IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COMMONWEALTH

VS.

MUMIA ABU-JAMAL

aka

WESLEY COOK

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January Sessions, 1981
NOS. 1357 Poss Instru of Crime Gen
Poss Instru of Crime Weap
1358 Murder
Voluntary Manslaughter
1359 Involuntary Manslaughter

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Courtroom 253, City Hall
Philadelphia, Pa.

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June 24, 1982

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Before: HONORABLE ALBERT F. SABO, J. and Jury

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APPEARANCES:
  • JOSEPH McGILL, ESQUIRE
    Assistant District Attorney for the Commonwealth
  • ANTHONY E. JACKSON, ESQUIRE
    Counsel for the Defendant



INDEX

COMMONWEALTH'S EVIDENCE DR CR RDR RCR
Police Officer Roy L. Land 9 15
Priscilla Durham 27 35 105 125
Police Officer Gary Bell 133 139 169
Detective Robert Sobolusky 176 180 193

EXHIBITS

C-45 through
C-51
Photographs Page 9
C-52 Sketch Page 9
C-53 Statement to Internal Affairs Page 113
C-54 Bag Containing Clothes Page 177
C-55 Property receipt Page 177
C-56 Holster Page 178

Page 2.

(A conference was held in chambers on
the record as follows:)

MR. McGILL: I am putting on the record, again, that the Judge has permitted Theresa Africa to speak with --

MR. JACKSON: Janet Africa.

MR. McGILL: I'm sorry. It's Janet this morning.

THE COURT: That's Janet, the other one wasn't here.

MR. McGILL: -- to speak to Mr. Jamal, and she has been doing it for about ten, fifteen minutes. I believe there was a time when you and Miss Africa and Mr. Jamal were talking together.

MR. JACKSON: Just briefly, only to tell me that they didn't want me to sit there, that's all.

MR. McGILL: I mentioned this to Mr. Jackson before. I'd ask, again -- I realize this is not his personal fault but the defendant's -- I'd request once again pursuant to the rules of discovery any statements or any

Page 3.

names of witnesses that he would call. He indicated to me that as far as he knew the only, witness that he would call, if he decides to call them, would he the witnesses he has told me about, meaning Jessie Hightower, Robert Pickford and the two doctors, Doctor Cudemo and Doctor Anthony Coletta.

MR. JACKSON: Could I interrupt? With the possibility, depending upon who you call I may call, there be witnesses that you've already gotten statements from, some of your witnesses.

MR. McGILL: My witnesses?

MR. JACKSON: Yes.

MR. McGILL: Any statements that I have given you --

MR. JACKSON: Yes.

MR. McGILL: Apparently, you do not have any other statements.

MR. JACKSON: Oh, no.

MR. McGILL: But at least you would give me an indication before the defense who it might be so that I would know.

MR. JACKSON: Sure.

Page 4.

MR. McGILL: I've also made a request and I believe I made a request, yes, before Judge Ribner for this, the names of all possible character witnesses. This was done at the same time as the request for the criminal records. Any witnesses that he may call I made a request of Mr. Jackson of the names of all potential character witnesses so that I could make a check on their records and, at least, know also who they are, if he intends to call any. There is an indication that he may call some. I've received no names of character witnesses; therefore, I can only assume that the character witnesses that he did use at the hearing, the bail hearing, would be the only character witnesses that he could put on, because they're the only ones that I've been notified of. I would petition to exclude, Your Honor - so everyone's on notice -- to exclude the testimony of anyone who I'm not informed of at this point -- because I think that I may rest my case tomorrow -- and at this point I've received no word except what Mr. Jackson has done

Page 5.

pursuant to the rules of discovery.

MR. JACKSON: Your Honor, may it please the Court, with respect to any fact witnesses I have no disagreement with the Commonwealth. Regarding character witnesses, aside from the difficulties that I'm having with Mr. Jamal, and Mr. Jamal has indicated to me, at least previously, that he intended to present character witnesses, I can appreciate the concern that Mr. McGill has for determining what police record they may have but I don't think it would be appropriate to exclude character witnesses simply because he hasn't gotten the names in advance. Character witnesses, as you might suspect, are presented to some extent depending upon their availability. Mr. Jamal has previously indicated, to me at least, that he has several witnesses who were character witnesses who were coming from Europe. Whether in fact that occurs I don't know, but even those persons who may be in the Philadelphia community, I think to just exclude them without knowing when and if they're going to come -- I'm sorry, to

Page 6.

exclude them because there is no prior notification I think would work to a severe disadvantage to him. Mr. McGill could simply, when and, if they're going to be presented, he can call and get a record check on them. I don't think that presents any kind of overwhelming problem.

THE COURT: I don't know how long it would take to get a record check but I see nothing wrong with giving him the names in advance even if you don't call them.

MR. JACKSON: Judge, let me assure you and Mr. McGill, I have no names at this point. I have absolutely no names.

MR. McGILL: This is what the discovery rules are meant to avoid.

THE COURT: All that we can hope is that Mr. Jackson will talk to Mr. Jamal and try to get them from him and tell him that if he doesn't give them to us that they may very well not be permitted to testify. That's all I can do. I can't force him to give them to Mr. Jackson.

MR. McGILL: Of course.

Page 7.

THE COURT: Let's be practical. I can't force him to do anything. I can't force him to sit in the chair.

MR. McGILL: I will point out that he's been very adamant before the trial started in getting the criminal records of my witnesses and I did give them to him. So I've abided by the court rule.

THE COURT: All right.

MR. McGILL: I am ready to go if you are. Off the record.

(A discussion was held off the record.)

(A short recess was taken.)

(A conference was held in chambers off the record as follows:)

MR. JACKSON: Your Honor, may I advise the Court that after Mr. Jamal has conferred with Janet Africa for, I guess, now about fifteen minutes or so he's indicated to me that it's his intention to be silent in the courtroom and not to be disruptive and he would generally behave himself pursuant to the Court's request.

THE COURT: Okay. One other thing.

Page 8.

You're not using D-10. You took it back?

MR. JACKSON: D-13 I think was the book.

THE COURT: Yes. D-13 is the book.

MR. JACKSON: Yes.

THE COURT: And D-10 is the mug shot of Cynthia White. You took that back?

MR. JACKSON: Yes, I did.

THE COURT: Just so we have our records straight.

MR. JACKSON: I'm not going to be able to use them so I just took them back.

THE COURT: All right.

(conference in chambers ended.)

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(Court convened at 10:25 a.m. The following took place
in open court in the presence of the jury:)

THE COURT: Good morning.

MR. McGILL: May I proceed with my next witness?

THE COURT: Yes.

MR. McGILL: Commonwealth's next

Page 9.

Land - Direct

witness recalling Roy Land, Officer Roy Land.

COMMONWEALTH'S EVIDENCE CONTINUED

POLICEMAN ROY L. LAND, (Badge Number 9394), recalled.

MR. McGILL: May I proceed, Your Honor?

THE COURT: Yes.

DIRECT EXAMINATION

BY MR. McGILL

Q. Officer Land, pursuant to your duties as part of the Mobile Crime Detection Unit, did you have occasion to go to the Jefferson Hospital?

A. Yes, sir, I did.

Q. And did you have occasion to make a sketch?

A. Yes, sir.

Q. And did you also have occasion to have some photographs taken?

A. Yes, sir, I did.

Q. I'll ask that these photographs be marked C-45 in this order, 6, 7 and 8, 9, 10, C-50 and C-51 and also the sketch to be marked C-52.

Page 10.

Land - Direct

All right. Now officer Land, I'll ask you, if you would, with the Court's permission, you could come down with the sketch, as well as the photograph, to this chart or at least this stand here to put up the sketch, please.

All right. Officer, can you identify C-52, the sketch?

A. Yes, sir. That's a copy of a rough sketch that I did.

Q. And what is it made of? I mean, what does it represent?

A. It is the Receiving Ward of the ward of Jefferson Hospital.

THE COURT: Why don't you move that sketch where you're standing, maybe that will be better. Turn it around so the jury can see. Can you see over there?

MR. JACKSON: Yes, sir.

THE WITNESS: It's the Receiving Ward inside Jefferson Hospital, the Accident Ward.

BY MR. McGILL:

Q. Speak loudly, if you would. Where is the hospital located?

Page 11.

Land - Direct

A. Tenth and Walnut.

Q. Would you indicate what that represents, the sketch, as far as the Receiving Ward is concerned?

A. Yes, sir. At Tenth and Walnut, Jefferson Hospital they have a small driveway which is between Sansom and Walnut that circles around the hospital. This being the main entrance leading into the Emergency Room. This is showing you the Receiving desk where people go to sign in, names and what have you.

To follow in an easterly direction, there's another set of double doors. You can see back into the emergency area where the doctors, nurses, what have you, where they work and everything else. This is just a desk, chairs, waiting lounge and the large floor area.

Q. All right. What time did you make that sketch?

A. That sketch was made on February 4 of 1982 at 6:40 p.m.

Q. All right. And did you also take photographs of the area?

A. Yes, sir, I did.

Q. They have been marked C-45 through C-51. Will you take a look at those and see if you can identify each, first of all, as photographs that were taken by yourself.

Page 12.

Land - Direct

A. Yes, sir, they are.

Q. Would you start with C-45 and show on the sketch what the photograph represents.

A. Yes, sir. This is a view inside the Receiving ward, it's a view looking towards the southwest corner of the Accident Ward. This is looking in this direction showing the entrance doors leading in.

C-46 is a view looking towards the -- I'm sorry. The first one, C-45 is a view looking towards the southeast corner.

C-47 is a view looking towards the southwest corner, in this direction, then showing the same doors leading.

This is a view showing the emergency doors leading into the Accident Ward from outside.

C-48 is a view looking towards the northeast corner inside the Emergency Room which is showing the emergency doors or the doors leading back into the operating room, or whatever that may be.

C-49 is a view looking north inside the Emergency Room taken approximately from the front door looking at the back wall.

C-50 is looking towards the northwest corner

Page 13.

Land - Direct

inside the room showing the part of the area of the receiving area and showing the hallway and doors leading to the rear of the receiving desk.

C-51 is basically showing the same general area but now it's showing more of the receiving desk, the area where people have to go to give their names and everything.

Q. What are the measurements of the area as represented by the sketch?

A. The measurements were taken from the wall to the nearest object being the door opening leading in is four foot eight, which is a door that springs open, continuing around from the door over to the adjoining wall would be four foot. Each measurement is broken up to where a section ends and begins, first as a corner wall continuing to a window and then stopping and measuring the window, the length of the window. That's why everything is broken down as such. This being three inches, this being, supposed to be two foot, another six inches, three foot being the doorway, ten inches being the doorway to the wall, continuing all the way around, two foot eight part of the receiving area and the nine foot in front of the receiving desk.

Page 14.

Land - Direct

Q. Say from the side part of the wall area where you have the lines indicating the boundaries on that sketch going north and south what is the distance from the lower portion of the area here, if you're able to tell, up until here, which is the northern part of the line?

A. (No response.)

Q. If you can tell.

A. I'm adding up the individual numbers. Approximately twenty-nine feet from the south wall to the north wall.

Q. Now, did you have occasion to take photographs or measurements of any of the areas beyond that area which is represented on the sketch?

A. No, sir, I did not.

Q. But as far as any kind of emergency area or treatment rooms and so forth back on this side you did not get involved in that at all, correct?

A. Correct.

Q. And you made that sketch, sir, as well as the photograph, at my request; is that correct?

A. Yes, sir.

MR. McGILL: Cross-examine.

Page 15.

Land - Direct

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Officer Land, from that diagram, if you're standing in that lobby area is there another automatic door other than the door leading from the street?

A. Yes, sir.

Q. Where would it be?

A. That is the door on the far northeast corner that leads back into wherever. I did not go back there.

Q. Okay. Now, by an automatic door, that's one of those doors where you step on the treadle and the door opens up?

A. Either that or it had an electric eye which extended over the top of the door. One of them had that and the other one was a step-on, but I'm not sure which one.

Q. Was there another one other than the one -- there are two automatic doors all together?

A. Yes, sir.

Q. The one leading from the street to the lobby and then one leading into the treatment rooms?

A. Yes, sir.

Q. And the treatment rooms would be in which

Page 16.

Land - Direct

direction?

A. It would be north after you go through the second set of automatic doors.

Q. So then you'd go through the automatic doors and make a left-hand turn to go to the treatment rooms?

A. To the best of my knowledge, yes, sir.

MR. JACKSON: Fine, sir. I have no further questions.

MR. McGILL: Thank you, officer. Do you have any questions, Your Honor?

THE COURT: No.

MR. McGILL: Thank you.

THE DEFENDANT: I have same questions.

THE COURT: You are excused.

THE DEFENDANT: Mr. Land, when were those photographs taken?

MR. McGILL: Your Honor, may we go to sidebar?

THE DEFENDANT: Commonwealth Exhibits 46 to 52, when were they taken? You can answer the question.

THE COURT: No, you can't.

THE DEFENDANT: If you know.

Page 17.

THE COURT: Just remain standing there.

THE DEFENDANT: Is it true that the photographs were taken February of this year?

MR. McGILL: Can we just go to sidebar?

(A sidebar conference was held on the record as follows:)

MR. McGILL: Can we get everybody out of the room?

THE COURT: You are excused, Officer Land.

THE DEFENDANT: Why can't he answer my questions, Judge?

(The following took place in open court out of the presence of the jury:)

(Sidebar conference was held on the record as follows:)

MR. JACKSON: If they're leaving there's no reason to have a sidebar.

THE COURT: All right.

(Sidebar conference ended.)

THE DEFENDANT: Why can't he answer the question, Judge?

Page 18.

THE COURT: He's answered whatever questions your attorney wanted to ask him.

THE DEFENDANT: But he didn't ask the questions I wanted asked.

THE COURT: He's already answered that question that he went there in February of this year.

THE DEFENDANT: What are they supposed to reflect if the incident was in December of 1981?

THE COURT: He said that he took them February of this year. If you were sitting there paying attention you would have heard that.

THE DEFENDANT: What were they supposed to reflect if this incident happened in December?

THE COURT: I know that. They reflect what it looked like in February of 1982.

THE DEFENDANT: Why can't you let him answer the question, Judge?

THE COURT: He's already answered that, quite obviously. Now will you sit down and be quiet and let's proceed.

Page 19.

THE DEFENDANT: Judge, I was asking the question in the spirit of proceeding. Obviously I'm not obstructing anything.

THE COURT: Yes, you are.

THE DEFENDANT: Again, I am not.

THE COURT: Yes, you are.

THE DEFENDANT: I would like to protest the continued presence of Mr. Jackson as my defense. He is not my counsel. My counsel is John Africa.

THE COURT: I know that.

THE DEFENDANT: You know that? Then why won't you allow him to assist me at defense table?

THE COURT: Because I made that ruling over and over and over again. No sense in going into it again.

THE DEFENDANT: It is sense in going into it again when it was not done to my satisfaction.

THE COURT: Mr. Jamal, are you interrupting the court proceedings intentionally?

THE DEFENDANT: Pardon me, Judge?

Page 20.

THE COURT: Is there a motive in what you're doing?

THE DEFENDANT: Yes. My motive is freedom.

THE COURT: I see.

THE DEFENDANT: Is there any motive in your actions in denying my right to represent myself?

THE COURT: You're disrupting the decorum. That's why you can't represent yourself. There's no finality.

THE DEFENDANT: The finality, Judge, is --

THE COURT: We could be standing here arguing all day long for weeks on weeks, and I'm never going to convince you of anything.

THE DEFENDANT: Yes, you can.

THE COURT: No, I can't.

THE DEFENDANT: If you can convince me that he can get me acquitted I'll have no problem with that. I can convince you that John Africa can.

THE COURT: I can't look into the future.

Page 21.

THE DEFENDANT: I'm not talking about magic.

THE COURT: In the future, I can't answer that question.

THE DEFENDANT: I'm not asking you to look into the future. I'm asking you to deal with the present issue which is before you; John Africa as my counsel, as my defense in assisting.

THE COURT: We've already ruled on that and the Supreme Court has ruled on it. So can we proceed?

THE DEFENDANT: Sure, we can, Judge. Can I ask questions of these witnesses?

THE COURT: No.

THE DEFENDANT: Can I make a closing argument?

THE COURT: No, not at this time.

THE DEFENDANT: I didn't mean at this time Judge. At the time when closing argument is prepared can I make a closing argument when it's proper?

THE COURT: I cannot rule on that

Page 22.

question at this time.

THE DEFENDANT: Okay. Can I question the prosecution witnesses of my own choice at at time which I choose?

THE COURT: No. Your attorney will do all that.

THE DEFENDANT: That's not my attorney you keep pointing to. He is here at your insistence. I've ask that he be withdrawn; he's asked that he be withdrawn. He's your attorney, Judge, not mine. He functions for you and not for me.

THE COURT: He's doing a very good job for you.

THE DEFENDANT: That's easy for you to say because you're not on trial.

THE COURT: I know that. You're not here half the times because you don't know what he's doing.

THE DEFENDANT: Well --

THE COURT: The other times he's here and doing a good job. You're not paying attention.

THE DEFENDANT: Again, that's your

Page 23.

assumption that I'm not paying attention. I have a book full of notes to reflect I am paying attention.

THE COURT: Oh, you have been paying attention?

THE DEFENDANT: Yes, I have. This is a trial for my life. It's not for yours.

MR. McGILL: I would have no objection if Mr. Jamal has some questions to confer with Mr. Jackson, and he can ask the questions.

THE COURT: I have no objection to that. As a matter of fact, they have been conferring together and I'm assuming that Mr. Jackson is asking the questions that Mr. Jamal feels that he should ask.

THE DEFENDANT: Judge, I would like to ask questions of several, at least three, prosecution witnesses.

THE COURT: You see I've already ruled. Mr. Jackson will be your attorney. Now, do you have any questions you wish him to ask? Just tell it to him and I'm sure he will ask them.

THE DEFENDANT: Can I ask questions of

Page 24.

several prosecution witnesses, Judge?

THE COURT: Just give the questions to Mr. Jackson and he will ask them.

