inspector Giordano was not used at trial, so that statement was not admitted into evidence at trial. Even if there were some error in the motion to suppress ruling, it was indeed harmless because the statement was simply not used.
In reference to the statement of Officer
Gary Be11 also, first of all, I would correct one thing: Although the original statement of Officer Bell did not go into the facts at the hospital, his original statement was solely dealing with the possible connection of the defendant or his brother with other situations. So that had nothing to do directly with the facts of the case.
At the request of the defendant, there was an investigation by the Internal Affairs Bureau of the Police Department, which investigation was independent of the District Attorney's Office investigation which later also occurred. The results of both investigations clearly stated that there was absolutely no misconduct on many grounds, nonetheless yielded many statements, an additional 100 statements that were taken again at the request, basically, initially of defense counsel.
These 100 statements, at my request were given to the defense. The defense had asked several times for the investigation results, and I had offered all of those statements. Even though the statements did
not have to be given over until the investigation was completed, under the rules of the executive order which permitted the Internal Affairs investigation, it was still my belief, and our office's belief that those statements should be made available. We did not object that they be made available to the defense.
Judge Ribner then received all of the material and directed that it be zeroxed and given to the defense. Those statements included Gary Bell's statement which had the statement, the volunteered statement of the defendant, that was introduced at trial. So that at least one month before the trial started, he was in possession of that particular statement.
In reference to the motion to suppress, Your Honor will recall the testimony of Priscilla Durham. The statement that we were talking about, which is the statement, quote, "I shot the M.F.'er, and I hope he dies." That was testified to, as part of the motion to suppress, by Priscilla Durham. That specific volunteered statement was the statement of
issue at the motion to suppress and the statement that was introduced at trial.
There was no subsequent time period in which Mr. Jamal had stated that, other than a few seconds or minutes later as he was being taken away into another area awaiting treatment. He had said it twice. But the first time that he had stated that, present were Priscilla Durham and Gary Bell, among other officers.
Priscilla Durham testified to that and it was litigated at a motion to suppress. Gary Bell was there.
MR. JACKSON: That is not fact. Gary Bell did not testify at the motion to suppress.
MR. MC GILL: I did not say that. That statement itself was litigated through the witness Priscilla Durham.
Much like any kind of statement which is taken by the police -- let's say it was a specific statement taken by the police, there may very well be two or three detectives present at the time that hear the statement. However, each and every individual who hears the
statement given at one time would not have to testify at a motion to suppress, because you are talking about the same statement. So you have one detective to testify to that, if that meets the burden.
The statement involving Gary Bell and Priscilla Durham was the exact same statement as he was taken in and then placed at the area where the doors were. So that, in fact, that statement was litigated. It just so happens that besides Priscilla Durham, Gary Bell was also there.
The final grounds for its admission, Your Honor, would be the volunteered nature of it, as can be seen by the evidence at trial. The evidence, in fact, did show it to be a volunteered statement and, as such, it would be harmless inasmuch as it was actually testified to by Priscilla Durham herself at the trial. So the fact that another individual was present besides Priscilla Durham really, merely makes it harmless since she, in fact, was litigated and it was the exact same statement.
The primary reason is that when you
have more than one person, the issue at the motion to suppress is whether or not you satisfy your burden to show by a preponderance of the evidence that it was a volunteered statement in that particular case. And the fact that you have two, three, four, or ten people there that heard that exact same statement at that exact same time, you do not put all ten on, nor are you precluded from putting all ten on at trial.
MR. JACKSON: Your Honor, in brief rebuttal, there are two things with regard to counsel's harmless error argument with respect to Inspector Giordano's purported admission:
The fact that he did not use it at trial does not correct the error and does not make it a harmless error. If, in fact, it was erroneous not to suppress the statement, then whether counsel as a trial strategy or not uses it at the trial does not cure the error, and I don't think the error is harmless.
With regard to Priscilla Durham, Your Honor, the same standing, the same issue. The issue is different with regard to the
statement when we have a Police Officer Bell and a Security Officer Durham. Assuming for a moment, your Honor, that in fact there were a lot of officers there, counsel didn't bring any other Philadelphia police officer to testify as to the legality of the statement.
We have only Priscilla Durham, a security officer. Whether in fact she may have been operating under the control and direction of the police department is another question. But the issue is, whether a Philadelphia police officer, who is constitutionally required to, gave warnings to a defendant. I can go to a defendant and ask him questions. The defendant tells me. There is nothing wrong with it, and I don't think any argument is required to that.
Priscilla Durham is a civilian. She is a security guard. She is not constitutionally required to give warnings to a defendant. So for counsel to say that Priscilla Durham comes in and says it, so it is all right for Gary Bell. He is in a different position; he is a police officer.
THE COURT: I thought he said that that was a voluntary statement.
MR. JACKSON: Your Honor, that is his argument, that that was a voluntary statement.
THE COURT: If it is a voluntary statement, even if the policeman is there, so what?
MR. JACKSON: I am saying, if you bring a police officer in to say, "Yes, I heard that statement," we have to scrutinize it at a pre-trial hearing to determine whether or not it was a legal statement.
THE COURT: That would be true even with Priscilla Durham.
MR. JACKSON: Your Honor, I don't argue that it wouldn't be true with Priscilla Durham. I am saying that we did not have the benefit of determining how the statement was heard.
Counsel argues that it was the same time that Priscilla Durham heard it. That may be. But I am saying that by virtue of his being a police officer, he is required to take the stand at a pretrial hearing to determine whether or not that statement was legally obtained, and
counsel did not submit him.
My motion to suppress went to statements by anybody to anyone at any time relevant to this case. That is what my motions went to, sir.
Your Honor, the next question goes to the Court's denial of our submission of a voir dire questionnaire. I have samples of the questionnaire. I believe I submitted them to both counsel for the prosecution as well as to Your Honor prior to the trial.
At that time Mr. Jamal had been granted the right to represent himself and, indeed, Mr. Jamal was representing himself. Your Honor ruled that the questionnaire could not be submitted. But, in fact, we had some discussions back in the jury deliberating room prior to the selection of the jury. At that time there were a number of questions that are on the questionnaire that we felt were pertinent and necessary in order to disclose the potential bias, prejudice, and other attitudes of the prospective jurors. Your Honor denied that.
I understand and acknowledge that in
fact there is no constitutional or statutory requirement that says that a jury is to be given a questionnaire. There is no constitutional or statutory requirement that the specific questions offered by the defense be asked.
What I am suggesting though, is that the Constitution requires that Mr. Jamal be given a fair trial by impartial jurors. The only way in which we can begin to determine whether or not those jurors are impartial is to ask questions that are probative of that issue.
I submit to the Court that each and every one of those questions as offered by then defense were, in fact, directed at disclosing those biases, prejudices, and adverse attitudes of those prospective jurors, and the Court's denial of that questionnaire violated Mr. Jamal's rights.
I have argued that to some extent as well in the pretrial memorandum and suggested to the Court that by the Court's failure to submit the questionnaire, as well as, in the alternative, the Court's refusal to allow
certain questions denied Mr. Jamal the right to disclose the potential bias and prejudice of the veniremen.
THE COURT: Mr. McGill.
MR. MC GILL: Your Honor, I believe, very briefly, in the voir dire questioning, Your Honor gave considerable time actually to the defendant, Mr. Jackson, and myself, in fact, in going over each and every question.
Your Honor limited certain questions. Your Honor at any time can limit or extend the voir dire during the course of the proceeding itself, in the interest of justice, in the interest of expediting the matter, and in the interest of making sure that there is an orderly fashion and a reasonably prompt progression of the trial. I think Your Honor has that discretion and there was no abuse.
I think the primary issues that certainly were presented at trial were explored extensively. As I count them, there were ten volumes of notes of testimony alone, which constituted the voir dire and over 150 venire persons were questioned extensively by Mr.
Jackson, very extensively, on three, four, five pages, maybe even six pages, at times, per venire person.
MR. JACKSON: I would like to now direct the Court's attention to Mr. Jamal's right to defend himself.
Your Honor, we start off with the United States Supreme Court decision in Faretta v. California. In that case, Your Honor, the issue of self-representation, to some extent, was put to rest. That says, essentially, "if a defendant can satisfy the Court that he is knowingly and intelligently waiving his right to counsel, then he can, in fact, represent himself."
This has been before Judge Ribner as well as before Your Honor, and both of you satisfied yourselves that indeed Mr. Jamal was making a knowing and intelligent waiver of his right to counsel and that, indeed, he could represent himself.
The Court went on as well, in the Faretta decision, indicating that if in fact a defendant is given the right to represent
himself, he is the lawyer; he is not co-counsel.
The Faretta decision goes on to say, Your Honor, that counsel cannot be forced on a defendant, that he has a right to decline representation. There was dictum in the Faretta decision that suggested that under certain circumstances back-up or amici counsel can be appointed.
This decision was then taken up in the decision of Michael Dougherty versus the United States. In the Dougherty decision, if I can direct Your Honor's attention, is a decision that pretty much outlines where we are.
Just to direct Your Honor to the factual scenario, before the voir dire process was begun, Your Honor questioned Mr. Jamal and apparently satisfied yourself that again, he was qualified to represent himself, or at least that he was making a knowing and intelligent decision. He sat in the back, along with counsel, and we had a discussion. There was no disruption, no disturbance.
We began the voir dire. Your Honor decided that the process of voir dire would be
conducted, that counsel for the prosecution would conduct the questions for the state and Mr. Jamal would conduct the questions for himself. The jury was advised that, in fact, Mr. Jamal would conduct his own voir dire, that Mr. Jamal would question the witnesses, and that Mr. Jamal would give the opening statement and the closing argument.
