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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Room 253, City Hall
Philadelphia, Pa.

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June 26, 1982

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Before: HONORABLE ALBERT F. SABO, J.

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

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Theresa M. Carroll, R. P. R.


Table of Contents

Witnesses

For the Commonwealth

Dr. Examination on Qualifications

Doctor C. Tumosa                    3

Dr. Cr. Redr. Recr.
Doctor C. Tumosa 13 38 85 92
Officer J. Forbes 97 100 110 113
Detective W. Thomas 116 120

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EXHIBITS

C-61 Flashlight Page 99
C-62 Statement of
Officer Forbes
Page 111

Page 3.

(At this point, there was a side bar conference with the Court,
Mr. McGill, Mr. Jackson, and the defendant, which proceeded as follows:)

THE COURT: Mr. Jamal, before the Court opens for today's session, I would like to know whether you have changed your mind and whether you will behave and be quiet during the proceedings and not disrupt the Court in the ordinary process of these proceedings.

THE DEFENDANT: Before the Court opened its session, I instructed your messenger to inform you that I wanted to confer with counsel of my choice, John Africa, Teresa Africa, or Janette Africa.

THE COURT: They are not here.

THE DEFENDANT: I will wait until they arrive.

THE COURT: Then, in other words, you are willing to sit in there until they arrive and then make your decision?

Page 4.

THE DEFENDANT: Indeed, I have no problem with that.

MR. MCGILL: As I understand it, what the defendant is saying is that he wishes to confer with them when they arrive. I don't know whether he means that he does not want to sit here in court --

THE COURT: Until they arrive.

MR. MCGILL: Does the defendant want to sit here and listen to the trial and just confer with them when they arrive?

THE DEFENDANT: I don't want to sit out here and listen to the trial. I would like to confer with my counsel, John Africa, Teresa Africa, and --

THE COURT: And you want to confer with them before you come out to court?

THE DEFENDANT: Exactly.

THE COURT: Is that clear enough for you?

MR. MCGILL: Well, Your Honor, perhaps the Court could again instruct the

Page 5.

defendant of the importance of his being present at his own trial so that he can hear evidence and advise Mr. Jackson or provide information and it might help him in his defense in his case. Mr. Jamal is very close to me and has to be able to hear what I am saying, but, Your Honor, it is important, naturally, that a defendant charged with such a serious crime be, in fact, present for his own sake. Of course, if he wishes not to be present, he does not have to be. The reason for his being present, listening to all the evidence and advising his counsel -- he would know more about the case than anyone. He certainly would be in a position to assist Mr. Jackson in asking questions and developing his defense. I think it is important that the defendant be made aware that, again, he recognizes that by not being in the courtroom that he literally is waiving or giving up that opportunity.

THE COURT: Did you hear what the

Page 6.

District Attorney said?

THE DEFENDANT: I think I made my position clear.

THE COURT: Regardless of what he just said, your position is that --

THE DEFENDANT: Unless the District Attorney is now functioning as my defense counsel, and I am sure that he is not, my wish is to confer with my family, my counsel, John, Teresa and Janette Africa, before I come into the courtroom.

THE COURT: I think that what the District Attorney is saying is that he wants you to realize that you are giving up certain important rights, your right to be present, to hear the evidence that is being presented against you, and to advise Mr. Jackson of whatever you think might be important in order for him to properly defend you. That is what he is saying.

THE DEFENDANT: My proper defense can be achieved by John Africa. That is my

Page 7.

position.

THE COURT: In the meantime, regardless of what he is telling you, you are going to be missing your rights; your choice is not to be present in this courtroom until you have had an opportunity to talk to the representatives -- what are their names?

MR. MCGILL: John Africa is one.

THE COURT: Well, he is not speaking to John Africa directly, but --

MR. JACKSON: He indicated that he would like to speak to Janette Africa or Teresa Africa first before he makes a decision as to whether or not he wants to be in the courtroom. That is what he is saying.

THE COURT: And all I'm saying is that they are not here and I don't know if they are going to be here today. So --

MR. MCGILL: Well, Your Honor, I would have no objection. Of course, I understand that the Court has to move this case forward. It has been close to a month

Page 8.

now, maybe three and a half weeks and there have just been constant delays. So, I can appreciate why the Court would want to start right now since it is now 10:20 on a Saturday.

However, what I would like to say to the Court is that the Commonwealth would have no objection that if, as soon as these people that he has mentioned arrive, their presence would be made known to Mr. Jackson. I would have no objection if at that moment we would have a recess and they would have an opportunity to confer with the defendant and then perhaps that would change his mind about coming out and being present at his trial.

THE COURT: That is perfectly alright, as long as somebody lets me know when they come in. Is there anything else?

MR. MCGILL: Yes, for the record, I have already mentioned several times that John Africa and the other people, Janette

Page 9.

Africa and Teresa Africa, are not members of the Bar. They are not attorneys for the Commonwealth of Pennsylvania.

THE COURT: They are his relatives, that's all, or his intermediary between himself and supposedly --

MR. MCGILL: That's right, isn't it, Mr. Jackson; they are not attorneys?

MR. JACKSON: I don't know that for sure.

THE COURT: I am pretty sure that they are not.

MR. MCGILL: Are they attorneys?

THE DEFENDANT: I think you should ask them that.

MR. MCGILL: We are not getting information from it; so, I can assume that they are not. However, I do know from my own knowledge, having been in contact with our office, that both people, Teresa Africa and Janette Africa, both women have been in this room often through the jury selection,

Page 10.

Motion to Suppress, as well as the trial. If they are the same people that he is talking about, they are not licensed attorneys, members of the Bar of the Commonwealth of Pennsylvania.

THE COURT: Alright.

(Conclusion of side bar conference.)

(Court is session at 10:20 a.m.)

MR. MCGILL: Doctor Tumosa is my next witness.

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CHARLES TUMOSA, having duly been sworn, was examined and testified as follows:

THE CRIER: State your name and title for the record, and spell your last name.

THE WITNESS: Charles Steven Tumosa.

T-U-M-O-S-A. My position is criminalist for the City of Philadelphia.

THE CRIER: Please be seated.

THE WITNESS: Thank you.

MR. MCGILL: May I proceed, Your

Page 11.

Honor?

THE COURT: Proceed.

(DIRECT EXAMINATION ON QUALIFICATIONS)

BY MR. MCGILL:

Q. Doctor Tumosa, you indicated your title. What is that title, again?

A. Criminalist.

Q. Would you state what your qualifications are for that position, please, Doctor?

A. Basically a criminalist is someone who examines, analyzes, and evaluates trace evidence. Trace evidence can be anything, any physical object which has a relevance in a legal context. It differs from a criminologist in that criminology studies the sociological or psychological aspects of an event. The criminalist studies physical objects themselves.

I have a Bachelor's Degree in chemistry from Saint Joseph's College, now university, here in Philadelphia; a doctorate in chemistry, Ph.D., from Polytech Institute. My brain is in years of physical science, chemistry, biology, physics, mathematics and so forth.

Page 12.

Tumosa - Direct

I have been with the City of Philadelphia since November of 1971, first as a chemist and then later as supervisor in the Criminalist Unit.

My function has been to examine trace evidence in that period. I have had supplementary training in forensic serology, the study of body fluids, at Georgetown University. I belong to a series of professional organizations: American Chemical Association; Northeastern Association of Forensic Sciences, and a number of others. I have taught and lectured regarding criminalistics, different aspects of it, at Community College of Philadelphia, Temple University, and Lehigh Valley Community College, and other places.

Q. Approximately how many cases have you actually worked on both as a chemist and as a supervisor in relation to analyzing trace evidence?

A. Thousands.

Q. Approximately how many cases have you worked on in determining the presence of primer lead on clothing.

Page 13.

Tumosa - Direct

A. Hundreds.

Q. How about the test for nitrates?

A. Hundreds.

Q. How about determining and analyzing bloods and blood types?

A. Thousands.

MR. MCGILL: Cross examine on qualifications.

MR. JACKSON: If it please the Court, I have no questions.

THE COURT: Proceed.

(DIRECT EXAMINATION)

BY MR. MCGILL:

Q. Did you have occasion to analyze any of the evidence in relation to this case, the case involving the death of Officer Daniel Faulkner?

A. Yes.

Q. Do you have a report present with you which you can refer to showing the results of your examinations?

A. Yes.

Page 14.

Tumosa - Direct

MR. MCGILL: Mr. Jackson, do you have that?

MR. JACKSON: I believe I do. Yes, I do.

BY MR. MCGILL:

Q. Doctor I referring to your report, and this would be referring specifically to C-24 and C-25, property receipt number, on page one, 854917. Do you have that on your report?

A. Yes, sir.

Q. Specifically, the patrol jacket and the sweater. Would you take a look at exhibit C-24 and C-25?

A. Yes, sir.

Q. Can you identify those items?

A. These are the items that I described in city property receipt number 854917, a waist length Philadelphia police patrol jacket and a police uniform sweater.

Q. Let's take the first, if we can.

Page 15.

Tumosa - Direct

Take a look at C-24, and that would be the jacket, item number one in your report.

Would you indicate, please, first of all, and perhaps the Doctor could have the jacket with him when he reviews his findings, would you tell the jury, please, exactly what you had determined about that particular item, the police jacket?

A. I will read directly from the report. It is a description of the item and the results of our findings.

"Item number one is a dark blue waist length Philadelphia police patrol jacket with the zipper up front, stained with human blood. There are several holes present in the following locations: a, the center back of the jacket, nineteen centimeters down from the collar seam. Tests for nitrates, combustion products of emission, were negative. Tests for lead indicated the presence of primer lead."

Q. Would you take a look at the jacket and show us where that hole was?

A. There is a hole, the evidence of which is

Page 16.

Tumosa - Direct

in the center of this cross cut pattern in the back of the jacket. That cross cut was made by the laboratory in the analysis of the jacket and at the center of that hole, the center of those cuts, was a hole. There still is a hole.

Q. Now, you stated that the test for lead indicated the presence of primer lead. Would you tell me what you mean by that?

A. Lead can come from a discharge of a firearm. Lead can come from primarily two sources.

One, the projectile itself, the coding of projectiles, bullets, if you will, are made of lead, some lead base. So, when going through a particular item, lead will be wiped off and lead will be present on a garment. It would be much like a pencil on a particular piece of fabric or paper.

The second source of lead which may come about comes from the primer of the cartridge. When the firing pin of a weapon strikes this primer, the primer explodes, sets off the powder inside the cartridge. The cartridge then propels the projectile.

Page 17.

Tumosa - Direct

The compound which sets off this explosion is a lead compound. It is an organic lead compound which is sensitive. So, at close distance, or a distance, the primer lead actually is blown out through the barrel of a particular weapon much like -- you can think of it in terms of a hose. If you hold a hose level, a projectory of water will come out and hit the ground at a particular point. Well, the same will occur when the weapon is discharged. You have powder in the barrel. You have graphites. You have unburned ammunition. You also have this primer lead coming out much the same way water would come out of a hose held level and falls off at a particular distance.

Q. Did you make any kind of findings in relation to any comparison of the primer lead around that particular hole?

A. Yes.

Q. What were your results in reference to those?

A. We determined that the weapon must have been twelve inches or less when discharged.

Q. How can you determine that? Tell me what you

Page 18.

Tumosa - Direct

do.

A. This is just as I described. If you hold a hose out, water from the hose will come and at particular points will hit the ground. The water itself won't go on forever. The same thing is true with the products of combustion. When a firearm is discharged, when a cartridge is discharged from the weapon, at a particular distance, you will not find this particular material any more. Usually, it is around nine to twelve inches where this falls off so that when we detect it, when we know it is there, we know that the distance must have been less than that distance, twelve inches.

Q. We have a ruler here. Would you hold that up? Would that be twelve inches?

A. Well, one foot, twelve inches, or less.

Q. Or less?

A. Or less.

Q. Twelve inches is the outside figure?

A. Yes, it is the outside estimate.

Q. Would you, again, take a look at your report

Page 19.

Tumosa - Direct

and in reference to the jacket, would you describe what it says as to b and c on your report?

A. "b, the upper right back collar area through the collar and fabric of the jacket, but not completely through the garment. Tests for nitrates, negative. Tests for lead were positive.

c. right front shoulder area through the collar and fabric of the jacket, but not completely through the garment. Tests for nitrates were negative. Tests for lead were positive."

Q. I am going to ask you to take a look at "b". I want to make sure you read that correctly. The tests for lead on "b" were --

A. They were negative.

Q. Alright. You said positive. So, the tests for nitrates and the tests for lead on "b" were negative. On "c," the tests for nitrates were negative and the tests for lead were positive.

A. That is correct.

Q. Would you show, again, on that jacket, would you know where the holes are, what the significance of

Page 20.

Tumosa - Direct

the labels b and c are and whether or not you are able to tell whether they were entrances or exits?

A. Well, this is hole "b." You can see the fabric is tufted outward. We have hole "c" here at the front collar.

Q. If I gave you a pencil, would you be able to put that through that?

A. (Witness demonstrating.)

Q. What about "b"?

A. You can see the tuft lining popping through the back.

Q. Can you possibly go with that pen and indicate the route of that particular hole?

A. One could not make an accurate estimate of the projectory in this case.

Q. Explain why you could not do that.

A. Well, clothing is very loose on the body, whether you think it is tight or not, and it moves around so that necessarily the correspondence of holes in clothing -- the clothes may be doubled over, may be

Page 21.

Tumosa - Direct

completely tufted, raised, lowered, any one of a number of different configurations so that clothing is usually not a very good way of determining the projectory of a projectile.