THE DEFENDANT: I understand what you're saying. Can I ask questions?

THE COURT: I'm answering your question. Whatever questions you have you just give them to Mr. Jackson and he will ask the questions.

THE DEFENDANT: Can I ask questions of several prosecution witnesses?

THE COURT: You don't understand English.

THE DEFENDANT: Apparently you do?

THE COURT: Yes. I told you, if you have any questions give them to Mr. Jackson and he will ask the questions.

THE DEFENDANT: Why can't I ask questions of my choice, Judge?

THE COURT: Are you going to sit down and let the Court proceed with the next witness?

THE DEFENDANT: I've got no problem with the Court proceeding with the next witness.

THE COURT: All right. Sit down.

Page 25.

THE DEFENDANT: I would like to ask questions of that witness if I so desire.

THE COURT: Are you going to sit down and let the Court proceed?

THE DEFENDANT: Are you going to answer my question, Judge?

THE COURT: I did answer --

THE DEFENDANT: You keep saying--

THE COURT: -- I told you, no, you will not ask any direct questions. You will give them to your attorney and he will ask them.

THE DEFENDANT: That's not my attorney. You keep pointing to him. That's your attorney.

THE COURT: Okay.

THE DEFENDANT: It's not okay with me because you're not on trial.

THE COURT: Mr. Jamal, are you going to sit down so we can proceed with the next witness?

THE DEFENDANT: I have no problem with his proceeding, Judge. I would like to ask questions of several prosecution witnesses of my choice.

Page 26.

THE COURT: Well, unfortunately I've ruled that you will sit down and any questions you have you give to Mr. Jackson.

THE DEFENDANT: Mr. Jackson is representing your interest. He's not representing mine. He was employed by you and not employed by me. He's being paid by the court and not being paid by me. I would like defense assistance of my choice. I renew my motion for John Africa to assist me in this matter.

THE COURT: That request is denied for the tenth time.

THE DEFENDANT: I'm not counting, Judge. It's important and that's why I keep bringing it to your attention.

THE COURT: I know. You have and I've ruled. All right. Let's call the next witness.

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(witness-excused.)

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MR. McGILL: Bring in the jury.

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Page 27.

(The following took place in open court in the presence of the jury:)

THE COURT: Call your next witness please.

MR. McGILL: Yes, Ms. Priscilla Durham.

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PRISCILLA DURHAM, having been duly sworn, was examined and testified as follows:

MR. McGILL: May I proceed, Your Honor?

THE COURT: Yes.

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DIRECT EXAMINATION

BY MR. McGILL;

Q. Ms. Durham, can you hear me?

A. Yes.

Q. Ms. Durham, where are you currently employed?

A. Thomas Jefferson University Hospital.

Q. What is your position there?

A. Security officer.

Q. And on December the ninth, 1981 where were you employed?

A. Thomas Jefferson Hospital.

Page 28.

Durham - Direct

Q. Now, on that particular day in the early morning hours sometime between four and five a.m. did you have occasion to observe anything unusual in reference to this case?

A. Yes. I observed Mr. Jamal when he was brought into the Emergency Room.

Q. And explain exactly what happened and then just basically let the jury know exactly what you observed?

A. Well, approximately the same time that Jamal was brought into the emergency area I was inside the emergency area behind the double doors. The double doors opened just as Jamal was placed on the mat leading into the Emergency Room treatment area. At this time I didn't know -- all I did was hear him say, "I shot the mother fucker and I hope the mother fucker dies." And it was at this time that I realized who it was in reference to, what was going on.

Q. And where was he when he said that?

A. He was directly at my feet.

Q. And what immediately happened after that?

A. Well, in, you know, the scuffle with him and the police trying to contain him and the other policeman asking me where could they place him I just tried to

Page 29.

Durham - Direct

think and, you know, proceed with the next business.

Q. Okay. After the defendant said that what if anything or what were any other -- did you hear any responses from anybody?

A. I heard a police officer respond, "If he dies you die."

Q. Ask Officer Bell to come in?

Can you come up here, Officer, please?

Can you identify this gentleman, this officer?

A. Yes, that was the officer.

MR. McGill: Would you identify yourself for the record?

OFFICER BELL: Officer Gary Bell, Badge Number 1217, Sixth District.

MR. McGILL: Thank you. You may leave.

- - - -

(Officer Bell excused.)

- - - -

BY MR. McGILL:

Q. Where was officer Bell when he said that?

A. He was within the area, you know, like to my right, I believe.

Q. What happened after the defendant said that and

Page 30.

Durham - Direct

then Officer Bell responded in that way?

A. Well, I immediately left, went around the other side to open up a door so they could bring Jamal through the other side.

Q. And then what happened?

A. When I opened the door and told the police officers which way to bring him they were still, you know, trying to control him. He again shouted, "Yeah, I shot the mother fucker and I hope the mother fucker dies." And that's when he was brought into the Emergency Room, and then I left the area.

Q. Okay. Now Officer Durham, you are familiar with the Jefferson emergency area, waiting area rooms, are you not?

A. Yes.

Q. How long have you worked there?

A. Five years in December.

Q. Has the structure of the area, that is, the entrance way to the Emergency Room, to the double doors where all this occurred, has that structure physically changed at all?

A. No.

Q. Since December the ninth, 1981, to February the

Page 31.

Durham - Direct

fourth, 1982?

A. No.

Q. May I have those photographs, C-45 though C-51, please?

I'm specifically now showing you C-43 -- and please show this to the defense. I want to make sure they are aware of which one it is.

MR. JACKSON: Yes.

BY MR. MCGILL:

Q. Can you identify what C-49 represents?

A. Yes. This is the area that I was talking about when Mr. Jamal was placed and the double doors where I was standing behind the door.

Q. Okay. Now, can you show that photograph to --

A. Okay. Mr. Jamal was placed here and I was on the other side of those doors so we both simultaneously was on this mat at the same time.

Q. What happens when you step on the mat?

A. The doors automatically open up from either side.

Q. Was he partially inside that area? If you can recall.

A. When the doors opened he may have, you know --

Q. Okay. Now I'm showing you the sketch. This is

Page 32.

Durham - Direct

the sketch that has been testified to by Officer Roy Land who took the same photograph. The sketch he says is -- shows an entrance way where I'm indicating now, and I'm showing you C-43. This has been testified to as a straight-on shot from here back.

A. Yes.

Q. Are you square now with what the sketch represents?

A. Yes.

Q. Would you demonstrate, just put a "J" where this occurred? Now you'll assume, say that you're also aware, assume that these are the doors.

A. Right.

Q. Okay. Now you also said, Officer Durham, that after the defendant said that, "I shot the MF'er and I hope he dies," and the officer said, "If he dies you die," you then went to do something. Can you show where you went.

A. Okay. It's off this area, naturally, but through these doors and around. You walk through the nurses' station and you come around on this side where there is another door leading to the emergency area which is directly across from where Mr. Jamal was.

Page 33.

Durham - Direct

So I just went back through here and went around and came up this side, because the door is locked from this side, you can't open it from this side. So I had to go around the other side and open the door.

Q. And did you open the door?

A. Yes, I did.

Q. And then you indicated that something else happened?

A. Yes.

Q. Show us on the sketch approximately where it happened.

A. Okay. As I stepped through this door, you know, to alert the policemen to bring Mr. Jamal this way, you know, they were still trying to control him. He again shouted, "Yeah, I shot the mother fucker and I hope the mother fucker dies," and that's when they, you know, rushed him through the doors.

Q. Okay. You may resume your seat. Do you know where he then went after he left the doors? Did you pursue him?

A. Sure. I led them to the family room.

Q. And what was the reason for that? Why was he moved initially?

Page 34.

Durham - Direct

A. Because he was standing right in the middle of the treatment area. Officer Faulkner was -- well, he wasn't within eyesight of him. All the police were around. He was in the immediate treatment area within feet and I just felt that he should be out of that area.

MR. MCGILL: I see. Now I'm going to show you what has been marked C-50 and C-51.

Mr. Jackson?

MR. JACKSON: All right.

BY MR. MCGILL:

Q. Can you identify what those photographs represent?

A. This photograph here, right behind here is a door which is the door that I led Mr. Jamal through which is adjacent, in this chart, is directly across which would be here. He was on the other side of the cigarette machine where the double doors are.

Q. Okay. When you say --

A. This machine here, candy machine here, I'm sorry. Here's the double doors and this was like so, so it would be across from there.

Q. All right. Are you then saying that this photograph represents this area?

Page 35.

Durham - Direct, Cross

A. Yes.

Q. And C-50 represents this area?

A. Yes.

Q. Oh, yes, by the way, Officer Durham, as a Jefferson Hospital personnel are you employed as part of the Philadelphia Police Department?

A. No. Just Jefferson University.

Q. Okay. You're employed and paid by the hospital, right?

A. Yes.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Officer Durham, how long have you been a security officer?

A. Approximately eight to nine years.

Q. Prior to coming to Jefferson where were you a security officer?

A. I was an inspector for Mohler Detective Agency, 66th and Ogontz Avenue.

Q. Mohler is it?

A. M-O-H-L-E-R.

Q. Any other agency you worked for, ma'am?

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A. I was a store detective for Bonwit Teller's.

Q. For how long?

A. Approximately eighteen months.

Q. Anywhere else, ma'am?

A. I was employed at the Blum Store.

Q. What capacity?

A. Store detective.

Q. By the way, let me back up. At Bonwit Teller did you work for Bonwit Teller, or did you work for another organization?

A. Bonwit Teller's.

Q. At the Blum store did you work for the Blum Store?

A. Yes.

Q. Anywhere else, ma'am?

A. No.

Q. And how long at the Blum store?

A. Maybe six months, six to eight months.

Q. And where is that store located?

A. It was located at 13th and Chestnut.

Q. What police district is that?

A. Sixth District.

Q. And Bonwit Teller's is where?

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A. Seventeenth and Chestnut.

Q. What police district is that?

A. Sixth District, also, I believe.

Q. So you had occasion to come in contact with the Sixth District Police Department on a number of occasions, would it be fair to say?

A. Yes.

Q. Did you know Officer Faulkner?

A. No, I did not. I --

Q. Did you --I'm sorry.

A. I've seen him several times.

Q. Where?

A. In the hospital.

Q. Speak to him before?

A. As a matter of fact, I had spoke to him about two hours prior to his death.

Q. What did you talk about?

A. Officer Faulkner had just brought in a little seven-year old, I believe she was a seven-year old black rape victim. He apprehended the suspect.

Q. You saw him apprehend him --

MR. MCGILL: Excuse me? I did not hear that? May I have that read back?

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MR. JACKSON: No. It's inadmissible testimony. She's talking about something that, I'm sure, she's been advised --

MR. MCGILL: I want to hear what she said.

MR. JACKSON: But she can't tell me what he did.

THE COURT: Go ahead.

MR. MCGILL: Well, can I have it read back?

MR. JACKSON: Your Honor, it's inadmissible so I object to having it read back and I ask that it be stricken.

THE COURT: Then you better start asking individual questions.

MR. MCGILL: Judge, may I ask that part that Your Honor would find admissible read back?

THE COURT: Can you read back --

MR. JACKSON: Your Honor, can you read it back at sidebar? If it's inadmissible you can hear it and then rule --

MR. MCGILL: She said she observed, and you asked, "What were you talking about," and

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she said she observed, apparently, when Officer Faulkner came in two hours or something before then, and at that point she then went on to say what occurred. I'm trying to find out what--

THE COURT: Come over here just a minute.

(A sidebar conference was held on the record as follows:)

THE COURT: Just a minute. Don't get excited. Mr. Jackson, you had asked her what she talked to Officer Faulkner about and now she's telling you.

MR. JACKSON: He went out and arrested a rape suspect. She didn't see him.

TUE COURT: He must have told her that.

MR. MCGILL: Let's read it back, Judge.

MR. JACKSON: Well, let's read it.

THE COURT: He told her that.

MR. JACKSON: She didn't say that.

THE COURT: Then read it back.

MR. MCGILL: Wait a minute. Wait a minute, Judge. If she says something and he's afraid --

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THE COURT: Just a minute.

MR. JACKSON: I'll start all over again. You don't have to read it back.

MR. MCGILL: I want it read back.

MR. JACKSON: Well, I'm withdrawing the question and if he asks it on redirect, let him do that.

THE COURT: All right. What does it say?

MR. MCGILL: I can't understand why something was said and all of a sudden I can't hear --

MR. JACKSON: You can hear. Go ahead. I'm sorry.

THE COURT: Read it back.

(The following was read back by the reporter as follows:)

"Answer: Officer Faulkner had just brought in a little seven year old, I believe she was a seven year old black rape victim. He apprehended the suspect."

MR. MCGILL: She saw him bringing him in. It's not a question of hearsay.

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MR. JACKSON: The seven-year old victim --

THE: COURT: We don't know. You have to ask her.

MR. JACKSON: I asked her if she saw it and she said, "No."

MR. MCGILL: Wait a minute. Let me finish. It's not inadmissible what she observed.

THE COURT: I know that.

MR. MCGILL: And she expressed what she observed. That's why I wanted it read back. Secondly, she then said that he had apprehended a suspect. The question is, "What were they talking about?"

THE COURT: Sure. That's why I wanted to know what they were saying.

MR. MCGILL: It's not inadmissible.

THE COURT: Of course not.

MR. MCGILL: You asked her what they were talking about.

MR. JACKSON: Fine.

THE COURT: Okay.

(Sidebar conference ended.)

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BY MR. JACKSON:

Q. Officer Durham --

MR. MCGILL: Is the question withdrawn?

MR. JACKSON: Yes, it is.

THE COURT: No, the question is not withdrawn. The question and answer stand.

MR. MCGILL: May I question about it on redirect, sir?

THE COURT: Ask what you want.

MR. MCGILL: Thank you.

BY MR. JACKSON:

Q. Officer Durham, did you observe Officer Faulkner make the arrest?

A. No, I didn't observe him make the arrest but I observed him bringing his suspect to the hospital.

Q. Do you know about what time it was?

A. No, I don't.

Q. You said it was about two hours before he was brought back; is that right?

A. Yes.

Q. Now, when he came in on that earlier occasion did he come in with anyone else other than the suspect?

A. Yes.

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Q. Who else?

A. I Believe it was the victim, it was a relative of the victim.

Q. Any other police officers?

A. No.

Q. Now, you indicated that you've seen Officer Faulkner a number of times; is that correct?

A. Yes.

Q. Would that be related to your occupation at Jefferson Hospital?

A. Yes.

Q. He's been to the hospital a number of times?

A. Yes.

Q. You've talked to him a number of times?

A. Yes.

Q. And sometimes you've talked to him about things other than your work; is that true?

A. Not normally.

Q. Well, you talked about your work at night?

A. Yes.

Q. And what specifically -- strike that. On those occasions when you spoke to him when he visited the hospital how long did those conversations

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last?

A. It depended, you know, it depended on the nature of what we were talking about. It depended on whether or not he was drinking coffee, or he was going to get coffee. I mean we had no -- we didn't hold long conversations. We never timed them.

Q. Did you work shift work, ma'am?

A. No.

Q. So you worked steady twelve to eight or eleven to seven?

A. Yes.

Q. Would it be fair that the police you came in contact with at Jefferson Hospital were by and large from the Sixth District?

A. No, because Jefferson is a rape center as well and we get police from wherever rapes occur.

Q. Fine. But other than on rape cases: ma'am?

A. Yes.

Q. They had been solely and exclusively the Sixth District; is that correct?

A. Yes.

Q. How often did you have occasion to see and speak to officers from the Sixth Police District?

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A. I am a security officer. If I have an arrest the Philadelphia Police have to come and take my prisoner. So I mean, we're talking about maybe six days a week.

Q. Once a day?

A. Once a day, twice a day. It all depends on, you know --

Q. And you give statements to the Philadelphia Police Department?

A. Yes.

Q. When did you let the police or the District Attorney know about what you've just testified to?

A. When you say what I just testified to --

Q. Yes. When did you let the police know that you heard Mr. Jamal say, "Yeah, I shot him and I hope he dies?" Let me ask you this way: isn't it a fact that you didn't tell them until sometime in March?

A. You asking me about the Police Department now, right?

Q. Police Department or the District Attorney, yes, ma'am.

A. Okay. Yes, I did not talk to the District Attorney's office until -- what was it? -- February or

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whenever.

Q. Did you try to contact them before?

A. No.

Q. This incident happened in December, right?

A. Yes.

Q. You saw police after that, didn't you?

A. Yes.

Q. And you saw police in January, didn't you?

A. Yes.

Q. And you saw police in February, didn't you?

A. Maybe not. I was out or work.

Q. You were what?

A. I was out of work.

Q. The entire month of February?

A. You said -- I'm not sure of the dates but I was out of work for about six weeks, six to eight weeks from December up until the time that I was questioned.

Q. And was anyone looking for you? Did you get a notice from the police that the District Attorney was looking for you?

A. No.

Q. You hadn't initiated any effort to let them know that you heard that; is that right?

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A. No. I had already given a statement.

Q. To whom?

A. Jefferson investigators.

Q. When did you give that?

A. The very next day.

MR. JACKSON: Your Honor, I'd like a copy of that statement and I'd ask that before I proceed with my cross-examination I get a copy of the statement.

MR. McGILL: I would be -- I've never seen one, Your Honor. It's Jefferson Hospital material. I would be very glad to have it brought over.

THE COURT: You can proceed with cross and we'll make arrangements to see if you can.

MR. JACKSON: Your Honor, obviously the contents of the statement is going to impact on my cross-examination.

THE COURT: Cross-examine her about something else. You call her later on.

MR. MCGILL: She'll be available. I'll try to get it now, Judge. May I find out where it is?

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BY MR. JACKSON:

Q. A. Whom did you give it to?

A. Bartelli of the Jefferson Investigator Department.

Q. You gave it to him when?

A. I think it was either the next day or two days after the incident.

Q. You never told the police that you gave the statement to anyone, did you?

A. I assume that's why I was contacted, was because of that. I didn't, you know --

Q. You assume that -- the question is: Did you ever tell the police that you gave a statement to someone?

A. No. Nobody asked.

Q. Isn't it a fact that you were told that the reason the police wanted to talk to you was because of the abuse complaint that Mr. Jamal filed?.