At some point during the voir dire questioning, one witness indicated that she was unsettled by being questioned by Mr. Jamal. As Your Honor well knows, the purpose of voir dire is to disclose any bias, prejudice, or adverse attitudes of the prospective witness or the venireman.
The fact that a witness was unsettled is no indication that Mr. Jamal was doing anything that was inappropriate. There is no indication that if Your Honor was doing, the questioning that the witness wouldn't be unsettled, or if Mr. McGill or I conducted the voir dire, that it wouldn't unsettle the witness.
But, indeed, Your Honor, that was the reason that Your Honor decided that at that
point Mr. Jama1 should no longer represent himself, because he was unsettling the witness.
But, indeed, that is not even the question. Whether Mr. Jamal should continue as counsel or not, as the United States Supreme Court said in the Dougherty decision, it is whether or not he is being deliberately disruptive, not whether he is unsettling a witness.
At that time, and I know for a fact there was no allegation by the Commonwealth or by Your Honor that Mr. Jamal was in any way being disruptive, certainly not doing anything deliberately wrong.
If, in fact, Your Honor felt that his questions were wrong or inappropriate, the Court, I believe, in this instance had an obligation to say, "The line of questioning is inappropriate. The questions are wrong. You have to do something to correct it or, in the alternative, I am going to terminate your right to self-representation," because, later on, in Your Honor's view, Mr. Jamal becomes disruptive is not reason to say, in the first place, that the Court was right to deny him the right to
Going on to the Dougherty decision, and for purposes of counsel, the Dougherty decision is cited at 154 U.S. App. D.C. 76 473 F2d 1113. So that Your Honor will understand the factual background, this was a case in Washington D.C., the so-called Washington, D.C. Nine, where there were several defendants.
There were nine defendants originally, and some of them, before it went to trial, had some non-trial disposition of their case. There were six defendants brought to trial. Three of the defendants wanted to defend themselves, and three of them wanted to use their own counsel. Judge Pratt, who was the Trial Judge, was concerned that those defendants who were representing themselves might cause some adverse inferences on those persons who were being represented by counsel. There was a lot of discussion.
Eventually, all of the defendants decided that they would represent themselves. Then the Judge indicated and the state indicated similar arguments of Mr. McGill. There were indications that the defendants had committed
some deliberate acts against the Dow Chemical Company, that they had broken in and done a lot of vile acts.
For that reason, they felt that the issues were complex and that the defendants were potentially disruptive and violent and for that reason, Judge Pratt ought not to let them represent themselves. Judge Pratt said, "Yes, you are right. If they are violent, we are going to have a problem."
I have indicated to you earlier, Your Honor, that the Supreme Court said that you can't decide after the fact of disruption that they would have, in fact, been disruptive. My argument to you earlier, the Supreme Court adopted, saying that if, in fact, their right to self-representation was granted in the first place, there may not have been any disruption.
There were disruptions in that trial. The disruptions were all associated with their right to self-representation. The Court said that if, in fact, they were given the right to self-representation in the first place, there would be no reason for them to later disrupt
the trial, because they were representing themselves.
The disruptions, if any, that Your Honor considered Mr. Jamal committed were because his right to self-representation was denied. He, of course, requested, required, and demanded that I not be his counsel. He had previously requested that John Africa represent him. But throughout, any and all of those disruptions were associated with his right to self-representation.
If, in fact, the Court had properly ruled that he could represent himself, these disruptions may never have occurred, Your Honor.
The Supreme Court reversed and remanded the trial of Dougherty and the others, saying that, in fact, their right to self-representation was denied; that the Court could not bootstrap its argument saying that there was potential harm, potential violence, and that is why they could not represent themselves.
With regard to back-up counsel, the Court, in Dougherty also addressed that issue. The Court said that there may be two reasons
for appointing back-up counsel. One of the reasons for appointing back-up counsel would be that the Court may wish to inquire of a witness or if the defendant because he was not articulate or because he just decided not to question a witness, the Court may use its back-up counsel, meaning back-up counsel to the Court in an amici role. I don't think that my appointment was that appointment.
The other appointment was the appointment for back-up counsel to the defendant, where the defendant requested specific assistance from the lawyer. If there was some wording, some ruling or interpretation that the defendant needed or wanted, he could use that back-up counsel to provide that information.
The Court pointed out that it was important that the defendant be the lawyer and not an extension of back-up counsel, that it is the defendant's defense and not simply a defense that must be presented to the jury. By virtue of the defendant being denied the right to represent his own case, he then had a defense presented but not his own defense.
The Court specifically pointed out, Your Honor, in this case when the defendant stood before the jury, that he should stand there alone if he is representing himself. There was no need for back-up counsel to sit at counsel table even, because his role was only as an assistant. It was only as a back up for the defendant to call upon, when and if he saw fit. If, in fact, the defendant felt no need to call upon back-up counsel, then there was no role to play for back-up counsel.
The Court pointed out as well that if, in fact, the suggestion of disruption occurred as the state suggested, then back-up counsel could then be called upon to serve as a lawyer but only when that disruption occurred, not before. In this situation, as I have pointed out to Your Honor, he was denied the right to represent himself, not through any deliberate disruption.
The Court and I believe that those are words of art, "deliberate disruption." If, in fact we say that he was inarticulate, that is not deliberate and, of course, there was no
allegation that he was inarticulate. If we say that he was asking inappropriate questions, that is not deliberate disruption. If we say that he was taking too long to question the witnesses, that is not deliberate disruption.
One can begin to characterize deliberate disruption as very many things. But I think if one does not take a reasonable approach as to what is deliberate disruption, then I think that it would then be an obligation of the Court to say, "If you question a witness for five or six pages, I would consider that to be deliberate disruption."
Of course, that was not done in this case, because I don't think that Mr. Jamal was causing any deliberate disruption. What Mr. Jamal was doing, was exercising his right to disclose the bias, prejudice, and adverse attitudes of the veniremen that appeared before this Court. And until that witness said, "I am unsettled," the issue of Mr. Jamal's right to represent himself was not at all at issue.
His denial of self-representation, unfortunately, created another issue, and that
is that the jury was told that he would represent himself. We conducted the voir dire in a certain manner, that is, they would be questioned by the respective counsel, Mr. McGill and Mr. Jamal.
Because Your Honor was concerned that Mr. Jamal was not doing it the way in which Your Honor felt was appropriate, Mr. Jamal was stopped. Mr. Jamal was then still his own lawyer. Your Honor then said, "Mr. Jackson, you conduct the voir dire, because either you do it or I am going to do it." What that does, Your Honor, is change the method of jury selection within one trial.
The Court has already addressed that issue, and again, it is also cited in my memorandum. That is New York v. Mancuso, et al, cited at 26 AD2d 292. The Court said in that case, "A change in the method of jury selection prejudiced the defendant because the jury would reasonably believe that the defendant has been deprived of the right to participate in the voir dire because of some misconduct."
I think that that is the only reasonable assumption that a juror would make, that there was some misconduct on the part of the defendant. And, again, there was no allegation by the Commonwealth, no allegation by Your Honor or holding by Your Honor, that he was being deliberately disruptive or that there had been any misconduct, only that a witness said, "I feel unsettled; the questions are unsettling to me."
In the Mancuso case, the Court said that the defendant was denied his right because the method of jury selection was changed in a manner that adversely reflected on the defendant. For that reason, Your Honor, as well, we argued that his right to self-representation was denied and it had its impact upon the jury when they had to view Mr. Jamal not being the lawyer later on.
Your Honor, if I could direct you again back to Dougherty versus United States, just to flush out some more of the points that were made earlier with respect to the defendant's right to self-representation, particularly dealing with the possibility of disobedience
or disruption as a basis for denying his pro se defense.
The Court said, and I quote specifically, at page -- unfortunately, the pages have not been xeroxed. I don't know if counsel has a copy of it, but under the section of possible disruption as a basis for denying a pro se defense, the Court said that he may claim, with some merit, that his pro se rights include his right to appear before the jury in the status of one defending himself. That this is defeated if too conspicuous a role is played by an attorney, unless it clearly appears to the jury that he does not have the status of defense counsel.
What the Court was talking about in that instance, Your Honor, was the role of back-up counsel. What does the jury reasonably infer my role to be, defense counsel or something else? If, in fact, the jury believes that my role is indeed defense counsel, then that is defeating Mr. Jamal's right to self-representation, because he has the right to stand as one to defend himself.
The fact that I was required to participate along with him defeated the right that the Court bestowed upon him. And, again, the case was remanded for a new trial, just on that issue alone, the right of self- representation.
I have read earlier, Your Honor, with regard to the Court's denial of trial assistants sitting at counsel table, that the Court said, if the possibility that reasonable cooperation may be withheld -- because there was some discussion as to whether or not the defendants in the Dougherty case, whether or not they were going to cooperate with the Court and defense counsel -- and the right later waived; meaning the defendants would do something to waive their right to self-representation, is not a reason for denying the right of self-representation.
I think that is what we have here, where the Court, I believe, in violation of the due process clause denied him that right before there was any reason to do so. Your Honor, again, it goes along with my role as back-up counsel, in the Adams versus U.S. case.
It was also corroborated and confirmed in the ex rel McCann case, dealing with the right of a defendant to dispense with his lawyer's help.
That case says, essentially, that that decision rests with the defendant alone and could not be usurped by the Court. It says also that an accused has a fundamental right to confront his accusers and his country to present himself and his position to the jury, not merely as a witness or as a mouthpiece, but as a man on trial who elects to plead his own case. Mr. Jamal was denied that right to plead his own case.
