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

COMMONWEALTH

VS.

MUMIA ABU-JAMAL

aka

WESLEY COOK

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January Term, 1982



No. 1357-1358

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PCRA Hearing

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Tuesday, August 2, 1995
Courtroom 253, City Hall
Philadelphia, Pennsylvania

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BEFORE: THE HONORABLE ALBERT F. SABO, J.

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APPEARANCES:
  • CHARLES GRANT, ESQUIRE
  • ARLENE FISK, ESQUIRE
  • LINDA PERKINS, ESQUIRE
    Assistant District Attorneys
    For the Commonwealth

  • LEONARD WEINGLASS, ESQUIRE
  • RACHEL WOLKENSTEIN, ESQUIRE
  • DANIEL R. WILLIAMS, ESQUIRE
    Councel for the Defendant

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TRANSCRIBED BY: CHARLES M. GORGOL
Official Court Reporter of the Court of Common Pleas



Page 2.

ALSO PRESENT:

  • JULES EPSTEIN, ESQUIRE
    Councel for Rachael Wolkenstein



INDEX
DEFENSE EVIDENCE
WITNESS DE CE RDE RCE
George Fassnacht 44 82 160 171
Robert Harkens 193 -- -- --



EXHIBITS


DEFENSE EXHIBITS
NO. DESCRIPTION PAGE
15 FIU REPORT 164


Page 3.

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(At l0:15 a.m. the hearing was convened in the
presence of the Court and the attorneys.)

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THE COURT: When I returned to my office yesterday at the conclusion of the day I found on my desk a motion to quash... subpoenas on behalf of Mr. Pines and Mrs. Radwanski, who are employed by the Administrative Office of the Pennsylvania Courts.

I assume Counsel has received copies of that motion?

MR. GRANT: I have, Your Honor.

THE COURT: Well, I read over the motion and I have signed an order quashing those subpoenas.

I think it is time for the Court to take back reins on the Defendant here. Because I have been a little, I guess a little bit lax. I don't know if it's lax, but it's like leaving a bull unattended in a china shop and that just goes through and knocks everything down.

The procedure we are going to follow from here on in is this. The defense had filed

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a Petition alleging, I think, 19 issues to be resolved. At this juncture we will concentrate solely on those issues. When those issues have been resolved, or all the evidence is in on them, if the Defendant wishes to file supplemental issues, you will have to seek permission from the Court. And if the Court gives you permission you will have to put it in writing, the same as you did with your original Petition, and serve it on the District Attorney's Office for reply. We are not going to go afield, all over the map of the City of Philadelphia. We are going to concentrate solely on those issues that were raised in the Petition, the original Petition at this time.

Now, I have a list here, I really don't know out of that list who you intend to call today and whether or not the District Attorney has signed affidavits or any other written memoranda that would enable them to proceed with that witness.

Which witnesses do you intend to call today?

MS. WOLKENSTEIN: Your Honor, before we get to that, you indicated that you wanted us

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to proceed per our Petition. And I would inform the Court that claim Number 9 deals with the geographical and racial disparity question.

THE COURT: They have given you whatever they have in the file, Counselor.

MS. WOLKENSTEIN: This was the subject of our --

THE COURT: Counselor. Counselor.

MS. WOLKENSTEIN: Of our subpoena.

THE COURT: Counselor, no more. I have ruled on that issue, you have an exception. Counselor, I have ruled.

MS. WOLKENSTEIN: Your Honor, your --

THE COURT: If you keep talking you are going to find yourself up in the cell room. I am telling you I have ruled on those. I have ruled on that. You have an exception to my ruling.

MS. WOLKENSTEIN: Your Honor --

THE COURT: All right, Sheriff, take her out of here, please.

MS. WOLKENSTEIN: Fine. Your order says, Your Honor --

THE COURT: I don't want --

MS. WOLKENSTEIN: Respondent's reply

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to this indicating that we --

THE COURT: Okay.

MS. WOLKENSTEIN: That we --

THE COURT: And I have already made a ruling on that, okay. I have ruled on it, that's it.

MS. WOLKENSTEIN: Your order was decided --

THE COURT: Take her out of here.

MR. WEINGLASS: Your Honor, may I have a moment?

THE COURT: She is in contempt of Court.

MR. WEINGLASS: May I have a consult?

THE COURT: You could consult with her up there.

MR. WEINGLASS: No, Your Honor.

THE COURT: I am telling you, I will not tolerate this. When I make an order, that's it.

MS. WOLKENSTEIN: Could I put my --

THE COURT: Counsel will take care of that.

(At this time Ms. Rachel Wolkenstein, Esquire was placed in
custody and escorted from the Courtroom by Sheriffs.)

Page 7.

MR. WEINGLASS: Your Honor...

THE COURT: For everybody's edification: I am not going to tolerate this nonsense in this Courtroom. I make an order, that's it. You have an exception. Take it up with the Supreme Court at the proper time. I am not going to stand here and argue with you.

MR. WEINGLASS: Nobody argued. The only point she was trying to make she didn't have a chance.

THE COURT: I know what she is talking about, I have read it. I am convinced that it is not proper at this time.

THE COURT OFFICER: Court is in session.

THE COURT: I think what you better do in the future: If you are going to issue subpoenas like that, bring it to my attention first. I think the fact that you are harassing these people by these subpoenas is intolerable. The Court will not stand for it. Besides, I don't have any jurisdiction in that issue. That's a matter for the Supreme Court.

MR. WEINGLASS: Based on a record to

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be made here.

THE COURT: The Supreme Court has it's records up there. I don't rule on that, they have the records there, Counselor. And they gave you whatever they had. They gave you that information. So let's not deal with that nonsense anymore. Tell me what witnesses you are going to call today. Let's proceed.

MR. WEINGLASS: We will just start with the witness right away.

THE COURT: Well, which witnesses? I want to see if the Commonwealth knows where we are going to give them an opportunity if they have any objections. Which ones do you want to call?

MR. WEINGLASS: We are calling the number one witness on the list.

THE COURT: Who is that?

MR. WEINGLASS: Carol Young. I just want to say this: Miss Young, who is a registered nurse, was here all day yesterday, and I mentioned to the Court --

THE COURT: We have all been here, a lot of witnesses have been here from day-to-day. I can't help that. If you wait until 4:30 to

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try to call another witness and I tell you I am tired, we will adjourn for the day and that's it. The fact that she has to come back today, I'm sorry about that, but I am not going to kill myself over this case. So you are going to call Carol Young. Who else?

MR. WEINGLASS: George Fassnacht.

THE COURT: George Fassnacht. Who else?

MR. WEINGLASS: Jerry Kracoff.

THE COURT: All right. Who else?

MR. WEINGLASS: Steve Hawkins.

THE COURT: Steve Hawkins? Oh, he's down below. Okay. Who else?

MR. WEINGLASS: Robert Harkins.

THE COURT: Robert Harkins. That's one, two, three four, five.

MR. WEINGLASS: I believe the prosecution has that witness. Gary Bell.

MR. GRANT: Has what witness?

THE COURT: He says you have Robert Harkins.

MR. WEINGLASS: Yes, they have indicated several times on the record that they brought Mr. Harkins to Court.

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MR. GRANT: We didn't bring him to Court; he was in here pursuant to your subpoena. And since, since Your Honor is allowing them to proceed when they are proceeding, we haven't subpoenaed him. We don't have the witness but we are willing to go get the witness if you like.