A. I'm sorry. Could you --

Q. Yes. When you were contacted by the police weren't you told that they wanted to talk to you because Mr. Jamal stated that the police beat him?

A. Yes, I was first --

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MR. MCGILL: Objection, Your Honor. I object to that. Mr. Anthony Jackson, the attorney representing this defendant, made the complaint.

THE COURT: Rephrase your question.

MR. MCGILL: Mr. Jamal has said nothing.

BY MR. JACKSON:

Q. Weren't you contacted by the police that I on behalf of Mr. Jamal had accused the Police Department of beating him?

A. Internal Affairs, yes.

Q. Yes, ma'am.

A. Yes.

Q. So that's the reason you were contacted. So why did you say you assumed it was because of your statement?

A. Well, I didn't know.

Q. You just said that they told you that it was because of the complaint that he made; isn't that true?

A. When I was contacted by the Police Department nobody told me what they -- all they wanted to know is what I knew.

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Q. But didn't you --

A. Why I was called they never told me.

Q. Didn't you just say that you were told when you were first contacted by the police that they wanted to talk to you because a complaint had been filed on behalf of Mr. Jamal?

A. Yes.

Q. So you did know when you talked to the police.

A. I did know that there was a complaint filed? Is that what you're asking me?

Q. You did know the reason why they wanted to talk to you?

MR. MCGILL: Objection. There are different types of questions being asked this witness.

THE COURT: Just ask the question and let the witness answer. Go ahead.

MR. JACKSON: I'm asking the question.

BY MR. JACKSON:

Q. Did you not know when the Internal Affairs office spoke to you what he wanted to talk to you about?

A. Yes.

Q. And in fact, didn't you know that he wanted to

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talk to you about Mr. Jamal being beaten by the police?

MR. McGILL: Objection, Your Honor. That assumes that it occurred.

THE COURT: You have to rephrase it. Ask the witness.

BY MR. JACKSON:

Q. Didn't you know that the officer wanted to talk to you about the complaint that Mr. Jamal made relative to a beating?

A. Now let me see if I -- are you asking me did I know this prior to me talking to Internal Affairs?

Q. No.

A. Or at that moment?

Q. At that moment?

A. Sure. They let me know what they wanted when they got me.

Q. So when you said that you assumed that they were calling you or contacting you about your statement to Bartelli you were incorrect; is that right?

A. Yes. I didn't know whether he had given them the statement or not. You know, I just gave it to him.

Q. Now, did you ever tell the police that you gave a statement to Bartelli?

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A. No.

Q. So that as far as you knew -- strike that. Do you know at this point what, in fact, Bartelli did with the statement that you gave?

A. No, I do not.

Q. Was it a written statement?

A. No. I believe I just dictated it to him.

Q. You just dictated it to him?

A. Yes.

Q. And he took it down?

A. Yes, and I think I signed it.

Q. You think? Okay. Do you know what happened to the statement?

A. No, I do not.

Q. Have you said -- did you read the statement after giving it?

A. Yes.

Q. And it was true?

A. Yes.

Q. And you're saying that the substance of the statement is the very same that you've testified here today?

A. Yes.

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Q. Now back to this night on December the 9th, you've indicated that you first heard Mr. Jamal before you saw him; is that correct?

A. Yes.

Q. And he was on the lobby side of the automatic doors?

A. Yes.

Q. And you were on the other side?

A. Yes.

Q. Now, you heard a voice say -- correct me if I'm wrong -- -Yeah, I shot the mother fucker and I hope he dies?"

A. Yes.

Q. Now that was in response to a question. Did you hear the question?

MR. MCGILL: Objection, Your Honor. He's not testifying. She said no such question that was in response to.

THE COURT: Let the witness answer the question.

MR. JACKSON: Fine.

BY MR. JACKSON:

Q. Did you hear any voice or any noise or anything

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at all before you heard his voice?

A. No, I did not.

Q. You didn't hear him fall or be placed on the floor?

A. No, I did not.

Q. You didn't hear any police officers muttering or doing anything at all?

A. There was mass confusion in that area. There was a lot of things going on. I didn't really know what was going on until I heard him make that statement.

Q. And that is the only thing that you heard?

A. Other than I heard the officer say, "If he dies you die?"

Q. No. ma'am. Before that.

A. No.

Q. So the first thing that you heard relevant to Mr. Jamal was, "Yeah, I shot the mother fucker and I hope he dies?".

A. Yes.

Q. Did you assume that that was in reference or in response to a question?

MR. MCGILL: Objection, assumption.

THE COURT: I sustain that.

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BY MR. JACKSON:

Q. Do you know if that was in response to a question?

A. No.

Q. You don't know?

A. No.

Q. Didn't it seem reasonable that it was in response to a question?

MR. MCGILL: Objection.

THE WITNESS: No.

THE COURT: Sustained.

BY MR. JACKSON:

Q. All right, ma'am. Now, that was the first thing that you heard and after hearing that then the doors opened up?

A. No. The doors were open then.

Q. I thought you said that you heard his voice but didn't see him?

A. I didn't. I never saw him until I looked down. I was on one side of the door; he was on the other side of the door. Simultaneously me and Jamal arrived on the mat. When the door opened there he was and that's when I heard --

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Q. And how was he on the floor, ma'am?

A. How was he? Stretched out on the floor. The police had his arms, they had his legs, they were trying to control him.

Q. Was -- I'm sorry. Go on. Okay. Was he on his back or on his stomach?

A. He was on his back.

Q. So that his head was facing you and his feet were facing away from you?

A. Yes.

Q. Did you see whether in fact he was bleeding?

A. No, sir.

Q. And you say simultaneously you were on the mat and he was on the mat and you heard what he said at the same time; is that right?

A. Yes.

Q. How many police officers were around?

A. That's all that was around was police officers. I could tell you fifty, a hundred and still be wrong. I don't know.

Q. Well --

A. It was a lot of -- I mean the place was crowded with police, the waiting area inside -- I don't know.

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Q. With regard to Mr. Jamal, in the immediate area of Mr. Jamal, how many police officers?

MR. MCGILL: I have to object. At the time the statement was made, or before...or after?

MR. JACKSON: Yes, at the time of the statement. That's right.

THE WITNESS: I don't know.

BY MR. JACKSON:

Q. You can't estimate for us, ma'am?

A. Fifteen, twenty.

Q. What were they doing?

A. They were trying to control their prisoner.

Q. No. Tell us what they were doing.

A. Sir, I don't know. When the doors opened Mr. Jamal was hollering, the police was hollering. I immediately left this area.

Q. All right.

A. Now I don't know what they were doing. One was holding his legs, somebody has his arms; they were trying to control their prisoner. I did not stand there and watch and see what they did.

Q. I didn't ask you whether you stood there and

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watched what they did, ma'am.

A. I'm trying to let you know.

Q. Would you wait for my question?

MR. MCGILL: Objection. Let her finish.

THE COURT: Just --

MR. JACKSON: Your Honor --

THE COURT: -- Let her answer. Don't argue, please.

BY MR. JACKSON:

Q. The question is: What did you see them do? I don't want you to tell me they controlled him. I want you to tell us what they actually did, what you saw them do to him.

A. I didn't see them do anything. I was there for a moment and I was gone.

Q. Now, you said that you heard Mr. Jamal holler. What kind of hollering?

A. I mean he was thrashing and he was making noises.

Q. What kind of noises?

A. He was fighting the police.

Q. What kind of noises?

A. For a moment what I could hear -- I didn't hear

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what he was saying.

Q. Officer Durham, I wasn't there. I want you to tell us as best you can recall what the noise was.

A. I don't know what he was doing.

Q. Was it screaming noise?

A. No it wasn't screaming. It wasn't noises like that. He was, you know, -- what can I say? When you be in custody by the police, you know, you're uncontrollable, you're saying things, and the whole time --- like I said, I was there only for a moment. When I realized what was happening I just got out of the area.

Q. You are saying he was uncontrollable and he was screaming and hollering: is that right?

A. Yes.

Q. You knew he was out of control: is that right?

A. Yes.

Q. And you saw a police officer on his legs and on his hands or on both of his arms: is that right?

A. Yes.

Q. And there were about fifteen officers surrounding him, but you don't know specifically what they were doing?

A. Well, I'm not going to say that there was fifteen

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officers. There were fifteen, maybe, officers around but not necessarily fifteen officers dealing with Mr. Jamal.

Q. Okay. Now, wasn't his hands tied, didn't he have his hands in handcuffs?

A. Yeah, he had his hands in handcuffs but they was underneath his back, so officers had him around the shoulder, you know, in his forearms.

Q. So he wasn't doing anything with his forearms and his hands --

A. Right.

Q. -- his hands were behind his back?

Q. When you say he was thrashing around with his arms --

A. You know, when you're laying back you can move like this and you have your feet --

Q. I understand that. One officer had his foot and one the other leg and he was hitting them with his elbow?

A. The officers were controlling their prisoner. I didn't stay there long enough. They had just brought the man into the emergency area, number one.

Q. Why did they need -- strike that.

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Did you see a need for them to control him?

A. Yes.

Q. Because he was handcuffed and his hands behind his back and he was on the floor shot?

A. He wasn't controllable.

Q. What do you mean by that?

A. What do I mean? If they had just let him lay there I could see from the way that he was there he would have been all over the area. Even though you're handcuffed and you're laying down you still have a great deal of mobility.

Q. How?

A. Easily.

Q. Tell me, ma'am.

A. You have your legs, you can move around.

Q. So you stood there long enough to make that determination?

A. No. I made that determination from being a security officer observing handcuffed prisoners.

Q. Who are shot in the chest and on the floor on their back?

A. (No response)

Q. How many times have you seen prisoners handcuffed

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with arms behind their back, shot in the chest and with fifteen officers around?

A. I never seen prisoners handcuffed and hands in the back and shot in the chest acting like that, either.

Q. Have you seen any?

A. No.

Q. This is the first time?

A. Yes.

Q. So you have no experience and that's an estimate on your part, isn't it?

A. I would think that anybody that would be shot would be trying to get some help and not the way he was acting.

Q. Have you been shot, ma'am?

A. No.

MR. MCGILL: Objection, Your Honor.

THE COURT: Sustained.

BY MR. JACKSON:

Q. Now, when the door opened and Mr. Jamal was there were there any officers between you and Mr. Jamal?

A. No.

Q. Did you see any weapons or anything in any of the officers' hands?

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A. No.

Q. You didn't see any, or you didn't see the hands?

A. I didn't see everybody's hands.

Q. Did you see whether any of the officers were kicking him?

A. No.

Q. You didn't see it?

A. No.

Q. How close were these officers to him aside from those that were holding on each of his limbs?

A. How close were the other officers close to him?

Q. Yes, ma'am.

A. Well, if you got one man behind another man how close is that?

Q. I don't know.

A. Well, that's as close as it is.

Q. Now, you indicated that later on you heard him say that again, right?

A. Yes.

Q. And he said, again, "Yeah, I shot the mother fucker and I hope he dies?"

A. Yes. And that's all? You didn't hear anybody else

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say anything, did you, other than, "If he dies, you die?"

A. Yes.

Q. You Didn't hear any other officers say anything at all?

A. No.

Q. Are you saying that they didn't say it, or that you didn't hear it?

A. I didn't hear it.

Q. Now, the second time that you heard him make the second statement where were you at that point?

A. Do you want me to show you on the chart, or tell you?

Q. Okay.

A. I was directly across from the area where the double doors are.

Q. So you would have been near the receiving desk?

A. Yes.

Q. And where was Mr. Jamal at that time?

MR. MCGILL: I would object to that. I think that's too general and vague, "near the receiving desk." Perhaps Miss Durham, can show us where.

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THE COURT: If he wants to.

MR. JACKSON: Your Honor, why is Mr. McGill telling me how to conduct my cross-examination?

THE COURT: You can go into that.

MR. McGILL: Yes, sir.

MR. JACKSON: Thank you.

BY: JACKSON:

Q. Now again. Miss Durham, you were across that doorway that you opened up, is that right?

A. Yes.

Q. Fine. And where was Mr. Jamal?

A. He was still at the double doors.

Q. Still on the floor?

A. Yes.

Q. Still on his back?

A. I don't know.

Q. Couldn't see him?

A. No.

Q. Could you see the officers?

A. Yes.

Q. Could you see what they were doing?

A. No.

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Q. Could you see what Mr. Jamal was doing?

A. No.

Q. And you, of course, have no idea at all what was happening to Mr. Jamal during the time that you walked from that double door around from the treatment area and to the opposite side?

A. No.

Q. Did you hear Mr. Jamal ho1ler or scream during that period of time?

A. No.

Q. If in fact there was noise or hollering or screaming could you hear it from where you were?

A. No.

Q. So it was not until you opened the door again that you could hear any noise that was out in the lobby area?

A. Right.

Q. And after you opened that door you then indicated that they picked him up?

A. Yes.

Q. And they dragged him, or they brought him over?

A. Yes.

Q. And they went through the room and took him to

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a treatment area?

A. To a family room, yes.

Q. What's a family room, ma'am?

A. It's a room where they usually keep families of waiting -- you know, for people waiting for medical treatment.

Q. They didn't take him to a treatment room right away?

A. Well, no, they didn't.

Q. Were there treatment rooms available?

A. Yes.

Q. But nevertheless they took him to the family room. After they took him to the family room is that when you heard the officer say, "If he dies you die?"

A. No.

Q. When was it?

A. When they was at the double doors.

Q. Before you went around --

A. Before I went around.

Q. Okay. And that was Officer Gary Bell. Let me go back to that, if you don't mind, for a second. You heard Mr. Jamal say what he said and you saw what you saw. Where was this officer at when he told Mr. Jamal,

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"If he dies you die?"

A. He was to my right. So I'm standing on the mat, I'm standing right here in these double doors.

Q. Show it to the jury, ma'am. Go ahead.

A. I'm standing right here and on this side of the double doors, and Officer Bell was somewhere in this area to my right, and Mr. Jamal, he was approximately in this area here.

Q. So how close was Officer Bell to Mr. Jamal?

A. He wasn't really close to him at all.

Q. Now, by the way, did you know if Mr. Jamal was injured?

A. No, I did not.

Q. So you didn't have any idea at all why they would bring him to the hospital?

A. No.

Q. Then why did you go around and open the doors?

A. Because the officers were hollering at me where could they put him at.

Q. So you did hear them say something.

MR. MCGILL: Objection. May she finish her answer?

THE COURT: Please let the witness

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answer her question.

MR. JACKSON: My apologies to the officer. Go on. My apologies to you.

THE WITNESS: I had testified earlier that I heard an officer ask me around the same time that Officer Bell was stating, "If he dies you die," an officer was asking me where could they put Mr. Jamal. And that was my reason for leaving the area and going to open the other door.

BY MR. JACKSON:

Q. Anything else you recall them saying other than Officer Bell saying what he was saying and the other officer asking you where they could put Mr. Jamal?

A. No.

Q. And when the other officer asked you where could they put Mr. Jamal you weren't thinking that Mr. Jamal was a patient?

A. No.

Q. And did you recommend the family room?

A. Yes.

Q. Do they normally bring prisoners to the hospital?

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A. Yes.

Q. When they're uninjured?

A. Yes.

Q. Bring them in for identification purposes, right?

A. Yes.

Q. Was Officer Faulkner conscious at any time?

A. No.

Q. So he couldn't make any identification, could he?

A. No.

Q. Officer Faulkner was at the hospital first; was he not?

A. Yes.

Q. And you saw him when he was brought in?

A. No.

Q. But you knew that he was in there before Mr. Jamal; is that right?

A. Oh, yes.

Q. And before Mr. Jamal arrived at the hospital, were you advised by any of the police officers as to who it may have been that shot the officer?

A. No.

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Q. They never told you anything at all?

A. No.

Q. All they told you was that he was shot?

A. Yes.

Q. Did you ask any questions?

A. No.

Q. When he was in, Mr. Jamal was in, the family room, how long was he in the family room?

A. I'd say maybe less than five minutes, long enough for me to go get some medical personnel, somebody to know that he was back there.

Q. Did you know then after he was in the family room that he was injured?

A. Mrs. Keating came out and said he was injured, yes.

Q. Mrs. --

A. Keating.

Q. Who's Mrs. Keating?

A. Nurses' supervisor.

Q. She came out and told you that?

A. No, she didn't necessarily come out and tell me.

Q. I just want to know how she came in contact with Mr. Jamal.

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A. Well, I don't know how she came in contact with Mr. Jamal. The only thing I know is when I came out of the room Mrs. Keating and somebody else was on the way, which I was on my way to get them, anyway. They went into the room and came out, and that's when Mrs. Keating said that they had to get Mr. Jamal to the treatment area because he was shot.

Q. Now, when Mr. Jamal was in the family room he was on his back then as well?

A. I don't know.

Q. You didn't see him at all?

A. Oh, no.

Q. But I mean you just saw them bringing him in the room?

A. Yes.

Q. And when they brought him in the room you immediately left?

A. I never went in the room. I just showed them where the room was at.

Q. Now, did you see them take him to a treatment area?

A. Yes.

Q. How did they take him?

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Durham - Cross

A. They drug him.

Q. They drug him. By the way, when you opened the door to the family room and he was on the other side of the room how did they get him from the other side of the room to the family room?

A. They lift him up. They tried to walk him but he wasn't walking.

Q. Wasn't walking?

A. You know, they pulled him to the back of the area.

Q. How did they pull him?

A. By his arms.

Q. And where were his feet?

A. His feet was on the floor.

Q. So they were dragging his feet?

A. Yes.

Q. And when they took him to the treatment area they didn't take him on a stretcher?

A. No.

Q. You have stretchers and wheel chairs in the hospital?

A. Yes.

Q. Were they right there in the emergency area?

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Durham - Cross

A. Yes.

Q. Did anyone ask you for either one of them?

A. No.

Q. Did anyone use any of them?

A. No.

Q. When Officer Faulkner was brought into the hospital did you see him brought in?

A. No.

Q. Do you know a Dr. Rita Cudemo?

A. Yes.

Q. Do you recall seeing Dr. Rita Cudemo that evening?

A. Yes.

Q. Do you recall seeing her in the lobby of the waiting room of the Emergency Room?

A. No.

Q. Do you recall specifically where you may have seen her or if you saw her at or about the time Mr. Jamal was brought into the hospital?