With regard to the arguments I made earlier with regard to the representations made to the jurors as to Mr. Jamal's role, the Court, again in Dougherty said, and I am reading: "Presentation of closing statements by the defendants was originally promised and then taken away because of their disruptions. But the vast bulk of the incidents cited in the government's brief as such disruptions, 81 out of 89 were essentially colloquies in which the defendants were asserting their pro se rights."
Out of all of those disruptions, and they counted 89 disruptions, 81 of the 89 disruptions went back to the fact that the Judge had originally denied them the right to represent themselves in the first place, similar to the situation of Mr. Jamal.
"That one cannot fairly reason backward from the conduct of a defendant at a trial, where he was denied the right to represent himself, to what his conduct would have been if at the outset the Trial Judge recognized that right and at the same time clarified the responsibilities of representation."
Your Honor, with regard to the clarification of representation, to the extent that this unsettled venireman created a problem, according to this decision, there would have been a need of the Court to inform Mr. Jamal as to what, if anything, was particularly and specifically wrong with his inquiries. That was not done.
It was simply a decision made summarily and, I submit, arbitrarily and capriciously that, "You will not continue," and it was taken
away from him. The Supreme Court said that you cannot do that, Your Honor, and it was done in this case. For that reason, Mr. Jamal, in and of itself, ought to be granted a new trial.
On that issue, I rest.
MR. MC GILL: Your Honor, I would like to handle that issue on two phases, one being the voir dire portion of the trial, and then also the trial portion of the trial.
First of all, Your Honor had made it very clear to the defendant as well as Mr. Jackson, and it is all on record, in the colloquy, that although he would be permitted to represent himself, that he would be removed if the Court felt, based on the facts, that disorderly behavior and disruptive actions took place, at which point he would not be allowed to come back and represent himself again. This was made very clear in the colloquy to Mr. Jamal, who did recite, "yes," to the words that he, understood that that was the situation.
From that time, from the motion to suppress, which he was permitted to litigate throughout and argue, as our office, myself,
the Commonwealth certainly urged also Mr. Jackson to be able to argue at any time during that motion to suppress, which point he actually argued extensively at the end of the motion to suppress. So that throughout, he was able to represent himself.
During the course of many of the rulings, there were many responses made by Mr. Jamal that could very well be viewed as bordering on contemptuous acts. The Court, however, permitted everything to continue. Starting with the jury selection, again he was permitted to ask questions of jurors. He also had asked for John Africa and made a very big point of it to the Court and continually, even during that time before he stopped asking questions of the venire persons, made extensive argument.
The Court continually told him that you had ruled and again and again indicating, which he later would say, "The rulings were not to my satisfaction." No matter how often you said that you had ruled, he would go on and on. Still, the Court permitted that to continue.
During the course of the voir dire, at one stage, after seeing several different venire persons obviously in some discomfort, some anxiety, and some fear, I then went over to side bar and asked Your Honor -- Mr. Jamal was not asked to be removed at that time nor was he removed. I asked that, according to the Rules of Criminal Procedure, if the Court would take over the voir dire.
You did, initially, take over the voir dire questions at that point, because Your Honor had noticed, number one, that the voir dire questioning was dragging on, that it was unduly long. And it was clear to you from your own observations of many of the venire persons, who were to make a judgement in this case, not only discomfort and anxiety but a great deal of concern.
In the interest of justice, you did not at that time remove Mr. Jamal. However, you did take over the voir dire and you stated that any questions he wanted to have asked, he could submit them to you or his attorney could, submit them to you and you would ask them. You then said,
"Rather than have me do it, Mr. Jackson may ask the questions," because Your Honor was concerned about the progression of the voir dire.
In attempting to get a fair jury in a very highly controversial case, it was important for the Court to exercise very keen judgment and discretion in determining that the jurors picked would be fair to both sides.
Your Honor, under the authority of the Rules of Criminal Procedure, did not remove Mr. Jamal, but simply at that point took over the voir dire and eventually had Mr. Jackson take over the voir dire, since that would appear to be even more appropriate and helpful, you felt, for the defense that you stayed out of it. I asked questions and Mr. Jackson asked questions.
I will also state to the Court that originally, at side bar when it was requested that you take over the voir dire, that meant the Commonwealth wasn't able to ask questions of the venire persons either.
So for at least a few venire persons, you asked the questions and neither the Commonwealth nor the defendant had an opportunity to ask questions. This is
done in many trials.
In a number of trials where there are two attorneys, where the Court believes it is either going too slowly or too many irrelevant questions are being asked, the Court takes over the voir dire. This has been done, and it has nothing to do with removal of counsel, nor does it have anything to do with an individual representing himself. It has to do with the ways in which, in the interest of justice, to get a fair juror in a reasonable amount of time.
Your Honor then permitted Mr. Jackson to ask questions in all of the areas that were covered, in the general areas that were covered in the back room. So there indeed was no prejudice, whatsoever, to counsel or to Mr. Jamal.
The next segment comes to the removal of the defendant. Keeping in mind, of course that the colloquy stated initially to him, that he was well aware throughout that he could be removed for disruptive and disorderly behavior. Your Honor can pick almost any page in the
record, at various portions, to see the conduct and actions of the defendant, even before he was removed as counsel.
There were multiple examples of direct contemptuous actions to the Court before he was removed, such as Mr. Jamal actually stating to the Court, "You want a conviction. You want me executed like Mr. McGill does. You are not giving me a fair trial." I can only imagine if counsel in any other courtroom would have said that, or a defendant in any other courtroom would have said that to another Judge, what would have happened to him. Your Honor permitted it.
I think that there has to be a real distinction made between a question of removal of counsel because of a specific example or a series of examples of disruptive behavior and the actions of a Court who showed an unbelievable, an incredible amount of patience throughout the motion to suppress and the voir dire and the side-bar conferences of the conduct and actions, which is of record, and I don't want to burden the record now with reciting it. It is
throughout the record, before he was removed. The fact that he was not removed sooner is one more example of the Court's patience in hearing such accusations from a defendant that would anger the most patient of any Judge.
Finally, Your Honor, in receiving various questions and comments and accusations of the Court's conduct made by this defendant, statements which, if not directly, by clear inference indicated that he was not going to abide by your laws, that he was not going to abide by your rulings because he didn't agree with them. After all of that, you at least on five occasions, told him, "Are you being disruptive? Do you realize what will happen to you?
It just didn't sink in, which made me seriously wonder whether the whole thing from the beginning was a design to gain some sort of sympathy because he wasn't being granted his desire to represent himself. Granted the difficult facts which he had to overcome from the evidence, which he was well aware of for many, many months, one would wonder whether
that was not a neat trick in terms of an intended example of getting removed in order to gain sympathy that he would certainly make clear to the jury in one way or another, which he did throughout.
Your Honor, at that final point, after a series of disruptive actions, and, I would say to this Court, downright contemptuous behavior, the Court removed counsel. It is clearly within the propriety of the law, within the ambit of the Court's decisions, many of them could be cited and the Court is well aware of them, at any rate, where a defendant, whether it is even viewed that he may in the future but where he has clearly made it, as a matter of record, before this Court, that he is not about to follow laws because he doesn't know rules, because he doesn't agree with it, he is not about to do anything that he doesn't feel is right for him.
Unfortunately, for a state of mind like that, that is not the context in which this Court, any court, and certainly not the Supreme Court viewed as the conduct which is appropriate
in a proceeding where justice is to be considered and meted out. So, on the reference of that, after Your Honor's final warning to this defendant, he was removed.
If Your Honor desires, I would gladly give the record as presented, on its own, to the Supreme Court where they can so readily see a patient Judge being constantly berated by someone who refused to follow the rules and who only demonstrated almost physically, later on, as to his unwillingness to follow rules.
From the very beginning, he wouldn't even stand, as he doesn't do today. One would think that a minor point but, if anything, it is symbolic of this man's view of the system. But, unfortunately for him, the system is the one who is making the decision in this particular case, as in all cases, as to whether, and as to what extent a man's rights have been violated or not.
So, Your Honor, I would suggest to this Court and offer the record as examples of disruptive behavior that justifiably produced the ejection of the defendant.
It is also interesting to note that even after the removal of the defendant, although Your Honor was not required to do this, you constantly permitted the defendant to come back to the courtroom. Even after a physical resistance of two sheriffs by this defendant, who is no weak individual but rather strong, you still permitted him to come back. You asked him if he would behave himself, and he continually violated the Court's orders: He wouldn't sit down, and he wanted to address the jury when he wasn't supposed to after having been removed. Judge, I just don't want to go through them all. You are well aware of them and the record is replete.
I would only say, Your Honor, that in my experience, which is over ten years in this criminal justice system, there is no Judge in City Hall that I could even remember or know of certainly today that would have allowed the activity that you did for as long as you did before ejecting an individual who may very well have wanted to be ejected from the beginning. But even if he didn't, he certainly deserved it
based on his behavior, the actions on the voir dire, consistent with the Rules of Criminal Procedure, the actions before trial, and the removal of Mr. Jamal, brought on by his own conduct.
MR. JACKSON: Your Honor, I am sure that Mr. McGill and I can argue the facts as to when it took place. I think it is very clear as to when Mr. Jamal's right to self-representation was denied.
And even if we don't argue when he was declared or removed as the lawyer, we could say, well, at the time that Mr. Jamal was denied the right to continue to conduct the voir dire and the option was given that I conduct the voir dire, that flies in the face of the Dougherty decision. That says, if he is representing himself, then he is going to do it. If I am conducting the voir dire, then it certainly appears as if I am defense counsel.
The Supreme Court said, in that decision, that means I am representing him. So it seems to me by words, deeds, and actions at that time that certainly, clearly to me, Mr. Jamal was
not his own lawyer. If he was not conducting the voir dire, then, clearly, according to the Dougherty decision, he was not his own lawyer.