Q. Now, you have indicated "b" and "c." Did you make a determination as to whether "b" or "c" was an entrance or an exit and how?

A. When we examined for lead, which is indicative of the passing of projectiles, like I said like a pencil, we found lead in hole "c," which is the entrance hole. We also cut open the jacket and on the inside found a trace of lead in a straight line much as if you had taken a pencil and drawn a line which indicates the path of the projectory through the clothing. Of course, the back is a classic exit hole in which materials are propelled outward by the movement of the projectile. A projectile is not neat. It tends to take up the material as it is going along nearby it so that when it moves, it pushes things with it and in this case you see the fabric being pushed outward.

Q. From your experience, Doctor, so I can really

Page 22.

Tumosa - Direct

get it down to fundamental language, could you tell me the route of the projectile was on that side of the coat?

A. Well, hole "c" was an entrance. It went in and out of the fabric of the jacket and exited at the back.

Q. In your testimony as to the fact that clothes are sometimes jumbled up, particularly I assume you are jostling around a bit, your clothes are moving around, is that what you indicated, instead of being straight like this all the way; is that what you are saying?

A. Yes. Any movement -- as I sit here, my collar is higher than the back of my neck. Any movement, any change of position will certainly move your clothing, particularly the collar area.

Q. So, would that kind of hole, in your experience, since lead was present at the front meaning that it was an entrance there, in the back meaning that it was an exit, considering the condition of the clothing or the position of the clothing in relation to the body, is that consistent, those holes, with the

Page 23.

Tumosa - Direct

projectile going through the front and coming out the back without making direct contact with the body?

A. Yes, it would be consistent with that.

Q. Would you take a look at item two on that property receipt. That would be the sweater. What were your findings in relation to that garment?

A. Again, I will read directly from the report.

"Item number two, blue police uniform sweater stained with human blood. There is one hole present in this item, upper center back, six centimeters down from the collar edge. Tests for nitrates negative. Tests for lead were positive."

Q. Would it be fair to say that that particular sweater, the hole there, would be consistent with the hole in the back of the jacket?

A. Yes, it would be consistent with that.

Q. Doctor, in relation to that, and I am now going back to the hole which would be letter "c" in the coat, your indications there, your findings from the tests for lead were positive, but there were not

Page 24.

Tumosa - Direct

tests, or at least I do not see the presence of primer lead, at that point. Could you explain whether or not the absence of primer lead on that particular part of the coat area, the police coat, would in any way be inconsistent with a close range gunshot wound or a close range gunshot?

A. We are talking about the patrol jacket rather than the sweater?

Q. That is correct.

A. The absence of primer lead indicates to us that it was beyond one foot, twelve inches, whatever distance. Close is a relative term.

Q. So, it would be beyond the twelve inches; on its face, it would appear to be that.

Let me ask you this.

If on that part of the police jacket, we are talking about the police jacket and we are talking about this area here, assume for the answer of this question at any rate that an individual had taken that jacket off, the deceased, at an earlier time, obviously before you received it, shortly after the

Page 25.

Tumosa - Direct

shot had occurred, and that his hands were around that general area, would that have any effect on the absence of primer lead?

A. It would be very hard to wipe off primer lead from that particular area, very hard to wipe off primer lead at all because it is like a fog. It's not little pieces of lead. In fact, it is much like a fog that is propelled on to the fabric. It would be difficult to remove it.

Q. Is it possible, Doctor, that the existence of lead, you said outside of twelve inches, I think, would it be consistent, in your experience, with a weapon being, say, somewhere between twelve and twenty inches from that jacket and having the results of lead deposit that you observed?

A. Yes, it would be consistent, anything beyond twelve inches.

Q. So, between twelve inches and twenty inches, you could have lead even though you had no primer lead?

A. That is correct.

Q. However, there is no question of the fact

Page 26.

Tumosa - Direct

that it is twelve or less; it's that close?

A. Yes.

Q. Let's move on, Doctor, to page two of your report. I will ask for the police shirt, C-27. This is on property receipt number 854915. That is on page two at the beginning. Do you have that property receipt?

A. Yes.

Q. From whom is that receipt received?

A. The notation being that it was received from Patrolman Daniel Faulkner, number 4699.

Q. I mean who is the detective?

A. Detective Margerum (ph), number 969.

Q. What were the findings in relation to item number one?

A. Again, I will read from the report.

"Item number one, blue police uniform shirt. There is a hole present in the upper center back. There is also a hole along side the top button hole and through the shirt collar of this area. Tests for nitrates and lead were negative at this area."

Page 27.

Tumosa - Direct

Q. Let's refer, if we can, to the shirt in reference to the hole along side the top buttonhole and through the shirt collar area.

A. Yes.

Q. What side is that?

A. It is on the left side.

Q. How many holes were there, just one hole?

A. Well, it is a hole. It is essentially one hole, yes.

Q. Were you able to tell whether that was an entrance or an exit hole based on the absence or presence of lead?

A. We cannot reach any conclusion just on that basis.

Q. There was no lead there: would that be correct?

A. That is correct.

Q. I will ask you to take a look at C-14, which is the top on that same property receipt. Excuse me, it is on a different property receipt number, the same property receipt. You may refer to page three, if you

Page 28.

Tumosa - Direct

would, property receipt number 850628, item number three: do you have that?

A. Yes, sir. It is labeled C-14.

Q. Item number three on your report, does that refer to that?

A. Yes, sir.

Q. Can you identify that as the item?

A. Yes, it is the item described on property receipt number 850628.

Q. What were your findings in reference to that tie?

A. Again, I will read from the report.

"Item number three, it is a slip on black necktie stained with human type "0" blood. Tests for lead were positive on the back of the tie at the knot."

Q. What do you mean by "back of the tie at the knot"?

A. Well, right here where the clip is, the metal clip.

Q. You found human type "0" blood there?

Page 29.

Tumosa - Direct

A. That is correct.

Q. In reference to the police shirt, which you also have in front of you --

A. Yes.

Q. -- and the hole in that particular shirt, would that be consistent with the projectile, in your experience, going through that hole and making contact with the tie?

A. Yes.

Q. Refer to your report on page two. Do you have other things on that property receipt that you analyzed?

A. Property receipt number 854 --

Q. Property receipt number 854915.

A. Yes, sir.

Q. Look at item two.

A. Yes.

Q. I won't ask you to take a look at it physically, but just in the paper there, what were your findings in relation to that item?

A. Item two is a white tee shirt stained with

Page 30.

Tumosa - Direct

human type "0" blood.

Q. That is on the same property receipt as the police uniform shirt?

A. That is correct.

Q. Doctor, would you take a look at page four of your report. I will ask if you will also be shown C-15 which is the beret or tam. This is property receipt number 850628. This would be on page four -- page three.

A. Yes.

Q. At the top. Would you take a look at item number two on your report and take a look at C-15; can you identify it?

A. Yes, sir. It is the item describe on property receipt number 850628.

Q. What were your findings in relation to that?

A. "Item number two, green beret, stained with human type "A" blood."

Q. Also, you had, I believe, swabs that you received on that particular property receipt?

Page 31.

Tumosa - Direct

A. Yes. sir.

Q. Item four and five; what were the findings in reference to those two items, four and five?

A. Item four is two saline swabs stained with human type "0" blood. Item five is two saline swabs stained with human type "A" blood.

Q. Both those swabs, as well as the necktie and the green beret that we have talked about, are all part of property receipt number 850628?

A. That is correct.

Q. They were received by your department from what police officer?

A. Officer Land, number 9894, the Mobile Crime Detection Unit.

Q. Now, I will ask you to take a look at C-54, just the jacket. I am now referring, Doctor, to page three of your report.

A. Yes, sir.

Q. This would be property receipt number 854920.

A. That is correct.

Q. Item number one, would you take a look at

Page 32.

Tumosa - Direct

that and see if you can identify C-54?

A. The jacket I have been handed is the item described as item number one on that property receipt.

Q. From whom was that received?

A. From Detective Sobeleski (ph), number 4748, of Central Detective Division.

Q. Would you state for the jury what the findings were in reference to item number one?

A. "Item number one is a red and blue quilt waist length jacket with a zipper up the front stained with human blood. There is a hole at the right chest area above the right pocket. Tests for nitrates were negative. Tests for lead indicated the presence of primer lead. Comparisons of this primer lead pattern with patterns from the test firing of Patrolman Faulkner's firearm identified a muzzle-to-jacket distance of approximately twelve inches."

Q. Again, would you explain what you mean by that very briefly. You already stated it before, but state it briefly, again.

A. Again, the primer lead is a device on the

Page 33.

Tumosa - Direct

cartridge which, when the firing pin strikes it, sets off an explosion and ignites the powder in the cartridge sending the projectile out. The primer lead, this compound, this organic compound, is blown out of the barrel of the firearm for about one foot so that if the firearm is discharged at a distance of usually less than one foot we can detect the presence of lead, a large concentration of lead.

Q. So, again, that evidence, the primer lead on that jacket that you analyzed, indicated in those comparison tests from Officer Faulkner's gun that this weapon was fired within twelve inches of the jacket?

A. Yes, sir.

Q. You have another item on that same property receipt number, sir. Would you read two, three and four, the results of that?

A. Item number two is a pair of tan suede boots stained with human blood. Item number three is a pair of red, white and blue sweat socks stained with human type "A" blood. Item number four is a blue polo shirt stained with human type "A" blood.

Page 34.

Tumosa - Direct

Q. Now, turning on to the next page, on page four, I will also ask you to take a look at C-56, which is the holster.

A. Yes, sir.

Q. I also refer you to item number seven on your report on page four. Can you identify C-56?

A. This is the item described as item number seven on property receipt number 854920.

Q. What is it?

A. Item number seven is a black leather shoulder holster for a right-handed person using a cross draw from the right-hand to the left side. The item is stained with human blood.

Q. On page four, also, did you receive an item on property receipt number 854922?

A. Yes, sir.

Q. What was that?

A. Two vials of human type "A" blood serum. No alcohol was detected in the serum. The two vials were taken from Mumia Abu-Jamal.

Q. Also on property receipt 850635, which is the

Page 35.

Tumosa - Direct

next property receipt, there was a test made. You just received the results. What were the results on that?

MR. JACKSON: Excuse me. Could you repeat that, again?

MR. MCGILL: Property receipt number 850635. This will be on page four.

MR. JACKSON: Thank you.

BY MR. MCGILL:

Q. Do you have that?

A. Yes, sir.

Q. What were the results of that?

A. The notation is that the items were removed from the wall of 1234 Locust Street.

Item number one is lead residue wipe, which is a test, and item number two is lead residue wipe, which is a control. Tests for lead were positive on item number one, the tested area.

A control is an area near the area where we are interested in testing to test to make sure there is nothing to interfere or obscure the test we are performing on a particular area.

Page 36.

Tumosa - Direct

Q. That was received from what police officer?

A. This was received from Officer Land, number 9894, the Mobile Crime Detection Unit.

Q. Number 854972 is the last property receipt number of that; do you have that?

A. Yes.

Q. What findings were made in reference to that?

A. The item is a flashlight seventeen inches long, serial number 50025682. The bulb is broken. No blood was detected on the item.

MR. MCGILL: Would Your Honor bear with me for just one second?

THE COURT: Yes.

MR. MCGILL: I have nothing further. Thank you very much, Doctor.

THE COURT: May I see you at side bar?

MR. MCGILL: Yes, sir.

(At this point, there was a side bar conference with the Court,
Mr. McGill and Mr. Jackson which proceeded as follows:)

Page 37.

Tumosa - Direct

THE COURT: Mr. Jackson, I received a note from the court crier that Janette Africa is here. Do you want to take it from there?

MR. JACKSON: Yes.

(Whereupon there was a recess at 11:05 a.m.)

(In Chambers.)

THE COURT: Let the record indicate that it is 11:15 back in Chambers and Mr. Jackson has something to state for the record.

MR. JACKSON: Yes. I have just consulted with Janette Africa who has advised me to tell Mr. Jamal that he should come into court and not say anything, not interrupt the order and the process of trial. Mr. Jamal has indicated to me that he plans to act consistent with the advice of Janette Africa in that he will remain in court and not interrupt and will be quiet.

THE COURT: He is in court now?

Page 38.

Tumosa - Direct

MR. JACKSON: Yes, he is.

MR. MCGILL: While we are here, I haven't had a chance to talk to him.

THE COURT: Let's go off the record.

(Discussion off the record.)

(Whereupon court reconvened at 11:20 a.m.)

MR. JACKSON: May I proceed, Your Honor?

THE COURT: Yes.

(CROSS EXAMINATION)

BY MR. JACKSON:

Q. Doctor, so that I am clear, you indicated relevant to the property receipt number 854917 that hole "b" has no nitrates or lead; is that correct?

A. Correct.

Q. Nevertheless, you feel reasonably certain that it is, indeed, a bullet hole?

A. Yes, sir.

Q. Doctor, it was my understanding that whenever you had lead present you should also have the nitrates present.

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A. You may or may not. It depends upon the circumstances, obviously.

Q. Well, let me do it this way.

It is my understanding, and let me see if I am right about this in terms of substances that may be associated with a bullet on the firing of a weapon, that you would have the lead wipe; you would also have the primer lead; you would also have the nitrates; is that correct?

A. Depending on which distance you are talking about.

Q. That is what I want you to do for us, to tell me, assuming that we have all of those substances and elements present, at what distances would we expect to find them.