MR. WEINGLASS: Fine. Thank you.

MR. GRANT: As to those first, we have objections as to all but two.

THE COURT: What objections do you have to what ones?

MR. GRANT: As to Carol Young.

THE COURT: Right.

MR. GRANT: Based on their page 3, they say she is a registered nurse who was on duty at Jefferson Hospital on the night of December 9th of '81 and could have testified that Mr. Jamal made no statement, basically. And that she observed the police officers verbally and physically abusing Mr. Jamal.

First of all, she is not in support of any claim that is cognizable here. The issue as to whether or not Mr. Jamal made the statement was litigated by the Jury. Number one.

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Number two, she did give a statement to the police and she categorically denied that the police leveled any verbal abuse or physical abuse at Mr. Jamal. And this is an outright fabrication.

Number three, Judge, whether she could have or would have been called is an issue of strategy and tactics and I don't see in here alleged that Mr. Jackson, if he had put her on, she would have affected the case. So we object to that. They never noticed us, they held her all day not even letting us know she was here. Last night they said we have a witness. I object to that witness.

Number two, Jerry Kracoff is an attorney representing Mr. Jamal from Pittsburgh. He said that some prison official read Mr. Jamal's mail. Now, I don't think that reading his mail occurred during the course of the proceedings where he was convicted 13 years ago but probably happened about two or three years ago at the earliest. So what we are talking about is post-trial information. That's not cognizable by Your Honor.

Lastly, Mr. Hawkins. Mr. Hawkins is

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Counsel for them. Mr. Hawkins has two affidavits which are objectionable for three reasons. He takes hearsay testimony from a Juror and he purports to have it brought before Your Honor. Number one. The Juror has to testify and not him because that is not admissible, but the Juror is incompetent to testify. So testimony in that are regard is incompetent, we would submit to Your Honor.

Secondly, he took an affidavit purporting to say I reviewed appellate Counsel's work in this case and being a legal expert of six years in the profession, or six years doing death penalty cases, I find in my expert opinion beyond a reasonable degree of legal certainty that she was ineffective. Well, frankly, the Supreme Court has already stated, or the Superior Court has already stated that a lawyer's, another lawyer's opinion as to whether a second lawyer is incompetent is strictly within the purview of the court reviewing counsel's performance. They don't give a whit as to what that lawyer thinks because those lawyers who are called judges decide that issue. Moreover, he is Defendant's Counsel.

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He, besides being incompetent testimony from a Juror, being hearsay testimony, and his legal opinion being of no import, he has no reason to be on this list.

So Mr. Kracoff does not go to the truth-determining process. Carol Young is offered for purposes that have already been litigated by the Jury. And Mr. Hawkins' testimony is totally incompetent in every respect.

And I would note for the record that the list they gave you claims to be only a list until Friday, which implies that if this goes beyond Friday they have another list for Your Honor. And you specifically asked for the list of witnesses for the remainder of the proceedings and an offer of proof as to what they would show. Which we submitted to Your Honor and gave a copy to Counsel.

MR. WEINGLASS: Counsel has a way of reading documents where he only reads portions of the documents that he likes and he conveniently omits those portions of the document that he doesn't like because they undermine totally his position. Let me give you

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an example quickly and briefly.

Witness number one is Carol Young. This is a witness whose statement to the police they have had for 14 years. And we intend to call her in connection with that statement. Counsel says she has nothing to offer. But he hasn't read the statement. Because what did she tell the police? Back in 1982 she told the police that when she was in the process of treating Mr. Jamal, a police officer said to her, quote, you should let the son of a bitch die. Then when she continued with her treatment of Mr. Jamal, another police officer said to her don't waste your time on him. In addition to that, she'll tell this Court if she is allowed to testify today that a police officer was standing on Mr. Jamal's catheter bed while he was being treated in the intensive care unit and under critical conditions. An act which ordinarily one might assume was an attempted murder, and yet there was no complaint filed against any police officer as a result of Mr. Jackson's filing a complaint. All of that this witness will testify to. She was a registered nurse. She was the supervisor of the operating

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room. She had serious responsibility in the hospital and she was attempting to carry them out that night. She'll tell this Court that her observation of Mr. Jamal that night is that he was subdued. Her observation of the police that night is that they were unprofessional. This is something that the Jury never heard.

They didn't hear it, we contend, and this goes to an issue we raised because Mr. Jackson, as he pointed out to this Court, in the rush of preparing this case and under pressure from the Court and being rushed along, he failed to call registered nurse Carol Young. We think she should be called to the stand. She should be asked if she was available then. She should be asked if she gave the police a statement. And this record should contain her testimony so that a reviewing court could make a determination, which they must, if they have to, as to whether or not Miss Young's testimony was important for the defense and Mr. Jackson's failure to call her was a factor that goes to the issue we raised, namely, the ineffective assistance of Counsel. So that's our first witness. And she would testify to that.

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THE COURT: All right. What is your answer to that?

MR. GRANT: Mr. Jackson was on the stand and they never asked him if he did not call her for strategic or tactical reasons, first of all. Secondly, Judge, I could say I hope Judge Sabo falls down and breaks his leg but if I don't say that to Judge Sabo I am not verbally abusing you. I'm talking unpleasantly about you but I am not verbally abusing you. Certainly that doesn't amount to physical abuse. That's what they are claiming these statements this nurse received from fellow officers of Mr. Faulkner amounts to. It's not true.

Obviously I did read the statements, Counselor.

Secondly, Judge, if they have him on the stand, Mr. Jackson, and they establish that he didn't call her and it was not because of tactical or strategic reasons to advance the interests of his client, that is not ineffective assistance. And they have not established that. There is no foundation for this witness.

THE COURT: All right, what I will do temporarily, I will hold up on Carol Young,

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Jerry Kracoff and Robert Harkins, and I will allow you to submit to me any cases that you can find on that issue. Just Xerox the case, I don't want a brief.

MR. GRANT: I think Robert Harkins is an appropriate witness. They have alleged that he saw photographic arrays and that was --

THE COURT: I thought you said he was the attorney.

MR. GRANT: No, Kracoff.

THE COURT: Kracoff was the attorney.

MR. GRANT: Kracoff is the attorney.

THE COURT: Well, who is Robert Harkins?

MR. GRANT: He is a witness that they claim saw a photo array and that knowledge was suppressed from them.

THE COURT: Oh, okay. So then all you are talking about then is Carol Young and Kracoff.

MR. GRANT: And Steven Hawkins.

THE COURT: Well, who is he?

MR. GRANT: He is one of Mr. Jamal's Counsels.

THE COURT: Oh, he is the attorney.

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MR. GRANT: Who purports to be a witness as well.

THE COURT: All right, I made a mistake. Then it will be Carol Young, Jerry Kracoff and Steve Hawkins.

MR. WEINGLASS: If the Court please.

THE COURT: They will be held in abeyance and give me any cases on the issue that will support your position. I don't want to hear anymore argument because all I am getting is a lot of hot air from everybody. Give me a Xeroxed case on the subject, that is the best way. Let me read the case and if I find out that you are right, I will reverse myself.

MR. WEINGLASS: Case on?

THE COURT: Give me a case.

MR. WEINGLASS: On what? On what?

THE COURT: Well, give me a case, Xerox the case for me, let me read it. I don't want you to tell me --

MR. WEINGLASS: On what issue? So I have direction here.

THE COURT: That's what I am telling you to do.

MR. WEINGLASS: On what issue, Your

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Honor?