But, I think, with regard to when he was later declared by you not to be representing himself, again it was not as a result of any disruptions. The disruptions that Mr. McGill talked about were long since the time that he was denied the right to represent himself.
I would only point out to you, as well, and I implore Your Honor, and invite you to read the Dougherty decision. In that case, Justice Bazelon pointed out that Judge Pratt had a very difficult decision to make, and that their decision was not an indictment of the Judge or what the Judge had to do during the trial. It was a very exciting time. It was a time when the Judge apparently was looking out for the interest of the defendants and felt that it was not in their best interest to allow them to represent themselves.
Mr. McGill has indicated that Your Honor has exercised patience and other virtues of that sort. That is not the point, as the
Court pointed out. And Judge Pratt exercised a lot of patience, a lot of tolerance, and virtues of that sort. They nevertheless overruled the Judge and said, "We know that you tried to do good, but you did wrong." I am suggesting to the Court that that is the instance that we have here in this case.
Your Honor, I am going to now direct my attention with regard to a challenge for cause to John Fitzpatrick and Edward G. Courchain. I am not going to take up the Court's time with regard to John Fitzpatrick, because his challenge for cause was during the time that we still had peremptory challenges on the jury.
Edward G. Courchain was an alternate who ultimately became one jury member. At the time that Mr. Courchain was selected we had no peremptory challenges left to excuse him from the jury. Without getting into the specifics, and I certainly can from the notes of testimony, during the initial questioning of Mr. Courchain, he was asked whether or not he had some bias or whether or not he could be fair and he, essentially, said, "No."
After that, Mr. McGill questioned him: "If the Judge were to tell you that you are to do this, that and the other, could you do it?" He eventually said, "Yes. I could do it."
We are suggesting to the Court that when Mr. Courchain gave us that, and he said it several times on cross-examination and on direct examination, he didn't think that he could be fair, and after being told that he would be ordered to be fair, he then said, "I feel that I can be fair;" I am suggesting to the Court that he should not have been allowed to sit as a juror.
It has been pointed out, Your Honor, in many studies and I don't mean studies conducted by Mr. Jamal and Mr. Jackson, but studies conducted by the American Bar Association, as well, and it is pointed out in several advisory committee reports that I have cited in the memorandum, which says essentially that a juror's good faith efforts to lay aside those beliefs cannot be determinative.
After you tell a juror that it is your duty and I am ordering you to be fair, even
though you think that you can't be fair, we don't know whether or not the juror can then follow the Court's order, whether or not the juror can, in fact, put away their personal feelings. And I am saying that with regard specifically to Edward G. Courchain that the Court was in error in not allowing our challenge for cause.
MR. MC GILL: Your Honor, in reference to Edward G. Courchain, that was one of the last group of jurors we spoke to.
That particular juror started out by saying that he had some opinion in reference to guilt, as I recall, but that it was based upon the newspaper articles. As the juror was continually questioned, it developed through questions by Mr. Jackson, myself, and finally by the Court to make sure, and he stated that even though he had an opinion based upon the newspapers, that he could set that aside and give the defendant as well as the Commonwealth a fair trial.
He was specifically asked whether or not anything that he read at all would in any way lend him to convict this defendant, or in
words of such a nature, and, he said, "No," and he explained why. After it was explained to him both by the Court and also questions by myself, he said, "Well, I just knew that something had been done. Something had been done, but I don't know who did it. I don't know who did it. Right at this point, it would have to be proven to me."
It is clear that based on the record, he did not have a fixed opinion of guilt but, rather, was able to be fair and impartial, as stated on the record, and I just refer you to the record for that which would be clear.
The same with Mr. Fitzpatrick; he was an earlier individual who was questioned and he himself made it very clear that he could be fair and impartial. So I just refer the Court to the record and I will not argue longer on that point, that despite opinions that he may have had or whatever, he did not have a fixed opinion of guilt and could give both sides a fair trial.
MR. JACKSON: I invite Your Honor to read the record as well, so that we don't have
to get into splitting hairs about what the testimony is.
Your Honor, I would like to next direct your attention to what I consider to be --
THE COURT: Just one question: When was Mr. Fitzpatrick on the jury?
MR. MC GILL: I should have made that known. He was not on the jury.
MR. JACKSON: I used a peremptory for him.
THE COURT: Was he on the opening?
MR. MC GILL: No, he was not. He exercised a peremptory challenge.
THE COURT: You exercised all of your peremptory challenges.
MR. JACKSON: On the main jury, I didn't use them up.
THE COURT: You only used 18.
MR. JACKSON: I didn't use them up. That is why I didn't argue. For Mr. Courchain, I didn't have a peremptory left for Mr. Courchain. And to the extent that I think the State Supreme Court is wrong on the issue, with regard to whether or not you use up your peremptory
challenges, that is the only reason I stated to preserve it as an issue, Your Honor.
I would like to direct the Court's attention with regard to the examination of Veronica Jones. If the Court recalls, Veronica Jones was an associate of Cynthia White. She was a street-walker, a prostitute.
We had a statement given to us during the time, and all the other statements that were given to us by the District Attorney, that said, among other things, that Veronica Jones was in a position to observe some of the activities that took place at the scene of the shooting.
She said, among other things, that she saw some people run from the scene and she gave some descriptions, the specifics of which aren't important at this point. Nevertheless, I never talked to her and she got on the stand and began to contradict those things that were in the statement. I claimed surprise, as the law requires. I don't think there was vary much argument by the Commonwealth, and indeed Your Honor declared her a surprise witness which allowed me to cross-examine her.
Cross-examination provided me with a situation or a story where she contradicted her position. She contradicted what she saw on the scene and things of that sort. Your Honor told me that I could cross-examine her with regard to what she was saying on the stand as opposed to what was in the statement.
What I suggested to the Court at that time, as well as what I am suggesting to the Court now, and I think page 139 of the notes of testimony on June 29th goes to what she was saying -- that once I claim she is declared a surprise witness, and once I am permitted to cross-examine her, I should also be allowed to cross-examine why she changed her story.
Your Honor refused me the right to go into her bias or her motive for changing her story. To some extent, she gave us an indication of why she changed her story, or surely that would be our argument, where she says on the record that a officer said, "If you back up Cynthia, we will allow you to work just like her." I think she used another name, "If you back up Cynthia, we will allow you to
work the street just like Lucky is working the street." But we do know, from what she said, that the police were allowing her to work the street.
Now, Veronica Jones said that. I know counsel for the Commonwealth objected but, nevertheless, the words were spoken. But Your Honor said that I couldn't get into that, that I couldn't cross-examine her on her motivation. It seems to me that that is the very essence of her testimony.
If you have a witness who says one thing to the police and then they come in and say something else, I can find out, "Yes, I said day was night yesterday, and I am saying night is day today." I should be allowed to find out why she changed her testimony.
Your Honor said that I could not do that but, I think, more importantly, Your Honor, it is not only permissive but required. If I am suggesting there is a prior inconsistent statement, I am not only permitted but required to show there was indeed a prior inconsistent statement.
I requested that the police officers who took the statement be placed on the stand so that I
could establish that in fact she gave the statement. Your Honor ruled that I could not bring those police officers in.
THE COURT: Yes, because the law is that those prior statements are not substantive evidence. The only thing you can use them for is to show that the witness is not to be believed. That is the only purpose for which you can use them. But you can't bring a detective in to say that she gave us the statement, as if they were true.
MR. JACKSON: I understand that. We understand the Waller case--
THE COURT: She admitted that she signed the statement. She didn't deny that.
MR. JACKSON: Your Honor, that is the point. She said that she signed her name one time. We had perhaps six sheets of paper, where I asked her significantly, "Is that your signature?" "Yes." "Is that your signature?" "Yes. " But she said, "I only signed the one time."
THE COURT: She could have made a mistake. She thought she signed it once but she signed it
MR. JACKSON: Your Honor, I am saying that those police officers would not be placed on the stand to provide substantive evidence of that statement being true but to prove, in fact, that there was another statement.
I have not had the opportunity to show that there was, in fact, another statement. As far as the jury was concerned, I was holding up a blank piece of paper. I have to be allowed to show that there was a prior inconsistent statement through the police officers, because she said that she didn't say it. So where is the prior inconsistent statement, if I can't show it through the police officers?
Your Honor denied me the right to bring in the police officers. I can't testify, Your Honor; all I can do is bring the police officers in and ask them if she said X, Y, or Z.
When Your Honor denied me the right to put the police officers on the stand to say she said X, Y, or Z, I have no prior inconsistent statement. I have only what she said on the statement.
THE COURT: The police officers can't testify as to what she said.
MR. JACKSON: As to the statement?
THE COURT: That's right.
MR. JACKSON: We do it all the time. He took a statement. "Did you take a statement of Veronica Jones?" And the reason that she is called as a witness, Your Honor --
THE COURT: To say that, but there was no dispute as to whether that was her statement. Sure, it was her statement. She is now refuting that.
MR. JACKSON: We know that, because you had to make a ruling on my motion of her being a surprise witness. But what I am saying, as far as the jury is concerned, there is no prior inconsistent statement that the jury knows about.
THE COURT: You asked her the question.
MR. JACKSON: I simply said, did you say so and so to the police.
THE COURT: That's right. So they knew that she had made a statement by your question.
MR. JACKSON: Your Honor, I could have been reading from something that I typed.
THE COURT: You could have been reading from anything, but they knew if I allowed it in this courtroom, that it was a statement she had previously made.
MR. JACKSON: Your Honor, I don't think we can presuppose that.
Your Honor, the point is, I don't believe that it is a matter of the Court's discretion. The law requires that if you are going to claim surprise and should there be a prior inconsistent statement, that you prove there is a prior inconsistent statement.