A. If we think of a firearm, take a revolver, for example, when the firing pin hits the primer, as I mentioned earlier, the primer essentially explodes. It sets off the powder which is present inside the cartridge. This also burns very rapidly. This burning then pushes the projectile down the barrel of the

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firearm and, of course, out the barrel. It is all backing up now because the projectile in the front is acting like a plug. The majority of the material is behind it when the projectile leaves the barrel of the weapon. We now have all sorts of material coming out the muzzle, the end of the barrel. You have large things coming out such as the nitrates, the partially burned ammunition coming out of the barrel. These are, if you think of them as very large objects, being blown out. You then have a fog, a very fine mist of oil, of little bits of carbon, and also of lead from the primer and a number of other particular items and elements coming out. The larger items will hit an object and essentially stay at the surface. These are the nitrates. The nitrates will last from almost on contact from the muzzle of a firearm out to a distance of about three feet, usually, at the outside. The fine mist that you have is dispersed more rapidly and this will last about a foot, give or take a bit.

Does that clarify the situation?

Q. Yes, it does.

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If the nitrates, as I understand what you are saying, would be present from the muzzle of a weapon up to perhaps three feet away, and since you have indicated that you found lead present, wouldn't you expect to find nitrates too if the weapon was fired within three feet?

A. Normally I would expect to see it; that is correct.

Q. Even though you would normally expect to find that, I don't believe that you found nitrates in any of the tests that you conducted?

A. No, we didn't. That is correct. We did not.

Q. At no time were nitrates found on either the garments of Officer Faulkner or the garments of Mr. Jamal?

A. That is correct.

Q. Again, normally, if the weapon was fired within three feet of those garments, you would expect to find nitrates?

A. We usually find them. That is correct.

Q. But they are not here?

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A. That is correct.

Q. You conducted a comparison of the suspect firearm?

A. Yes, sir.

Q. To determine a muzzle-to-jacket distance?

A. Yes, sir.

Q. Do you understand, sir, that the suspect firearm is just that, a suspect firearm?

A. Yes, sir.

Normally it really isn't even necessary to do a test firing. The rule of about one foot is a very large distance. It is true virtually that any hand held firearm, anything that you are capable of holding in your hand and firing, normally does this as a matter of routine.

Q. So, when there is a comparison of primer lead from the suspect firearm, whether it is the suspect firearm or a firearm that I had, you get the same results?

A. Within twelve inches.

Q. So, there is nothing spectacular about the

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results that the suspect firearm would provide lead wipes and all that other stuff within twelve inches?

A. That is correct, but what it does show is that there is nothing unusual about the firearm.

Q. Doctor, could you tell us a little bit more about what a lead wipe is?

A. Basically, I believe you are referring to the description of the items submitted by Officer Land.

Q. That is correct.

A. That was city property receipt number 850635.

Basically it is a way for us of looking at something and determining whether a lead object had hit something or had come, for all intents and purposes, in very close proximity to it. What it is, essentially, is a little round piece of paper, absorbent paper. It is called filter paper. It really is much like a compressed paper towel. It is round. It is about so wide in diameter. We take this and we add solution to it, wet it, and we press it against a particular area. If this area contains lead, when we add another chemical to it, it will turn bright red.

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If it does not contain lead, no color will develop. This is used to determine whether a lead projectile had struck something or not.

Q. However, you can't determine any distances simply on the presence of that lead; is that right?

A. That's correct.

Q. Doctor Tumosa, I am going to now refer you to the jacket that was supposedly Officer Faulkner's jacket. I believe you indicated that without any question the muzzle-to-jacket distance was within twelve inches; is that correct?

A. That is correct.

Q. Could it have been two and a half feet away?

A. No, sir.

Q. What about six feet away?

A. No, sir.

Q. You are certain of that?

A. Yes, sir. The hole in the back is less than one foot, probably closer to nine to six inches.

Q. Closer to nine to six inches?

A. Yes. Twelve inches is the estimate at the

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outside.

Q. So that I am clear and the jury is clear, too, that means that whoever was holding that weapon and wherever the weapon was, it was, in your view, six to nine inches away from the Officer's back?

A. About so far, that is correct.

Q. With regard to the jacket that was allegedly taken from Mr. Jamal, you looked at that and you indicated that, in fact, there is a bullet hole in the chest area?

A. Yes, sir, above the pocket.

Q. When did you receive that, sir, that jacket?

A. I received it from Detective Sobeleski (ph), number 4748, Central Detective Division, on 12/9/81, at 12:30 p.m.

Q. How is it that you know that that jacket is the same jacket that you examined?

A. It was placed on a property receipt. It has the hole in the same location. It is the item as described on the same property receipt.

Q. So, you are saying that there is no question

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in your mind that that is, indeed, the same jacket?

A. That is the jacket that I received, yes.

Q. Again, with regard to the hole in that jacket, I believe your testimony, again, based on the presence of certain elements, is that you estimate that the firing had to occur within twenty inches, I think you said, correct me if I am wrong?

A. Twelve inches.

Q. Within twelve inches?

A. That is correct.

Q. So. again, whoever or wherever the gun was held with respect to that jacket, it had to be within twelve inches away like this?

A. The muzzle of the firearm had to be within twelve inches, yes.

Q. So that, number one, if the person was found on the ground or if the weapon was found on the ground and the person was standing up and a gun fired upward, it is more than twelve inches away; is that true?

MR. MCGILL: I have to object. It just depends on the individuals involved.

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It depends on where the gun was.

MR. JACKSON: Let's find out, if you don't mind.

THE WITNESS: Well, I would like to point out, of course, that the firearm we are talking about, the muzzle of the firearm -- I have a reach from my armpit to my hand. A firearm with a four inch barrel and another two inches for the cylinder weapon could very easily --

BY MR. JACKSON:

Q. I understand.

A. It accounts for that.

Q. However, that assumes that the weapon is in someone's hand.

A. I can only assume the muzzle to target distance.

Q. The muzzle to target distance?

A. The muzzle of the firearm was within one foot or less when discharged.

Q. There is no question at all in your mind

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about that?

A. None whatsoever, sir.

Q. Again, C-15, which is the green beret, you indicated that there was blood found on that; is that correct?

A. Yes, sir.

Q. And the blood type was "A"?

A. That is correct.

Q. You received other items of clothing from Mr. Jamal; is that correct, that were supposedly taken from Mr. Jamal?

A. Yes.

Q. The blood type on those clothing items was what type, sir?

A. On the red, white and blue sweat socks, the blood type was "A". On the blue polo shirt, the blood type was also type "A".

Q. The same or similar to the same blood that was found on that cap?

A. The same general blood group, that is correct.

Q. Did you take a look at that tam; did you look

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at C-15, sir, or could it be shown to him?

(At this point, Mr. Jackson took the tam out of
the plastic bag and handed it to the witness.)

BY MR. JACKSON:

Q. Does that appear to be the tam that you examined?

A. Yes, sir.

Q. You found blood type "A" on that; is that correct?

A. Yes, sir.

We cut a more or less square hole out of it and that was the particular area where the blood stain was found.

Q. The same blood that was on the other clothing that was allegedly taken from Mr. Jamal; is that correct?

A. The same type, that is correct.

Q. Now, referring to the flashlight, if we could, sir, I guess that is, again, on property receipt 854972?

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A. That is correct.

Q. Before we get to the actual flashlight, could you explain something to me?

On all of the other property receipts relevant to your receiving information, you indicated receiving from police officers so and so; with regard to property receipt 854972, you indicate that the item was received from Detective Thomas, but item was taken from Police Officer Chin?

A. Yes.

Q. Why do you say that it was taken from?

A. Because I don't know what -- this is the information that was relayed to me through the property receipt and the evidence.

Q. Who prepared this little statement, this narrative?

A. Mr. McBride and myself.

Q. But the other --

A. The information given to us through Detective Thomas was that that was the case. Since we don't collect the evidence, we don't go to the scenes, we

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rely on the information of the people submitting it to us. That was the information given to us and we reflect that information.

Q. He told you that it was taken from Officer Chin?

A. That is correct.

Q. You received this on December 16th?

A. That is correct.

Q. You received the other items at or about the time of the shooting, December 9th, December 10th and December 11th; is that right?

A. That is correct, sir.

Q. Was there any explanation as to why that item, the flashlight, was received so much longer after this incident?

A. I have no idea. You would have to ask Detective Thomas.

Q. I will, sir. Were you told to examine or analyze this flashlight for anything in particular?

A. We were looking for the material that you

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would normally expect to find, blood, hair, any type of trace evidence that might be relevant to the investigation.

Q. Any fingerprints?

A. No, sir.

Q. Who makes the determination as to what you would evaluate this evidence for?

A. I do.

Q. If a suggestion was made to you by Detective Thomas or someone, would you test it for that?

A. Sometimes.

Q. And sometimes you would ignore their request?

A. That is correct.

Q. Because it might be foolish or something like that?

MR. MCGILL: Objection, Your Honor.

BY MR. JACKSON:

Q. Well, why would you not follow their suggestions?

A. It might be, one, impossible; two, unproductive; or three, there might be some difference

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of opinion as to the value of a particular piece of evidence. We are trained to look for trace evidence, physical evidence. Detectives do not have extensive training.

Q. So, if I understand what you are saying, you can, in effect, overrule the suggestions of the assigned detective and make your own examinations or your own analyses or your own searches for evidence?

A. In most cases, that is correct.

Q. Does your unit collect trace evidence relevant to the neutron activation tests?

A. No, sir. That is the function of the Mobile Crime Detection Unit.

Q. That is their function to do that?

A. Yes. The detective division may ask for it through the Mobile Crime Unit. We will often advise them as to whether or not that should or should not be done.

Q. In this case, sir, did you advise them as to whether or not that should or should not be done?

A. I wasn't asked.

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Q. No one asked you?

A. That is correct.

Q. Now, although the collection is done by -- the Mobile Crime Lab, who actually does their test? Is it done in Philadelphia?

A. No. sir. They usually give the kits to us and they forward them to the Federal Bureau of Investigation.

Q. As far as you know, no kit was given to you?

A. That is correct, sir.

Q. By the way, for the benefit of the jury, could you tell us what the neutron activation test is?

A. Basically, it is a way of looking for the residues of the discharge of a firearm. If an individual fires a handgun or a rifle, whatever, a certain amount of residue from the primer which we mentioned earlier also deposits itself upon the hand of the individual firing the weapon. There is a way, using a nuclear reactor, to make a determination as to whether or not what was present on the hand of the individual is consistent with the discharge of the

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firearm by that individual.

Q. How is this trace evidence collected?

A. Basically, it looks like a cotton swab and a five percent nitric acid solution is placed on it, and it is wiped over the hands of the individual.

Q. How long would you expect that trace evidence to be present assuming a weapon had been fired by that individual?

A. In a living individual?

Q. Yes.

A. In a living individual who is not active, up to about four hours.

Q. What about an individual who is not living?

A. Depending upon whether or not any moisture is at the scene, it may last for many hours.

Q. When you say, "many hours," would that be in excess of ten hours?

A. That's possible.

Q. In excess of twenty hours?

A. Possibly a day would be more like it.

Q. Twenty-four hours?

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A. That is a good round number, twenty-four hours.

Q. Now, one other thing. Would your unit be responsible for trace metal detection?

A. What kind, sir?

Q. For whatever type of trace metal detection test would be conducted.

A. We did a trace metal detection test for lead.

Q. Forgive my ignorance, assuming that you want to determine whether or not, in fact, an individual held a weapon, it is my understanding that you can conduct what is called a trace metal detection test is that correct?

A. One can do that. There are many difficulties with the test, primarily in that it is not very useful.

Q. Well, you are saying that it is not very useful.

A. No, I am saying that it doesn't give reliable results, uniformly reliable results. Many procedures are published in literature which work very well in the laboratory, but when you take them into the field, they

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don't work. That is one of the particular tests.

The problem with it is that once somebody has touched something, they don't walk around with their hands in the air or protected. The instant someone touches their trousers, wipes their hands, or starts to sweat, bleed, rubs their hands in their hair, immediately the test becomes invalid because of contamination. So, in cases where you have individuals who are active, in which you have a series of events which are fast moving, fast paced, the test becomes, for all intents and purposes, invalid. There is no way you can interpret any results that you get.

Q. Suppose a person is alleged to have a weapon in his hand and he is then inactive, unconscious?

A. Laying nowhere with no one around?

Q. No, just say that he is not going to wipe his hand; he is not going to move his hand; he is not active. He is not doing anything.

MR. MCGILL: I object to that.

THE COURT: I thought he explained it to you just a second ago.

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MR. JACKSON: He told me with regard to people who are active. I am asking him now about an inactive person.

THE COURT: He said if you hold your hands so that nothing touches them --

THE WITNESS: What do you mean by "inactive"?

BY MR. JACKSON:

Q. A person who is doing absolutely nothing with his hands at all.

THE COURT: Answer that.

THE WITNESS: Well, if a person was lying somewhere doing nothing with his hands protected from the environment in some fashion or another, there might be some residue there, yes.

BY MR. JACKSON:

Q. Have you conducted these trace metal detection tests on people's hands?

A. Not to any great extent.

Q. How many times have you done it?

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A. Three or four.

Q. When was the last time you did it, sir?

A. Several years ago.

Q. When was the last time you used or reviewed the trace metal detection test kit?

A. Several years ago.

Q. Have you been kept abreast, sir, of the new developments in the trace metal detection test within the last two years by Sirchie Manufacturing Company?

MR. MCGILL: I object to this. This is beyond the scope of the immediate testimony.

THE COURT: I will let him answer if he can.

MR. MCGILL: Yes, sir.