THE COURT: On any issue dealing with --

MR. WEINGLASS: With respect to Carol Young.

THE COURT: For the reason that he's already said. You haven't asked that question. You haven't laid the foundation. You want to call your attorney back again, Anthony Jackson, fine. Call him back in, let's lay the foundation.

MR. WEINGLASS: Could --

THE COURT: But the other two. Whatever cases you have on it just Xerox the case for me and give it to me. I will read it, okay.

MR. WEINGLASS: May Carol Young, may Carol Young, who is a registered nurse, be excused then?

THE COURT: Oh, yes, sure.

MR. WEINGLASS: Subject to recall.

THE COURT: That's right, subject to recall when a proper foundation is laid, okay.

MR. WEINGLASS: Now, Your Honor, I make this request of the Court. Our next

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witness, who is here and we will put him on the stand, is George Fassnacht.

THE COURT: Okay.

MR. WEINGLASS: And his affidavit is appended to the Petition.

THE COURT: Okay.

MR. WEINGLASS: In order for me to conduct a proper examination of Mr. Fassnacht I do need Miss Wolkenstein here. I will be doing the questioning; she has done the evaluation of the very lengthy Firearms Unit report and the ballistics report. I need her assistance for this examination.

THE COURT: Let me say this: If she apologizes to the Court and assures me that she is not going to argue with me anymore about any ruling that I make, I will let her come back down. Now, you better go talk to her. I will take a short recess.

THE COURT OFFICER: This Court will take a short recess.

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(Brief recess.)

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THE COURT: Mr. Weinglass, what is the

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situation?

MR. WEINGLASS: I have talked to Miss Wolkenstein. She indicated she would make the representations to the Court that the Court indicated.

THE COURT: Did you have her brought down?

MR. WEINGLASS: While we are waiting, may I bring up --

THE COURT: Yes, while we are waiting I want to bring up one thing. I see that this list that you have given me is only to August 4th. I asked for a complete list.

MR. WEINGLASS: That's right, our, we are operating under a time pressure that precludes our having a complete list.

THE COURT: No, no, no, no. There is no time pressure. You have 19 issues.

MR. WEINGLASS: Right.

THE COURT: I am hearing only evidence on those 19 issues at this time.

MR. WEINGLASS: Right.

THE COURT: So anybody that is on this list that is not on that 19 issues, just scratch them off.

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MR. WEINGLASS: They are all to the 19 issues.

THE COURT: Okay, well.

MR. GRANT: There is the Jury Commissioner of the County of Philadelphia on here, Judge.

THE COURT: He wasn't even Jury Commissioner at that time so he wouldn't know anything about anything.

MR. GRANT: I would move that that subpoena be quashed.

THE COURT: Is that Michael --

MR. GRANT: Michael McAllister, the last person on page 1.

THE COURT: Yes, he is out.

MR. WEINGLASS: Your Honor, we do make an allegation of disparity in the jury system.

THE COURT: He doesn't have that information, Counselor.

MR. WEINGLASS: Well, it is in the office. And we have subpoenaed him duces tecum to bring the information.

THE COURT: No, it is not part of your PCRA matter.

MR. WEINGLASS: It is a separate item.

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THE COURT: Where does it fit in under the PCRA? Where does it fit in under section 9501?

9501? 9543.

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

THE COURT: Counselor, I want you to look at that section. And I want not only their names, but a statement of who they are, what they are going to talk about, and how it fits into your Petition. You haven't given me that. And I want all of the names, not just until August the 4th. You had 10 lawyers here when you started. Now you are down to three or four. And you have your Philadelphia lawyer here. Let him do some work for you.

MR. WEINGLASS: The matter I wanted to bring before the Court is the following. I believe yesterday an attorney unknown to me but whose name is somehow associated with an attorney by the name of Capone -- C-A-P-O-N-E -- also unknown to me -- brought to Court and handed to me personally a handwritten letter from a William C. Harmon -- H-A-R-M-O-N. And the part of the letter that's germane to our

Page 24.

proceeding is the following from Mr. Harmon.

I would like you to contact the defense lawyers for the Mumia Abu-Jamal case and tell them I could be a witness in that case because I was there that night that he was supposed to have killed the officer in question. I was there and I know Mumia did not kill that officer. I wrote to the Daily News, to Gregory Charles, and told him some of the things I saw. But I haven't received any answer as of yet. And if I can help in some way I would like to.

The reason why --

THE COURT: Fine, Counselor. You have Greer, he is an investigator, let him go investigate.

MR. WEINGLASS: Mr. Greer is not my investigator, never was.

THE COURT: Whatever investigator you have now.

MR. WEINGLASS: Right, now --

THE COURT: Counselor, whoever you have who is your investigator now, give him the letter, let him try to find him. I am not here to try to find witnesses for you, that is not my job.

Page 25.

MR. WEINGLASS: I am not asking that. The letter was given, as I understand it, to also the District Attorney.

THE COURT: Well, there is a lot of things I have. Do you want to see all the letters I got? Holy smokes, there is a lot of letters. I can't, I can't decide issues on letters. That doesn't mean a thing to me.

MR. WEINGLASS: No.

THE COURT: Locate him, get a statement from him, file it as a supplemental. At the end, after we have dealt with these 19 issues that you have here, the Court will take it up at that time.

MR. WEINGLASS: The point I wanted to make to the Court is that the District Attorney's Office, I am told, also received a copy of this letter.

THE COURT: So what?

MR. WEINGLASS: I think the District Attorney's Office has an obligation, since this is evidence of innocence --

THE COURT: No, no, no, no. This is --

MR. WEINGLASS: -- to pursue this.

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THE COURT: This is your obligation. This is a PCRA; they could just sit back here and do nothing. You have the responsibility.

Go ahead, I will listen to you. Go ahead. What is your position in this? Do you have responsibility here?

MS. PERKINS: Yes, Your Honor, yesterday morning around lunchtime, I don't remember where we were in the proceedings, some man walked into this Courtroom who I have never seen before and handed me this photostatic copy of a letter, not an original letter, that was addressed to a Mr. Capone. Now, there is a defense attorney named Mr. Capone who knows me personally. I have not gotten any calls from Mr. Capone. I didn't know who this man was. This case has been so publicized everybody is getting FAXs from people all over the universe that say they know things about this case. I have heard things from people working in the Clerk of Quarter Sessions that they have to turn off their FAX machines because there is so much extraneous information that is coming in.

He said, he handed me the letter. I started looking at it. He originally says to me

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it's another PCRA Defendant, someone who is incarcerated. I don't recognize the name from handling PCRA petitions. I looked at him, I said I don't know who this man is. He then walks away, comes back to me and says well, you're going to give it to Counsel, aren't you. And I said to him, look, this is the first I've heard of it. I don't know who you are, I have never seen you before. I don't recognize this name. It's not an original document. They are sitting right there. If you want to walk this letter the other 10 feet to the other side of the room and hand it to defense Counsel you are welcome to do so.

I do not have that letter. The copy that he had, as far as I know, which I saw, he gave to Mr. Weinglass. I don't even have a copy of it at this point. I think it's entirely suspect that somebody, a total stranger comes into these proceedings with something and only has one copy which he then gives to them.

THE COURT: That's why I say, let his investigator, he has an investigator, let him try to investigate it.

MR. WEINGLASS: And, Your Honor, I

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would ask --

THE COURT: If it is addressed to somebody, Capone, let him go see Capone and let's see if Capone knows who this person is. Let them do whatever they have to do but that is their responsibility.