THE COURT: That is the reason for the surprise and that is why I allowed you to cross-examine her.
MR. JACKSON: But I didn't prove it.
THE COURT: You were trying to use that statement as substantive evidence. You can't do that.
It is true under the Waller decision, that was the decision for awhile. The Supreme Court has said no, you cannot use it. It is
not substantive evidence.
MR. JACKSON: Your Honor, I did not want to do that.
THE COURT: That was the whole point.
MR. JACKSON: No, sir.
THE COURT: Why would you do it?
MR. JACKSON: To show her reason for changing her story.
THE COURT: Because that prior statement was the truth?
MR. JACKSON: No, sir. It didn't matter what the truth was?
THE COURT: Sure, it does.
MR. JACKSON: Your Honor, the point is, I realize that I am not going to use the statement as substantive evidence. I called the witness because I can't use the statement, and then she says something else. At that point, I didn't care whether what she said on the stand is true or what she said in the statement is true, but only to bring out the fact that she was motivated to change her testimony.
THE COURT: You said it came out that the police officers said to her, "We are going
to let you work the street." The jury heard it.
MR. JACKSON: I have never had the opportunity to prove to the jury that, in fact, she made the statement.
THE COURT: Because the statement itself was not admissible as substantive evidence.
MR. JACKSON: It wasn't being offered as substantive. It was offered as a prior inconsistent statement, Your Honor. I could not offer it as a prior inconsistent statement, until I bring the police officers in.
THE COURT: No, that is not true.
MR. JACKSON: That is the law. The law, as I understand, requires you to prove a prior inconsistent statement by that person or persons who took the statement in the first place; otherwise, Your Honor, I could have written the statement myself and said, "Didn't you tell that to the police?" So the law requires me to bring in the police officers.
Your Honor differs with me on the law, but I suggest to the Court that that is in fact the law, that it requires me to bring in the police officers to determine whether, in fact,
she made the statement.
MR. MC GILL: Your Honor, very briefly, I think it should be remembered that that was not a Commonwealth witness. This was a defense witness that was called.
Now, the Court permitted surprise and cross-examination. The Court also, of course, permitted questioning which brought out a statement which was based on no statement at all about the police allowing Lucky or somebody like that to work the street.
We are obviously implying that there was some sort of bias or some sort of benefit in order to get testimony. This was brought out but nowhere in any record does any kind of statement like that exist. We have a situation really where counsel is placing a witness on the stand and, for whatever reason, this witness then comes out with things, many things which hurt the Commonwealth's position. Obviously testifying that there was some motive for one of our witnesses, who was one of our primary witnesses, really hurt the Commonwealth's position, if believed.
Defense counsel was permitted cross-examination as well as I was permitted cross-examination. The degree of cross-examination is within the discretion of the Court. It is clear from the record and my recollection of the testimony that the cross-examination of his own witnesses by Mr. Jackson, as well as his own statements, and my cross-examination essentially showed the lack of credibility in that individual.
Now, whether or not one would be able to use some prior statements, to one extent he did by saying, "Didn't you sign something?" "No, I just signed one time or something," he was in the position of offering a witness who hurt the Commonwealth and wanted to cross-examine the witness by getting some sort of testimony in that, in its own right, again wouldn't even marginally assist the defendant if it were permitted in because again, she didn't really see anything of significance that occurred.
But no matter what that was, Your Honor has the ability to limit cross-examination.
Certainly through both direct and cross, as well as my own cross of that witness, showed her lack of credibility, I would suggest.
I would suggest to the Court that it is within Your Honor's discretion in limiting examination by counsel of his own witness on cross-examination. I think the end result did occur; she was shown to be incredible.
If this is what he wanted, it was done. Whether he wanted to compound it by trying to present evidence, which may have been in the guise of impeachable testimony, which could actually be viewed as substantive, rather than have that confusion occur, Your Honor allowed the cross-examination to rest on what it was that rendered her incredible.
MR. JACKSON: Your Honor, I now direct your attention to what I consider to be the error of the Court in allowing Mr. McGill to cross-examine the character witnesses presented by the defense.
There are several grounds, Your Honor.
The first, and without extensive argument, would be the fact that he exceeded the scope of direct examination with regard to the character witnesses. I think that that in and of itself would be enough. But, Your Honor, specifically, and I have them listed in the memorandum, starting with Sonia Sanchez:
Sonia Sanchez testified as any character witness would when you ask them the questions that you ask on direct examination. After that, Mr. McGill began to ask a litany of questions and I am suggesting to the Court that they were improper.
Mr. McGill attacked, in fact, the character of the witness herself. He questioned her about her writings, about her sympathies toward other persons. He questioned her about subject matters which were perhaps similar to those subject matters that were within this trial. So, clearly, it was beyond the scope of direct examination.
But, beyond that, as the Court, in United States versus Jubert, said, "Since the questions called not for evidence of the defendant's reputation but for the witness'
opinion, it could not have elicited proper character evidence, and the Court was right to exclude it." The Court, in this case, excluded the evidence of the witness' opinion.
What are character witnesses offered for? We know that in the law that is a misnomer; character witnesses are reputation witnesses. Character witnesses come in to attest to the reputation of a defendant. They are not permitted to give their opinion of the defendant, because that is not the question. It is what is his reputation.
So that when Mr. McGill asked whether or not this witness wrote the foreword in someone else's book dealing with Joanne Chesimard, when this witness is asked whether or not she has written sympathetic treatises on other persons in this country, that has nothing to do with Mr. Jamal.
Whether the character witness in her opinion feels that Mr. Jamal is a good person, a bad person or whatever, is not at all relevant or permissive. The question for that character witness and for all character witnesses is what
is the reputation that you know of from the people that you know who know him, simply and solely.
Again, your Honor knows that in the State of Pennsylvania, if the Commonwealth wishes to attack the reputation of a defendant, the Commonwealth can present contra reputation witnesses, because it is only the reputation of the defendant and not the opinion of the witness.
Counsel was permitted to ask Sonia Sanchez almost anything that he wanted to. They certainly elicited, at best, her opinion. They were not relevant to the defendant's reputation. That is what was presented. He asked about specific writings, specific individuals.
He asked about Joanne Chesimard. He asked about three or four other specific people. He named those specific acts, those specific persons, of the character witness, Sonia Sanchez, who we knew were not at all relevant to this
In the State Supreme Court, the United States Supreme Court, in dealing with the issue of character witnesses, it says consistently, unequivocally, it is the reputation of the defendant that is at issue, not the reputation of the witness, nor the character of the witness that is at issue. And you are not ever, ever to question about specific acts.
I can only refer you to the record of the character witnesses to show you the length and breadth of the questions permitted by Mr. McGill, and I am suggesting to the Court that that was improper.
So that I can complete all of the character witnesses, we also had a character witness, Allen Lawson, a Del Jones, and John Skief. Essentially, Your Honor, these witnesses, again, testified as most typically character witnesses would do, and I would like to run through the questions to frame the questions:
"Do you know Mr. Jamal?
"How long have you known him?"
"How was it that you come to know him?"
"Do you know people who know him?"
"Among those people that you know that know him, what is his reputation?"
We got various answers, "excellent, fine, good," whatever.
Mr. McGill's cross-examination:
"What is your definition of law-abiding?"
That requires an opinion of that witness. If that witness, as an example, says, "I think a law-abiding citizen is one who shoots all short people," that may be that witness' opinion. That is the witness' definition, but that has nothing to do with the reputation that he is testifying about.
Your Honor, just to close with regard to character witnesses, I would only point out, and again, the memorandum cites a number of cases, but I would just like to extract a few phrases from some of those cases:
In Michaelson versus United State, 335 U.S. 469, "The character reputation and proclivities of a character witness are not at issue, but rather the reputation of the defendant."
There is another case that also confirms
that case: United States versus Bright, 588 F2d 504; it is a 5th Circuit opinion in 1979.
I have selected these character witnesses only, and there are five character witnesses. I am suggesting to the Court that even if the questions were asked of one witness, it would be error, not harmless error but, in fact, constitutional error and thus reversible error.
It is not just a statutory requirement that the prosecution is barred from inquiring as to specific acts, as to opinions, but, indeed, the United States Supreme Court has said that, as a matter of constitutional right, the Commonwealth or the state should not make those inquiries with regard to a defendant.
Once the Commonwealth opens that door itself, it cannot use that as a bootstrap argument and say that it is only exploring that which the witness has then responded. Because it is the Commonwealth in each and every instance that I have presented to the Court, with regard to these character witnesses, the Commonwealth exceeded the scope of direct
examination and then went on to explore specific acts and opinions of the witness. That is the specific scope of examination that the Courts have consistently ruled against and said that that, in fact, was not at all permissible.
With that, I conclude with the character witnesses, Your Honor.
MR. MC GILL: Your Honor, in reference to the character witness' testimony, I will start from the back part, where you have an individual who testifies to the character of another. You specifically are asking the question: What is his reputation for being peaceful and law-abiding?
Just assuming that that was the only question asked, and then the individual says, good or great, or wonderful, whatever that is; that is fine. But if the individual goes on and says other things, it is going to open up various doors.
Certainly, if someone who is testifying in English and in response to a question, what is the reputation of this individual as to being a peaceful and law-abiding citizen, even
though the response of a hearsay response from other people in a community or people that the individual knows or hears about, a jury should certainly be apprised of that individual's knowledge of what she or he is responding to. The question was: What is his reputation for being peaceful and law-abiding?
Obviously, it is not improper for a jury to find out what this individual means as to "law-abiding," because he or she is responding to a question of what is his reputation for that. If anything, it goes to the competence of the character witness to testify as to what he or she heard.