THE WITNESS: I am aware of the basic test. I am not aware, you know, of whether or not anything has basically changed. The test is inherently not a very good one and whether or not you profit on it doesn't change the inherent instability of the test,

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in my opinion. It doesn't work if you grab a piece of metal like this or put your hand on a car or touch a firearm or touch a person who has touched a firearm or if you put your hand on the clean city streets or whatever. The inherent concept behind the idea is very good if you are dealing in a laboratory situation or the classical locked room mystery where the body is found in a locked room with a firearm in its hand. The real world is much more complex. I would not like to do the test and have the fate of any individual depend upon the results of that test.

BY MR. JACKSON:

Q. Well, I will get back to that, whether or not you would want the fate of an individual to depend on it. Assuming we have the suitable conditions that you talked about, would it be able to determine if someone held a gun in his hand?

Page 61.

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Q. If a trace metal detection test is conducted upon a person who has held a gun in his hand, assuming that the person has not, for the moment at least, has not touched anybody, has not washed his hands, has not done any of those things that you previously described, would, in fact, the trace metal detection test give us a result showing that, indeed, the person had some metal, some weapon, some object, in his hand?

MR. MCGILL: I object to that. That is assuming facts which not only are not in evidence, but are almost impossible.

THE COURT: May I see you?

(At this point, there was a side bar conference with the Court,
Mr. McGill and Mr. Jackson, which proceeded as follows:)

THE COURT: The reason I am concerned about this is because the factual situation in this case is evidently that he did touch a lot of things.

MR. JACKSON: I am talking about

Page 62.

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Officer Faulkner.

MR. MCGILL: Even with the treatment that he had over there; they tried to save his life.

THE COURT: We don't know what they did in the hospital. They could have wiped him down before they operated. They could have done a lot of things.

MR. JACKSON: Your Honor, I understand that, but what my argument would be is that there are or may be a number of tests that could have been conducted to confirm one circumstance or another and they were not doing it.

THE COURT: However, the fact is that they did not do it and in his opinion he doesn't give much credence to it.

MR. JACKSON: I am going to get into that because he is wrong.

THE COURT: That is your opinion. He is giving his opinion.

Page 63.

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MR. JACKSON: I understand that. That is the reason for it. I wasn't talking about Mr. Jamal. I think I want to --

THE COURT: Even with the police officer, we don't know what happened. We know that people picked him up. We don't know whether they touched his hands or all of these things.

MR. JACKSON: I can bring in experts as well as literature --

THE COURT: However, the fact still remains that nobody took that test of this police officer.

MR. JACKSON: That is basically what I want to show.

THE COURT: It is admitted.

MR. JACKSON: Your Honor, the problem I have and the reason I asked Mr. McGill about it is because I am also trying to find out who is responsible for taking the test and the reason I wanted to

Page 64.

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ask him about it is because he has the expertise to explain what the trace metal detection test --

MR. MCGILL: That is true. He is the most expert of anybody.

THE COURT: And he has done that.

MR. JACKSON: However, he would not be the one, apparently, to conduct the test, obviously. It would be the Mobile Crime Lab or the assigned detective.

MR. MCGILL: No. The Mobile Crime Lab gets the swab.

MR. JACKSON: That's the neutron activation test.

THE COURT: You have to understand; here is a police officer shot. They rush him to the hospital. Do you think they are concerned about some kind of test to find out whether he fired a gun or not? They are trying to save his life, get him into the operating room. He dies. They take him

Page 65.

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to the morgue. He is over at the morgue. They are performing an autopsy. Nobody is thinking about taking a test about his hands because they just don't think about it.

MR. JACKSON: Your Honor, in all due respect, I understand that, but that is not my interest. In all due respect, in terms of how it relates to --

THE COURT: Mr. Jackson, the fact still remains that they took no such test. It doesn't make any difference. They did not take it in this case. So, what difference does it make? Do you want to argue to the jury that they should have done it? Fine.

MR. JACKSON: Yes, I do want to argue about that and I want to lay the basis for it.

THE COURT: The fact remains that they didn't do it.

MR. JACKSON: And I want to call it sloppy police work and it is sloppy because

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he is accused of shooting a policeman.

MR. MCGILL: How much longer will you be?

MR. JACKSON: I'm almost done.

MR. MCGILL: If it is only a couple more questions, I won't object. On redirect, I will ask a couple of questions to clarify it. He was going to call him as his own witness for this so, in essence, I am trying to move the trial along. So, allow it in cross examination as long as it doesn't go for another --

MR. JACKSON: No.

(Conclusion of side bar conference.)

BY MR. JACKSON:

Q. If you had an individual touch a gun right now, I pick up a gun and I hold it for a few seconds or so, and you conduct a trace metal detection test, it would show that I held a metal object or gun or weapon: is that right?

A. Not necessarily.

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Q. Why not, sir?

A. It would depend upon the metal present in the frame of the weapon, whether or not there was oil on the weapon. It would depend on the condition of your hands to start with.

Q. Are you familiar with the Sirchie (ph) Metal Detection Test Kit?

A. Not the way you described it, no, sir.

Q. The trace metal detection kit that is manufactured, I guess, or produced or something -- I know that Sirchie Incorporated (ph) is one, the name of a manufacturer.

A. Yes. sir.

Q. Are you familiar with the kit that they put out?

A. No. I am familiar with some of the older things that were done. I'm not sure that I am familiar with their new kit.

Q. So, when you test --

A. I have not seen their catalog recently.

Q. So, when you are testifying with regard to

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your understanding of the reliability of the test, you are basing it primarily on, number one, your three experiences of conducting it in the past, the last time being one year, as well as the general information that you know; is that correct, sir?

A. Well, I am basing my opinion upon the nature of the test itself. It is very nice to market a kit to do anything. The tests, I believe, are meant to be presumptive tests and my understanding of the Sirchie Company (ph) is that the test kits they sell are meant to be presumptive tests. They are not meant to be all inclusive or to be certain tests. They are meant to be investigative aids or an indication of something.

Q. They would confirm --

A. No, sir, it would be an investigative aid. It would be an indication of something. That is a bit different than talking about something scientific or practically certain.

Q. It would be an indication of what, sir?

A. If it was a positive test, it would be an indication that the individual held a metal object of

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a particular characteristic.

Q. Since you are saying that that is the nature of the test, could you tell us what the Sirchie (ph) test that you are unfamiliar with would produce? How is it that you can tell us what this Sirchie (ph) kit will produce without being familiar with the kit itself? I am not criticizing you. I just don't know.

A. The philosophy behind it, according to an L.E.A.A. publication, is to show whether or not an individual held a particular metal object in his hand. The problem is that metal is a very common part of our life and the more common something becomes, the less valuable it becomes as evidence or at least valuable as an indication of evidence.

The philosophy behind it -- I can't speak for the philosophy of the Sirchie Company, but I can understand, I can speak of what appears to me to be the philosophy behind it, which is that it is an investigative aid. If you have a given set of circumstances, for example, a person sweating over a bar, trying to open a window, then there is maybe a

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good chance that after two or three minutes of hard physical contact that there will be some metal residue present on an individual's hand to describe or to help describe whether or not that individual had opened a window. To me, it seems that if the individual was working that hard in that particular set of circumstances that there would be other types of evidence which would be more unequivocal to prove that set of events. To me, the detection of metal and residues on the hand does not lead to any useful information, whether or not it is positive or negative.

Q. To you?

A. Well, I perform the tests, sir; so, I have to use my basis.

Q. However, you are not responsible for the investigation; in other words, you are saying that it would not be useful to you, as an example in this case, whether or not Officer Faulkner had a gun, would it?

MR. MCGILL: Objection. That is not what he said.

MR. JACKSON: I don't think so.

Page 71.

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He is testifying --

THE COURT: Don't argue.

MR. JACKSON: Fine.

THE WITNESS: To answer your question --

MR. MCGILL: I would object, Your Honor, and I ask for a ruling.

THE COURT: Rephrase your question.

BY MR. JACKSON:

Q. You are saying, if I understand you correctly, sir, that you are not interested in the value of the test. Tell me what you said because --

A. Okay. If I wanted to determine whether or not Officer Faulkner had a gun, there would be other ways to do that.

Q. Such as?

MR. MCGILL: I would object to that, sir. I think it is definitely beyond what we immediately got involved in and what was done or what wasn't done.

Page 72.

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MR. JACKSON: I can bring that back in at a later date. It is just whether he wants me to do it now or later.

THE COURT: Just ask the question.

BY MR. JACKSON:

Q. What other ways, sir?

A. If the question were to arise, we would have certain descriptions of his clothing. We would have, certainly, other investigative aids through the detective division to explain, since he was issued a firearm, where that firearm might be. We would then have an examination of the firearm, for example, to determine whether or not there was a presence of paint, for example, blue carbon, which is what the police vehicles are painted with. We would then check the revolver to see whether or not any of that was present on there which would indicate that it was in a police vehicle. We would then look at the firearm to check whether there were fibers present from his clothing, paint chips present from his home. There would be a number of other avenues of investigation which we would

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have used to determine that fact.

Q. Maybe you misunderstood me.

In order to determine whether Officer Faulkner held a gun on December the 9th, what I want to know is what test you would perform in order to make that determination.

A. There is no test nor could there ever be any test short of having a photograph, an eyewitness or some other event of recording visually, perhaps, what went on.

Q. So, you are saying that the trace metal detection test would not provide you with that information?

A. It would never provide it, whether it was positive or negative.

Q. The test resulted in a showing that, indeed, the officer held some metal object; would that not be some indication --

A. It would not prove unequivocally, which is what you are asking here.

Q. You are not letting me finish my question, sir.

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Would that not be some indication that he held some heavy metal object or some metal object?

A. Yes.

Q. So, you indicate that it would be an investigative aid; that would certainly provide us with some additional information in making the determination that we have to make; isn't that true?

A. It would provide information; whether it would be full information or not is another question.

Q. I understand that it is not useful to you. Now, isn't it a fact that under normal circumstances when one holds a metal object you could expect to receive or obtain the results up to thirty-six hours, normally?

A. It would depend.

Q. Well, you referred to this L.E.A.A. publication of trace metal detection tests and they have a series of tables and charts and graphs in there. It is my understanding, and you can correct me if I am wrong, but there was an indication that this trace

Page 75.

Tumosa - Cross

metal detection test could be taken up to as long as three days, but the average is thirty-six hours that you could take this test and get results.

A. Under laboratory conditions, yes. You could probably go longer than that under laboratory conditions.

Q. Well, they were obviously not laboratory conditions in that there was a range of time that the trace metal detection test could be used. If they were all under laboratory conditions, I would assume touching the same object, they would all come out to the same time.

A. That is a big assumption, sir.

Q. I realize that. Why would you assume that it is under laboratory conditions?

MR. MCGILL: I object to anything further. It is very much beyond.

BY MR. JACKSON:

Q. Do you know if it was under laboratory conditions, then?

A. I don't know if it wasn't. I would have to

Page 76.

Tumosa - Cross

be certain of my results. I can't sit here and make assumptions about that.

Q. I understand that. I am just trying to clarify it so that we fundamentally understand the value or, in your view, the lack of value of the trace metal detection test.

Moving along, sir, you indicate that if, in fact, someone had a metal object and he rubbed it on his hand, that would have an impact on the test?

A. It might, yes.

Q. What do you mean when you say, "It might"?

A. You don't know. The problem with this type of evidence that you are describing is that there is no control over what happened. If I were to rub a metal object and place my hand here, the amount of time-- that detection might go on for quite some time. If I shook hands with another individual, it may or may not, depending upon the porosity of the other person's hand, whether he was sweating, whether I was sweating, anyone of a variety of circumstances, it may or may not be

Page 77.

Tumosa - Cross

transferred. There are too many variables. The purpose of science is to remove as many variables as possible to make a certain "judgment" or opinion. When you have a phenomena, when there are so many variables, none of which can be controlled, you have to be very selective and very sure of what you are doing in order to be able to draw a valid conclusion from the results.

Q. Doctor Tumosa, again, you can correct me if I am wrong, I just tried to read up on this book, I guess, for the second or third time, the same L.E.A.A. publication you have talked about and they gave various examples of what impact certain activities would have on this test. One of the indications was that an individual who held a gun or a weapon or a heavy metal object that, indeed, even if that individual washed his hands, it would have no appreciable impact on the test. You are telling me that if you shook somebody's hand that that would have an appreciable impact on it.

A. It may or may not.

Q. It may or may not?

A. You don't know. I don't think anyone knows.

Page 78.

Tumosa - Cross

Q. So, you are saying, in effect, that what this publication suggests, and I am not going to say they said it explicitly, I don't remember the words, but when they suggested that washing the hands has no substantial or appreciable impact on the results of the test, you are saying that they don't really know?

MR. MCGILL: I have to object. First of all, we don't have a copy of this thing.

MR. JACKSON: I can get a copy.

THE COURT: If he understands, let him answer.

BY MR. JACKSON:

Q. Do you understand my question, sir?

A. I think I can make a statement that at least will clarify my position.

Q. If you could, answer my question. Unfortunately, you are not permitted to just make statements. You have to answer my question.

A. I know, counselor.

Q. Answer my question.

Page 79.

Tumosa - Cross

A. I think the statement will answer your question which is that there is a difference between a laboratory study and a publication, a publication and the real world. The events which occurred that night which we are trying to shed light on is a real world event. A laboratory study financed by L.E.A.A. is not the real world.

Q. I understand that.

A. So, the statements in the L.E.A.A. publication are not reflective of the real world. They are reflective of a study from that study, the implication then being that there may be at some time some impact upon the real world.

Q. So that I can address your suggestion, the results were not the results taken from a number of F.B.I. cases, were they?

MR. MCGILL: I object to anything further.

MR. JACKSON: Your Honor, he is saying that it is just laboratory work and I want to show that it wasn't, that they were

Page 80.