MS. PERKINS: I am requesting that any interviews, statements, anything recorded, dealing with this Mr. Harmon or anyone else connected to this alleged statement and information, that it be provided to the Commonwealth forthwith.

THE COURT: It would have to be provided to you before you could call any witnesses. That's what I am saying. That's why I want a list, a complete list, and what these people are going to testify to. You are giving me a big story but I have to have some idea of who they are.

MR. WEINGLASS: Your Honor, I understood the Commonwealth's position right up to this moment was that there is no discovery in a PCRA, and I am glad now they finally relent and they are asking for discovery.

THE COURT: No, they are not. They

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are just saying they don't have anything on it --

MR. WEINGLASS: No, the request is now, just now is they want discovery from our witnesses.

THE COURT: No, you are going now to the issue of his innocence. If you could bring in here proof that somebody else killed this officer, fine, bring them in.

MR. WEINGLASS: Your Honor, and I want to say one other thing.

THE COURT: Because as far as I am concerned, if you read the record, the police arrived on the scene within 45 seconds. 45 seconds. That's pretty good time.

MR. WEINGLASS: Is the Court indicating it's impression of guilt or innocence?

THE COURT: No, I am talking about the original record. You see, you weren't here for the trial. That's unfortunate.

MR. WEINGLASS: I have read the record.

THE COURT: Well, then, fine. Then you know that the police arrived in 45 seconds.

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There were only three people there: Officer Faulkner, the Defendant, and his brother.

MR. WEINGLASS: Has Your Honor read the Petition?

THE COURT: I have read your Petition but now you have to prove that.

MR. WEINGLASS: Does Your Honor see in the Petition an explanation as to what happened?

THE COURT: Yes. But you have to prove that. The Petition is not evidence in itself.

MR. WEINGLASS: We are getting that.

THE COURT: Fine. But now you are talking about somebody walking into this Courtroom and handing a piece of paper. We don't even know who he is. He has disappeared. But you have the name somehow on there. Investigate it.

MR. WEINGLASS: I am asking two things. I am asking for the opportunity to investigate.

THE COURT: Well, sure you have the opportunity.

MR. WEINGLASS: I can't do it because I am here in Court everyday.

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THE COURT: Well, get on your Philadelphia Counsel here. He is not here everyday. Or use one of your other attorneys here. You don't need all of them here in Court. Where is the fourth one? Let him do some work. But let the investigator --

MR. WEINGLASS: Fourth one's in lockup.

THE COURT: Well, then, fine, he is in lockup, wherever he is. But you have an investigator. Let him do the work initially and get it to you and see if it makes any sense. But I am not going to --

MR. WEINGLASS: Will the Court issue --

THE COURT: No, come on.

MR. WEINGLASS: Issue a habeas affia cundum so this witness could be brought here?

THE COURT: What witness?

MR. WEINGLASS: He is in lockup. This witness Harmon is in lockup.

THE COURT: You have to tell me what he is going to say. Did you interview him?

MR. WEINGLASS: He has to be brought here so I may interview him.

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THE COURT: Go see him wherever he is.

MR. WEINGLASS: No, he is out near Pittsburgh and I am in Philadelphia.

THE COURT: Oh. Well, I am not going to send you to Pittsburgh. Go to Pittsburgh. You have an attorney here, you have Philadelphia attorneys here not doing anything. Send then out to Pittsburgh.

MR. WEINGLASS: I am requesting the Court to bring him here to Philadelphia.

THE COURT: No, you go to Pittsburgh.

MR. GRANT: Mr. Kracoff is in the back, he is Pittsburgh Counselor, he would like to interview him.

MR. WEINGLASS: He is civil counsel: He knows nothing of this case.

THE COURT: Do you want to talk to him?

MR. WEINGLASS: There is one other item.

THE COURT: Yes.

MR. WEINGLASS: Counsel represented to the Court, if I heard right, that they are receiving a lot of information. If they received --

Page 33.

THE COURT: No, it is a lot of...

Well, I get a lot too, but I don't know that I received anything that's material in this case.

MR. WEINGLASS: Well, it seems to me that only one person, one, has written in saying I was there, Mr. Jamal did not do the shooting.

THE COURT: Fine, investigate it.

MR. WEINGLASS: That one is not an insignificant person.

THE COURT: Fine, investigate it, will you please.

MR. WEINGLASS: I can not do that in the middle of a PCRA hearing.

THE COURT: Well, you have an investigator, let him go to Pittsburgh. Let him get a sworn statement from him. I am not here to do your work for you, Counselor. You have a $100,000 fund, don't you, or more?

MR. WEINGLASS: I don't know what the Court's reading in the press.

THE COURT: Well, I think I read it in the Time, I think, something about 100,000.

MR. WEINGLASS: The Court is misinformed from the media.

THE COURT: Okay, media, you see, he

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says you are wrong. You are misinterpreting him now, okay. The media is wrong.

I agree with you. They are wrong sometimes. But sometimes they are right.

MR. WEINGLASS: Well, we feel that the Philadelphia Inquirer was right in 1991.

THE COURT: I am sure, I am sure you felt the Philadelphia Inquirer --

MR. WEINGLASS: Did a long report on Your Honor.

THE COURT: Of course they're right. Anybody that's on the liberal end of the stick is going to say you're right, but.

MR. WEINGLASS: Also 30 percent of the members of the Bar of Philadelphia.

THE COURT: Oh, yes? Well bring that 30 percent in here. That means 70 percent don't agree with you.

MR. GRANT: Could Miss Wolkenstein be brought down?

THE COURT: Yes, is she coming down?

THE SHERIFF: She is on her way down.

THE COURT: Where is she going, by South Philadelphia? She ought to be down here by now. Bring her down in that elevator.

Page 35.

THE SHERIFF: She'll be down.

THE COURT: All right, that's enough discussion for today. As soon as she comes down you talk to her and I will be right back out.

- - - - -

(Brief recess.)

- - - - -

MR. WEINGLASS: As Miss Wolkenstein is getting ready, there was a holdover matter from yesterday. A defense witness by the name of Arnold Howard gave a police report. We have asked the Court to ask the District Attorney to provide us with a copy of that. We do not have a copy. We would like --

THE COURT: Who?

MR. WEINGLASS: Arnold Howard.

THE COURT: Where is he? Oh, he is the last one on your list.

MR. WEINGLASS: Yes.

THE COURT: What is he going to testify to?

MR. WEINGLASS: He, he gave a report to the police 14 years ago.

THE COURT: Yes, but who is he? I think these witnesses don't mean anything

Page 36.

because you didn't give me what I asked for.

MR. WEINGLASS: He is a civilian witness.

THE COURT: He is a civilian witness. What is his occupation, what does he do?

MR. WEINGLASS: He is not, he is a civilian, he has gainful employment.

THE COURT: Well, what does he do?

MR. WEINGLASS: He was interviewed by the police. And we would like to have the police report.

THE COURT: You mean one of the 150 witnesses that were interviewed?

MR. WEINGLASS: He might have been, but we don't have a copy of his report.

THE COURT: You don't mean a report, you mean a statement, don't you?

MR. WEINGLASS: We need a statement.

THE COURT: Well, you talk a about report and I am thinking of some sort of a specialist.

MR. WEINGLASS: I'm sorry, it is a report of his interview.

THE COURT: Well, you are talking about a statement that he allegedly made?