For example, and I am using a ridiculous situation, but to try to prove the point: If he or she heard that Mr. Jamal happens to like standard poodles, and her response is, from, what is his reputation for being peaceful and law-abiding, and she says wonderful, great; it is terrific. Maybe to that individual law-abiding means that he likes animals, for that matter. We don't know.
But, certainly, it is not incorrect to
try to go into the knowledge and the competence of that witness to respond to the exact question that is asked. It is not asking her for specific incidents. It is asking her for her very competence in using her understanding of the word "law-abiding". We at least are allowed to go to that degree.
Your Honor, in reference to Allen Lawson, a character witness who was cross-examined about his criminal record, the only crimes that were used were crimen falsi crimes. Certainly, it is appropriate that he be examined on crimen falsi crimes because that goes to his credibility of his saying, "This is what I heard." So that would be appropriate under the law.
Lastly, in reference to Ms. Sanchez, MS. Sanchez said a great deal on her direct testimony as well as her redirect testimony, and Ms. Sanchez's individual character at no time was attacked. But Ms. Sanchez's potential bias, which is an appropriate cross-examination area, was approached.
For example, if an individual was asked
on cross-examination, in reference to her being a character witness: "Have you been a character witness for about 150 defendants in the last year? Don't you, as a matter of course, go into the prisons as a character witness?" That would be an appropriate question on cross-examination because it goes to bias. Bias is always a legitimate cross-examination tool.
Ms. Sanchez is obviously a dedicated individual who is very forceful and definite in her opinions and writes according to her own opinions about individuals. The fact that she, on cross-examination, was asked questions concerning her writings in reference to individuals who are charged, who were charged with crimes involving the shooting of police or just crimes generally, was offered, as said at side bar, for the sole purpose of bias.
As a matter of fact, with the examination on direct by Mr. Jackson, as well as the redirect examination by Mr. Jackson, such an opened door, which I provided through a bias, enabled Ms. Sanchez to go into, to some degree, about her writings, what she believes,
and how she believes that people are mistreated, and that she is against the brutality or any kind of abuse whatsoever.
So, if anything, in questioning her bias in writing a foreword to a book which was about an individual, an escaped murderess, who was convicted of killing a police officer, simply, if anything, it added to her position or her opportunity to say what she believed, obviously, with the implication that this man perhaps was in some way unjustly handled or treated, which was irrelevant to her initial testimony.
But, even assuming that it was not helpful to Mr. Jamal in what appeared to be his defense, at least bias is an appropriate area to go through and that was the limited area in which I did enter. When she opened up other areas on redirect, they were pursued to some degree. However, the bias was the primary area, about that foreword, that writing.
MR. JACKSON: your Honor, again, in rebuttal, I can only say that, again, the opinion of the witness of what law-abiding means is irrelevant. If, in fact, assuming arguendo
that you could ask for a definition of law-abiding, the witness should have been inquired: "What do those people that you know who know Mr. Jamal, what do they mean by law-abiding," because what the witness thinks is irrelevant.
Your Honor understands that we are not asking the witness what is your feelings, what is your attitude towards Mr. Jamal. So how can you then say, well, we still need to know what that witness' definition of law-abiding is. It doesn't mean anything. It doesn't mean anything at all, because that is not the inquiry.
Specifically, with regard to Sonia Sanchez, Your Honor, I want to read the direct examination of Sonia Sanchez completely.
THE COURT: I have already read that.
MR. JACKSON: Your Honor, it is just a half-page.
THE COURT: I have already read that.
MR. JACKSON: Fine. You understand then, Your Honor, the only things that I asked her were the standard questions: "Do you know people that know him? Among those people that you know
who know him, what is his reputation?" That was it, period. Closed.
It is Mr. McGill that opened the page. I asked her less than a full page of questioning on direct examination. Mr. McGill then asked her questions for another number of pages. I am not going to go into the specifics of it. So if anyone opened it up, it was certainly Mr. McGill, and I will leave that to rest, Your Honor.
The next issue, Your Honor, would be the prosecutorial misconduct, and I have elicited two issues with regard to prosecutorial misconduct. The first issue deals with an unfair comment on Mr. Jamal's right, number one, not to take the stand. And, of course, he has no burden whatsoever to present anything at trial.
During Mr. McGill's closing argument, and I direct you to page 171, his closing argument on July lst, Mr. McGill said, and I quote: "And although they have no burden to do anything of all that they had, all that was presented to them over that period of time,
you saw what the defense put on," close quotes.
Before making that comment, Mr. McGill began to talk about those same statements that he mentioned earlier. We had 100-odd statements from witnesses and then we got more statements from the Police Department's internal investigation and we had forensic studies. We had all kinds of reports, this, that, and the other.
Mr. McGill correctly pointed out to the jury that Mr. Jamal has no burden whatsoever of presenting any evidence. But what he then did, was to say, well, he has that right but I am going to comment on it. And he says, well, they got a lot of things, but all they presented was thus and such. I am suggesting to the Court that that is certainly unfair comment.
You can't say that he has a right not to do something and because he chooses not to exercise that right in the way that he sees fit, then there ought to be something wrong with it. What it suggests to the jury is that with all of those statements that were given to him, why didn't he put everything on?
Now, of course, I made that argument, in summation, that the Commonwealth didn't present all of its evidence, but I am permitted to do that. It is not the rights of the state that is being protected; it is the rights of the defendant. When Mr. McGill makes that comment, he then makes an unfair comment of Mr. Jamal's rights.
I don't think it is necessary for me to go on, because it is just that one instance where he makes that comment. I objected during the time of Mr. McGill's comments with regard to that. In fact, it appeared that he was about to say more, and I think that my objection was indeed timely at that time.
If you don't mind, I will go on with the other prosecutorial misconduct. The other issue had to deal with Priscilla Durham, in Mr. McGill's closing argument, again on page 173, July 1, 1982. Mr. McGill says: Priscilla Durham. "Present was also LeGrande as he comes in and makes that statement," close quotes.
The statement of James LeGrande was never offered into evidence, and Mr. LeGrande
never testified at this trial at all. He never testified in any trial as far as I know. But, certainly, for the Commonwealth to deliberately misstate what the evidence is, to deliberately mislead the jury as to what the facts are is certainly prosecutorial misconduct.
MR. MC GILL: Your Honor, in reference to that first comment, there are two comments on page 17 of the brief that Mr. Jackson alluded to. I think Your Honor has them.
THE COURT: Yes, I have them.
MR. MC GILL: In reference to the first comment, on page 171, I believe, with the Court's permission, I would like to read that paragraph, followed by another paragraph on the next page which will explain, I think, clearly what the Commonwealth's intent was in the summation. This is after a rather lengthy summation:
"Ladies and gentlemen, the reason he was arrested, the reason he is prosecuted, the reason why you sit there as a finder of fact in this is a culmination of the investigation of what you saw.
"And although they have no burden to do
anything, of all that they had, of all that was presented to them over that period of time, you saw what the defense put on, and they don't have any burden. That is true.
"But -- then there is an objection. Then I go on -- are they suggesting that there was a third man, a fourth man or is he doing this all for his brother? I ask you to look through all of this as well as any other strategy or tactics you have seen during the course of this whole particular trial and recognize it for what it is. You make the decision."
Now, from that, Your Honor, it is clear, the focus and sometimes a sentence taken out of context may possibly mislead in reading. The defense was a few things, as I recall it. The defense was one really of reasonable doubt on the Commonwealth's case, with the thought that, A, it was probable or reasonable to suggest that a third person or possibly even a fourth person with another had performed this act.
Also, there was a hint both in summation as well as some part of the evidence by inference by counsel that perhaps his brother may have
been in some way involved and he was being the hero in protecting his brother. This, one could possibly glean from the summation of Mr. Jackson as well as the defense evidence, and as well as the extensive cross-examination by Mr. Jackson.
It is clear from the record, even from Mr. Jamal's comments, that he was here to be found not guilty. There was no way that he would compromise for any other verdict. It was not guilty or nothing; all or nothing, clearly was his approach at trial as, of course, it may very well have been his approach during his life.
However, as one can see then, the importance for me as the prosecutor presenting the evidence and arguing to this jury was to attempt to undercut the defense, which not only was limited to the cross-examination extensively of Commonwealth witnesses but it was the introduction of defense witnesses, not the character witnesses, but the actual fact defense witnesses, a number of them for the purposes to indicate that there was this other
person. One witness referred to him as a Jamaican with a hair style similar to the defendant's.
It was clear where the defense was going. So the focus of these comments to the jury that I again said, you are the finder of fact, was to say that with the evidence that you have heard and, clearly, the defense that you have heard through the evidence and argument by Mr. Jackson, let us focus in on what they are really saying in the defense to see whether you will accept it.
You have heard all of the Commonwealth's evidence. You have heard all of that. And I even added it twice in the record to them, in literally taking away the Court's function just for that second. But that is the reason I said it twice in that paragraph to be sure that the jury knew that he had no burden whatsoever to do anything. So I repeated it in that same paragraph, that same seven or eight lines.
By saying it, the purpose was to show them, focus in on the defense, to see if it is credible and leaving it, of course, up to them
to make that decision. That is the meaning of those words, not taken out of context but in context with the paragraph before, the paragraph where it is included, and the last paragraph.
Certainly, not any comment on his burden, but rather a question posed to the jury to take a look at what the defense presented and what we presented and you decide, based on the credibility of what you see, who to believe. That was the meaning, I believe, the reasonable interpretation and certainly, the intent of my words.
In reference to the last argument, on page 173, Your Honor, it does state -- I am trying to find out where it is, Judge.
THE COURT: You said page 173.
MR, MC GILL: Yes, I was looking at page 174. I am getting tired, I guess.