A. No, I do not.

Q. The area where Dr. Cudemo works, could you just -- is it on that diagram, or could you point it out?

A. No.

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MR. JACKSON: It's not. Okay.

(A discussion was held off the record.)

MR. JACKSON: Your Honor, may I have your indulgence, please?

(A discussion was held off the record.)

BY MR. JACKSON:

Q. By the way, did you know Mr. Jamal before that evening?

A. No.

Q. Did you see his brother William Cook?

A. No.

Q. And you hadn't known Officer Bel1, as well; is that correct, or did you know Officer Bell?

A. No.

Q. That evening was the first time you had seen him?

A. I seen him but I don't know him.

Q. You had seen him before. Did you see him before that evening, I mean earlier that evening?

A. No.

Q. Seen him a number of times at the hospital?

A. Yes.

Q. About as often as you saw Officer Faulkner?

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Durham - Cross

A. Yes.

Q. So you didn't know Officer Faulkner any more than you knew Officer Bell?

A. No.

Q. Did you talk to Officer Bell, as well, a number of times? Is that right?

A. Yes.

Q. About the same kind of things you talked about with Officer Faulkner?

A. Yes.

Q. Were they partners?

A. I don't know.

Q. Did you see them together when you saw them?

A. When you say together you mean they walk into the hospital together, they leave together?

Q. Well, no.

A. I mean --

Q. Generally being in the hospital about the same time.

A. No. Well, I can't answer that.

Q. By the way, ma'am, were you advised or told by one of your supervising officers to assist the police?

A. No.

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Durham - Cross

Q. You just acted on your own?

A. No.

Q. Why did you do what you did?

A. Well, my job in the Emergency Department that night was to assist whoever, be it the Police Department, Jefferson employees, you know, whatever, whatever. Where you can be used then you be, you know, you're there.

Q. That --

A. I was not assigned to the Police Department that night.

Q. No. I understand that. Ma'am, I'm not asking that. First of all, were you assigned to the Emergency Room that night?

A. No.

Q. So then where were you assigned that night?

A. I'm a patrolman. I have the whole building.

Q. So you were told by someone, I assume --

A. Yes.

Q. -- to go there.

A. Yes.

Q. Who was that?

A. Lieutenant Williams.

Q. So that was the supervisor?

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Durham - Cross

A. Yes.

Q. So you were told to go there?

A. Yes.

Q. How much earlier than you arrived were you told to go there?

A. (No response.)

Q. How long were you in that emergency area before you saw Mr. Jamal?

A. Oh, I had been in there, I guess, about maybe forty-five minutes or so.

Q. Forty-five minutes?

A. I'm not sure. Anywhere from a half-hour to forty-five minutes.

Q. Do you know if that was before, or after Officer Faulkner arrived?

A. After.

Q. So then you're saying that Mr. Jamal would have arrived half an hour or forty-five minutes after Officer Faulkner?

A. No, I'm not saying that. You asking me -- what was the original question?

Q. Okay. I wanted to know, first of all, how long -- maybe I'm confused -- how long you were in the Emergency

Page 79.

Durham - Cross

Room before you saw Mr. Jamal.

A. Maybe a half-hour, forty-five minutes.

Q. Now, how long were you in the Emergency Room before you knew that Officer Faulkner was brought in? If you know.

A. Approximately the same length of time.

Q. So you're saying that they came in about the same time.

A. No. I'm saying maybe a half-hour, forty-five minutes later is when Mr. Jamal was brought in.

Q. Okay. Half-hour or so after the officer.

A. Yes.

Q. Now, do you prepare any kind of reports? I mean, do you have a log or something that you prepare or you write while you're patrolling?

A. No.

Q. You don't clock in anywhere or anything?

A. No.

Q. So there'd be no reason for you to know any of the exact times that you were at any place in particular; is that right?

A. Right. Only if an incident comes up and I have to fill out an incident report is when I'm required to

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Durham - Cross

know times.

Q. Okay. Did you prepare an incident report for this evening?

A. I didn't have to.

Q. When you say you didn't have to, is that because this was not out of the ordinary?

A. Well, it wasn't a hospital -- you know, it was just an emergency problem. That wasn't a security problem.

Q. Now ma'am, do you recall whether in fact at any time that you saw Mr. Jamal in that hospital that you saw an injury to his head?

A. No.

Q. Did you see any blood on or about him anywhere?

A. No.

Q. Nowhere?

A. No.

Q. How close did you get to Mr. Jamal the first time? And I believe you said he was right in front of you but just so we'll know approximately.

A. I was on him. I was on top of his -- his head was at my feet.

Q. Right on top?

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Durham - Cross

A. Yes.

Q. Okay. And when they brought him to the family room did they bring him by you?

A. No, because I was in front of them and then --

Q. Okay. And then you saw them take him from the family room to the treatment room?

A. Well, not all the way. I just, you know, seen him when they went in to get him and they started out and I went somewhere else. I didn't see him go to the treatment area.

Q. Now you're still employed at Jefferson Hospital, ma'am?

A. Yes, I am.

Q. Same capacity?

A. Yes.

Q. Same shift?

A. Yes.

Q. Same responsibilities?

A. Yes.

MR. JACKSON: No further questions.

THE COURT: Can we take five?

MR. MCGILL: Miss Durham --

MR. JACKSON: Just a moment, please. I

Page 82.

Durham - Cross

just have one.

BY MR. JACKSON:

Q. The words that Officer Bell spoke, "If he dies you die," you're certain he said that?

A. Yes.

Q. It couldn't have been any other officer?

A. No.

Q. And could you tell us how it is that you remember those words so precisely?

A. Because Officer Bell was very upset behind Officer Faulkner. We had all been in the area around Officer Faulkner, me and him. That's how we arrived at the area, almost the same time because we were just like walking around, you know. So that's how I know it was him, because we was practically together except he was into his thing and I was into mine.

Q. Now, he couldn't have used any other words, though?

A. Yeah, he could have.

Q. So you're saying that he said that but you don't know that he said that?

A. No. I'm sure that's what it was, "If he dies you die."

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Durham - Cross

Q. You're sure?

A. I'm sure.

Q. And what if anything was Officer Bell doing when he was talking to Mr. Jamal?

A. Probably trying to get around another officer, because the area was just crowded. He couldn't --

Q. You say probably trying to get around him?

A. Yeah, because he was on my right and neither one of us could get around four police officers. This area --

Q. But you're saying he was trying to get around.

A. I'm saying initially we were on our way out of the area, that's how we happened to get going that way. So I'm saying -- you're asking me what was Officer Bell trying to do. I imagine he was trying to get out of the area, and we both happened to run across Mr. Jamal being there.

Q. But when he said that to Mr. Jamal what did you see him, other than speak the words, what did you see him do with his hands?

A. I didn't see him do anything.

Q. Nothing at all?

A. No.

Q. Did he have anything in his hands?

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Durham - Cross

A. I didn't see his hands.

Q. Did you see his feet?

A. No, I did not.

Q. You don't know what his feet did or what his hands did?

A. No.

MR. JACKSON: No further questions.

THE COURT: Can we take a five-minute recess?

(A short recess was taken.)

PRISCILLA DURHAM, resumed.

(The following took place in open Court in the presence of the jury:).

THE COURT: Mr. McGill?

MR. McGILL: It may be appropriate to have the jury out for a moment.

THE COURT: All right.

(The following took place in open out of the presence of the jury:)

THE COURT: What's the problem?

MR. MCGILL: Maybe Mr. Jackson can tell us. I assume Mr. Jamal, the defendant in this

Page 85.

case, was about to say something.

THE COURT: Is he?

MR. JACKSON: I don't know, Your Honor. He hadn't indicated to me that he was, sir. I do not know.

THE COURT: Do you want to say something or are you going to stand up, or what are you going to do?

THE DEFENDANT: (No response.)

THE COURT: Well, he's not saying anything so I assume he's not going to behave himself.

MR. MCGILL: Yes, sir.

THE COURT: You realize if you interrupt in front of this jury I'm going to have to remove you again.

THE DEFENDANT: Judge, you can remove me again and again and again and again and again and again. I am going to point out to you what is important to me; that this is my trial; that this man is your employee, not mine; that he is functioning for the court system, not for me; he is not doing what I am telling him and directing

Page 86.

him to do but what you are ordering him to do. So I choose to sit down because you can hear me from the seat.

THE COURT: Okay.

THE DEFENDANT: I am protesting his appointment, his continuing functioning here. I wish for him to be withdrawn immediately.

THE COURT: Denied.

THE DEFENDANT: And I would like to have John Africa appointed to assist me in this matter.

THE COURT: Denied.

THE DEFENDANT: Judge, you can call the jury in and I don't care if they hear it, frankly, because it's the truth.

THE COURT: You mean you're going to make some statements in front of the jury?

THE DEFENDANT: Well, I had planned to defend my life in front of the jury. I plan to represent myself in front of the jury. I plan to cross-examine witnesses in front of the jury. I plan to make a closing statement and argument in front of the jury. But obviously you have

Page 87.

other plans.

THE COURT: In other words, you're telling me if I bring the jury in you're going to stand up and start making statements in front of the jury?

THE DEFENDANT: I didn't say that at all, Judge. I told you what I plan to do.

THE COURT: Okay. We'll bring the jury in and we'll play it by ear. Like I told you before, if you act up --

THE DEFENDANT: Judge, I'm not acting up. I'm not acting at all. I'm telling you the truth.

THE COURT: All right.

THE DEFENDANT: Judge, that doesn't mean anything, that threat about removing me.

THE COURT: I know it doesn't.

THE DEFENDANT: Well then, you need to stop saying it, then.

THE COURT: Okay. I have to let you know I am going to do this.

THE DEFENDANT: Okay.

THE COURT: All right.

Page 88.

THE DEFENDANT: For the record, I would like to have Anthony Jackson withdrawn from this case. He would like to be withdrawn from this case. I would like to have John Africa appointed in my assistance in defense of this trial.

THE COURT: Denied again.

THE DEFENDANT: I would like to cross-examine that witness, Judge.

THE COURT: Denied.

THE DEFENDANT: I'd like to ask her several questions.

THE COURT: Denied. Give your questions to Mr. Jackson.

THE DEFENDANT: I don't want to give them to Mr. Jackson.

THE COURT: Fine.

THE DEFENDANT: He's your employee and not mine, and I'd like to ask those questions whether you deny it or not.

THE COURT: Denied.

THE DEFENDANT: Miss Durham, why did you wait until February the 2nd to give your,

Page 89.

statement?

THE COURT: Okay. Remember what I told you.

THE DEFENDANT: Miss Durham --

(The following took place in open court in the presence of the jury:)

THE COURT: All right. Hold up the jurors.

(The following took place in open court out of the presence of the jury:)

MR. McGILL: Before the jury goes can I ask Miss Durham one question before he --

THE COURT: He's not going to let you.

THE DEFENDANT: Miss Durham, why did you wait until February the 2nd to make your statement?

THE COURT: Okay. Mr. Jamal, it is obvious to the Court that you intend to disrupt the proceedings in front of the jury.

THE DEFENDANT: I am not disrupting. It's obvious I intend to defend myself.

THE COURT: And once again I am removing you from the courtroom.

Page 90.

THE DEFENDANT: It's obvious, Judge, that I am defending myself.

MR. MCGILL: Judge --

THE COURT: Let the record indicate that the jury was in, practically sitting in their first seats here, when he started asking questions. That's why I sent the jury out immediately. I knew what he was going to do and I just wanted to put it on the record. What's your problem?

THE DEFENDANT: Let the record reflect I'm defending myself; that I want John Africa to assist me in this matter --

MR. MCGILL: May I request --

THE DEFENDANT: -- and Anthony Jackson represents the Court's wishes, and not mine.

MR. McGILL: Your Honor --

THE DEFENDANT: He wants what you want done and not what I want done. I want appeals filed immediately.

MR. MCGILL: Your Honor, may I request that the defendant be held back there for a moment until Miss Durham can be asked specifically

Page 91.

to point the defendant out. She's been using the name -- not using the name defendant but Jamal, and I would like him to do that.

THE COURT: Hold him back there. You should have done this before.

MR. MCGILL: I recognize that but it's necessary.

THE COURT: It may not he that necessary. It's quite obvious who she's referring to.

THE DEFENDANT: It's obvious what you're doing, Sabo.

(The defendant was removed from the courtroom.)

THE: COURT: You can ask her if the gentleman was seated there. If he was the one --

MR. McGILL: He could do that.

THE COURT: I know we're going to have trouble getting him back in the courtroom.

MR. McGILL: If he's right hack there --

THE COURT: No, I don't want the jury to know that he's coming out of there. That's my problem.

Page 92.

MR. MCGILL: Well, he could stay there.

THE COURT: I don't want to keep moving them in and out. Come here, I want to see you.

(A sidebar conference was held on the record as follows:)

THE COURT: Once again I'm going to ask Mr. Jackson if he wants me to in anyway give any cautionary instructions or --

MR. JACKSON: I think, again, Your Honor --

THE COURT: Once again?

MR. JACKSON: I think that even if it happens a hundred times I think at any point to stop doing it is likely to signal something.

THE COURT: Yes.

MR. JACKSON: And I know it's --

THE COURT: I will.

MR. McGILL: Getting back to having him stay here, I don't think that's a good idea.

MR. JACKSON: I don't, either.

THE COURT: I think I'm going to send him up.

Page 93.

MR. MCGILL: What I could do is this --

THE COURT: You can ask the question --

MR. MCGILL: May I say it first?

THE COURT: Go ahead.

MR. MCGILL: If I could say, "The individual that you have stated, has he been in the courtroom this morning?" She'll say, "Yes." Where has he been standing or seated? He has been seated," and she'll point over there. And I'll say, "In this chair? That's correct." And then you could at that point stipulate that if he were brought --

MR. JACKSON: No, no, no, no.

THE COURT: He doesn't have to stipulate to that.

MR. JACKSON: It's the defendant.

MR. MCGILL: No. No. Stipulate that if the defendant were sitting in that chair that's the one she would say --

THE COURT: Give the jury some sense --

MR. MCGILL: Give the record some sense.

THE COURT: Well, it's in the record.

Page 94.

You should have done it when he was quiet.

MR. MCGILL: Judge, I should do a lot of things. I make a mistake, what am I going to do?

THE COURT: What do you want me to do? Bring him out here? He's going to be acting up in front of the jury. If I bring him out here he's going to start acting up.

MR. JACKSON: It seems to me --

THE COURT: It's obvious.

MR. JACKSON: Where is he? He would he sitting in that chair. Let the record reflect the defendant --

THE COURT: "Was sitting in this chair" you can do that.

MR. McGILL: All right. I'll do that.

THE COURT: Sheriff, take him upstairs.

(Sidebar conference ended.)

(The following took place in open court in the presence of the jury:)

MR. McGILL: Your Honor, if it please the Court, I have --

Page 95.

THE COURT: Just a minute.

MR. MCGILL: I'm sorry.

THE COURT: Members of the jury, you are not to draw any adverse inferences from the absence of the defendant. You should further refrain from any sympathy, bias or prejudice for or against the defendant. All right. Proceed, Mr. McGill.

MR. MCGILL: Yes. Sorry for that misunderstanding, Your Honor.

THE COURT: That's all right.

MR. McGILL: Your Honor, I have over the course of the time of Mr. Jackson questioning this witness asked one of my detectives to go over to Jefferson Hospital --

THE COURT: If you have something to say about that, would you please see me at sidebar?

MR. MCGILL: Okay, sir.

(A sidebar conference was held on the record as follows:)

THE COURT: What's your problem?

MR. MCGILL: I just got the statement

Page 96.

that he wanted.

THE: COURT: Okay.

MR. MCGILL: And I'm going to bring it to him.

MR. JACKSON: I don't think to bring that up in front of the jury is appropriate.

MR. MCGILL: I said I would get it.

THE COURT: Wait after you redirect then you can make it and give it to him, because I said that I would allow him to further cross-examine.

MR. MCGILL: That's right. That's why I was going to let him have it now for recross-examination.

MR. JACKSON: Your Honor, rather, give me the statement and if there's something in the statement that I don't want to cross-examine --

THE COURT: You don't have to. You asked for it.

MR. MCGILL: And I said I would get it.

THE COURT: And he said he would supply it.

MR. McGILL: What about now?

Page 97.

Durham - Cross

THE: COURT: Do it now.

(Sidebar conference ended.)

(A discussion was held off the record)

BY MR. JACKSON:

Q. Miss Durham, I have gotten a copy of what purports -- may I have this marked Defense Exhibit 13 now? Or 14?

THE COURT: Yes.

MR. JACKSON: Mr. McGill has a copy.

THE COURT: All right.

BY MR. JACKSON:

Q. Show it to the witness, please. Read it, Miss Durham. You've had an opportunity to review D-14; is that correct?

A. Yes.

Q. Earlier when I questioned you with regard to the statement that you perhaps gave to your supervisor at Jefferson Hospital you indicated that you dictated a statement orally; is that correct?

A. Yes.

Q. Is that the statement?

A. Yes.

Page 98.

Durham - Cross

Q. As it was being dictated it was being typed immediately onto a typewriter?

A. No.

Q. So that is not the statement then?

A. No.

Q. So again we still don't have the statement that you gave; is that correct?

A. Not the handwritten one.

Q. And you signed the handwritten statement?

A. No. I said I believe I may have signed the statement. I didn't say whether I had or not. I didn't remember.

Q. Did you review the statement after you gave it to see if it was accurate?

A. No.

Q. So in other words, you don't you don't know what was written?

A. No.

Q. So anything that would be brought in here you'd have no idea at all when it was written; is that correct?

A. I'd know if I said it.

Q. But you won't know whether or not you used those words because you've -- strike that.

Page 99.

Durham - Cross

You wouldn't know whether the statement was yours or not if someone just brought a sheet of paper in here, is that correct?