Tumosa - Cross

all actual cases.

MR. MCGILL: Objection.

THE COURT: I will see counsel at side bar.

(At this point, there was a side bar conference with the Court,
Mr. McGill and Mr. Jackson which proceeded as follows:)

THE COURT: Mr. Jackson, I feel that I let you go far enough. This is going into an argument section here. You have to be practical.

MR. JACKSON: I know.

THE COURT: This officer held a flashlight in his hand, evidently, maybe even used it. I don't know what he did. He might have touched his gun numerous times that night. So, even if they had taken it, it probably would have come out positive, but it wouldn't be proof, as he says, it would not be conclusive proof that he had the gun that shot the defendant.

Page 81.

Tumosa - Cross

MR. JACKSON: However, Your Honor if it came out negative -- also, he is wrong with regard to this trace metal detection test, but --

THE COURT: You are going to have to get somebody else in here. You get your expert.

MR. JACKSON: Alright.

THE COURT: Whether he is right or wrong isn't going to resolve this case at all because the simple fact is that nobody made this test. So, what difference does it make? We are just going to stand here and argue all day about this and we are not really getting anyplace.

MR. JACKSON: Fine, sir.

THE COURT: It doesn't mean anything in this case.

MR. MCGILL: I have some questions on redirect since it has been brought out to a certain degree and I haven't touched upon it.

Page 82.

Tumosa - Cross

MR. JACKSON: Maybe it shouldn't be continued at all.

MR. MCGILL: No, not at all. You are not going to drop fifteen minutes of questioning without responses.

THE COURT: This is stupid. It has nothing to do with this case.

MR. JACKSON: I understand your position.

THE COURT: My position is that it wasn't done. Whether it was somebody's fault or not, it has nothing to do with this case.

MR. JACKSON: I am not so sure.

THE COURT: It is strictly conjecture as to what the outcome would be.

MR. JACKSON: That may be conjecture--

THE COURT: There is so much other evidence in the case.

MR. JACKSON: I understand that and it is the evidence that is not here which seems to be beneficial to the defendant and

Page 83.

Tumosa - Cross

that is what I am pursuing.

THE COURT: There isn't any. The only evidence is the three people there, Mr. Cook, his brother, the defendant, and the police officer. Let's not argue at this time.

MR. JACKSON: Alright.

(Conclusion of side bar conference.)

BY MR. JACKSON:

Q. Doctor Tumosa, we are going to leave the trace metal detection test until a later time, perhaps. Let me just finish up with just one other matter, sir. Referring to page four of your report and property receipt number 850640, could you read that to us, sir?

A. Property receipt number 850640, the notation being that items were removed from a 1966 Volkswagen. PA11675T: item number one, two saline swabs stained with human blood, type which could not be determined. Item two, a piece of blue seat cover from the driver's side. Item three, piece of blue seat cover from the passenger's

Page 84.

Tumosa - Cross

side. Item four, sweepings from the left side floor. Item five, sweepings from the right side floor. No blood was detected on items two through five.

MR. JACKSON: Your Honor, there would be a stipulation at this time by and between counsel that Sergeant Cameron, if he were called to testify, would indicate that item number one containing the blood was found on the right front fender of the Volkswagen five inches from the hood and one foot, eleven inches from the front right door of the 1966 Volkswagen.

THE COURT: Once again, ladies and gentlemen, I told you that you could only take as evidence that which we hear from this witness stand. When there is a stipulation between the attorneys, you can take that as a fact.

BY MR. JACKSON:

Q. You did test these other items, numbers two through five, for blood: is that right?

Page 85.

Tumosa - Cross

A. That is correct.

Q. You found none?

A. Right.

Q. Again, were you specifically asked to test for blood or did you simply make the decision to check for blood?

MR. MCGILL: Objection.

THE COURT: Go ahead.

THE WITNESS: I don't recall, Your Honor, to be honest.

MR. JACKSON: I have no further questions at this time.

(REDIRECT EXAMINATION)

BY MR. MCGILL:

Q. Doctor, in reference to primer lead and nitrates, when there are primer lead deposit residues on a garment as you have indicated in your report through your examinations, and no nitrates are present, what would be the reason for that?

A. Well, there would be a number of reasons. Usually when we find that to occur, we find that some

Page 86.

Tumosa - Cross

kind of agitation occurred to the items that we had looked at. I mentioned earlier -- you can think of the nitrates as being rather large objects. When they hit something, they sort of set on the surface. They are not small. They don't defuse into the fabric. They are sitting on the surface. So, if one agitated the item, one could remove them. They could fall off or brush off while the primer lead, because it is a fine mist, is actually embedded very much into the fibers of the item.

Q. Whether it be the hand brushing or the clothing falling down or maybe somebody brushing it or pulling it off, would that remove nitrates?

A. They could wash off with blood, or be brushed off in some fashion or another. It could be shaken off. If it is very generally held on to the surface, it could be shaken off.

Q. However, when there is the presence of primer lead, you said that it is not easily shaken off?

A. No. You have to do something to the fabric to remove that.

Page 87.

Tumosa - Cross

Q. There is no question in your mind that where there is presence of primer lead there is an indication of a close range type of gunshot that you have determined is within twelve inches?

A. That is correct.

Q. Also, would you tend to have the existence of lead more on an entrance hole rather than an exit hole?

A. Normally you see it more on entrances holes than exits.

Q. You have discussed at some length questions with Mr. Jackson in reference to those two tests. I am going to ask you a few questions in relation to the neutron activation test and the trace metal detection test. You have already mentioned what would easily contaminate the surface for the trace metal detection test. What would contaminate the surface for the neutron activation test?

A. Again, it is a surface phenomena. Anything on the surface of one's hand can easily be removed. At least a majority of the time it can be removed.

Page 88.

Tumosa - Cross

Q. You are saying, for example, that the surface of one's hand can be easily removed by holding his hands and putting them against blood, a portion of his own body, feeling around to where blood is or something would that have some effect?

A. Any activity, the wiping of one's hands on any item, would tend to remove the gun powder residues. If the item was wet, it would aid it more.

Q. I am talking about external, if I could use the word, stimuli that even beyond the fact of what is normally present in the individual's hand, did you not say also that if the hand didn't touch anything at all, the fact that there might be perspiration or a concentration in the hand also may not be good for testing purposes?

MR. JACKSON: Objection. Which test is he talking about. The Doctor specifically responded to the trace metal detection test at that time, sir.

MR. MCGILL: Well, he talked about

Page 89.

Tumosa - Cross

both tests on cross examination. I am referring to either test.

MR. JACKSON: Fine.

THE WITNESS: The common sense approach -- if you dilute something with water, whether it be sweat or blood or whatever, obviously the chances of finding what you want become less.

BY MR. MCGILL:

Q. So, if you start with perspiration or if you start with some kind of reaction or phenomena in your hands, if you add on to that touching a blooded area, a bleeding area, that would affect the results?

MR. JACKSON: Objection. That is a hypothetical, Your Honor.

MR. MCGILL: Those are facts in evidence, sir. Those are in evidence.

THE COURT: I will take it. Go ahead.

THE WITNESS: Yes. That would certainly tend to decrease the probability of

Page 90.

Tumosa - Cross

finding something.

BY MR. MCGILL:

Q. What if you have physical contact with an individual, whether it be moving around or flashing your arms so that your hands are hitting things, hitting parts of your own self, the ground, the Volkswagen fender, the street, anything at all, would this also have an effect on you?

A. Any contact with any other object will dilute the possibility of finding what you are looking for.

Q. What about if your hands are behind you and your hands may be together and may be touching parts of your clothing as you are walking to the hospital for treatment, would this have an effect?

A. It could have.

Q. How about if you are in the hospital itself and you are being treated, being cleaned and washed off by the nurses or medical aides?

MR. JACKSON: Objection, Your Honor.

BY MR. MCGILL:

Q. What about that?

Page 91.

Tumosa - Cross

MR. JACKSON: Objection.

THE COURT: I think he has already answered your hypothetical. Go ahead.

THE WITNESS: Yes. It would have some effect, obviously.

BY MR. MCGILL:

Q. That would be true, would it not, also, sir, for whether an individual dies or whether an individual is still living; any kind of treatment that would be done, any kind of action that would be performed for the purposes of treatment may well in some way affect the results of that?

A. Any contact of any kind would, short of coming in contact with other firearm residues, would decrease the chance of finding the residue.

Q. If you combined all of those and they were just four or five things that I mentioned to you, if your combined all of those as actual instances that had occurred, would that not make highly unlikely any kind of results of that test as being accurate?

MR.JACKSON: Objection.

Page 92.

Tumosa - Cross

THE COURT: Let him answer.

THE WITNESS: Yes, it would.

BY MR. MCGILL:

Q. As a matter of fact, you were asked by Mr. Jackson specifically about laboratory conditions where you have a gun in the hand and the gun is taken away from the hand and perhaps some kind of test is performed at that point; however, what if you are not that interested in determining whether somebody has something on his hand, if the men are either dying or seriously injured and you want to take both of them to the hospital for treatment, are you concerned at that point --

MR. JACKSON: Objection, Your Honor.

THE COURT: I sustain the objection.

MR MCGILL: I have nothing further.

(RECROSS EXAMINATION)

BY MR. JACKSON:

Q. Doctor, notwithstanding all of those factors that may affect the test, you can't say that they would eliminate the detection, would you?

Page 93.

Tumosa - Cross

A. Well, the purpose of doing a test is to have a reasonable expectation that you will get information from doing the test. The tests are not something one can do without some discomfort to the individual involved. If you had, hypothetically, two individuals in an emergency room, to take the hands of the individuals while they are being treated for gunshot wounds and display their hands with chemical agents and put ultraviolet light on them, I think this would be disruptive to emergency room procedures.

Q. However, would you answer my question now that you told us that, sir.

A. I thought I answered your question.

Q. The question was, notwithstanding all of those circumstances, the rubbing of the hands, and anything else you might imagine, could you say that that would eliminate the possibility of detecting whether or not, in fact, a person had held a weapon?

A. Given those circumstances, the best of circumstances which you just described in your question, sir, given those, I would not perform the test. I would

Page 94.

Tumosa - Cross

not think that there would be any reasonable or practical certainty to the information given.

Q. We can understand why you wouldn't conduct the test.

MR. MCGILL: Objection.

BY MR. JACKSON:

Q. What about with regard to the neutron activation test?

MR. MCGILL: I object.

BY MR. JACKSON:

Q. I talked about the trace metal detection test in the last question. This is the neutron activation test that I am talking about.

A. I do not think there would be a reasonable chance for finding any information.

Q. Why is that, sir, if you don't know what happened?

MR. MCGILL: Objection.

BY MR. JACKSON:

Q. Do you know for certain whether the hands of Mr. Jamal, the hands of Officer Faulkner were washed?

Page 95.

Tumosa - Cross

MR. MCGILL: I object. It is a hypothetical fact.

MR. JACKSON: I withdraw the questions, Your Honor.

BY MR. JACKSON:

Q. Before Doctor Tumosa leaves the stand, I would like to refer him to the first page of the lab report, receipt number 854919 and ask him to read that, please.

A. 8549191

Q. Yes, sir.

A. The notation being that "Items were removed from William Cook: Item number one, blue long sleeved sweatshirt, human blood present at collar area. Item number two is a dark navy blue three-quarter length navy sail coat with silver colored buttons with human blood on the left shoulder area and upper left arm area. Item number three, multi-colored long sleeved shirt stained with human type "A" blood at the collar area."

Q. Doctor, just a couple of questions with regard to the shirt, item number one.

Page 96.

Tumosa - Cross

Was there any determination as to the blood type?

A. No, sir.

Q. Was a test conducted and they just could not determine it, or just what do you know?

A. I don't believe it was tested for blood types, sir.

Q. Would that be the same for item number two?

A. That is correct.

MR. JACKSON: I have no further questions.

MR. MCGILL: Thank you, Doctor. Does the Court have any questions?

THE COURT: No. Doctor, you may step down. Do you want to break for lunch until a quarter to two?

MR. MCGILL: That would be fine.

MR. JACKSON: Yes.

(Whereupon a luncheon break was taken at 12:20 p.m. . ..)

Page 97.

(Whereupon court reconvened at 2:05 p.m.)

MR. MCGILL: May I proceed?

THE COURT: Yes.

MR. MCGILL: I recall Police Officer James Forbes.

- - - -

JAMES FORBES, having been duly sworn, was examined and testified as fo11ows:

THE CRIER: State your full name and badge number for the record, please, and spell your last name.

THE WITNESS: James Forbes, F-O-R-B-E-S, badge number 9881.

(DIRECT EXAMINATION)

BY MR. MCGILL:

Q. You are still under oath, sir. I recalled you for a specific purpose. Regarding the date of December 9, 1981, do you recall testifying about that?

A. Yes, sir, I do.

Page 98.

Forbes - Direct

Q. In reference to that, after you arrived at the scene, did you have occasion to observe, other than the two weapons, any other piece of evidence or any other thing at that time, whether or not you thought it was evidence, did you observe any other --

A. Yes, I did.

Q. What was that?

A. It was a flashlight.

MR. MCGILL: May I approach with this, Your Honor?

THE COURT: Yes.

BY MR. MCGILL:

Q. Where did you see this other item, the flashlight, as you said?

A. The flashlight was laying in the street just off the curb about a foot west of where I picked up Officer Faulkner's gun.

Q. Maybe we can use this, C-3.

(Mr. McGill showing the item to the witness.)

Page 99.

Forbes - Direct

BY MR. MCGILL:

Q. I am showing you a black marker here. Would you indicate where the flashlight was? Just put a big "F.L." where the flashlight was.