Page 173, yes. At the beginning of page 173, I state that Priscilla Durham present -- no, no.
In talking about the evidence, the evidence is manifold, whether it be photographs. We have shown charts, statements made right after
the fact by individuals who have nothing to gain and not even involved with the police department.
Priscilla Durham. Present was also LeGrande as he comes in and makes that statement. Now, first of all, it is clear from that that I am talking about as he comes in and makes that statement, I am referring to the defendant. I don't think there is any contention that I am referring to anybody else.
MR. JACKSON: I am sorry; I didn't hear you.
MR. MC GILL: When I am saying, "Present was also LeGrande as he comes in and makes that statement," I am referring to the defendant as coming in and making that statement, not to anyone else. This is preceded by comments and also succeeded by comments referring to what the statement was. On page 174, the statement is clearly reiterated as to what the statement was. His point is that in mentioning another individual: "I state that Priscilla Durham was there. Present was also LeGrande."
Your Honor, in fact, I am not really
sure, and I would have to take a look at the notes of testimony, whether or not Priscilla Durham said that James LeGrande was present or in the general area. She may have said that in her testimony. It is true that Mr. LeGrande was available and I did attempt to get his testimony in, and Your Honor ruled against it. It does not state here that Mr. LeGrande heard anything. It says, "was present."
As a matter of fact, there were a number of people present, also; Gary Bell, who did hear things and other officers who did not hear things, depending on where they stood or what was occurring. So the fact that there is a statement that an individual was there present, that alone is quite harmless, even if it is not a matter of record.
Since I just got the brief today, I didn't have a chance to take a look at Priscilla Durham's testimony. It may well be in there that he was present or through some other witness anyway; however, assuming that it is not, I submit to the Court that it is harmless because it does not say that he said or heard anything.
It just said, "LeGrande present." That is a word coming out. They don't know what that is but they do know what Priscilla Durham, who did testify, said.
You do recall, Your Honor, that you had two witnesses testify to hearing that statement. If you take those two witnesses that heard the statement, and you take a simple one sentence where it only says that another individual was present, even if it was inaccurate, it is hardly the type of error that would in any way deprive an individual of a fair trial, because it doesn't say that he heard anything. If anything, it is innocuous. He was there. What does that mean?
No reasonable jury could really think that that meant anything else. And even if they did, they had two other witnesses that heard it anyway. So I would state to the Court that it was harmless, if inaccurate.
MR. JACKSON: Just briefly to rebut, Your Honor. The reason it is offered, LeGrande is offered, is to corroborate the testimony of Priscilla Durham.
If it is harmless, then why even do it
in the first place? It is obviously directed to support the statement of Priscilla Durham. Mr. McGill suggests that all he is saying is that he was present, because he is explaining to us now what he really meant when he said, he makes the statement.
But in reading and what I heard, and I certainly made an objection at the time the argument was made, and when I read it again, it still sounds like, when he says he makes the statement, it sounds like he is referring to LeGrande.
MR. MC GILL: Your Honor, if that is the case, it has no meaning at all. Because if I am, as a prosecutor, suggesting that some guy named LeGrande came in and made a statement, maybe the jury can say that he made the statement and Jamal didn't make the statement. So, if anything, that would help him out.
MR. JACKSON: Your Honor, I don't know how to respond to it because I didn't quite understand that.
Your Honor, in summary fashion, before I get to the death penalty, I would also offer
without argument that the verdict is contrary to the evidence, that the verdict is contrary to the weight of the evidence and the verdict is contrary to the law, as I have indicated before.
I would like to address now the death penalty itself, your Honor. This is the death penalty, of course, of September 13, 1978. I am suggesting, number one, that the death penalty is unconstitutional, in that it requires a standard less weighing of aggravated circumstances as against mitigating circumstances in that such weighing process, A, it is too vague to be constitutionally valid; B, the defendant has no burden of proof and, C, it forced upon the defendant the risk of non-persuasion.
What am I saying by all of that? The act itself suggests that the jury, once a conviction of murder one is imposed, the jury is then to deliberate, whether or not the Commonwealth has presented aggravating circumstances beyond a reasonable doubt, or whether it finds aggravating circumstances beyond a
reasonable doubt. Then it must also determine whether or not mitigating circumstances have been presented by a preponderance of the evidence.
Certainly, those of us who are trained in the law know very quickly and very easily what the difference between beyond a reasonable doubt and preponderance of the evidence, what that distinction is. I am suggesting to the Court that the jury was never given any indication of what preponderance of the evidence is.
THE COURT: Yes, it was.
MR. JACKSON: Your Honor, I understand that a definition was given. What I am saying is that no standard as distinguished to reasonable doubt -- let me back up, beyond a reasonable doubt. The standard was given for that, of course, when we had to determine guilt. Once we get to the sentencing phase, it is given again, reasonable doubt as well as preponderance of the evidence.
What I am saying is, the jury then doesn't know how to weigh preponderance of the
evidence against beyond a reasonable doubt.
THE COURT: They had already been instructed on what reasonable doubt is. And they have been instructed that that is the Commonwealth's burden in proving aggravating circumstances.
MR. JACKSON: Yes, sir.
THE COURT: They were also instructed as to preponderance of the evidence, what that meant.
MR. JACKSON: Yes, sir.
THE COURT: And they also had the mitigating evidence as you gentlemen argued it to them.
MR. JACKSON: Yes, sir.
THE COURT: There is nothing wrong with that.
MR. JACKSON: I think so, Your Honor.
THE COURT: If what your argument is, is that there is no way to determine, having weighed aggravating against mitigating, that is a different factor.
MR. JACKSON: That is what I am arguing.
THE COURT: But the definition was given.
In this case, they found that the aggravating factor was the killing of the policeman. The mitigating factor was that the defendant had no substantial history in his background. Now, they have to take those two and weight them to see whether or not killing a policeman outweighs the fact that someone has a good background.
MR. JACKSON: Yes, sir.
THE COURT: And that is what they did.
MR. JACKSON: Yes, sir. My point is how do they do that? You just tell them, "You weigh it." There has to be a standard.
THE COURT: It doesn't have to be a standard. They sat as a jury. They say to themselves, "We found him guilty of killing a policeman. We also know that he has a good background. We have to weigh that. Does his background outweigh the fact that he killed a policeman?"
MR JACKSON: In all due respects, there wasn't just one mitigating --
THE COURT: That is all it was.
MR. JACKSON: No, Your Honor.
THE COURT: I have a copy of it here.
MR. JACKSON: That is not the only one I argued, sir.
THE COURT: You might not have argued it. I am talking about what they found. This is what the jury found on their sentencing report. They found those two factors, one aggravating and one mitigating. And now they have to weigh them, all twelve of them have to weigh it.
I know that that is the argument that Justice Nix has about it. He doesn't think that it is a proper thing, and that is okay. It has been already upheld by the Supreme Court.
MR. JACKSON: By the State Supreme Court in that particular factual situation, I would agree.
Your Honor, to the extent that I disagree with the State Supreme Court on that issue and agree with Justice Nix, and I am sure that the issue will be eventually taken to the United States Supreme Court, because there was a similar Statute in Florida, I believe, that
is going to go to the United States Supreme Court. But, again, it is the very issue that I am arguing now that is presented in the memorandum, that Justice Nix has already agreed with and I think the -- excuse me one moment. No, it is the New Mexico statute. I said Florida. Forgive me. It is the New Mexico statute, which is very similar to that in Pennsylvania, with regard to what I called the standard less weighing process.
It is not a novel argument and Your Honor is well familiar with it. And I am suggesting to the Court that if, in fact, the jury is to find, and that is what they are asked: If you find an aggravating circumstance and a mitigating circumstance, you have to weigh it. They don't tell you how to weigh it.
THE COURT: Well, the thing is, they can even find one aggravating and two mitigating, and yet the jury can say, "This one aggravating is so severe, it outweighs the two mitigating circumstances."
MR. JACKSON: But, we don't tell them how to do that weighing process.
THE COURT: There is no way to tell them, there is no way in the world. I can't say to them, "If you find one aggravating and two mitigating, the two mitigating outweigh the aggravating."
MR. JACKSON: Well, Your Honor, if we can't tell them, then we ought not to let them make that decision. That is the point.
THE COURT: The Supreme Court has already ruled on that and I am bound by their decision.
MR. JACKSON: Your Honor, that completes my argument.
THE COURT: Do you have anything on that?
MR. MC GILL: No, Your Honor. I rest on the decisions of the Court.
THE COURT: Let me ask you one thing: Going back to your bill that you submitted, did you submit a petition to Judge Ribner for additional expenses for a pathologist?
MR. JACKSON: I did, yes, but I never used him. I think I asked for a pathologist and an investigator, but he never approved the
increase. I submitted it, but he never approved it.
THE COURT: What did he do with it; do you know?
MR. JACKSON: He said, "Give it to Judge Sabo." But at that point, it was too late.
I have the petitions back at the office. I asked him to increase the amount that he would allow me, so that I could go and do it. Then he said, "When you go to trial, ask Judge Sabo." I said, "It is too late then." He said, "Well, I don't know what to do." So, in effect, it just made the whole issue moot.
There were none other than that which I submitted, sir. I think the one that he did increase was for Mr. Fashnecht (sic). I think he increased Mr. Fashnecht's to maybe $600.00; I think, a total of maybe $600.00 -- no, $350.00, I think. I don't have the petition with me, Your Honor, but Mr. Fashnecht has given me a bill for $750.00. I think he allowed $350.00.
THE COURT: As I understood it, he told you to file a petition and he would rule on it.
MR. JACKSON: I filed it, for the increase.