MR. McGill: Objection. That's not what is happening.

THE COURT: Can you rephrase you question?

MR. JACKSON: Sure.

BY MR. JACKSON: You haven't signed any statements, you haven't reviewed any statements either today or on December the 10th to say that that was the statement you gave is that correct?

A. No.

Q. It wouldn't be a guess?

A. I'd know if I said it or not.

Q. You would know word for word what you said?

A. No.

Q. So how would you know if it was your statement,

Page 100.

Durham - Cross

Ma'am?

A. Because I know what I said.

Q. All right. I am not going to debate that with you. But moving right along, we know that you have not adopted any statement so we can introduce any statement but --

MR: McGill: I would object to that.

THE COURT: Please don't comment.

MR: McGill: I would object to that because she says she knows what she said.

THE COURT: Please. All right.

BY MR. JACKSON:

Q. Do you know whether in fact that you told your supervisor whether or not Mr. Jamal was bleeding?

A. No I didn't know.

Q. You didn't know what?

A. If I had told them that. You asked me --

Q. I asked you before and you said, "No."

A. Right.

Q. Now my question is: Do you know whether or not you told them?

A. No.

Page 101

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Q. You didn't tell them he was bleeding?

A. I don't know.

Q. Would you review the statement that is in front of you ma'am, D-14? Now, although I know -- tell me, is that the statement you gave?

A. Yes.

Q. And it says in that statement that he was bleeding or words to that effect?

A. Yes.

So that portion of your statement is incorrect?

A. You say it's incorrect?

Q. I'm asking?

A. No, I don't say it's incorrect.

Q. Well is it?

Q. No. If I said it on December the 10th, than that's what it was.

Q. So you were wrong when you said that he wasn't bleeding?

A. Yes.

Q. Okay. Now, let me get back to the cross-examination. At what point did you notice he was bleeding?

A. I don't remember.

Page 102.

Durham - Cross

Q. Do you know where he was bleeding?

A. No.

Q. And in fact, you don't remember bleeding but you're just saying that if it's in the statement it must be true?

A. No. I'm saying that on December the 10th when I made this statement everything was more fresher than it is now. And I would go along with the statement made December the 10th as opposed to me saying this morning that he wasn't bleeding because I didn't remember him bleeding --

Q. Is there anything --

A. -- but --

Q. I'm sorry. I didn't mean to interrupt.

A. But on December the 10th, whatever that was, the next day, naturally I was more alert as to what went on the very next day as opposed to five months later.

Q. I understand and I am not arguing with you. You've had an opportunity to reflect. Is there anything else that you may now remember that you didn't remember earlier?

A. No.

Page 103.

Durham - Cross

Q. Do you remember whether in fact any of the officers were kicking Mr. Jamal?

A. No.

Q. Do you remember whether in fact the officers were striking Mr. Jamal?

A. No.

Q. Do you remember hearing Mr. Jamal holler and scream as if in pain?

A. No. As in defiance.

Q. As if in defiance? Well you have explained that to me a minute.

A. Well, okay. If someone is being kicked or punched, I mean you can distinguish between somebody hollering from pain and hollering just to be hollering.

Q. Fine. And your saying the fact that Mr. Jamal was shot in his chest wasn't paining him at all?

A. Well, I didn't know he was shot.

MR. McGill: I object. She did not state whether she was aware of it.

BY MR. JACKSON:

Q. Whether you were aware of it or not, you're saying that his crying and hollering was in defiance and not pain?

Page 104.

Durham - Cross

A. Pain in reference to him being kicked or hit?

Q. I don't know what --

A. Well, that's what you asked.

Q. No ma'am. I just asked whether he was hollering and screaming in pain whether being kicked or being hit.

A. I don't know if he was shot so I couldn't say.

Q. You're saying that the hollering and screaming was in defiance?

A. In reference to him being kicked or beaten as far as the gun shot wound, I have no knowledge.

Q. So how could you say --

A. So I'm saying the assumption that whether I saw anyone kick him or hit him, no, I did not. At this time I had no knowledge that he was shot so how could I say that he was hollering because he was shot and I didn't know.

A. I want to know how you can say he was hollering in defiance?

A. Because even the way he was shouting it was more of a boast thing.

Q. And that makes you believe --

A. Yeah.

Q. So based on your experience there at Jefferson

Page 105.

Durham - Cross, Redirect

Hospital, given the bullet wound to Mr. Jamal's chest, would you assume he was in pain?

MR. McGILL: Objection.

THE COURT: I sustain that objection.

MR. JACKSON: No further questions.

REDIRECT EXAMINATION

BY MR. McGILL:

Q. Would you read that statement first please?

MR. JACKSON: I would object. May we see you Honor at sidebar?

THE COURT: Yes.

(A sidebar conference was held on the record as follows.)

THE COURT: Do you have the statement? Give me the statement.

MR McGILL: Yes.

MR. JACKSON: If I may give the basis of my objection -- I'll let you read first.

THE COURT: Well, I don't think you have to read the whole thing. If you're trying to affirm that she said this statement down here you can read that part.

MR. JACKSON: Or refresh her recollection.

Page 106.

Durham - Redirect

THE COURT: Or just ask her.

MR. McGILL: Also it's a prior consistent statement.

THE COURT: I know.

MR. McGILL: He went into the business. Do you recall now whether he was kicked or hit? That certainly gave the inference to the jury that that is in that statement somewhere.

THE COURT: Wait a minute. Let me see this. Well, there's nothing in here that says he was bleeding.

MR. McGill: There is one thing.

THE COURT: Where?

MR. McGill: Excuse me Judge for taking it from you.

THE COURT: Oh, I see.

MR. JACKSON: But Judge, whatever inference the jury may get from my questions -- after the question about bleeding I left it and said, "Let's get back to this incident now that you remember the bleeding." But for her to be able to use this statement without ever having adopted it, you can't use that.

Page 107.

Durham - Redirect

MR. McGill: He already said, "Do you recall."

THE COURT: Yes. She said this was her statement.

MR. JACKSON: She's just assuming. She never adopted it at the time she gave it.

THE COURT: You cross-examined her on it. You don't have to go over the whole thing. I think you should ask her if she remembers this last part -- well, I don't want to say the word.

MR. McGill: I understand.

THE COURT: Actually, all of this is unnecessary.

MR. McGill: He brought in the aspect of the fact about not being treated for awhile Judge on his cross-examination, that they did not take him right away. Were there rooms available? Were there wheel chairs available? And it says here that he was, in fact - states the police took him to the family room about 16:30, later two doctors went to the family room and said that Jamal needed treatment.

THE COURT: You can ask her about --

Page 108.

Durham - Redirect

MR. JACKSON: Judge, I object to the statement because she hasn't adopted the statement. I'm just given a piece of paper saying that's her statement she's saying that it must be and I don't know how you can use that.

MR. McGILL: She does recall.

MR. JACKSON: Anybody could have typed that up. Judge, she never adopted it.

THE COURT: She talked to these people up here.

MR. JACKSON: That is what it says. We don't know that.

THE COURT: She said that.

MR. JACKSON: She said it was handwritten, Judge. She said she never saw that.

THE COURT: She gave a handwritten statement and they took the handwritten statement and typed this.

MR. JACKSON: We don't know that. Judge, you can't assume that.

THE COURT: You can't assume that they didn't. Look, you cross-examine on that statement.

Page 109.

Durham - Redirect

MR. JACKSON: No, I did not, Judge. I asked about the bleeding.

MR. McGill: Once you started you put the whole thing in issue.

MR. JACKSON: But I didn't read it.

THE COURT: That's your problem.

MR. McGill: Let me ask her to refresh her recollection.

THE COURT: Yes. From this point down in here about the doctors ten minutes later and this point about here.

MR. McGill: Okay.

THE COURT: These two, that's all.

MR. JACKSON: Fine.

(Sidebar conference ended.)

BY MR. McGILL:

Q. All right. Could you read the portion starting with -- may I approach the witness?

THE COURT: You can ask her the question.

MR. JACKSON: I would object.

THE COURT: Ask her to refresh her memory.

MR. JACKSON: Fine.

Page 110.

Durham - Redirect

BY MR: McGILL:

Q. Would you take a look at the statement, please? Would you take a look at the seventh line down -- by the way, who did you give the statement to? Is there anything there that refreshes your recollection as to who --

MR. JACKSON: I would object. She indicates that she did not --

THE COURT: Overruled. He's trying to refresh her recollection. Go ahead.

BY MR. MCGILL:

Q. Do you recall who you gave the statement to?

A. Yes. Officer Bartelli, Bagley.

Q. Bartelli and Bagley?

A. Yes.

Q. Were there two people?

A. Yes.

Q. And do you recall from looking at that document when you gave the statement?

A. December the 10th at 2:16 a.m.

Q. And what year?

A. 1981.

Page 111.

Durham - Redirect

Q. In reading the last part of the first paragraph do you recall telling the interviewers that the police took the defendant to the family room and at about ten minutes later Mrs. Keating and two doctors went to the family room and said that the defendant needed treatment? I'm paraphrasing but do you recall saying that to the interviewer?

A. Yes.

Q. Is that accurate?

A. Yes.

Q. Do you recall then telling the interviewer that the police then took the defendant -- you used the name Jamal, I'm using defendant --

MR. JACKSON. Your Honor, I'm going to object. He's testified for the witness in both questions.

THE COURT: If you want it read --

MR. JACKSON: Your Honor, he still isn't permitted to lead her.

THE COURT: Ask her whether that refreshes her memory.

BY MR. MCGILL:

Q. Does that refresh your recollection as to what

Page 112.

Durham - Redirect

occurred?

A. Yes.

Q. So the police then took the defendant to the cardiac room right after the ten-minute time period in the waiting room?

MR. JACKSON: Objection, leading.

THE COURT: Overruled.

MR. MCGILL: You have to say yes, or no.

THE WITNESS: Yes.

BY MR. MCGILL:

Q. The next paragraph, would you read that to yourself, please? Does that refresh your recollection as to where you saw the defendant lying when you observed his bleeding?

A. Could you --

Q. Does that refresh your recollection as to where you saw the defendant lying when you observed his bleeding?

MR. JACKSON: Objection. Your Honor, she's already said that she doesn't know where he was bleeding and when he was bleeding.

THE COURT: Go to the next one.

Page 113.

Durham - Redirect

THE: WITNESS: No.

BY MR. MCGILL:

Q. Your answer is no, it doesn't?

A. No.

Q. Now, would you read the next statement the next line.

A. "Miss Durham stated that Jamal shouted Yeah. I shot the mother fucker and I hope he dies."

Q. You said that on December 10, 1981?

A. Yes, I did.

Q. Also I'd ask that this be marked C-53, please, the statement to Internal Affairs.

While that's being marked, Miss Durham, it's a fact that that investigation was initiated by the defendant through his attorney. Did you determine who that was?

A. Yes.

Q. Do you know the results of the investigation of the District Attorney's office?

A. No.

MR. JACKSON: Objection.

MR. MCGILL: Okay. Withdraw that, then.

Page 114.

Durham - Redirect

BY MR. MCGILL:

Q. But then the momentum to ask the question came from the defense; is that true?

MR. JACKSON: Objection.

THE WITNESS: Yes.

MR. MCGILL: Show the witness the document.

MR. JACKSON: Would the witness be instructed not to answer the questions if there is an outstanding objection, please?

THE COURT: Objection is overruled. Please wait until I get a chance to take a look at the statement before you start.

MR. McGILL: Sorry, Judge.

BY MR. MCGILL:

Q. Would you take a look at that statement and review it? Have you had an opportunity to review it?

A. Yes.

Q. May I approach the witness, Your Honor? In reference to C-53 -- Mr. Jackson, on page three -- do you again state -- you don't have to say it again -- but, did you again state what you heard the

Page 115.

Durham - Redirect

defendant say?

A. Yes.

Q. And did you there state that the defendant had said that twice, at least twice?

A. Yes.

Q. And is that accurate?

A. Yes.

Q. That was on February the 9th, is that correct?

A. Yes.

Q. Miss Durham, you used, on cross-examination, two words in reference to his remark, one word was defiance and the other word was boasting --

MR. JACKSON: Objection. They're both conclusions and beyond the scope of this witness's expertise.

MR. McGILL: He brought out the both of them and questioned on them.

THE COURT: Go ahead. Overruled.

BY MR. McGILL:

Q. Would you explain what you mean?

MR. JACKSON : Objection. It's not relevant.

Page 116.

Durham - Redirect

THE COURT: Overruled. Go ahead.

MR. MCGILL: That means you can answer, when he says overruled.

THE WITNESS: Well, what I meant by boastful was I mean being on the street as long as I have everybody knows, you know, street lingo and whatever, and it's just that it was my interpretation of Mr. Jamal when he was brought into the Emergency Room that night that he was doing everything he could to intimidate the police officers, and that's why I used that word.

MR. JACKSON: Fine, Your Honor. I'll again object and move to strike.

THE COURT: No.

MR. MCGILL: Not if he brings it out, Judge.

THE COURT: I said, no.

MR. MCGILL: Sorry, Judge.

THE COURT: Don't get excited.

BY MR. MCGILL:

Q. You used the word Jamal and you used the word defendant several times. Although Mr. Jackson presently is seated in this chair, that individual, was he in the

Page 117.

Durham - Redirect

courtroom this morning?

A. Yes, he was.

Q. And where was he?

A. He was sitting where Mr. Jackson is now sitting.

MR. MCGILL: That's indicating, Your Honor, where the defendant in this case, Mumia Abu-Jamal was seated. Is that correct, Mr. Jackson?

MR. JACKSON: Yes.

BY MR. MCGILL:

Q. Now, you did state in response to Mr. Jackson's questions something about contact that you had with Officer Faulkner an hour or two hours before. Now would you explain that?

A. Yes. Officer Faulkner had brought in a little girl. I believe she was around six or seven years old. A black, female who had been sexually assaulted --

MR. JACKSON: Objection unless the witness knows that she's been sexually assaulted, Your Honor.

MR. MCGILL: The question on cross-examination was --

THE COURT: Overruled.

Page 118.

Durham - Redirect

MR. MCGILL: What did you talk about?

THE COURT: Go ahead.

MR. MCGILL: Go on.

THE WITNESS: The victim along with some relatives and friends, if I'm not mistaken, accompanied her to the hospital. One of the guys that came with the victim to the hospital had left the emergency area and was doing whatever, and Officer Faulkner was aware that the guy was there and had gone and left the emergency area and came back with him.

BY MR. MCGILL:

Q. And you used the word suspect?

A. Yes.

Q. Did you later determine that Officer Gwen Thomas was the assigned investigator in that particular arrest?

MR. JACKSON: Your Honor, objection. That wouldn't go to Gwen Thomas.

MR. McGILL: He brought it out.

THE COURT: Okay. Don't get excited. Go ahead.

Page 119.

Durham - Redirect

BY MR. MCGILL.

Q. Did you later find that out?

A. Yes.

MR. MCGILL: Thank you, ma'am. Take a look at the officer's log, please.

MR. JACKSON: Your Honor, may we see you at sidebar, please?

(A sidebar conference was held on the record as follows:)

MR. JACKSON: I'm going to object to any questions he asks her about the officer's log. She's got nothing to do with that.

THE COURT: Where are you going into the log?

MR. MCGILL: We're going to ask her to take a look at this document and whether or not this could refresh her recollection as to the time when she saw Officer Faulkner with this particular individual as well as the family.

MR. JACKSON: It's not her notes.

MR. MCGILL: That's correct.

MR. JACKSON: So they can't use that for refreshing her recollection.

Page 120.

Durham - Redirect

THE COURT: Can you even read this thing?

MR. JACKSON: You can't use that to refresh her recollection even if she could.

MR. MCGILL: I'll tell you what it says. It says "140 South 14th, rape -- not 14. I can't read that. "South 11th. rape suspect ID'd, Jefferson Hospital, Route 2, sex crimes. 2:05" --

THE COURT: What's this, the time?

MR. JACKSON: Yes.

MR. MCGILL: 2:05.

MR. JACKSON: You are getting behind the point, Judge.

THE COURT: 2:05 then she's right. Then about two hours --

MR. JACKSON: But Judge, she can't use this. It's not hers. You can't use someone else's statement to refresh your recollection.

MR. MCGILL: Okay. I'll withdraw it.

THE COURT: Yes, that's not right.

(Sidebar conference ended.)

MR. MCGILL: I withdraw the question.

Page 121.

Durham - Redirect

BY MR. MCGILL:

Q. Did you know that Officer Gary Bell was Officer Faulkner's former partner --

A. No.

Q. -- at that time?

A. No.

Q. Did you find that our later?

A. No.

Q. You indicated confusion around that area, in and out of the area that is indicated by that sketch. What did you mean by that?

A. Well, it was just a lot of policemen, you know, there. Mostly all policemen. Everybody. you know, inspectors, everybody was there. It was just mass confusion.

Q. Was there a lot of movement back and forth?

A. Yes.

Q. In other words, they just didn't go in there and stand around. Was there a lot of movement?

A. Yes. Well, the area itself is not very big inside or out so you sort of had a spill over, people who couldn't get in and those trying to get in and out.

Q. Now, you had indicated although you had a review

Page 122.

Durham - Redirect

of the statement -- did you have an opportunity to take a good view, a fair view, of the defendant in reference to determining whether or not he was injured?

A. No.

Q. Was it your function to determine whether or not he was injured?

A. No.

Q. As a matter of fact, why was it that you felt it important to see that the defendant was, in fact, removed to the waiting room?

MR. JACKSON: Objection.

THE COURT. I'll let her answer.

THE WITNESS: Could you repeat the question?

MR. MCGILL: All right. The question was, why was it that you felt that it was necessary at that time to remove or have the defendant removed from that area after those remarks.

MR. JACKSON: Objection, your Honor. The question was posed to her by a police officer. It wasn't her feeling that caused him to be moved

Page 123.

Durham - Redirect

MR. MCGILL: Perhaps we can ask her to answer the question.

THE COURT: Go ahead.

MR. MCGILL: Instead of Mr. Jackson --

THE COURT: You can answer it.