Page 37.

MR. WEINGLASS: Yes.

THE COURT: Well, I am not going to hold up the proceedings. You look into the matter, see if there is a problem with that, okay.

MS. PERKINS: Your Honor, if --

MR. WEINGLASS: Is the Court addressing the Commonwealth attorneys?

THE COURT: I am not addressing, I am saying both of you. It is something that you could do some other time.

MR. WEINGLASS: We brought --

THE COURT: Don't take up the Court's time now.

MR. WEINGLASS: I wish we wouldn't have to.

THE COURT: Well, I am telling you don't.

MR. WEINGLASS: We tried last night, the Court invited us to talk to Counsel. We talked to Counsel this morning and we were told we wouldn't be given the statement.

MS. PERKINS: If I could speak, Your Honor?

THE COURT: Yes, sure.

Page 38.

MS. PERKINS: Just for five seconds.

Yesterday, Counsel requested the exact same statement. The reason why we declined to give it to them yesterday, among the reasons Mr. Grant expressed, was also that two weeks ago when we were here and we went through the discovery, we asked them what is it that you don't have that you need that the Commonwealth can provide as a courtesy. They pointed us specifically to paragraph 8 in their discovery request, which listed the names of people for statements that they did not have any longer that were provided as part of the original discovery. The original discovery included a statement from this Mr. Howard person. Therefore, it was an entirely reasonable presumption that they had this statement. Now suddenly they don't. So they have included a complete list of the people who they were missing from that letter, giving them the original discovery. Now we find out that there are others that they still don't have.

Now, to put this issue to rest we will give them the statement of Arnold Howard, if that will make this proceeding move along.

Page 39.

THE COURT: Okay. All right, we will take that up later.

Now, wait awhile, Counselor.

MR. GRANT: Not anymore.

THE COURT: No. Counselor, please. (indicating). Do you want her in here?

MR. WEINGLASS: There is also a Harry Fairclough.

THE COURT: Well, do it later on. Please don't take up my time now. You had everybody waiting here to hear this next witness that you want to bring in.

MR. WEINGLASS: Correct.

THE COURT: Now, Counselor, do you have something to say to me?

MS. WOLKENSTEIN: Yes, Your Honor.

MR. EPSTEIN: Your Honor, good morning. I'm sorry.

THE COURT: Good morning. It is still morning but it will be afternoon pretty soon. But go ahead.

MR. EPSTEIN: Jules Epstein, Counsel on behalf of Miss Wolkenstein.

THE COURT: Okay.

MR. EPSTEIN: If Your Honor please,

Page 40.

may I address the Court briefly?

THE COURT: No, I would appreciate if you don't. I said I would let her back in if she apologized to the Court and because Mr. Weinglass says he needs her. Now, if she is willing to apologize to the Court, I will consider it. I don't need any discussion about it. I want to proceed with the hearing.

MR. EPSTEIN: Of course.

THE COURT: Okay. Do you have something you want to say?

MS. WOLKENSTEIN: Yes, Your Honor. I want to say that frustrations are running very high in the defense table.

THE COURT: Well, I am running pretty high too, so.

MS. WOLKENSTEIN: And that I felt the need to complete a record based upon Your Honor's ruling.

THE COURT: Counselor, you don't need to complete anything. I make a ruling -- and I told you before -- you have an automatic exception to anything, any ruling that I make. I don't want to hear argument on it. I am tired of arguments. If you have a case on the issue,

Page 41.

Xerox the case, give it to me, I'll read the case. If it says what you say it says, I will reverse my decision. But I don't want to listen to a lot of hot air. I have been getting a lot of that. I want the law that's involved. And the only way you could give me the. law, you give me a case. Xerox the case. I don't want a brief, just Xerox the case. I will read it. If it's on point, and it covers your position, I will grant whatever you are asking. That's it.

Now, are you apologizing to the Court? I haven't heard an apology yet.

MS. WOLKENSTEIN: Your Honor, I am stating to the Court that I will not interrupt the Court. And I just need the opportunity to be able to respond before a decision is made. And I needed to be able to complete the record on behalf of my client.

THE COURT: Counselor, I told you you didn't need to do that. All you have to do is, there are no responses, I don't want to hear responses. I want to look at the law. I want you to give me a case. The law. I still haven't heard an apology from you.

Page 42.

MS. WOLKENSTEIN: I agreed to give Your Honor cases.

THE COURT: Well, give me those cases. And no long dissertations. Are you apologizing or are you trying to justify what you have done?

MS. WOLKENSTEIN: I am indicating to the Court that I have to make the complete record for my client and without interrupting the Court if the Court gives me an opportunity.

THE COURT: I am telling you the way to do that is just give me a Xerox copy of a case.

MR. WEINGLASS: Fine.

THE COURT: I haven't heard an apology yet.

MS. WOLKENSTEIN: Your Honor, I have to indicate to the Court --

THE COURT: Well, I am taking it that you are not willing to apologize to the Court. Is that it?

MR. WEINGLASS: If the apology means that I didn't make a complete record --

THE COURT: Are you going to apologize?

Page 43.

MS. WOLKENSTEIN: Okay, Your Honor, I do.

THE COURT: You do what?

MS. WOLKENSTEIN: Okay? I apologize to the Court.

THE COURT: Okay, I accept your apology. But next time I am not going to accept apologies. I am not only going to evict you from the room but I am going to fine you a thousand dollars. So you know in advance what I am going to do. I don't want anymore arguments. That goes for everybody, okay.

MR. WEINGLASS: There is no need for a threat, Your Honor.

THE COURT: I am not, that is not a threat. That's a promise. That's a promise. It is not a threat.

MR. WEINGLASS: It was perceived as a threat.

THE COURT: No, not at all. It was a promise. I want you to know exactly what I am going to do. So if I do it you can't say I didn't know the Judge was going to do that. So I am telling you in advance I don't want anymore of this.

Page 44.

George Fassnacht - Direct

So let's have that witness out here, please.

MR. WEINGLASS: Miss Wolkenstein will assist me?

THE COURT: Sure. Yes, please.

- - - - -

George E. Fassnacht, having been duly
sworn, was examined and testified as follows:

- - - - -

MR. WEINGLASS: May I inquire?

THE COURT: Yes, sure.

- - - - -

DIRECT EXAMINATION

- - - - -

BY MR. WEINGLASS:

Q. Good morning, Mr. Fassnacht.

A. Good morning.

Q. Mr. Fassnacht, would you state for the record your present occupation and employment?

A. Yes; forensic firearms consultant.

Q. And are you employed?

A. Yes.

Q. By whom?

A. International Advisory Group, Incorporated.

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George Fassnacht - Direct

Q. And how long have you been employed by the International Advisory Group, Incorporated?

A. Approximately three years.

Q. And prior to that time what was your employment?

A. I was self-employed.

Q. And how long were you self-employed?

A. Ahh, about 15 years.

Q. In what capacity?

A. As a forensic firearms consultant.

Q. Would you just briefly state your educational background?

A. Yes; I have a BA in government from LaSalle University.

Q. Have you ever had occasion to be employed by the City of Philadelphia in any agency or department of the City?

A. Yes.

Q. And in what capacity?

A. Ahh, by the Philadelphia Police Department as a firearms examiner and the supervisor of the Ballistics Unit, later called the Firearms Identification Unit.

Q. Right. Do I understand correctly that you were the supervisor of the Police Department's

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George Fassnacht - Direct

Ballistics Unit?