A. (Witness marking picture.)

Q. Would you also circle that, please?

A. (Witness marking photograph.)

(At this time, Mr. McGill showed the photograph to the jurors.)

BY MR. MCGILL:

Q. Did you tell the police that in a statement?

A. Yes, I did.

Q. Were you asked later to identify the flashlight anywhere?

A. Yes, I believe I was asked on the 16th at 8th and Race.

MR. MCGILL: Let me mark this, then, as exhibit C-61. Mark that and show that to Defense counsel and the Judge.

(At this point, the flashlight was marked as exhibit C-61
and was shown to Defense counsel and the Judge.)

Page 100.

Forbes - Direct

BY MR. MCGILL:

Q. Would you take a look at C-61?

A. Yes.

(Witness examining flashlight.)

BY MR. MCGILL:

Q. You have seen that before?

A. Yes.

Q. Could you identify C-61?

A. I can identify it as being the one or like the one that was laying on the street.

Q. Did you do anything with it or just leave it there?

A. I left it there.

MR. MCGILL: Cross examine.

(CROSS EXAMINATION)

BY MR. JACKSON:

Q. Officer Forbes, you gave a statement to the police about this flashlight?

A. That is correct.

Q. When did you give a statement with regard to

Page 101.

Forbes - Cross

this?

A. I believe it was on the 16th of December.

Q. Do you know to whom it was that you gave a statement?

A. I'm not sure. I believe it was Detective Thomas.

Q. You originally gave a statement to a detective on December 9th; is that right?

A. That's right.

Q. In that statement, you never mentioned the flashlight, did you?

A. No, I did not.

Q. When you saw the flashlight after December 9th, assuming that it is the same one for a moment, after you saw the flashlight on December the 9th, when was the very next time you saw the flashlight?

A. I believe it was the 16th of December.

Q. Who had the flashlight at that time?

A. I don't know whose possession it was in. It was up in the Chem Lab.

Q. You were asked to go and take a look at it?

Page 102.

Forbes - Cross

A. Yes.

Q. Did they tell you how long they had it?

A. No.

Q. Did they tell you from whom they received it?

A. No.

MR. MCGILL: Objection. It is all hearsay.

BY MR.JACKSON:

Q. By the way, is there any way that you can determine that, indeed, that is the very same flashlight you saw that night?

A. Not the very same, but it is like it in its length and color.

Q. Did you examine that flashlight on the 9th?

A. No. I didn't.

Q. Based on your previous indications of where the guns were found, it was closest to what gun?

A. Officer Faulkner's.

Q. In fact, how close was it?

A. Approximately a foot west of where the gun was laying.

Page 103.

Forbes - Cross

Q. Officer Faulkner's gun was in the street, too?

A. That's correct.

Q. It was along side the Volkswagen or something within the length of the Volkswagen, but near the curb; is that right?

A. That's correct.

Q. How long did you estimate the length of that flashlight to be?

A. When?

Q. Right now. Well, is it about the same length as it was on the 9th?

A. That's correct.

Q. Although we have seen it, could you estimate the length for us for the record?

A. Approximately eighteen inches.

Q. Had you ever seen that flashlight before December 9th?

A. No, I hadn't.

Q. By the way, did you see a camera that night?

A. No. I did not.

Q. Officer Forbes, if I can just take you to

Page 104.

Forbes - Cross

another incident regarding when you arrived, when you arrived along with your partner, I believe there was another man at the scene other than the people who have been identified as Mr. Jamal and Mr. Cook and Officer Faulkner; is that correct?

A. That is correct.

MR. MCGILL: Objection as to who was at the scene at what point. I mean, everybody started walking over afterwards.

MR. JACKSON: Let me get into it this way.

BY MR. JACKSON:

Q. After you arrived, I am not going to take you through the testimony you have already given, at some point in time, upon your arrival, you saw a white male very near the scene or at the scene; is that correct?

A. He was approaching the scene, yes.

Q. When you say that he was approaching it, wasn't he, in fact, on the same sidewalk where Officer Faulkner was?

A. Yes.

Page 105.

Forbes - Cross

Q. How close did you see this man to Officer Faulkner?

A. Well, I was there. He came down from the corner of 13th Street and he got, I would say, three to five feet away from the Officer's feet. That is when I turned around and sent him back to the corner.

Q. Did you know, in fact, where he came from?

A. He came in the direction of 13th Street.

Q. So, you don't know if, in fact, he came from 13th Street or anywhere else, just from that general direction; is that right?

A. From just about the corner; I know he wasn't very close to us.

Q. You watched him come from the corner?

A. I did not watch him. I could see him out of the corner of my eye. He was approaching.

Q. At the time he was approaching as you indicated, what were you doing at that time?

A. That is when I had my eyes trained on William Cook.

Q. You had your eyes trained on William Cook?

Page 106.

Forbes - Cross

A. Yes.

Q. Did you then have the two weapons in your hand?

A. No.

Q. So, you were close to William Cook at that point as well?

A. I was about at the curb line. I was approaching William Cook.

Q. So, that was before you even went over to him and came back and got the gun? Let me put it this way. It was almost immediately upon your arrival at the scene?

A. Yes.

Q. No one else had come that close to Officer Faulkner while you were there; is that right, other than police officers?

A. And Mr. Cook.

Q. And Mr. Cook? No one else?

A. No.

Q. No other bystanders that you saw?

A. No one came that close, no.

Q. Could you describe this man for us?

Page 107.

Forbes - Cross

A. I would say he was in his late fifties. He appeared to be over six feet tall. He was extremely intoxicated and he was wearing a white or a tan trench coat. I believe he was balding, also.

Q. He had no hat on, then, right?

A. No.

Q. You say that he was extremely intoxicated. How could you tell that, sir?

A. He was staggering down the sidewalk.

Q. How would you know that that was a result of intoxication as --

A. He spoke incoherently.

Q. What did he say?

A. I couldn't understand it.

Q. How do you know that it was incoherent?

MR. MCGILL: Objection. That is the definition of incoherent.

THE COURT: Sustained.

BY MR. JACKSON:

Q. You didn't understand what he said; is that right?

Page 108.

Forbes - Cross

A. That is true.

Q. How close did you get to him?

A. About a foot.

Q. You came within one foot of him and he came within three feet, I believe you said, of Officer Faulkner; is that correct?

A. Yes.

Q. How close did he ever get to Mr. Jamal?

A. Around six to eight feet.

Q. And you never saw him again, did you?

A. No, I did not.

Q. You did not get his name or address or anything of that sort?

A. No. I did not.

Q. As far as you know, did any of your fellow officers get his name or address?

A. No, as far as I know.

Q. As far as you know, did anyone interview him?

A. No.

Q. Have you ever seen a statement from him?

A. No.

Page 109.

Forbes - Cross

Q. He had something with him, did he not?

A. Yes.

Q. I believe you indicated at some point that he had a beer with him; is that right?

A. He had a brown paper bag that looked like there was a six pack in it.

Q. However, you don't know what was in the bag?

A. No.

Q. However, it was a weighty bag, was it not?

A. Yes.

Q. However, you did not ask to examine the bag, did you?

A. No.

Q. Do you know if anyone ever obtained that bag?

A. No.

Q. Do you know if anyone ever examined the bag?

A. No.

MR.JACKSON: I have no further questions.

Page 110.

Forbes - Redirect

(REDIRECT EXAMINATION)

BY MR. MCGILL:

Q. Officer, you also told the police that in your statement?

A. Yes.

Q. Let me see if I can get the description straight. What was the description?

A. He was somewhere over six feet, a white male, in his middle to late fifties, balding, and he had a white or a tan trench coat on.

Q. He was intoxicated?

A. Extremely.

Q. The witnesses that have been called for the Commonwealth for this trial, Robert Shelbert (ph), Albert Majilton (ph), Michael Scallion (ph), you have seen them?

A. Yes, I have.

Q. They are not that person, are they?

A. No, they are not.

MR. MCGILL: Let me ask that this

Page 111.

Forbes - Redirect

be marked as exhibit C-62. This is the statement of December 16th of Officer Forbes.

(At this point, the statement was marked as exhibit C-62.)

MR. MCGILL: May I approach the witness, Your Honor?

THE COURT: Go ahead.

BY MR. MCGILL:

Q. Is this your statement?

A. Yes, it is.

Q. I am going to refer you to page four. Does that essentially make any statement in relation to the flashlight?

A. Yes.

Q. And page seven, read that to yourself. Does that essentially reflect the information regarding the man, the older man?

A. Yes, it does.

Q. You got him out of the way because he was in the way?

A. Yes, he was --

Page 112.

Forbes - Redirect

MR. JACKSON: Objection. I withdraw the objection.

THE WITNESS: He was approaching the crime scene and I still had my eyes trained on Mr. Cook. So, I didn't know who was approaching from my right side.

BY MR. MCGILL:

Q. You didn't mention anything about the flashlight on the first day. Why didn't you say anything about the flashlight the first time you saw it?

MR. JACKSON: Objection.

THE COURT: Go ahead.

THE WITNESS: I didn't know it was missing.

BY MR. MCGILL:

Q. Excuse me?

A. I didn't know that the flashlight was missing.

Q. What do you mean "missing"? I don't understand. The question was why you mentioned it on December 16th and why you didn't mention it on December 9th.

Page 113.

Forbes - Redirect

A. As far as I knew, the flashlight was left there as part of the evidence of the crime scene.

Q. That is what you meant by "missing." I understand.

Thank you.

By the way, is that standard issue, that type of flashlight?

A. No, but most officers purchase it on their own.

Q. Do you know whether Officer Faulkner carried one or if you don't know --

A. I don't really know.

MR. MCGILL: I have nothing further, Your Honor.

MR. JACKSON: I have just a couple of questions.

(RECROSS EXAMINATION)

BY MR. JACKSON:

Q. You didn't know the flashlight was missing; is that right?

A. That is correct.

Page 114.

Forbes - Recross

Q. Who told you that it was, in fact, missing?

MR. MCGILL: Objection. It is hearsay. It is irrelevant or inadmissible.

MR. JACKSON: He is the one who said it was missing.

THE COURT: I see that you are misinterpreting something.

As I understood, he explained what he meant by missing. He thought it was left there because it was part of the crime scene. In other words, he didn't pick it up. So --

MR. JACKSON: I understand.

THE COURT: However, now he is saying that it was missing. That is what he said he meant by missing when he answered his question. He said he thought it remained there because it was a part of the crime scene and somebody would pick it up, not him.

MR. JACKSON: However, there is no indication that anyone --

THE COURT: You can call that

Page 115.

Forbes - Recross

Officer Chin or whatever her name is.

MR. MCGILL: I will make her available. That is no problem.

THE COURT: That is the one to ask. He said that he assumed it was part of the crime scene and that somebody was going to take care of it.

MR. JACKSON: Alright.

BY MR. JACKSON:

Q. Officer Forbes, other than the flashlight, were there other items that you saw at the scene?

A. There was a green hat. I saw a green hat at the scene. It was laying near a utility pole, I believe.

Q. Is there anything else that you can recall?

A. Not that I can recall.

Q. It is my understanding that the only reason you picked up the guns is because, well, you just picked up the guns; you didn't touch any of the other evidence is that right?

A. That is correct.

MR. JACKSON: I have no further

Page 116.

questions.

MR. MCGILL: Does the Court have any questions?

THE COURT: No.

MR. MCGILL: Thank you, Officer Forbes. I will now call Detective Thomas.

- - - -

WILLIAM THOMAS, having duly been sworn, was examined and testified as follows:

THE CRIER: State your name and division and spell your last name, please.

THE WITNESS: Detective William Thomas, badge number 744, Homicide Division; T-H-O-M-A-S.

(DIRECT EXAMINATION)

BY MR. MCGILL:

Q. Detective, you are the assigned detective in this case?

A. Yes, sir.

MR. MCGILL: May I approach witness?

Page 117.

Thomas - Direct

THE COURT: Yes.

BY MR. MCGILL:

Q. I am showing you what has been marked, and I am really limiting my areas to two specific areas, Your Honor, I am showing you what has been marked as C-59. Would you take a look at C-59?

A. Yes.

Q. Can you identify what C-59 is or who C-59 represents?

A. Yes. That is a photo of Mumia Abu-Jamal.

Q. Is he in this courtroom?

A. Yes, he is, the gentleman sitting next to Mr. Anthony Jackson.

Q. He has been sitting in this courtroom as part of these proceedings for the last three weeks?

A. Yes, sir.

Q. In approximately the same spot and approximately the same chair?

A. That is correct.

Q. Detective, did you have occasion on December 9, 1981, to arrange to have photographs taken of William

Page 118.

Thomas - Direct

Cook?

A. Yes, sir, I did.

Q. I am showing you what has been marked as exhibit D-11 and exhibit C-21, C-31, C-32, C-33 and C-34. Will you take a look at those items, please?

A. (Witness examining the photographs.)

Q. Have you reviewed those exhibits?

A. Yes, sir.

Q. Can you identify them?

A. Yes, sir. These are the photographs taken of Mr. William Cook on December 9, 1981.

Q. Do they show any injuries of Mr. Cook?

A. Yes. They show a cut behind the left ear.

Q. You also observed Mr. Cook, didn't you, at close range?

A. Yes, sir, I did.

Q. Did you observe, other than that cut, any other injuries?

A. No. sir, I didn't.

Q. Did Mr. Cook make any complaints about any other injuries?

Page 119.

Thomas - Direct

MR. JACKSON: Objection.

BY MR. MCGILL:

Q. To you.

MR. JACKSON: Objection.

THE COURT: Overruled.