THE WITNESS: Well, like I said, when I heard Mr. Jamal make the statement simultaneously the police were asking me where could they place him. As I said before, Officer Faulkner was not far from that area and I wanted to clear that area from Mr. Jamal.

BY MR. MCGILL:

Q. Now also normally in reference to giving the statements to the police when would it be that you would give a statement to the Philadelphia police in what kind of a situation?

A. In an official capacity, if I myself called them. As far as police business, I have no interference. I don't have to make statements to the police --

Q. Okay.

A. -- when they bring in prisoners, that's their prisoners and we don't have anything to do with it.

Q. Would you, for example, if it was a crime that

Page 124.

Durham - Redirect

occurred in the hospital then would you become actively involved and give statements if you were a witness or in any way connected with it?

A. Yes. It would have to be within the hospital.

Q. So your duties, then, really were limited in terms of responded to interviews in the normal course of events to your supervisor in the hospital, which you did.

A. Right.

Q. And the next time that you had an opportunity, I believe -- well, the next time that you told anything to the police was when they came to you on February the 9th?

A. Yes.

Q. Was there any other security officer in that general area there?

A. Yes.

Q. There? Who?

A. Officer James Legrand.

Q. He is also a security officer?

A. Yes, he is.

Q. Do you see this individual?

A. Yes.

Page 125.

Durham - Redirect, Recross

Q. Can you identify this individual?

A. Officer James Legrand.

Q. Officer James Legrand?

A. Jefferson security officer.

Q. Thank you very much. Was he the individual that was in that general area?

MR. McGILL: Thank you. No further redirect.

MR. JACKSON. I have a few questions, if you don't mind.

RECROSS-EXAMINATION

BY MR. JACKSON:

Q. You indicated that before Mr. Jamal was brought in you hadn't discussed the shooting of officer Faulkner with anyone, right?

A. No.

Q. That you just indicated to Mr. McGill that because Mr. Jamal was in the area near Officer Faulkner you wanted to clear the area: is that right?

A. Yes.

Q. Is that because you wanted to keep them separated?

A. No. Because, like I said, behind the statement

Page 126.

Durham - Recross

that I had heard I just didn't think it appropriate that he be in earshot of the wounded officer?

Q. Why?

A. I don't know. My own reason, no particular-- reason. I just felt that he should have been moved to another area.

Q. If you didn't hear any questions you didn't know he was the one who shot the officer, why did you assume he was talking about the officer?

A. I just assumed -- first of all, the hospital was closed at this --

Q. What do you mean?

A. It was medically closed. There wouldn't have been no medical emergencies other than, you know -- so what I'm trying to establish is that I knew when I saw him that he was not, per se, another hospital case because the emergency area had been closed.

Q. I don't understand you at all, ma'am.

A. Well -

Q. Explain to me -- I mean, you say it's closed and people are going in the hospital?

A. All right. What I'm trying to say is, at this time there was a medical emergency involving Officer

Page 127.

Durham - Recross

Fau1kner.

Unless it was, I mean, an extreme life-saving, you know, like somebody just jumped off the bridge or out of a window, the hospital was closed. Because there was mass confusion there was no place to even bring anybody else, they couldn't even get through the door. So when Mr. Jamal arrived and he was shot and he was saying, 'Yeah, I shot this man" --

Q. You say shot what?

A. I'm not going to repeat what I said. I said it already.

Q. Go on.

A. I just took it upon myself to clear him from this area.

Q. I understand that. But you still didn't make me understand why it was you knew that Jamal was talking about that officer?

A. I can't explain how I knew. He said it and I understood what he meant, and I acted on that.

Q. You --

A. He didn't call the officer by name. He didn't say, I shot the police officer. I mean it was just instinct. I don't know how. You can call it motherly instinct or whatever, I just knew what he was talking

Page 128.

Durham - Recross

about.

Q. You just knew?

A. Yes.

MR. JACKSON: Thank you. No further questions.

MR. McGILL: I have no further questions, Your Honor.

THE COURT: I have none.

MR. MCGILL: None, Judge?

THE COURT: All right. We'll recess for lunch until 2:15.

(Witness excused)

(A luncheon recess was taken until 2:15 o'clock p.m.)

Page 129.

AFTERNOON SESSION

(A conference was held in chambers on the record as follows:)

THE COURT: Let the record indicate we're back in chambers.

MR. JACKSON: Yes. I just talked to Mr. Jamal relative to his behavior and activity in the court this afternoon. Mr. Jamal indicates that the judge has not satisfactorily dealt with his question, so it's intention to speak to the judge.

Based on that I informed him that the judge would not permit him to return to the courtroom. Mr. McGill intends to --

THE COURT: You indicated to me that he said he has no intention to sit and be quiet and that he would disrupt the proceedings; is that right?

MR. JACKSON: He said it was not his intention to be quiet.

THE COURT: That's what I mean.

MR. JACKSON: Okay.

THE COURT: So in effect what's he going

Page 130.

to do is disrupt the proceedings in front of the jury again. If I were to bring him back in and bring the jury into the courtroom he would then stand up again and continue with what he was doing before, is that what you're saying?

MR. JACKSON: In all due respect to the Court, it was that he would not be quiet.

THE COURT: That's what I mean.

MR. JACKSON: Fine. That's what he said.

THE COURT: Otherwise I can bring the jury in now and we'll find out.

MR. JACKSON: He says he will not be quiet and your Honor --

THE COURT: I will take the position --

MR. MCGILL: I would be willing to put the jury in.

THE COURT: What I am doing is avoiding his acting up in front of the jury again.

MR. JACKSON: Yes.

THE COURT: And I understand what you're telling me, that he will act up again in front of the jury, that's why I'm not going to bring

Page 131

him out, because to bring him out would only bring to their attention once more the fact that he's going to be removed from the courtroom.

MR. JACKSON: That's correct, Your Honor. And based on that possibility I have recommended to Mr. McGill and ask that Your Honor consider a stipulation by me that in effect Officer Gary Bell, who is the next witness of the Commonwealth -- I would stipulate that in fact it was Mumia Abu-Jamal that Officer Bell saw at Jefferson Hospital in the Emergency Room lobby floor on 12/9/91 and that for all purposes of that identification it is the defendant.

I also would like the record to reflect that this stipulation is a result of my concern and in abundance of caution that if in fact Mr. Jamal is going to conduct his behavior as he's indicated to me, my feeling is that the impact on the jury would be adverse and they would necessarily draw some negative inferences from his conduct, and I feel that the stipulation would neutralize that inference as much as possible.

THE COURT: Fair enough.

Page 132.

MR. McGILL: I'll agree.

THE COURT: All right. He can go back up.

(Conference in chambers ended.)

(A short recess was taken.)

(A conference was held in chambers on the record as follows:)

MR. JACKSON: I have just gone back to Mr. Jamal and indicated that he's now going to be taken up to the sheriff's cell room. He requested that he be permitted to be taken back to the prison immediately. I suggested to him that it's my understanding of the law that he has to remain here and be available even if he's not actually in the courtroom. Again, I'm bringing this to Your Honor's attention and Your Honor can --

THE COURT: I think he should stay upstairs.

MR. MCGILL: Yes, I would ask that that be done.

THE COURT: Just in case.

MR. JACKSON: I think the rules are that's

Page 133.

Bell - Direct

why they have to bring him to court everyday even if he's not here.

THE COURT: He's got to stay up there, court officer, tell the sheriff.

(Conference in chambers ended.)

(Court reconvened at 2:50 o'clock p.m.)

(The following took place in open court in the presence of the jury:)

THE COURT: Good afternoon, ladies and gentlemen.

(A discussion was held off the record.)

MR. McGILL: Your Honor, the Commonwealth's next witness is Officer Gary Bell.

- - - -

OFFICER GARY BELL (Badge Number 1217, Sixth District) having been duly sworn, was examined and testified as follows:

MR. MCGILL: May I proceed, Your Honor?

THE COURT: Yes, please.

DIRECT EXAMINATION

BY MR. McGILL:

Q. All right. Officer Bell, on December the 9th,

Page 134.

1981, did you have occasion to go to the emergency area of Jefferson Hospital in Jefferson Hospital?

A. Yes, I did.

Q. And for what purpose did you go there?

A. As a result of information I received over police radio I responded to the Emergency Room at Jefferson hospital.

Q. And when you arrived where did you go?

A. I was met by other officers that were there ahead of me and they directed me to the room where the doctors were treating Danny.

Q. Now, what was your relationship with Officer Faulkner?

A. I was a close friend of his for approximately five years and his former partner.

Q. You mean former partner in a police wagon?

A. We worked the wagon together, 602 wagon.

Q. Approximately how long were you partners?

A. He came over from one squad which was the squad he was in previously specifically so we could work together on the wagon. For approximately a year.

Q. Were you also a friend of his family?

A. Yes. I was.

Page 135.

Bell - Direct

Q. When you went there what did you do after you were directed to where he was?

A. I went over to the room on the side and I opened the door and I looked in and I saw Danny on the table being worked on by the nurses and doctor.

Q. All right. And what then occurred?

A. I watched for several minutes and I heard from -- I don't know who said it -- somebody behind me said they were bringing the guy that shot him. And I turned and several officers brought a male in and laid him on the floor in the hospital just inside the doors.

Q. Now before they did that you were where? Before that -- did you see them bring him in, or just hear they brought him in?

A. I didn't see actually them bringing him in.

Q. Okay. And you were with Officer Faulkner, in the room where he was?

A. That's correct.

Q. Where he was being attended. Okay. At that time when they brought this man in what did you then do?

A. I walked over to him. I wanted to see who did it, who shot him. And I looked at him and he looked up

Page 136.

Bell - Direct

at me. He said, "I shot that mother fucker and I hope the mother fucker dies." Those were his exact words to me.

Q. What did you do?

A. I said something back to him. I said, "He shouldn't be the one that dies, you should."

Q. Could it even have been something like --

MR. JACKSON: Objection.

BY MR. MCGILL:

Q. -- "If he dies you die?"

MR. JACKSON: Objection. He's putting words in his own witness's mouth.

THE COURT: Yes. Could you rephrase your question?

BY MR. MCGILL:

Q. Could it have been said in another way?

A. It's possible. I was angry at the time.

Q. And what did you then do?

A. I walked away before my emotions got the best of me. I felt it best that I not even be near the man and I walked back over to where Danny was, and I stayed there and watched the doctors again for several minutes work on him and try to bring him back.

Page 137.

Bell - Direct

Q. So at that point he was not yet even dead?

MR. JACKSON: Objection.

THE COURT: Rephrase your question.

BY MR. MCGILL:

Q. Was he dead at that time? What was his condition?

MR. JACKSON. Objection.

BY MR. MCGILL:

Q. What was Officer Faulkner's condition?

MR. JACKSON: Objection.

THE COURT: Okay. Overruled.

THE WITNESS: He was bleeding from, badly, from the face, head.

BY MR. MCGILL:

Q. What then did you do?

A. I left the room again for approximately three or four minutes and I assisted the Night Command personnel captain in making arrangements to notify his family.

MR. MCGILL: Your Honor, at this time the stipulation between Mr. Jackson and myself that if Mr. Jamal, the defendant, were present, the witness would identify the defendant as the man who made that remark, the defendant being Mumia Abu-Jamal. Is that correct, Mr. Jackson?

Page 138.

Bell - Direct

MR. JACKSON: That's right, that this officer would say that, yes.

THE COURT: Ladies and gentlemen of the jury, remember I told you that you can only take that from which you hear from this witness stand as evidence; however, there's an exception to that rule. When both attorneys on each side stipulate to a fact you can take that as a definite fact. All right.

BY MR. McGILL:

Q. By the way, if the man were present you would have no problem identifying him, would you?

A. No, I would not.

Q. As a matter of fact, you were here during the course of this trial --

MR. JACKSON: Objection, Your Honor.

THE COURT: There is a stipulation.

MR. MCGILL: All right. There is a stipulation. All right. It's been stipulated to. I have nothing further. Cross-examine.

CROSS-EXAMINATION

BY MR. JACKSON:

Page 139.

Bell - Cross

Q. Officer Bell, how long have you been assigned to the Sixth Police District?

A. Approximately two years and three months.

Q. And how long have you been a police officer?.

A. It will he six years in August.

Q. And you were at the -- well, obviously, you were at the hospital. Did you give a statement to the assigned detective or to Night Command or anyone within twenty-four hours of your activities there at the hospital?

A. No.

MR. MCGILL: Objection. In reference to what?

BY MR. JACKSON:

Q. In reference to any of your activities relevant to Officer Faulkner's shooting?

A. No, I don't believe I did.

Q. By the way, were you assigned to a radio patrol car on December the 9th?

A. No, I was not.

Q. But you were working during that time?

A. That's correct.

Q. And you were on foot patrol?

A. Yes, I was.

Page 140.

Bell - Cross

Q. Do you carry an Incident Report Log with you, a book with you?

A. A 48 book?

Q. 75-48 book.

A. That's correct.

Q. You did have one with you?

A. Absolutely.

Q. Would you explain to the jury what an Incident Report 75-48 is used for?

A. A 75-48 is an Incident Report. It's used on any radio call or any contact you have with any individual is recorded on this piece of paper. It's a form, it's duplicated and you sign your name, badge number and fill in the details as to the exact time, location and anything else for your assignment.

Q. Did you prepare a 75-48 with regard to your contact with regard to Mumia Abu-Jamal?

A. No, I did not.

Q. Indeed you're telling us that in fact the first time that you ever told police that Mr. Jamal made those remarks was on the 25th of February after Mr. Jamal made a complaint about being beaten; isn't that true?

MR. McGILL: Objection, Your Honor. Mr.

Page 141.

Bell - Cross

Jackson made the complaint. I've heard nothing from Mr. Jamal.

MR. JACKSON: I'll rephrase it so we get the question again.

BY MR. JACKSON:

Q. Isn't it a fact that the first time you gave the statement to the police relevant to what you stated Mr. Jamal said to you was on February 25th after Mr. Jamal through me made a complaint of police abuse; isn't that correct, sir?

A. I gave a statement on the 25th of February; that's correct.

Q. And weren't you advised that as a result of the complaint lodged upon Mr. Jamal through me that the statement was being asked of you --

MR. McGILL: Objection, Your Honor. It's established he made a complaint.

MR. JACKSON: Your Honor, may I ask, may I do this cross-examination?

THE COURT: Go ahead.

MR. JACKSON: Thank you.

BY MR. JACKSON:

Q. Again, sir, I'll ask the question as many times as

Page 142.

Bell - Cross

it takes. Again, on the 25th of February were you not advised that as a result of a complaint of Mr. Jamal through me who wanted to find relative to his being beaten by the police --

MR. MCGILL: Objection. The question is when did he make a statement and where.

MR. JACKSON: Your Honor, may I?

THE COURT: I know. Don't come to any conclusions. All right.

MR. JACKSON: Your Honor, this is what he was advised. He signed the statement.

THE COURT: Ask him what he was advised. Please, rephrase your question.

BY MR. JACKSON:

Q. Were you not told by Sargent Vargas --

THE COURT: Just a minute, come here.

(A sidebar conference was held on the record as follows:)

THE COURT: Your question presupposes that he was advised by Mr. --

MR. JACKSON: He was.

THE COURT: Wait awhile. I don't care what you've got on that paper, why don't you ask

Page 143.

Bell - Cross

him?

MR. MCGILL: May I state my objection, first of all?

MR. JACKSON: Wait a minute.

THE COURT: I want to get that point --

MR. McGILL: I'd like to state that objection then we know why I'm objecting.

MR. JACKSON: I don't get a chance to say anything.

MR. MCGILL: Let me state the objection and then you can respond to it.

THE COURT: Go ahead.

MR. MCGILL: The objection is to this: It is not relevant under what conditions he gave a statement in terms of why the statement was given. The only relevance is that a statement was made on February the 25th putting all sorts of statements in light. The reason for it, weren't you advised that the reason for this was such and such and such and such? What that amounts to is Mr. Jackson testifying through alleged abuse a question to this particular witness. It is simply not relevant to this trial

Page 144.

Bell - Cross

in that form. The only form that is relevant is why did he wait until that time to say. Did you give a statement to the police at that time, asking a question in this form, is irrelevant to this case. This is not a civil proceeding, Your Honor. That's why. And I think it's an indirect way of --

MR. JACKSON: Obviously there is a bias of the officer, that's relevant. And I now obviously have an opportunity to develop and discover any bias that this officer -- it's on the document he signed.

THE COURT: I don't care. He's telling you that he's a very good friend of his --

MR. JACKSON: I understand that.

THE COURT: -- if you want to argue that's bias. He worked with him, he's a police officer, if you want to argue that's bias. But to ask this police officer has anybody ever accused him of beating this defendant --

MR. JACKSON: But all --

THE COURT: Well --

MR. JACKSON: Judge, what's I'm saying

Page 145.

Bell - Cross

is at the scene he indicated he didn't know anybody's name and at the hospital he was beaten. This officer was interviewed as a result of the complaint that he made through me, and the only time he gave the statement, the police officer, is when he was interviewed. The bias, of course, is that he may have beaten Mr. Jamal.

THE COURT: Wait awhile.

MR. MCGILL: Oh, God.

THE COURT: Let me stop you right there. If that's the situation why don't you develop that first?

MR. JACKSON: Judge, what I'm simply saying is that I don't think that I should be required to state each and every opportunity for bias but to --

THE COURT: Wait awhile. You're jumping to a conclusion.

MR. MCGILL: I don't understand you.

THE COURT: How about the prior witness, the witness who's a security guard for Jefferson? She didn't beat that defendant.

MR. JACKSON: Fine and --

Page 146.

Bell - Cross

THE COURT: Wait awhile. And yet she was interviewed by the Internal Affairs.

MR. JACKSON: As a witness.

THE COURT: She was interviewed not as a witness but she was interviewed for what she might know.

MR. JACKSON: I understand.

THE COURT: Okay?

MR. JACKSON: But Judge --

THE COURT: You're presupposing that he was beaten and there's no evidence thus far except for what the officers have testified to. Maybe in your defense you can bring in evidence to show he was beaten, and that's fine.