A. Yes.

Q. And how long were you the supervisor of the Ballistics Unit?

A. Ahh, about half of my term with the Philadelphia Police Department, which was about five years. So the later half, about two-and-a-half years.

Q. Other than what you have already indicated, have you ever been employed in any capacity in a position calling for expertise in firearms?

A. Yes.

Q. And could you just relate that for the record?

A. Yes; by the Ordnance Technical Intelligence Service at Aberdeen Proving Ground, Maryland, where I was assistant to the chief of small arms and aircraft weapons branch. And subsequent to my employment with the City of Philadelphia, as a firearms and ordinance expert with the United States Central Intelligence Agency.

Q. Mr. Fassnacht, who is Joseph E. Smith?

A. He's the author of Small Arms In The World. And he's deceased now. And it is a standard compendium of military small arms.

Q. Is it one of the leading authorities in the

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George Fassnacht - Direct

world?

A. Yes.

Q. And did you have a relationship with Mr. Smith?

A. I was his assistant for three years.

Q. Have you been qualified as an expert in firearms in any states of the United States and in any Federal courts?

A. Yes. About a third of the states in the United States, numerous Federal courts. The U.S. Virgin Islands, Puerto Rico and overseas.

Q. Have you been qualified as an expert in firearms in the State court of the Commonwealth of Pennsylvania?

A. Yes.

Q. Approximately how many times?

A. Ahh, many hundreds, I have no... actual count.

Q. Many hundreds of times?

A. Many hundreds of times.

Q. You have testified in the Commonwealth Court?

A. Yes.

Q. And have you ever been found not qualified by any court?

A. No.

Q. Now bringing your attention back to early

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George Fassnacht - Direct

1982: Did you have occasion at that time to have a conversation with an attorney practicing in the City of Philadelphia by the name of Anthony Jackson?

MR. GRANT: Excuse me, Your Honor. If Counsel is offering the witness to me for voir dire on qualifications, I accept, and I will state that Mr. Fassnacht is well qualified. Thank you.

THE COURT: That's what we usually do here in Pennsylvania, Counselor.

MR. WEINGLASS: Offer to have agreement so quickly?

THE COURT: Well, usually you ask if the other side has any questions on qualifications. That's the way we do it here in Pennsylvania. I don't know how you do it in New York, maybe it's different, but that's the way we do it in Pennsylvania. But go ahead.

MR. WEINGLASS: All right.

BY MR. WEINGLASS:

Q. Now drawing your attention back to early 1982: Did you have occasion at that time to have a conversation with an attorney here in the City of Philadelphia by the name of Anthony Jackson?

A. Yes, I did.

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Q. And could you just briefly, if you can, relate the substance of that conversation?

A. Yes. Mr. Jackson called me and asked me if I was available to take a criminal case, to assist him on a criminal case on which he was working.

Q. And did you indicate agreement?

A. Yes.

Q. And was that the case of Commonwealth versus Jamal?

A. Yes.

Q. And did you then have occasion to have any further conversations with Mr. Jackson?

A. Yes. I subsequently visited his office in central Philadelphia.

Q. And did you have occasion to meet with Mr. Jamal?

A. Yes.

Q. And do you recall where that was?

A. That was at Holmesburg Prison.

Q. And was that prior to the trial?

A. Yes.

Q. Did you have occasion to examine the physical evidence in the case of Commonwealth V. Jamal?

A. No.

Q. Did Mr. Jackson provide you with any of the

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written reports that were issued by the Firearms Identification Unit or the Police Laboratory in connection with their tests of the physical evidence?

A. No.

Q. Did you provide Mr. Jackson with any written reports?

A. No.

Q. Now, was there a reason why you agreed to enter the case and you didn't test the evidence or review the reports or render a report?

A. Yes.

Q. And what was that reason?

A. Well, I was advised of course that it was, initially it was a Court-appointed case. And that his retaining me was predicated on his obtaining funds to pay me and whatever other experts he had to hire. And I believe I billed him for some work and somewhere down the line I was informed that no further funds would be available and that was my end of my involvement in the case.

Q. So it was due to a shortage of funds to pay you that you had to leave the case before you could do any tests or testify or even review the written reports?

A. That's correct.

Page 51.

George Fassnacht - Direct

Q. Did you in fact, Mr. Fassnacht, stop taking appointed cases at that point?

A. It was soon after that that I stopped taking Court-appointment cases in Philadelphia for a period of close to 10 years. With two exceptions, I believe, because I knew the judge who was involved in the case.

Q. And you stopped taking those cases for what reason?

A. Because Philadelphia either wouldn't pay sufficiently, would arbitrarily slash the bill in half, or make you wait one, two years for payment.

Q. Did Mr. Jackson pay you for the services you rendered to him?

A. I don't recall if I received a check for $150 or not. That figure sticks in my mind. I know I billed him for 350.

Q. And when you billed him for 350, did you bill him by the hour?

A. I believe I gave him a daily rate. At that time I was charging $50 an hour or 350 a day. And if the day ran to 8 hours, it was 350.

Q. Now, you did render some services to Mr. Jackson?

A. Yes.

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George Fassnacht - Direct

Q. And do you recall what particular matter consumed most of the time that you worked on this case?

A. Ahh, it probably was the review of literature for possible impeachment of the comparison process. At that time the publication, I believe 1978 the year was, of the Law Enforcement Assistance Administration's Crime Laboratory Proficiency Testing Program was rather new. And I believe I found a reference to it in the second edition of Scientific and Expert Evidence edited by Fred and Winkler Reed. And because it was new and I believe useful in comparison work, we concentrated on that for starters. So that he would be in a position to impeach the entire process of forensic comparisons involved in bullet specimens.

Q. So you spent most of your time just giving him general information on the science of ballistics?

A. Yes; I had to track down the study itself. When I found the study I had to go through it and make a summation. And, essentially, that's the information that I provided to him.

Q. Just briefly, what did that study involve?

A. Well, it was a blind test involving perhaps 200-and-some laboratories in the United States. And

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George Fassnacht - Direct

the laboratories who agreed to participate were coded so that the identity of any one laboratory was controlled by a key which was destroyed so that, obviously, a laboratory who had done, or which had done badly could not be identified. And reap the consequences.

So the laboratories were provided with test specimens obtained under ideal conditions, various types. It not only included firearms, it was also hair, glass, fibers, drugs and so forth. Obviously, my concern was only with the firearms.

This was divided into three sections. In the pertinent section, which was the identification of bullet specimens as having been fired from a particular gun, there was an error rate of 3.8 percent. Bear in mind that these bullet specimens that were used were obtained under ideal conditions. They were not fired through bone, tissue, whatever. And the error rate of 3.8 percent was astonishing. The matter that Mr. Jackson was involved in I felt could make good use of this study.

Q. So you provided him with information which attacked the general science?

A. To impeach the science. Not science, art, if you will. To impeach the art.

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George Fassnacht - Direct

Q. Right, of comparison?

A. Yes, to show that mistakes could be made, that it was not an infallible art.

Q. And to your knowledge, did Mr. Jackson use the information that you gave him?

A. Yes, from my reading subsequently the transcript of the trial, I believe he did. Or he attempted to.

Q. He attempted to?

A. Yes.

Q. Was he able to?

A. I don't think he was successful in conveying that it was not germane to the case here in Philadelphia but that it was an impeachment, or should have been an impeachment, of the entire art.