THE WITNESS: No, sir, he didn't.

BY MR. MCGILL:

Q. As a matter of fact, did he ever make a complaint regarding that injury?

A. No, sir. I asked him did he want to be treated for it and he said no.

MR. MCGILL: May I see Your Honor at side bar very briefly with Mr. Jackson? We may not need the stenographer.

(At this point, there was a side bar conference with the Court, Mr. McGill
and Mr. Jackson after which the proceedings continued as follows:)

MR. MCGILL: Cross examine.

Page 120.

Thomas - Cross

(CROSS EXAMINATION)

BY MR. JACKSON:

Q. Detective Thomas, you, actually saw William Cook on December 9th, didn't you?

A. Yes, sir, I did.

Q. Approximately how tall was he?

A. From my recollection, counsel, I believe William Cook was about five feet nine, five ten, five foot nine or five foot ten.

Q. What was his weight, approximately?

A. I would say, maybe, 160.

Q. When you saw him, he was already in the Homicide Division?

A. Yes. sir.

Q. I note that the photographs were taken with no clothing from the waist up. Did you see the removal of his clothing? Did you see him before his clothing was removed?

A. I believe when I first observed him, I believe his jacket may have been behind him on the chair, that he was sitting on, but I am not sure. But he had his

Page 121.

Thomas - Cross

clothes on when I first observed him.

Q. Did he have a hat on?

A. Yes.

Q. What color?

A. I don't recall the color, to be honest with you. It was a dark colored hat. It was, like, a beret. It covered most of his hair.

MR. JACKSON: May I see the photographs, please?

(Mr. Jackson examining the photographs.)

MR. JACKSON: Show him C-15, please.

BY MR. JACKSON:

Q. Could you just take a look at that, Detective Thomas. That is not the same hat that William Cook had on, is it?

A. (No response.)

Q. Do you want to look at the photograph, again? Is it?

A. They are basically similar. I would call both

Page 122.

Thomas - Cross

of them berets or tams.

Q. However, the question is, that is not the same hat that is in this photograph, is it?

A. I really could not say whether this is the same -- this particular hat was not the hat that was in the photograph, no.

Q. That is all I wanted to know. Your Honor, I would also like to reserve the right to call Detective Thomas as my witness.

MR. MCGILL: Your Honor, the Detective will be available at any time, as all the police officers will be for Mr. Jackson's defense. Does Your Honor have any questions?

THE COURT: No.

MR. MCGILL: Thank you, Detective Thomas.

At this point, the Commonwealth will move to introduce all of the exhibits, C-l through C-62.

At this point, Your Honor, the

Page 123.

Commonwealth rests.

THE COURT: May I see you In-Chambers?

(At this point, there was a discussion In-Chambers with the Court,
Mr. McGill and Mr. Jackson, after which the proceedings continued as follows:)

THE COURT: C-l A and B is a cap of the police officer's and the shield. Is there any objection to that?

MR. JACKSON: No.

THE COURT: C-2 is a strand of hair and that was admitted. C-3 to C-13 are photos of the area, the scene. I think I have already admitted them into evidence because they were shown to the jury.

MR. JACKSON: I don't think C-8 was, Your Honor.

THE COURT: Yes, all of them.

MR. JACKSON: C-8 was admitted?

THE COURT: Yes, C-3 through C-13, inclusive.

Page 124.

MR. JACKSON: It was admitted?

THE COURT: Wait a minute. You are right. That part we didn't.

MR. MCGILL: I only ask for the scene.

MR. JACKSON: I object to that.

THE COURT: C-8 is admitted into evidence for whatever value it may have. It doesn't necessarily mean that it will be shown to the jury.

C-14 was the black tie of the Officer. That is admitted into evidence.

C-15 was the green beret that we just looked at now. That is admitted into evidence. C-16 was admitted into evidence. That would be a photo of 1234 Locust Street, the south side. It was shown to the jury.

C-17 --

MR. JACKSON: The actual police log --

THE COURT: A photostat of the log,

Page 125.

that's admitted into evidence. D-l was a photo of the jacket on the sidewalk.

MR. MCGILL: D-l?

MR. JACKSON: The bullet jacket.

THE COURT: Yes.

MR. MCGILL: He is moving to introduce --

MR. JACKSON: I would like to have them introduced at this point as well.

MR. MCGILL: Alright.

THE COURT: D-2 to D-9 were photos of the scene, but they have already been admitted into evidence and shown to the jury.

C-18 is the bullet sample that we used for demonstration purposes. That would be admitted into evidence for its value, but it won't go out with the jury.

MR. JACKSON: Fine.

THE COURT: C-19 was the cassette of the radio transmission. That is admitted into evidence.

Page 126

C-20 was the transcript of that, the typed transcript of that.

MR. JACKSON: Fine.

THE COURT: That is admitted into evidence.

MR. JACKSON: I would just bring Your Honor's attention, and I know it is another matter as to whether it goes out with the jury, but it has other information.

THE COURT: Yes, that's right.

C-21 is a photo of William Cook. That is admitted into evidence.

C-22 and C-23 are two guns. They are admitted into evidence.

C-24 is Officer Faulkner's police jacket. That is admitted into evidence.

C-25 is Officer Faulkner's sweater. That is admitted in evidence.

C-26 is the property receipt for those items. That is admitted.

C-27 is Officer Faulkner's shirt. That is admitted.

PLEASE NOTE: Pages 127 and 128 are missing. We will try to locate them.

Page 129.

C-36 was the tape of the interview of Cynthia White. Was that played?

MR. JACKSON: No, it was never played.

THE COURT: But it is here, though.

MR. MCGILL: Yes.

THE COURT: However, it was never played to the jury.

MR. MCGILL: Right.

THE COURT: It is admitted into evidence. He may want to use it. I don't know. D-12 is a small sketch of the location which was made on 12/9/81. That is admitted.

C-37 was the bullet taken from the defendant from his lower right back. That is admitted.

C-38 was the property receipt for that exhibit, C-37, which was the bullet that was admitted.

C-39 was the bullet specimen from

Page 130.

Doctor Hoyer, the assistant medical examiner.

C-40 is the receipt for that bullet, which was marked as C-39, given by Detective Daney, (ph).

C-41 is the property receipt for that bullet which was marked as C-39.

C-42 is an IBM card signed by Officer Faulkner for his service. That is admitted into evidence.

C-43 was a sample of a fingerprint, that large fingerprint. It was used for demonstration purposes. Since we used it for demonstration purposes, it is admitted for whatever it is worth.

C-44 is a bullet fragment. There were four envelopes; they are admitted.

D-13, well, it was the crime lab, I think, research and you took it back, but we used it for whatever purpose it served.

C-45 to C-51 are photos of the inside of the emergency room at the hospital. They are admitted into evidence.

Page 131

C-52 was a sketch of the Jefferson Hospital Emergency Room. That is admitted.

D-14 was a statement of the witness, Priscilla Durham, to her supervisor on 12/10/81. That is admitted.

C-53 is a statement of Priscilla Durham to the Internal Affairs on February 9, 1982. That is admitted.

C-54 is the clothing of the defendant. That is admitted.

C-55 was the property receipt for the clothing of the defendant. That is admitted.

C-56 is the shoulder holster for a small gun. That is admitted into evidence.

C-57 is the first statement given by Michael Scallion (ph) on 12/9/81 about one-half hour after the incident. That is admitted.

C-58, that was Mr. McGill's notice of material that was eventually given to Defense counsel by the D.A. office. I think

Page 132.

he wanted it put in for some purpose to show that he had given some sort of information to the defense attorney. That is admitted for whatever value it may have.

MR. MCGILL: Only because of the side bar conference that we had.

THE COURT: I know. C-59 is that newspaper clipping of the picture of the defendant which we just finished with. That is admitted into evidence.

C-60 is the sample of the body positions that Doctor Hoyer used in explaining to the jury the different wounds, the entering and exiting of the wounds. That is admitted into evidence.

C-61 is the one and a half foot flashlight that Officer Forbes said he saw and about which he gave a statement to Detective Thomas on 12/16/81. That is admitted into evidence.

C-62 is the actual statement of Officer Forbes on 12/16/81. That is admitted

Page 133.

into evidence. I think that covers them all.

MR. MCGILL: I do have one thing to point out, although I have rested my case. I was going to make this request. I thought I knew the answer which is why I officially rested.

If Mr. Jackson would prefer, I will give him this option in terms of identifying the defendant when he was not present in court. I am referring now to the witnesses, Priscilla Durham and Gary Bell. Both of them identified, although Priscilla Durham used the word, "defendant."

THE COURT: She saw him because she was in the room. I had to put him out afterwards. She had seen him.

MR. MCGILL: She did see him.

THE COURT: So, I don't think there is any problem with her identification.

MR. MCGILL: Well, I am just going to offer this. If Mr. Jackson wants, I can

Page 134.

recall both Priscilla Durham and Gary Bell to go through the same little ritual that I did with Albert Majilton (ph), which was with that photograph, that newspaper photograph, which is exhibit C --

THE COURT: I think he --

MR. MCGILL: I used it with Mr. Majilton (ph).

THE COURT: I think you used it with Mr. Bell.

MR. MCGILL: No, sir.

MR. JACKSON: No, just one.

MR. MCGILL: I used it with Mr. Majilton (ph) because the day before we did the stipulation. It was here. We were stipulating to it. However, if Mr. Jackson wants to, or unless he objects to it because he feels it is more emphasis on the point, I could and I would be willing to bring them back for the sole purpose of identifying that photograph and saying that that photograph is a representation of the individual that

Page 135.

"I saw who made that statement that I say was made." If he wants me to do that, I will.

MR. JACKSON: I appreciate counsel's offer, but most respectfully decline and I would further object if he requested it.

MR. MCGILL: It would be an over emphasis of it?

MR. JACKSON: Exactly.

THE COURT: I think there is no doubt. He knows they would identify him especially the Officer and, actually, Miss Durham actually saw him in the courtroom. She saw him. She already saw him here. As a matter of fact, he started to ask her questions and I told her not to answer. So, she was here.

MR. JACKSON: I suppose it would be time for me to make my opening statement?

MR. MCGILL: Whatever you want. Let me say this. Let's go off the record.

(Discussion off the record.)

Page 136

MR. MCGILL: You were saying something about your opening statement?

MR. JACKSON: Mr. Jamal is currently speaking with Janette Africa relevant to my question to him or my comment to him that I am now required to present an opening remark to the jury. In my opening remark, I indicated to him that only generally I am required to indicate to the jury what it is I intend to prove and generally the witnesses or the types of witnesses that I would intend to call. Mr. Jamal indicated that he wanted to speak to Janette Africa before commenting further with me. As far as I am concerned, I have an idea of what my opening remark would be to the jury and that would include, generally, a list of some witnesses, not necessarily their names, but types of witnesses as to what they would say as well as character witnesses. Of course, Mr.Jamal solely and exclusively knows the character witnesses but he would generally and normally call and I don't know. I, of course,

Page 137.

have some concern about telling the jury that I am going to present character witnesses when, in fact, he may later on decide that those character witnesses should not appear. I am suggesting that perhaps I shouldn't say it in the opening remark, but I know that training and experience suggests that this would be a good time to let the jury know that you have somebody who is going to come in And say that a person's reputation is generally good for veracity and things of that sort. It may be a somewhat premature concern, but I just wanted the record to reflect that I have a strategic problem with regard to what I say in my opening remark and it may be compromised somewhat by the defendant at a later point.

MR. MCGILL: I was wondering, Your Honor, didn't we understand that I was going to get the names of some or at least I requested that I have the names of the witnesses. He did give me names of witnesses

Page 138.

today and I think that is fair.

MR. JACKSON: For the record, I have no names. I still don't have any.

THE COURT: You mean for character?

MR. JACKSON: For character witnesses I still don't have any.

THE COURT: If worse comes to worse, you may very well have to leave that out of the opening statement and later on, if he wants to call them, as long as you give it to the D.A. in advance, check it out, I don't see any problem. I don't know what else you can do because I realize your problem with Mr. Jamal.

MR. MCGILL: From the very beginning of the case, from the very beginning of the trial, Mr. Jackson has assumed the position that he will represent this defendant the best that he can pursuant to Judge McDermott's order as well as Your Honor's, irrespective of the impediments presented by his client. So, Mr. Jackson, of course, has the option which has been really consistent with what he

Page 139.

has been doing so far and that is running the case the way he feels is in the best interest of his client with or without his help. I am sure that he has had some help, but may not as much as he would like to have, but he has at least been conferring to some degree. So, keeping the consistency there, I would think that you should run the case the way you feel is best for him.

THE COURT: Maybe they are anticipating unnecessary problems. Let's wait and see until Mr. Jackson has a chance to talk to him.

MR. JACKSON: I would also point out, Your Honor, that today I indicated to Mr. McGill perhaps some addition of witnesses that I didn't indicate before. I don't think any of the witnesses are unknown witnesses in terms of who I may call. One of the difficulties that I have in determining what witnesses to call is that I have to reflect and think and search my notes as to the

Page 140

statements of witnesses since I no longer have a copy of the statements. Mr. Jamal has copies of statements. I think that I indicated -- I showed you all of the names.

MR. MCGILL: That's right, and I gave you the address of Miss Jones, the address and phone number.

MR. JACKSON: Veronica Jones; I don't have it. I never contacted her at all because she would be a key witness in our defense and I think there may be one or two detectives and police people. I don't think there are any other civilians that I haven't mentioned to Mr. McGill. I just want you to know the civilians that I haven't mentioned already.