MR. JACKSON: I'm not saying the beating would be the only bias. I'm saying whatever the bias is. If in fact the man who's accused of shooting the officer is now saying, "The police officer has beaten me up," isn't there a possibility of a bias -- a possibility?

THE COURT: Wait a minute. Anything is a possibility. You don't put in your questions as if that's a conclusion. If you want to ask

Page 147.

Bell - Cross

him if he was interviewed by Internal Affairs, fine.

MR. JACKSON: And can I --

THE COURT: That's the first time you asked that, but you can't ask him if he was interviewed necessarily because you've already indicated that as a basis of your complaint. He was interviewed and let's leave it at that.

MR. JACKSON: I understand.

THE COURT: That's it.

MR. JACKSON: Why can't I ask him why he was interviewed?

THE COURT: He doesn't know.

MR. JACKSON: He does.

THE COURT: Wait awhile. Because he happens to be a police officer who happened to be somewhere near him? Did Internal Affairs indict him for anything?

MR. MCGILL: Absolutely not. The D.A.'s office cleared the whole thing.

MR. JACKSON: Judge --

MR. MCGILL: This is why --

MR. JACKSON: Let me explain this.

Page 148.

Bell - Cross

THE COURT: I know, Jackson, I know what you're trying to do and I've made my ruling. That is not proper.

MR. JACKSON: Would you let me explain? If police are going to interview and someone from Internal Affairs is going to interview him, and they tell him why --

THE COURT: What's the difference? It's not relevant to this proceeding.

MR. JACKSON: It brings out possible bias, Judge.

THE COURT: Not necessarily. How would he be biased?

MR. JACKSON: Because that's his partner.

THE COURT: Oh, the other girl, the other officers, doctors --

MR. JACKSON: That's a possibility of bias.

THE COURT -- they were all biased?

MR. JACKSON: You mean to tell me, Judge --

THE COURT: Let me tell you they were interviewing because you made a complaint and

Page 149.

Bell - Cross

they wanted to see if there was any justification for the complaint. They were, naturally, going to interview everybody who they thought might have been around when this happened.

MR. JACKSON: Okay, but Judge --

THE COURT: Okay.

MR. JACKSON: If we follow what you're saying that means even if he was beaten they just wanted to beat anybody. I couldn't accuse anybody of it.

THE COURT: You can't. You can ask this man, you can ask him. That's a different story. You can ask him whether he beat him or laid a hand on him or did anything.

MR. JACKSON: Judge, you're saying even though he told him the reason why he was being interviewed that I can ask him the reason why he was being interviewed?

THE COURT: I think it's irrelevant.

MR. JACKSON: That's not so, Judge.

THE COURT: You've already brought that out once.

MR. JACKSON: What?

Page 150.

Bell - Cross

THE COURT: You brought out once that you made a complaint.

MR. JACKSON: But you're not permitting me to ask this question.

THE COURT: It's in there once, that's enough. If shouldn't even have been in in the first place but it's in there now and that's all. You're trying to draw a conclusion that he was beaten. You cannot do that.

MR. JACKSON: I am not, Judge.

THE COURT: Yes, you are.

MR. JACKSON: Simply --

THE COURT: I am not going to allow that question. Look --

MR. JACKSON: The beating has nothing to do with it.

THE COURT: I don't care. I don't care. I don't care. I don't care why the Internal Affairs did it. They had to do it. This is their procedure. Somebody makes a complaint, they have to do it and that's it. Why they do what they do I don't care.

MR. JACKSON: All I'm simply saying is,

Page 151.

Bell - Cross

I can't bring out certain things in the statement?

THE COURT: I'm just saying that as you quoted it to me --

MR. JACKSON: I'll read it if you want.

THE COURT: I don't care. But what you're saying is not admissible. I don't care if Internal Affairs or why Internal Affairs questioned him. That's their problem.

MR. JACKSON: But Judge, let me ask you this: You're saying that the contents, the questions and answers of this statement, are not admissible?

MR. MCGILL: No.

THE COURT: I didn't say that. I'm just saying that the fact that they told him that they're interviewing him because they got a complaint of an alleged beating is not relevant to any questions that you may have of this officer as to his bias or prejudice.

MR. JACKSON: So I can't --

THE COURT: So I think there's enough possibility for you to argue prejudice and bias

Page 152.

Bell - Cross

from the very fact that he said that he was a personal friend of his, knew him, worked with him, he's a fellow officer, all of those things.

MR. JACKSON: But I had a hundred different reasons, Your Honor. Couldn't I have two hundred reasons?

THE COURT: Get two hundred. I don't care.

MR. JACKSON: That's what I'm saying; this is an additional reason.

THE COURT: What I'm saying is, why somebody else did something is not relevant to this witness's bias.

MR. MCGILL: Judge --

MR. JACKSON: Well --

MR. MCGILL: -- if I can stop you here, I will not object if he wants to ask one question like -- now I think it's very clear to the jury at this point, anyway, what it is because of the last two or three questions that were not responded to, that were objected to, particularly in light of the fact that Priscilla Durham stated that it was in response to this complaint -- if

Page 153.

Bell - Cross

he wants to say in response to a complaint made by the defendant through me did you give various answers to various questions, I will not object to that.

MR. JACKSON: I can just read that. Why don't you read this? If I were to say Officer, isn't it a fact that they said that we are questioning you concerning and then go on. I mean it says the same thing. That way we don't have to improvise on the language. I think it's essentially the same thing you said.

MR. MCGILL: No. I don't like that because it's too much in the question referring to testimony, like you're testifying. I think it is clear enough to say a complaint lodged by the defendant through you that these questions were asked.

MR. JACKSON: Okay. All right. Fine.

MR. McGILL: That certain questions were asked.

THE COURT: Okay.

MR. MCGILL: I won't object to that.

(Sidebar conference ended.)

Page 154.

Bell - Cross

BY MR. JACKSON:

Q. Officer Bell, again, isn't it a fact that you were interviewed on 2/25/82 as a result of a complaint that was lodged by Mr. Jamal through me with regard to some complaint?

A. That's correct.

Q. At no other time prior to February 25, 1982 did you give a statement relevant to anything that Mr. Jamal may have said?

A. No. I did not.

Q. And you never prepared a 75-48?

A. There wasn't one required for that.

Q. You came in contact with a suspect, did you not?

A. That's correct.

Q. When you normally come in contact with suspects don't you prepare a 75-48 if not a 75 -- well --

A. If I had been the arresting officer I would be required to make a 48.

Q. You're saying that you never prepared a 75-48, an Incident Report, when you are simply assisting another officer?

A. Not normally.

Q. Do you ever do it?

Page 155.

Bell - Cross

A. No, you don't.

Q. You.

A. No, I don't.

Q. So you would have no indication at all at a certain time if you were assisting a brother officer there would be no indication where your time was?

A. On a Patrol Log it would be but not on a 48. The officer making the initial contact on the arrest would submit the 48, and if anybody assisted him it would be on the Patrol Log.

Q. You were requested by Night Command to assist in come capacity; is that right?

A. Because I knew the family, I knew Danny's wife. He asked me questions, whether he was married, whether he had any children, where he lived, how they could get in touch with his wife.

Q. And you obviously had an interest in Officer Faulkner and his family?

A. Absolutely.

Q. And you knew who the assigned detective was?

A. At that time no, I did not.

Q. Did you know before February 25, 1982 who the assigned detective was?

Page 156.

Bell - Cross

A. No, I don't believe I did.

Q. Did you ever make any efforts to find out?

A. There was no reason for me to find out who the assigned detective was.

Q. Well, didn't you think the information with regard to that statement you said Mr. Jamal gave you, didn't you think it was relevant and important?

A. Yes, I did.

Q. But you didn't take any steps whatsoever to convey it to anyone?

A. At that time it was a very, very emotional time for me --

Q. I'm sure it was, Officer.

MR. MCGILL: Objection. May he respond?

THE COURT: Let him respond. You asked him a question. Please.

THE WITNESS: I watched my best friend die in front of my own eyes.

MR. JACKSON: Yes, sir.

THE WITNESS: And the last thing I thought about was talking to anybody. I wasn't even thinking clearly at the time.

BY MR. JACKSON:

Page 157.

Bell - Cross

Q. I can appreciate that, sir. But again, not until February 25th when you were asked -- didn't you think again --

A. When I was directly asked I responded with my answers.

Q. I understand that you responded when you were asked back in February. My question is: At that time didn't you think what you heard, what you say you heard, was important enough for you to seek out an investigator and tell him, "That the man who's accused of shooting my best friend told me he shot him?"

A. I did tell him that.

Q. When?

A. When he asked me.

Q. In February?

A. That's correct.

Q. But the question is: Didn't you think it was important enough to tell him before then?

A. Yes, I did think it was important enough. I wasn't thinking clearly. I put it in the back of my mind at the time.

Q. Did you tell anybody else before you spoke to Sargent Vargas --

Page 158.

Bell - Cross

A. Excuse me?

Q. Did you tell anyone else what you heard before you spoke to Sargent Vargas?

A. I don't believe I did, no.

Q. You never told that to anybody?

A. No, I did not.

Q. Just kept that a secret?

A. Kept it in my mind, yes.

Q. Because you were upset?

A. Very upset, very angry.

Q. You ever obtain a statement from any other defendant in your eight years as a police officer?

A. Yes, I have.

Q. Did you convey this statement to the assigned detective or to someone else?

A. Probably did, yes.

Q. I take it you're saying that this case is unusual because it was your best friend that was involved and your emotions prevented you from conveying it?

A. At the time it's probably what it was, yes.

Q. Well, at the time, sure.

A. Yes.

Q. But in all due respect, Officer Faulkner died

Page 159.

Bell - Cross

on December the 9th; is that correct?

A. That's correct.

Q. So then you had the rest of December and January and almost the end of February is when you were asked the question. That's the first time you let anybody in this world know what you say you heard.

A. That's correct.

Q. Did you see anyone beat Mr. Jamal, sir?

A. Excuse me?

Q. Did you see anyone beat Mr. Jamal in the hospital?

A. No, I did not.

Q. Did you beat him?

A. No. sir.

Q. Pardon me?

A. No. sir.

Q. Did you see anyone kick him?

A. No. I did not.

Q. When you first saw Mr. Jamal where was he?

A. He was laying on the floor just right around the area of the double doors leading into the Emergency Room.

Q. How many officers were around him or near him?

A. There was several. I couldn't be sure how many.

Page 160.

Bell - Cross

Q. Were they in physical contact with him?

A. I don't believe so, no.

Q. So that he was just lying on the floor by himself?

A. He was handcuffed.

Q. Behind his back?

A. That's correct.

Q. And he was laying on his back?

A. Laying on the side.

Q. Laying on the side. Was he doing anything to anybody?

A. No, he wasn't. He was laying there -- he was moving around, squirming, but he wasn't doing anything to anybody then.

Q. Wasn't kicking anybody?

A. No.

Q. Wasn't kicking anybody with his elbows or shoulders, was he?

A. Not that I can recall he wasn't.

Q. Was he hollering?

A. He was mumbling something.

Q. Do you know what?

A. I couldn't understand exactly what he said at

Page 161.

Bell - Cross

times and other times when he told me that he shot Danny then I heard what he said. He said it very loud.

Q. He said he shot Danny?

A. "I shot the mother fucker, I hope the mother fucker dies," those were his words.

Q. In all due respect, how did you know he was talking about your former friend?

A. I assumed he was.

Q. That's an assumption. He never said he shot Danny?

A. No. He said, "I shot the mother fucker, I hope the mother fucker dies."

Q. Now again, Officer, you saw nobody in physical contact with him -- and by the way, did you see blood on Mr. Jamal?

A. I don't recall seeing any, no.

Q. Did you look at his face?

A. Yes, I did, looked right in his eyes.

Q. Did you look in his chest area?

A. I may have.

Q. Now, when you looked directly in his eyes did you see a scar over top of his eye?

MR. MCGILL: Scar?

Page 162.

Bell - Cross

BY MR. JACKSON:

Q. I'm sorry. Did you see blood?

A. I don't recall seeing no blood, no.

Q. Not at all?

A. It could have been there. I don't know. I don't remember seeing --

Q. You didn't see blood in the chest area, you've already said?

A. No. I didn't.

Q. How long did you watch him on the floor?

A. Probably less than a minute.

Q. And after he said what he said to you, you said that you walked away because you didn't want to get caught up with it?

A. I felt I had to walk away, yes.

Q. Fine. And did you hear him say anything else after you left?

A. No, I did not. I believe they removed him to a bed to be treated after that.

Q. Now I understand that you've told us what you said Mr. Jamal said. Do you recall a police officer saying anything to him?

A. Other than myself?

Page 163.

Bell - Cross

Q. Yes, sir.

A. Not offhand I don't.

Q. Now you tell us that he made those remarks to you when you first came upon him; is that right?

A. That's right.

Q. So you don't know whether or not he was responding to a question or some other officer?

A. I wouldn't know that, no.

Q. Because he said to you, "Yeah, I shot the mother fucker and I hope he dies?"

MR. MCGILL: Objection. That's not the words he used.

MR. JACKSON: I'm sorry, Officer. Tell me, again. If I'm misquoting, I apologize.

THE WITNESS: He said, "I shot the mother fucker, I hope the mother fucker dies."

BY MR. JACKSON:

Q. So he didn't say, "Yeah,- at first?

A. No, he didn't.

Q. You're certain of that?

A. I'm almost positive.

Q. Almost positive. Do you know the security officer Priscilla Durham?

Page 164.

Bell - Cross

A. Do I know of her?

Q. Yes.

A. I know of her. I don't know her personally.

Q. Do you remember seeing her on the night of this incident, December 9th?

A. There was quite a few people there. She could have been there. I don't know. I couldn't name the people that were there.

Q. When you saw Mr. Jamal and he made the remark to you he was -- in terms of your -- strike that. Where were you actually seated or standing at the time that you came in contact with Mr. Jamal in the Emergency Room?

A. He was laying on the floor on his, it would be his, right side.

Q. Let me stop you, if you don't mind. I mean, was he in the doorway, wasn't he in the doorway?

A. He was right by the doorway, yes.

Q. Was he on the rubber mat that opens the automatic door?

A. I think he was, yeah. I think he was.

Q. And you were on the other side of the door?

A. No. I was -- he was on his right side leaning

Page 165.

Bell - Cross

this way and I was standing right here.

Q. Right next to him?

A. Yeah, within about maybe a foot and-a-half away from him.

Q. And you just walked right up to him and that's when he said it?

A. I walked up to him, I leaned down and I looked at him. I stared at him, because I wanted to see who he was.

Q. As you were approaching him how long did it take you to approach him?

A. A few seconds.

Q. Few seconds? And the other officers were mumbling something around him, or he was mumbling something?

A. There was mass confusion at this point in the Emergency Room between the doctors and the police, police personnel, there was a lot of people talking. I don't know if they were talking at me, at him, or who they were talking to.

Q. And when he was coming in someone said to you, "They're bringing in the man that shot Danny," or words to that effect?

A. I heard it from behind me, yes.

Page 166.

Bell - Cross

Q. And you heard those words from behind you, and where you eventually saw Mr. Jamal was also behind you; is that right?

A. That's correct.

Q. Did you hear any scuffling?

A. No. Just --

Q. And you never saw any scuffling?

A. When I turned around he was already inside on the floor at the point when I turned around and came around the desk at the nurses' station.

Q. You don't know how he got on the floor?

A. I assume he was brought in by police.

Q. I mean, do you know why he was on the floor as opposed to a wheel chair, stretcher or on his feet?

A. I think they were looking for a bed to put him in.

Q. You don't know?

A. No, I don't.

Q. They just laid him on the floor while they looked for a bed?

A. That's correct.

Q. How long did they leave him on the floor?

A. I'd say just maybe a minute or so, not much more

Page 167.

Bell - Cross

than that.

Q. Now, I understand that you said that you walked away for several minutes and you went back and looked at Officer Faulkner, and then you came back and saw Mr. Jamal again?

A. No, I didn't say that.

Q. If I'm wrong I'm sorry.

A. I know I didn't say that.

Q. You walked away --

A. After I walked away from Jamal I went back over to the room where Danny was being treated and I stayed there for several minutes.

Q. Yes?

A. And assisted the Night Command captain and notified his family.

Q. So you never saw him again? Mr. Jamal.

A. When he was being treated I saw him, yes.

Q. But he was --

A. Which would have been maybe five, ten, fifteen minutes later.

Q. He was in a treatment room, then?

A. Yes.

Q. My apologies, then. When you saw him again in

Page 168.

Bell - Cross

the treatment room did you say anything to him?

A. No, I did not.

Q. So the only words you ever had with him were the words when you first came upon him?

A. That's correct.

Q. And you said something like, well, "He shouldn't die, you should die," or something --

A. Something to that effect, yes.

Q. You didn't say, "If he dies you die?"

A. I might have said that. I was quite angry, hurt. I couldn't believe that somebody like that could do that to somebody else.

Q. I understand. And you wanted him punished, did you not?

MR. MCGILL: Objection.

THE WITNESS: That's what the Court's for today.

THE COURT: He's already answered.

BY MR. JACKSON:

Q. Wouldn't you think your testimony, certainly the testimony you're giving here today, would be helpful in punishing him?

A. I'm just telling the truth.

Page 169.

Bell - Cross/Redirect

Q. I didn't ask you that, sir.

A. That's not for me to decide whether to punish him or not.

Q. My question is: Wouldn't you think it would be helpful in punishing giving the testimony you're giving today.

MR. MCGILL: Objection, sir.

THE COURT: Sustained.

BY MR. JACKSON:

Q. Did you ever discuss with your brother officers, your wife, your girlfriend, uncle, brother, somebody, anybody, what you said you heard this man say?

A. No, I didn't.

MR. JACKSON: No further questions, Your Honor.

REDIRECT EXAMINATION

BY MR. McGILL:

Q. Officer Bell, is it not true that consistent with the normal procedure --

MR. JACKSON: Objection. I'm sorry. I withdraw the objection.

BY MR. MCGILL:

Page 170.