Q. What prevented him from using that information?

A. I believe he was interrupted several times.

Q. He was interrupted?

A. Yes.

Q. So other than this general information about a nationwide study reflecting on the validity of the comparisons that are being made by police laboratories, did you give him any information particular to this case that he could use?

Page 55.

George Fassnacht - Direct

A. No. He gave me some details of the case and suggested that I talk to the Defendant at the prison. Which I did.

And I believe we had one long consultation by telephone subsequently. And that was the extent of my involvement in the case.

Q. That was it?

A. Yes.

Q. Incidentally, do you remember how much time you spent in going out to Holmesburg and back?

A. I was at Holmesburg quite awhile waiting for them to produce the Defendant. I believe he was involved in some activity at the time I arrived there. And I spent probably a couple hours waiting.

Q. In the couple hours that you waited at Holmesburg, was that the most time that you had spent working on this case?

A. No, I believe my review of the literature for the defense was probably a greater part, and obtaining the literature, was the greater part of time.

Q. And was the Holmesburg visit the second most

A. I believe so.

Q. -- consuming?

Page 56.

George Fassnacht - Direct

A. Yes.

Q. So you reviewed general literature, you talked to Mr. Jackson, you went to Holmesburg, and that was it?

A. Yes.

Q. No tests, no review of laboratory reports?

A. That's correct.

Q. No testimony?

A. Right.

Q. And because you didn't have funds?

A. That is correct.

Q. Were you willing in 1982 to go forward if funds were available?

A. At that time, yes.

Q. Now, sometime in 1994 did you have occasion to have a conversation with myself?

A. Yes.

Q. And did we meet on occasions also?

A. Yes.

Q. And subsequently were you provided with any materials pertaining to firearms reports or information on this case?

A. Yes, I was.

Q. Do you recall what materials you were provided?

Page 57.

George Fassnacht - Direct

A. I believe a copy of the ballistics report of the, the Firearms Identification Unit report, rather. A crime lab or chemical laboratory report. Two sections of the transcript, I believe of Mr. Tumosa's testimony and the other one of Mr. Paul's testimony.

Q. Did you review those materials?

A. Yes, sir.

Q. And were you asked to review those materials for a particular purpose?

A. Yes.

Q. And what was that purpose?

A. To determine if there was work that should have been done that was not accomplished, services to be rendered to the defense that were not done.

Q. Work that should have been done back in 1982 that wasn't done because of the lack of funds?

A. Yes.

Q. And were you able to identify areas based on your review of those materials where you felt work should have been done in 1982 and wasn't done for lack of funds?

A. Yes. I believe that the powder residue testing should have been duplicated by the defense to ascertain why lead residue was found, primer gun residue was found on the jacket, and no powder, no

Page 58.

George Fassnacht - Direct

gunpowder residue. And an examination of the bullet itself to, the bullet that was removed from Officer Faulkner, to determine if there were any markings on there which would identify it or rule it out as being fired from the evidence weapon.

The absence of any mention in the reports of testing of the Defendant's revolver to determine whether or not it had been recently fired, most common of which is smelling it. There is a particular smell to a recently-fired firearm which lasts for several hours.

And the last item I believe was the testing of the Defendant's hands, which probably could have been accomplished without too much difficult, to determine if in fact he had fired a firearm.

Q. So when you read this record did you feel that you should have been right there at Counsel's table advising Mr. Jackson in all these areas, conducting tests in your laboratory to support your advice?

A. Yes. Both the, the examination of evidence should have been done prior to trial, but most assuredly, Mr. Jackson should have had an expert at Counsel's table with him.

Q. Do you also feel, having read the record of

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George Fassnacht - Direct

the testimony of Mr. Tumosa and Mr. Paul, that you probably should have been called as a witness and rebuttled what they were saying?

A. Yes.

Q. Do you feel that would have helped the defense in this case?

A. I believe it was important and very well could have affected the outcome of the trial.

Q. Now let's look at the some of these issues that you raise.

Let's talk firstly about an issue that you found you could have helped, and that is the question of the bullet specimen that was removed from the body of Officer Faulkner.

A. Yes.

Q. Could you explain to the Court what are general rifling characteristics?

A. General rifling characteristics differ from particular rifling characteristics. The particular being the small stria or scratches which identify a particular bullet as having been fired from a particular firearm. General rifling characteristics are the caliber, the number of lands and grooves, the direction of twist. The depth and width of the lands and grooves.

Page 60.

George Fassnacht - Direct

Q. Now, when you looked at the report of the police laboratory, or the Firearms Identification Unit, did that report describe the general rifling characteristics of the bullet specimen that was removed from Officer Faulkner?

A. It did.

Q. And to your recollection, how did it describe it?

A. It said that the general rifling characteristics were indeterminable. And then in the next breath and the same line it gave one of the general rifling characteristics as being right-hand direction of twist.

Q. Did you find that to be a contradiction of terms, that on the one hand they say it is indeterminable and on the other hand they give one of the characteristics?

A. Yes, I do.

Q. Is there any explanation for that?

A. Umm, none that occurs to me at the moment.

Q. And you would have brought that out to a jury?

A. Certainly.

Q. As a contradiction within the report?

A. Yes.

Q. And then did you read the testimony that was

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George Fassnacht - Direct

offered to the Jury by Mr. Anthony Paul?

A. Yes, I did.

Q. He was the expert firearms expert called by the Commonwealth?

A. Right.

Q. Was there any further contradiction on rifling characteristics offered by Mr. Paul's testimony?

A. Yes. In direct examination by the prosecutor he described again that the general rifling characteristics were indeterminable and again said that they had a right-hand direction of twist. Further on he stated, and used the word emphatically, that this bullet could not have been determined to have been fired from a particular gun. On cross-examination subsequently he -- oh, I'm sorry. Before that he allowed as how the general rifling characteristics were consistent with Charter Arms revolvers.

Q. Does the word consistent appear in that record before the Jury?

A. Yes, it does, it does. And subsequently on cross examine -- I'm sorry, on cross-examination, yes, I believe that Mr. Jackson questioned Mr. Paul, and at that time the... specification of eight lands and eight grooves with a right-hand direction of

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George Fassnacht - Direct

twist as is found in the Charter revolver were somehow connected with this bullet that was the subject of his testimony.

Q. But there was according to the laboratory report no eight lands and grooves that were found on this bullet; isn't that right?

A. That's correct.

Q. And yet it was made to the Jury that there was?

A. Yes.

Q. Would you have corrected that if you were a witness?

A. Certainly.

Q. Now, when you looked at that laboratory report, did you find any deficiency in terms of the efforts by the police technicians to conduct the tests that ought to be conducted when you are trying to determine if a particular bullet specimen was fired from a particular gun?

A. The evidence should have been examined by an expert for the defense to determine if in fact the findings were correct. And this was not done.

Q. And to your expertise examining the police report, the ballistics report, did you find that the police did a sufficient amount of testing to

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George Fassnacht - Direct

determine whether or not this bullet, the specimen bullet, was fired from the suspect gun?

A. I believe that more effort should have been put into determining if in fact you could tell that the rifling was in the right-hand direction of twist. That more effort should have been put into attempting to determine the width and depth of any remaining lands or grooves. Which lands or grooves are used to determine the direction of twist.

Q. In other words, if I understand you correctly, the police laboratory did not perform the tests that would have indicated whether or not this specimen bullet in fact was fired from this suspect gun?