And then he said to let the Trial Judge decide. Then he gave me the standard story, "We only allowed so much because we don't have any money, and there is nothing further that I can do."
I have a copy of the petition to increase. That is the petition, the additional, because there was only one. I filed a series of petitions for compensation for an investigator, the patho1ogist, ballistician, and investigator.
Then when I ran into the problem, I then filed a petition to increase. It may have been with some of them or all of them; I don't recall specifically, but that is the one where he says, "That is all that I can allow now, with the exception of Mr. Fashnecht."
THE COURT: He increased the ballistician?
MR. JACKSON: Yes, sir, that is the only one he did increase.
THE COURT: But you only asked for $350.00 for him, and you said he gave you $600.00.
MR. JACKSON: No, he only gave me $350.00. I made a mistake when I said $600.00, sir. It was $350.00, because at that time I thought that all I needed Mr. Fashnecht to do was to provide
some information, but he did something more, sir.
THE COURT: Your fee petition is a little confusing because you don't conclude in that one spot. You have Keystone --
MR. JACKSON: That is Fashnecht. Keystone is Fashnecht.
THE COURT: He is the ballistician?
MR. JACKSON: Yes, he is the ballistician.
THE COURT: A11 right, I had the benefit of your brief all day today, and since I was in Chambers I had an opportunity to go over it pretty thoroughly.
In my opinion, the rulings that I made at the time of this trial were correct at that time and I think they are still correct. The motions for a new trial and arrest of judgment are denied.
MR. JACKSON: Very well, sir.
MR. MC GILL: Your Honor, the Commonwealth moves for sentencing.
THE COURT: Gentlemen, I will give you the pre sentence reports that I have and the
psychiatric, but I don't think it is going to be any good because both of them indicate that the defendant wouldn't cooperate with them. So they don't really have anything in it.
MR. JACKSON: Yes, sir.
MR. MC GILL: I am not sure I understand.
THE COURT: The psychiatrist indicated that the defendant would not cooperate with him. If you want to see them, I can let you see them.
MR. MC GILL: No, whatever Your Honor says. Is that both the pre sentence investigation and --
THE COURT: The pre sentence said the same thing, so that they really don't have anything. I have them here, but they don't really say anything.
MR. MC GILL: Could Your Honor at least make them a matter of record, so it can be shown that they were at least attempted to be done, according to the rules.
THE COURT: Yes, but he would not cooperate with them.
MR. JACKSON: Very well. I have no objection to moving to sentencing, Your Honor.
THE COURT: Is there anything to be said about sentencing?
MR. JACKSON: I have no argument, Your Honor.
THE COURT: All right.
Mr. Wesley Cook --
MR. MC GILL: I would suggest to the Court -- excuse me.
First of all, I would certainly state that the Commonwealth's position in this case is that we would -- may I state our position at sentencing?
THE COURT: He hasn't said anything. Do you have anything to say to this?
MR. JACKSON: No, I have nothing.
THE COURT: Mr. McGill.
MR. MC GILL: What I would like to do, Your Honor, is to ask the Court if before sentencing, and perhaps the Court is going to do it anyway, would you ask the defendant if he has anything to say.
THE COURT: He said he has nothing. I
am assuming then that Mr. Jackson has spoken to the defendant, and he doesn't wish to say anything.
MR. JACKSON: I have not spoken to him, Your Honor.
THE COURT: Will you see if he has anything to say.
MR. JACKSON: Mr. Jamal, do you want to say anything?
There is no response, Your Honor.
THE COURT: I am assuming that if he didn't say anything to the pre sentence investigator or to the psychiatrist, more than likely he doesn't have anything to say to the Court either.
MR. MC GILL: Even if he does not stand or appear not to listen, would Your Honor apprise him of his right to say something at this time, that he has a right to say something to the Court at this time if he wishes.
THE COURT: I assume that counsel has, but I will say it once again.
Mr. Mumia Abu-Jamal, also known as Wesley Cook, before this Court enters sentence
in this matter, you have an absolute right to say whatever you want to say to the Court in this situation and, of course, the defense attorney has the right to argue also, on the sentencing, if he wishes.
MR. MC GILL: I will just state, for the record, Your Honor, that I am standing beside Mr. Jackson and I have no problem at all hearing what you are saying.
THE COURT: Do you have anything to say, Mr. Jackson, on the sentencing?
MR. JACKSON: I have nothing to say, Your Honor. I have made the argument with regard to the death penalty and my argument speaks for itself. That is contained in the brief. With regard to the sentencing on any other bills, I have no argument.
THE COURT: Mr. Mumia Abu-Jamal, do you have anything you wish to say to the Court before the Court passes sentence?
THE DEFENDANT: I think that this motion for arrest of judgment, motion for a new trial, the trial itself, and the motion
to suppress, has supported my argument from the first day that I appeared before you, that your intention from day one was execution. Your intention from day one was conviction. And this shyster to the left of me has proven, numerous times, his inability, his incapability of defending me.
I have demanded from day one the assistance of John Africa. You have denied him. I have told you that I have no faith and no trust in this man. I think, if anything, he has proven that. You have defended him. Mr. McGill has defended him. It is very clear that you have faith in him, because he is working for you. He is the same as the D.A.; he is not working and has not worked for me.
For instance, I have had several days of this trial. I have not seen the motions, motions of testimony, the notes of testimony. I have not seen that motion he just filed before you, that motion for arrest of judgment, and motion for --
THE COURT: That was a brief, he submitted.
THE DEFENDANT: That brief, whatever it is, I have not seen it.
It is clear that Mr. Jackson is working for you, for the Commonwealth, for the City of Philadelphia. He has never worked for me. You have defended him because he has done your will, not mine.
This trial, from the very beginning, is a farce and a sham. I told you what the outcome would be. I told the jury what the outcome would be.
THE COURT: Is that it? All right.
Mr. Wesley Cook, also known as Mumia Abu-Jamal, the sentence of the Court is that you, under Bill #1358, January Term of 1982, in accordance with the jury's verdict of guilty of murder in the first degree and the jury's further deliberation as to punishment, that the sentence of death be imposed upon you.
And that being a mandatory sentence provided by law, it is hereby ordered that you will hence be taken by the Sheriff of Philadelphia County to the State Correctional Institution at Graterford and thereafter in
due course to the State Correctional Institution at Rockview, or any other state correctional institution or place designated by law, and that you shall suffer death during that week affixed by the Governor of the Commonwealth of Pennsylvania, in the building erected for that purpose on land owned by the Commonwealth, and that the time, place, and circumstances of your execution, in accordance with the law, shall be in accordance with the Governor's warrant as prescribed by law.
That such punishment be inflicted by either the warden or deputy warden at the State Correctional Institution at Rockview, or any other state correctional institution prescribed or designated by law, and that the execution be by such person as the warden of said institution shall designate, by causing to pass through your body a current of electricity of intensity sufficient to cause death and the application of such current of electricity to be of such intensity and volume and of such continuity that you are to expire or until you are dead. May God in His Infinite Wisdom have mercy on your soul.
THE DEFENDANT: Long live John Africa.
I am going to tell you one thing: You have sentenced yourself, just like Judge Malmed, just like Malcolm, just like Merna Marshall, and every Judge who dares to sit up there and act like you got some justice. You are wrong. You have just been sentenced to death. You have just been convicted.
THE COURT: Under Bill #1357, January Term, 1982, you have been found guilty of possession of an instrument of crime generally.
The Court sentences you to the State Correctional Institution at Graterford for a period of no less than two and a half and no more than five years, to run consecutive to Bill #1358.
In addition, the Court assesses a fine in the sum of $10.00 for the Victims Compensation Fund.
The Court wishes to advise you that your death sentence will automatically be appealed to the Pennsylvania Supreme Court. In due course, you will be notified of the procedure to follow in order to have the
sentence under Bill #1357, possession of an instrument of crime generally, transferred to the Supreme Court.
In the event that you do not receive such a notice, the Court wishes to advise you that you have 30 days within which to appeal to the Superior Court on Bill #1357, January Term of 1982, dealing with the conviction of possession of an instrument of crime generally.
Is there anything else, gentlemen?
The Court wishes to advise you that you have Court-appointed counsel and, apparently, Court-appointed counsel will be --
THE DEFENDANT: I do not have Court-appointed counsel. I have a Court-appointed baboon.
THE COURT: -- necessary for your appeal.
THE DEFENDANT: Your Honor, I have a Court-appointed shyster.
MR. MC GILL: You mentioned 30 days for appeal to the Supreme Court too.
THE COURT: No, that is automatic on the death sentence.
MR. MC GILL: All right, sir.
THE COURT: I am just concerned about #1357, the possession of an instrument of Crime generally. But there is a procedure in which counsel will receive notification. Once this matter hits the Supreme Court, the Prothonotary of the Supreme Court will send you a notice as to how that matter will be turned over to the Supreme Court, so that they can both be decided on at the same time.
MR. JACKSON: Your Honor, to the extent that the Supreme Court has dealt with the issue of my continued representation, it was my understanding that my representation would be terminated at this stage, since this was considered part of the trial stage and if, in fact, Mr. Jamal wished another lawyer or wished to proceed himself, he would do that at the termination or at the conclusion of the post-trial motions.
THE COURT: You have to file your petition before the Supreme Court.
MR. JACKSON: It is just that I have never been appointed to represent him during
the appeal, only at the trial stage.
THE COURT: If you look at your appointment sheet, you will see that you are appointed all the way up to the Supreme Court.
MR. JACKSON: Very well, sir.
THE DEFENDANT: He can do as good as he has done, nothing. Long live John Africa. On the move. Fuck you, Judge. Fuck you.
- - -
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.
The foregoing record of the proceedings upon the trial of the above cause is hereby approved and directed to be filed.