Bell - Redirect

Q. -- when a complaint is made everybody that's even remotely concerned with the incident is interviewed when there's a complaint in Internal Affairs; isn't that true?

A. That's true.

Q. And are you aware of the results of the District Attorney's investigation, sir?

MR. JACKSON: I'm sorry? Of who's investigation?

MR. McGILL: D.A.'s office, D.A.'s investigation.

MR. JACKSON: I object, Your Honor.

MR. MCGILL: May we see you at sidebar?

(A sidebar conference was held on the record as follows:)

MR. JACKSON: The basis of my objection is, first of all, he's asking him about Internal Affairs and now he's asking --

MR. MCGILL: Will you keep it down?

MR. JACKSON: -- he's asking him about Internal Affairs and then he jumps to the results of the D.A.'s investigation.

MR. MCGILL: All right. Let me explain.

Page 171.

Bell - Redirect

First of all, this is the reason I'm bringing this in at all -- it's a confusing and a collateral matter that's creating an issue that does not exist. The reason I say that is certainly I can't find relevance in the beating, alleged beating, in terms of voluntariness of statements. However, it is not relevant to bring in complaints and other things. That is not anticipated but merely a question of the usual procedure when a complaint is made. With these complaints that are going through Internal Affairs, as a matter of course when there is any kind of substantial claim whatsoever with that complaint it is then directed towards the District Attorney's office for a review. Specifically in this case Mr. Jackson asked through Mr. Jamal or rather Mr. Jamal asked through Mr. Jackson for the District Attorney's office to make a recommendation with reference to the Internal Affairs interviews. We had one hundred fifty interviews all of which defense counsel has which we were specifically asked to review. They made a very big point of the D.A.

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not moving quick enough and make a decision.

As a result of the request a decision was reached, a report was made and mailed to Mr. Jackson and, I assume, Mr. Jamal read it as well as a carbon copy to Judge Ribner who had asked for it. Those results are known.

It is extremely unfair. The results are that there are no substantiated claims, no substantiated claims. The problem is once you raise an issue like this and then you leave it hanging it gives it the aura of some kind of truth to it. Now this is not a question of civil law, it's not a question of civil damages, rather. It's a question of the credibility of the various witnesses and allowing to get into the collateral matters puts the Commonwealth at a disadvantage unless it can stand up itself and say there were no substantial claims whatsoever given at all. And then letting it hang, oh my God, getting some sympathy for the defendant.

MR. JACKSON: May I respond?

MR. MCGILL: Judge, I will say at this point that I will not ask this question and I'll

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leave this area alone as long as Mr. Jackson will leave the area alone.

MR. JACKSON: No. No.

THE COURT: Can't you stipulate as to what the results were?

MR. JACKSON: No.

MR. MCGILL: Sure.

THE COURT: If you can't --

MR. MCGILL: I will do it.

THE COURT: If he can't bring one of your people in and show that there were no substantiated --

MR. JACKSON: Fine, because I would like to cross-examine whoever it is who made the investigation.

MR. MCGILL: Wait a minute. You're not serious, of course, first of all?

MR. JACKSON: If he brings him in I will.

MR. MCGILL: That is absolutely --

THE COURT: I will let you ask him the question and let's get it over with.

MR. MCGILL: The question here is that

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he cannot go into that area. That's the thing. He cannot.

THE COURT: You are asking him --

MR. MCGILL: Are you aware of the results? I think he's aware of the results?

MR. JACKSON: From the D.A.'s office, he never said he knew anything about that one. It was only asked of him about Internal Affairs. That is my point.

MR. MCGILL: Judge -- will you please?

THE COURT: What's your question going to be so I can rule?

MR. MCGILL: The point I have to make, Judge, is this: The area should not be pursued one way or the other.

THE COURT: But make your objection at the right time and --

MR. MCGILL: I will withdraw the question at this point.

THE COURT: If he goes into that area again --

MR. MCGILL: I will object to him going into that area. I want Your Honor to rule now

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that he cannot go into that area.

THE COURT: I don't know what he is going to bring on the defense. As far as your witnesses are concerned, you bring your witnesses in for a certain point, a certain purpose. I will limit him to cross-examine for that purpose only, not to try to bring in for the defense. What he's going to do when he comes to his defense, I don't know. I'll have to worry about that at that time.

MR. MCGILL: I'm talking about cross-examining my witnesses.

THE COURT: I'm talking about that.

MR. MCGILL: I want to ask a question --

THE COURT: You bring your witnesses in for a specific purpose. I will not allow him to bring in this so-called beating or whatever he's talking about through your witnesses at this time.

MR. MCGILL: All right. Fine.

THE COURT: If he wants to bring in the witnesses, that's different.

MR. MCGILL: He can ask him whether he's

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Bell - Redirect
Sobolusky - Direct

beaten anybody, that's fine.

THE COURT: I didn't say you can't do that, of course.

(Sidebar conference ended.)

MR. MCGILL: I withdraw the question. Your Honor. I have nothing further, Your Honor. Thank you.

MR. JACKSON: Nothing further.

- - -

(Witness excused.)

MR. MCGILL: Detective Sobolusky.

- - -

DETECTIVE ROBERT SOBOLUSKY, (Badge Number 748, Central Detective Division), having been duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. MCGILL:

Q. Detective, on December the 9th, 1991, were you a member of the Philadelphia Police Department?

A. Yes, I was.

Q. Where were you assigned?

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A. Central Detective Division.

Q. Did you have occasion to seize any evidence in connection with this case?

A. I did.

Q. What was the nature of the evidence that you seized?

A. Clothing.

Q. From whom?

A. From the defendant.

Q. The defendant Mumia Abu-Jamal?

A. That's correct.

(A discussion was held off the record.)

BY MR. MCGILL:

Q. Did you have occasion to make out a property receipt?

A. Yes, I did.

Q. Could you mark that, please, the next number, which I believe is C-54, and C-55? First of all, take a look at C-55. Can you identify that exhibit?

A. Yes, sir.

Q. What is it?

A. It's a copy of a property receipt, City Property

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Sobolusky - Direct

Receipt.

Q. Where did you see it before?

A. I made this up.

Q. Is that the property receipt in connection with the clothing that you seized from the defendant?

A. Yes, it is.

Q. Now I will not ask you to take out all of the clothing in that bag that's marked C-54 but I will specifically ask if you could find in that a holster. Take that out of that bag, C-54.

All right. Leave the rest of the clothing in there in case Mr. Jackson will want to view it. Now, would you take that -- first of all, identify what you just took out.

A. A leather holster, shoulder holster.

Q. I'll ask that that holster be specifically marked C-56 and shown to defense counsel and the Court. I'm showing you what's been marked C-56. Can you identify that?

A. Yes.

Q. What is it?

A. It's a black leather shoulder holster.

Q. Where did you seize that?

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A. From the defendant.

Q. Are you able to identify the defendant?

A. Oh, yes.

MR. MCGILL: Your Honor, at this point, again, there is a stipulation between Mr. Jackson and myself that if Mr. Mumia Abu-Jamal was here this detective would identify Mr. Jamal as the defendant, as the individual, he took the holster from.

THE COURT: Once again I remind the jury that I have told you that I want you to consider as evidence only that which you hear from this witness stand and from no outside sources. However, when there is a stipulation between counsel as to a certain fact you may accept that as a fact. Go ahead.

BY MR. MCGILL:

Q. All right. Where did you seize the clothing from?

A. The clothing was taken from the defendant himself.

Q. All right. And where was the holster taken from?

A. From under his left arm next to his body.

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Q. And when did you do that?

A. Time?

Q. Date.

A. December 9, 1981.

Q. Where?

A. Inside the Jefferson Hospital Emergency ward.

Q. Do you know approximately when?

A. Around 5:00 a.m.

MR. MCGILL: Cross-examine.

CROSS-EXAMINATION

BY MR. JACKSON:

Q. Detective Sobolusky, did you also remove from Mr. Jamal a jacket?

A. No. sir.

Q. Did you obtain a jacket, sir?

A. Yes, sir.

Q. You did.

A. Yes, sir.

Q. Who removed it?

A. I don't know.

Q. Let me back up. You did remove the holster, though?

A. I helped him in removing the holster, yes.

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Sobolusky - Cross

Q. Who helped?

A. Hospital personnel.

Q. And you didn't see who removed his jacket?

A. No, Sir.

Q. Who did you get the jacket from?

A. The floor right under the table.

Q. And who told you that it was his jacket?

MR. McGILL: Objection as to hearsay.

MR. JACKSON: I just want to know. I don't know whether it's true or not. I would want to know who said it.

MR. MCGILL: I would like a lot of things, too, but it's not admissible.

THE COURT: Let me see you over here.

(A sidebar conference was held on the record as follows:)

THE COURT: Are you saying that this is not his jacket?

MR. JACKSON: I'm not, Judge. I just want to know -- I don't know.

THE COURT: He says that it was.

MR. MCGILL: It's hearsay, that's all, Judge. Maybe he doesn't know, maybe he does. I

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don't want to develop inconsistencies with physical evidence.

MR. JACKSON: Judge, I'm not asking him for the truth that's being said. I want to know if anyone told him. I'm not necessarily contesting it. I want to find out at this point and later on it may be relevant, it may not. I have a right to ask whether it's true or not.

MR. MCGILL: It's hearsay.

MR. JACKSON: I'm not asking it for the truth.

MR. MCGILL: Then it's not relevant.

MR. JACKSON: It is. The clothing where he's shot?

MR. MCGILL: Then that's the truth.

MR. JACKSON: That's not.

THE COURT: Ask him why he picked it up.

MR. JACKSON: And then he's going to say because I was told. I am not trying to get -- again, that seems to be more clearly --

THE COURT: It may have been because it was just underneath that table where he was

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Sobolusky - Cross

lying.

MR. JACKSON: That's what I'm trying to find out.

THE COURT: Was the jacket cut open like by --

MR. MCGILL: I don't know if the jacket was.

MR. JACKSON: The shirt was.

MR. MCGILL: The shirt was.

MR. JACKSON: That's why I'm saying the easiest way to do it -- he didn't just go in and pick up the jacket. I'm sure somebody said something, and I want to find out who it was to make sure we have the chain of custody. That's what I'm concerned about.

MR. MCGILL: I object. It's hearsay.

MR. JACKSON: How about the chain of custody?

MR. MCGILL: It's not admissible evidence.

THE COURT: Then I won't admit it in. Just because he's identified it doesn't mean I'm going to admit it into evidence. If he doesn't

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Sobolusky - Cross

sustain this chain of custody you're talking about it's at his peril but you can't later on use the jacket.

MR. JACKSON: I can't find out who told him? I'11 ask him why he has the jacket, then.

MR. MCGILL: It's all much ado about nothing. The fact is if the jacket is underneath the thing and there's nobody else in the room --

MR. JACKSON: He's testifying. I don't know that.

THE COURT: He said it was laying there.

MR. MCGILL: I'm not testifying. I'm saying it at sidebar. And there's no one there in the room and he's there, obviously there's an inference that can be drawn that that is his jacket. It's not all the chain of custody, it's a question of weight.

THE COURT: Somebody may not have told him. Did he say somebody told him?

MR. JACKSON: I will ask.

THE COURT: Ask him why he picked it up. He might say, "Because I thought it was his."

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MR. JACKSON: Fine. That's all I wanted to know.

THE COURT: Okay.

(Sidebar conference ended.)

BY MR. JACKSON:

Q. Detective Sobolusky, why did you pick up the jacket?

A. Because I was there to gather evidence, any kind of evidence.

Q. And so you assumed that the jacket was evidence?

A. Yes.

Q. What about his shirt? Do you have the jacket?

A. Yes, sir.

Q. Could you show that to me, please? Now that jacket is in substantially the same condition that it was in on December the 9th, 1981?

A. Yes, sir.

Q. Was there any picture on the back of that jacket?

A. I don't recall.

Q. If there was a picture wouldn't you recall? You said substantially the same now as it was then.

A. Yes.

Q. So if there was a picture on it then there'd be

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a picture on it now?

A. Yes.

Q. There is no picture on it now, would you agree? In the back of the jacket or anywhere?

A. I agree.

Q. Pardon?

A. Yes, sir, I agree.

Q. There's no picture?

A. There's no picture.

Q. Fine. Now Officer, at the top of the right chest of the jacket could you tell us what you see there?

A. I don't see anything.

Q. How about the left chest, sir?

A. Nothing unusual.

Q. Any blood on the jacket, sir?

MR. MCGILL: I have to object, Your Honor. He's not a chemist.

BY MR. JACKSON:

Q. Any stains, any holes anywhere in the jacket, sir?

A. Some residues here. I don't know if it's blood or what.

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Sobolusky - Cross

Q. Fine. I'm not going to ask you to tell us whether it's blood or Kool-Aid or anything else.

A. There are stains on there, yes.

Q. Fine. Any holes in the jacket?

A. Not that I can see.

Q. Okay. You picked that up right off the floor of the hospital?

A. That's correct.

Q. Who was in the hospital room with you? If you can recall.

A. There were several, maybe two, three people, hospital personnel.

Q. No other police personnel?

A. Not that I remember.

Q. Now, did you obtain a shirt belonging to Mr. Jamal?

A. Yes, that's correct.

Q. Do you have that, sir?

A. Yes.

Q. Would you take that out for us, please?

A. An outer shirt or --

Q. You can take them all out because I'm going to ask you to get to all of them.

Page 188.

Sobolusky - Cross

A. Okay.

Q. Now, any stain of any sort or any holes in the shirt? For the record, the shirt appears to be a dark blue flannel shirt; is that correct?

MR. MCGILL: I would object, Your Honor. Let the jury --

MR. JACKSON: Fine. My apologies.

BY MR. JACKSON:

Q. Can you describe it for the record, sir?

A. It appears to be a dark blue flannel shirt.

Q. Thank you, sir. Can you tell me if there are any stains or holes in the shirt?

A. Well, there are stains. I don't know about holes. It's torn.

Q. Where would it be torn, sir?

A. Looks like a sleeve is torn.

Q. And what sleeve would that be, sir?

A. Looks like the right sleeve, looks like it was cut away.

Q. See any other cuts or holes in the shirt?

A. No, I can't see any.

Q. And that shirt is in substantially the same condition that it was in on December the 9th, 1981?

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A. That's correct.

Q. By the way, any picture on the front or back of that shirt?

A. No, sir.

Q. You have a polo shirt there, sir?

A. Pardon?

Q. You have a polo shirt or Tee shirt inside there?

A. This appears to be a polo shirt or Tee shirt.

Q. Did you remove that from Mr. Jamal?

A. No. I didn't. I was present when it was removed.

Q. By hospital personnel?

A. Yes.

Q. Do you recall whether in fact, or do you know whether in fact it has any holes in it? I'm not trying to force you to handle it, but do you remember or do you see any holes in it?

A. I don't see any holes --

MR. MCGILL: I would object. I think the appropriate party would be the chemist who will testify since they've done tests on the shirt. I would object. It's unfair to ask him.

MR. JACKSON: It's unfair to ask him if there's a hole in it?

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THE COURT: Come over here.

(A sidebar conference was held on the record as follows:)

MR. McGILL: Judge, the objection goes to this: The chemical lab does significant amount of work on each of these garments --

THE COURT: Did he turn all of this over to the chemical lab?

MR. McGILL: Yes.

THE COURT: Why didn't you bring that out?

MR. MCGILL: Why didn't I bring it out? Of course he had turned it over.

THE COURT: But if he had said that -- he's assuming that he had control of it.

MR. MCGILL: I don't think he is.

MR. JACKSON: I'm assuming that he picked it up.

THE COURT: You know what he did, took whatever they gave him, went to the chemical lab and turned it over.

MR. JACKSON: I think he looked at it.

THE COURT: Why don't you ask him?

Page 191.

Sobolusky - Cross

MR. JACKSON: I did.

THE COURT: You ask him if he sees a hole now.

MR. JACKSON: Fine. I will ask him if he saw a hole.

MR. MCGILL: The objection I have -- seriously, let's get moving -- the objection I have is since the chemical lab cut it open --

THE COURT: You concede that.

MR. MCGILL: It's putting him in a very bad position.

MR. JACKSON: I will withdraw the question.

MR. MCGILL: I keep on hearing two voices. I will take Mr. Jackson that Tumosa will testify and he will have a field day with Mr. Tumosa, if he wishes.

MR. JACKSON: Let me ask him what he remembers, if anything, when he took it from him.

THE COURT: Let me say this: If all he did was take the clothing, put it in a bag and cart it off, that's the end of it. He didn't

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do anything to it.

MR. JACKSON: I'm not saying he did anything to it.

THE COURT: Why are we going into all of this? Let's find out. Ask him.

(Sidebar conference ended.)

BY MR. JACKSON:

Q. Detective Sobolusky, you saw the shirt removed from Mr. Jamal? The shirt or polo shirt?

A. To the best of my knowledge, yes.

Q. Okay. And what if anything did you then do with the shirt? It was given to you?

A. Yes.

Q. What if anything did you then do?

A. I gathered everything up and put it in a plastic bag.

Q. Okay. Let me ask you this: Did you examine any of those items in a hospital room?

A. No, sir.

Q. Didn't look at them at all? Just took them from him and put them in a bag?

A. I may have looked at them but I didn't scrutinize them.

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Sobolusky - Cross, Redirect

Q. So then it would be fair to say that you're really not in a position to say that they're in the same condition now that they were in December the 9th?

A. They're in the same condition.

Q. They're in the same condition?

A. As far as I know, yes.

MR. JACKSON: Thank you. I have no further questions.

REDIRECT EXAMINATION

BY MR. MCGILL:

Q. Detective, what did you do with the bag of clothing once you gathered all the clothing together and put it in the bag?

A. I recorded them on the property receipt and submitted them to the chemical lab.

Q. And did you not submit it to the chemical lab for purposes of testing?

A. Yes, sir.

MR. MCGILL: I have nothing further. Thank you, Detective.

MR. JACKSON: I have nothing further.

- - - -

(Witness excused.)

- - - -


I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct transcript of the same.


Official Stenographer


The foregoing record of the proceedings upon the trial of the above cause is hereby approved and directed to be filed.


Judge