MR. MCGILL: Well, I will point out one other thing, too. I am glad I remembered this. Mr. Jackson was kind enough to give me the names pursuant to discovery rules, but he mentioned two names; one was an investigator

Page 141.

and the other was Sergeant Westerman. This has to do with that same issue yesterday, about the investigative log and as far as the order and the ruling was concerned, it is inadmissible testimony. Whether it be on cross examination of the medical examiner or whether Sergeant Westerman, who was one of the witnesses you mentioned, was called himself or even if the investigator was called himself, it is still, Your Honor, plainly and clearly inadmissible evidence because if Sergeant Westerman was even to think it was accurate and state that it was accurate, it is double hearsay there.

MR. JACKSON: Let me interrupt. I am not trying to introduce the statements, if that is what you are talking about. I am not going to try to introduce the statements.

MR. MCGILL: I mean even the work itself, even the contents of the statements.

MR. JACKSON: Let me just suggest that it is generally my intent with regard to the medical examiner and Sergeant Westerman

Page 142.

to, number one, determine what their duties are. If their duties are to investigate, to follow up leads, hearsay leads, whatever the leads are, then this would, of course, be in the regular course of their business. Did they have reason to know that Mr. Jamal was shot by someone else, a police officer, whoever it was. If so, what did they do and, I think, Your Honor, that would be appropriate to find out.

THE COURT: No, it is still not --

MR. MCGILL: We won't even have the Judge at this point decide that. Just rather than delay any further, I just want to make clear that this is not mentioned in his opening to the jury.

THE COURT: Well, naturally, that is strictly hearsay as far as I am concerned.

MR. JACKSON: Your Honor --

THE COURT: Even if the detective got on the stand and started testifying as to hearsay testimony, you would object right away

Page 143.

and rightfully so, unless the Commonwealth made some exception.

MR. JACKSON: If a police officer testified as a result of information I received, I am not saying how he received it, as a result of information I received, did you determine if, in fact, Mr. Jamal was shot by anyone else or something like that --

THE COURT: No, that still wouldn't be admissible. You can ask him what he did as a result of that, but any information he got -- if he went out and started to investigate something and what he actually saw on his own, that is a different story.

MR. MCGILL: If Sergeant Westerman was asked, "What did you do in connection with this investigation," and he said, "I did" this or this or this, that is alright, but in his opening statement to bring up any kind of comments --

THE COURT: No, I am not talking about that.

Page 144.

MR. MCGILL: I am talking about the opening statement.

THE COURT: I am talking about what is admissible later on.

MR. JACKSON: That is another question and I am saying that just as you have a police officer who responds to a radio call as a result of information he received from the radio call, "I went to such and such a house" --

THE COURT: Okay.

MR. JACKSON: "AS a result of information I received from the medical examiner's officer, I determined that Mr. Jamal wasn't shot by" --

THE COURT: He can't make that determination.

MR. JACKSON: Why?

THE COURT: No, he can't.

MR. JACKSON: Why?

THE COURT: What did he do?

MR. JACKSON: That is what I want

Page 145.

to ask.

THE COURT: You had better talk to him first and then tell me what he is telling you and I will let you know whether or not you can admit that.

MR. JACKSON: Your Honor, I think I would like to talk to him.

THE COURT: You had better talk to him.

MR. JACKSON: And to the investigator before I give the opening statement.

MR. MCGILL: Bring him in on Monday. We have Monday morning free.

MR. JACKSON: I didn't want to waste this afternoon.

MR. MCGILL: Why not start it and just not include that in the opening?

MR. JACKSON: Because I want to put that in the opening.

MR. MCGILL: Anyway, it is going to be cut, Your Honor. Even if it was accurate, which it is not, it is strictly hearsay. We

Page 146.

are really talking about something--

THE COURT: What do I care about his conclusion? His conclusion doesn't mean anything to me.

MR. JACKSON: I am not asking for his conclusion. I am not asking for anybody's conclusion.

THE COURT: Yes, you are.

MR. JACKSON: As a result of information received, number one, Your Honor, does the assigned detective or the medical examiner or the sergeant or somebody have an obligation or duty to pursue the leads that they receive, whatever the leads are. If they say yes, I can ask, "As a result of a lead that you received, did you pursue an investigation to determine how, why, and under what circumstances Mr. Jamal was shot" --

MR. MCGILL: Objection.

MR. JACKSON: Isn't that reasonable?

THE COURT: We don't even know what this guy did. Why don't you talk to him first.

Page 147.

MR. JACKSON: However, Your Honor --

MR. MCGILL: That includes hearsay within the question.

THE COURT: You had better talk to him first.

MR. JACKSON: I don't understand and, seriously, if a police officer can say --

THE COURT: A police officer can't get on the stand and say, "As a result of my information, I concluded that he shot that police officer."

MR. JACKSON: I am not asking for any conclusion. I want to ask, "What did you do?"

THE COURT: What did he do?

MR. JACKSON: As an example, "As a result of a radio message, I responded and went to the scene."

THE COURT: Let's talk about what you want these people for.

MR. JACKSON: I am trying to show that this is the very same situation.

Page 148.

THE COURT: I don't need examples. I understand very clearly. All I want to know is what do you intend to prove through these witnesses?

MR. JACKSON: That they didn't pursue the --

THE COURT: They didn't pursue it. They didn't do anything. What evidence is that?

MR. JACKSON: That is evidence of police collusion, bias, the whole bit.

THE COURT: You mean because the investigator and the medical examiner didn't do anything --

MR. JACKSON: The medical examiner or the police.

THE COURT: Wait a minute. You have to understand that it is his responsibility to prove your client guilty beyond a reasonable doubt.

MR. JACKSON: I understand that.

THE COURT: He couldn't do that by

Page 149.

what they didn't do, only by what they did.

MR. JACKSON: My responsibility is to point out what they should have done and didn't do.

MR. MCGILL: All of this, first of all, is based on something that is supposed to have been said which, as a matter of fact, it was never said, but let's assume that it was; let's assume that it was said. Hearsay upon hearsay upon hearsay is absolutely inadmissible. "As a result of anything, what did you do? Did you continue an investigation? Did you pursue any investigation of the shooting of Officer Faulkner?" That is about the most he could say, or "What did you do in reference to this?" What did he do? "Well, I took reports." I did this, I did that. It is so completely out of the ballpark as being admissible testimony, Your Honor. It is so wrought with inadmissible problems and the whole reliability aspect of the hearsay is plainly evident in this type of attempt to

Page 150.

get in some sort of conjecture, some sort of inference of something that they are supposed to have known. All in all, by the way, what you will hear from Sergeant Westerman is something which was incorrectly written down because it was never said. Now, that even makes it worse, but even if it was said, it is based not upon any personal observations. They were conclusions drawn by people and so it should not be mentioned.

THE COURT: That man, whoever he is; in the medical examiner's office, he has no responsibility to investigate this case. It is not his responsibility. It is not his responsibility at all.

MR. JACKSON: Well, Your Honor, I don't see any difference in this situation with the analogy I gave with regard to the radio call. Whether the information is hearsay true, incorrect, or not --

THE COURT: But I am telling you that the investigator has no responsibility.

Page 151.

He is not here to investigate homicides.

MR. MCGILL: Even if he was, it is hearsay.

THE COURT: However, he is not.

MR. JACKSON: Your Honor, he has some job to do as an investigator.

THE COURT: I don't know what he has to do. All he has to do is work in the medical examiner's office.

MR. JACKSON: He goes out in the field.

THE COURT: He didn't go out.

MR. JACKSON: I don't know that.

MR. MCGILL: That usually goes to the circumstances surrounding the descendent's death so that if, --

THE COURT: He doesn't make a conclusion as to who shot him or didn't shoot him. That is not his responsibility.

MR. JACKSON: Your Honor, I still am not talking about conclusions. I am asking what his activities were, or his lack of

Page 152.

activities.

THE COURT: Look, I think we are arguing and cluttering up this record unnecessarily. You are going to talk to these people between now and Monday at one o'clock. I can see that he is not going to be able to go forward today.

MR. MCGILL: I will have Sergeant Westerman subpoenaed to appear in my office and I will direct him to talk to Mr. Jackson.

THE COURT: Alright.

MR. JACKSON: And the medical examiner person because I don't know who it is. It is just an initial.

MR. MCGILL: Well, he will probably just say that either he or Sergeant Westerman made a call, or he forgets who made this call, and he wrote down what the caller said. He will say that his attention was focused on, obviously, the circumstances surrounding the descendent's death. He was not that much

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concerned about what the circumstances were surrounding the defendant's injury. He says that he may well have heard it wrong, but what he wrote down is what he thought he heard. That is what he will say.

Now, that is so completely irrelevant because that is hearsay on Sergeant Westerman, who happens to be here, and it is also inaccurate.

MR. JACKSON: I would still like to talk to both of them.

THE COURT: Let him talk to them so that we will have no problem. I think we ought to go out there and finish up. I will admit these things into evidence and you will, rest.

MR. MCGILL: I have rested.

THE COURT: Let me make a formal announcement and then he can ask that we recess until Monday.

MR. MCGILL: Alright.

THE COURT: What do I do with this

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demurrer? You can do that now if you want to.

MR. JACKSON: I could demur to the charges, particularly with regard to possession of an instrument of crime. I demur to that charge, Your Honor.

THE COURT: Well, that is denied. That is quite obvious.

MR. JACKSON: I will demur to the homicide, too.

THE COURT: That is denied. That is a question for the jury.

MR. MCGILL: Legally, I think there is sufficient evidence.

THE COURT: Yes, there is. The demur stays, but it is really for them to make that decision.

(Conclusion of In-Chambers discussion.)

MR. MCGILL: C-l to C-62 is admitted into evidence. D-l to D-14 is admitted into evidence.

THE COURT: The Commonwealth rests?

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MR. MCGILL: Yes, Your Honor. With respect to the Court, the Commonwealth respectfully rests its case.

THE COURT: Mr. Jackson, do you have a request?

MR.JACKSON: Yes, Your Honor. I request, baaed on the fact that the Commonwealth has rested today, I respectfully request that we give our opening remark on Monday.

THE COURT: Alright. The court will adjourn until Monday at one o'clock p.m. in this courtroom.

MR. JACKSON: Your Honor, Mr. Jamal would like to address the Court. He specifically requests to address the Court outside of the hearing of the jury.

THE COURT: Alright.

(At this time, the jury left the courtroom.)

THE DEFENDANT: Judge, you have heard me say quite a few times that I do not

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want this lawyer to represent me and the reason is obvious, because he is going to get me convicted and he is going to get me sentenced and when that sentence comes, I want all of you, everyone in this courtroom, to know that I repeatedly told you that this lawyer could not represent me and that this lawyer is going to cause me to be sent back to prison. You have talked much about how much I need a legal trained lawyer. You have insisted that I have a legal trained lawyer. You have insisted that John Africa does not know the law. So, when I get sentenced, convicted, and found guilty of murder, I want everyone here, all of you, to understand that I was found guilty of murder using a legal trained lawyer and not John Africa, who you repeatedly have refused to let me use. According to you, John Africa doesn't know the law, but Tony Jackson, a legal trained lawyer, does know the law. What you are saying is that I must have an adequate defense and

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that John Africa cannot adequately defend me and that Tony Jackson can adequately defend me. So, according to that reason, with Tony Jackson, defending me, I should be acquitted because you are insisting that I can't get acquitted by using John Africa. I am insisting that I can. When you insist that I must use Tony Jackson, a legal trained lawyer, in order to protect myself from a death sentence or from prison, what you are saying is that he can get me acquitted and since I am at the mercy of you, the Court, this Judge, and him, Tony Jackson, a legal trained lawyer, I expect to be acquitted or else I want you, Judge Sabo, and Tony Jackson, a legal trained lawyer, I want you to tell me why, why you have imposed an inadequate, so-called defense on me and denied me John Africa, who is the defense my choice.

THE COURT: I have explained the law on that subject to you before. I do not guarantee what a jury is going to do and I

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don't think anyone can do that. They are the triers of the facts. They will hear all of the evidence and regardless of who defends you, even if it was F. Lee Bailey, nobody can guarantee you what a jury is going to decide.

THE DEFENDANT: However, you have decided --

THE COURT: They are the triers of the facts and they are the only ones who are going to make that decision.

THE DEFENDANT: You decided to assist me in my defense.

THE COURT: That is right, but Mr. Jackson nor can anyone else change the facts, whatever facts that the jury actually believe and they are the ones who try the facts. They are the ones that make the decision. There is nothing that anybody can do that is going to in any way influence them. It depends on what comes out in the trial. If what you are saying is true, then John Africa, whoever he defends, is going to be

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acquitted. He would be the best lawyer in the world.

THE DEFENDANT: I think he is.

THE COURT: You may think he is --

THE DEFENDANT: It is my life that is on trial, not yours.

THE COURT: There is no guarantee that he could do anything more or less than anybody else, but he is not trained in the law. He doesn't know what is necessary. I have watched Mr. Jackson, not on this case, but on other cases. He is a very able lawyer.

THE DEFENDANT: Well, if he is able --

THE COURT: That doesn't mean that he can guarantee you anything. Nobody can.

THE DEFENDANT: What is he able to do?

THE COURT: Exactly what he has been doing.

THE DEFENDANT: Which is?

THE COURT: Exactly what he has been doing.

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THE DEFENDANT: Following the orders of the Court.

THE COURT: No, he doesn't follow my orders.

THE DEFENDANT: Sure he does.

THE COURT: No, he doesn't. There is nothing else.

Gentlemen, we will adjourn today until Monday at one o'clock p.m.

THE CRIER: This court is adjourned until Monday at one o'clock p.m.

- - - -

(Court adjourned at 3:15 p.m.)





I hear by 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