A. Not to my knowledge. I don't know what test they conducted except that which is stated in their report.

Q. The lab report doesn't reflect any such test?

A. That is correct.

Q. Might it have been that the police actually did those tests and not being satisfied with the result they didn't put it in the lab report?

MR. GRANT: Objection.

THE WITNESS: Yes.

THE COURT: Sustained.

MR. GRANT: Move to strike.

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George Fassnacht - Direct

THE COURT: Yes. I guess he answered that.

BY MR. WEINGLASS:

Q. Now, when they say the characteristics are consistent, namely the right-hand twist, to your professional way of looking at it, is that a word you would have used in this context?

MR. GRANT: Objection: It's irrelevant.

THE COURT: Sustained.

BY MR. WEINGLASS:

Q. Would you as an expert in the firearms field, given what's in that police report, have said under oath to a jury that you were satisfied that the rifling characteristics are consistent with the suspect gun?

MR. GRANT: Objection, unless he would say under oath within a reasonable degree of scientific or artistic -- if that's what he considers his profession -- certainty that his statements were correct, then I will withdraw my objection.

THE COURT: Rephrase your question.

BY MR. WEINGLASS:

Q. Incorporating Counsel's suggestion, would you

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George Fassnacht - Direct

have said that based on what is in the laboratory report?

A. No. The only thing consistent about them was that they were bullets and that they, according to the police report, had a right-hand direction of twist. Which half of the guns made probably have right-hand direction of twist.

Q. In other words, so it is of no scientific moment?

A. No.

Q. That it has right-hand direction of twist?

A. No.

Q. You would have to do much more thorough exploration of the specimen bullet to reach that conclusion?

A. Yes. The possibilities are so vast that if you could narrow it to the number of lands and grooves, that certainly would introduce some consistency. But the simple fact that, if in fact it were, that the simple fact that it were a right-hand direction of twist is...

Q. Practically meaningless?

A. It's an enormous amount of firearms.

Q. In the millions?

A. Many, many millions.

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George Fassnacht - Direct

Q. Many millions?

A. Yes.

MR. WEINGLASS: If I may.

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

BY MR. WEINGLASS:

Q. Now let's move on to another area. You indicated one of the areas that you felt you could have rendered assistance in was the area of the tests that should have been performed on the suspect gun which was recovered within minutes of the alleged shooting to determine if that suspect gun had been recently fired. Do you recall indicating that?

A. Yes.

Q. And, Mr. Fassnacht, what test could the police have done that night on the suspect gun to determine if it had been recently fired?

A. Simply sniffing it.

Q. Smelling, sniffing?

A. Yes.

Q. And why do you say smelling and sniffing, what can you tell by smelling and sniffing?

A. Well, the nose is very sensitive, more so than many sophisticated machines, for detecting odors.

MR. GRANT: Your Honor, with all due

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respect to Mr. Fassnacht's expertise, I don't believe medicine or biology is one of them. And any comment he makes about the human nose I would ask to be stricken from the record.

THE COURT: Strike that from the record.

MR. WEINGLASS: The nose is going out?

THE COURT: The nose is going out.

THE WITNESS: All right, it's possible to smell a recently-fired firearm. The unmistakable odor lingers for several hours.

BY MR. WEINGLASS:

Q. Right. Mr. Fassnacht, do not mention the organ of the body --

A. Yes, sir.

Q. -- through which one smells, that's out. Now, how long after could you smell the unmistakable odor of gunpowder after a gun is discharged?

A. Persistence can be up to six hours.

Q. Up to six hours?

A. Yes.

Q. And if that gun was fired allegedly with Plus P ammunition, and was fired five times, you would have no difficult in smelling if it was recently fired?

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A. That is correct.

Q. Is there any evidence here that, anything that is presented to you, that indicates that the officers even conducted that test?

A. None that I saw.

Q. And this is an area that you would have testified about if you were called as a witness in 1982?

A. Yes.

Q. Now, another area which you mentioned is the area of the performance of tests on the hands of a suspect shooter to determine if the suspect shooter recently fired a weapon.

A. Yes. The tests were available at the time of this incident.

Q. Pardon?

A. The tests were available at the time of this incident. And I see no mention of it having been conducted.

Q. What tests are you referring to?

A. A hand-wipe analysis to determine if the person whose hands are being tested had recently fired a firearm.

Q. And there is no indication here that that was done?

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A. That is correct.

Q. And was that test or analysis done, to your knowledge, as a matter of course in 1981 and '82 in the City of Philadelphia?

A. The test was available to them, I don't know how often they used it.

Q. Right. Do you know if the Police Department had kits to perform that test?

A. I believe they did.

Q. And so the record is clear, could you just briefly describe how that test is performed and how complicated or simple that test is?

A. Umm, it's much simpler today. And there are three ways, basically, of conducting the test.

MR. GRANT: Your Honor, we only want to know what he knows about 1982. Because science and human beings have prospered vastly since then. That's the issue.

MR. WEINGLASS: Counsel is correct.

THE COURT: Strike the last answer and do it over again.

MR. WEINGLASS: I'm sorry, I should have included it in the question.

THE COURT: All right.

BY MR. WEINGLASS:

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Q. You can only testify about the state of the art or science in 1982 because that's when we are examining these issues. In 1982 could you describe what the test was?

A. Yes. The principal or first test that was developed was called the neutron activation analysis test. And this was complicated to analyze but very simple to take. The analysis had to be performed by a laboratory with access to a warm thermal neutron bath, which is basically a reactor. Procedure was for most police departments who did not have such access to do the swabs and then forward the swabs to the FBI for analysis.

The second method was atomic absorption analysis, which was much simpler and could be performed in many laboratories with existing equipment.

A third test which was to be used, could be used, was only very infrequently used at that time. And to clarify, it is now much more used, was the scanning electron microscope. Which Philadelphia now uses at the present time.

Q. All right. Now let's just focus on the two tests that were being used at the time. When you talk about a wipe, could you describe that in lay

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terms? What does a police officer who wants to conduct this test have to do in order to do the test?

A. Well, the materials are available in a small plastic box. They are not very complicated. There is a few cotton swabs, some vials. A small vial of fiber solution of nitric acid, and the swabs are dipped in the vial of acid and it's rubbed on the palm or on the dorsal surface of the hand and then returned to the clean vial. And two swabs I believe are retained as controls. And the test is then complete.

Q. That's it?

A. That's it.

Q. How long does it take a police officer to complete that test?

A. A few minutes.

Q. A few minutes?

A. Yes.

Q. And all he needs are a couple of cotton swabs?

A. Well, the ones from the kit.

Q. From the kit?

A. Yeah, they are sterile and clean.

Q. And a cotton swab, that is like a Q-Tip?

A. Yes.

Q. So all the officer does in a few minutes is he

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rubs this swab on the palm of the hand of the suspect?

A. Yes.

Q. And you indicated on the...?

A. Yes, the back of the hand, especially between the thumb and forefinger area.

Q. And that's it?

MR. GRANT: Indicating for the record the web area between index finger and thumb.

THE WITNESS: That's correct.

MR. WEINGLASS: Thank you.

BY MR. WEINGLASS:

Q. That just takes a few minutes?

A. Yes, sir.

Q. Now, if the police have a suspect who is suspected of shooting a police officer within minutes of the alleged shooting, is that a test that you would expect to see the police perform?

A. I would expect them to have performed that test.

Q. And there is no evidence that such a test was performed in this case?

A. Not that I have seen.

Q. Was that testimony you would have offered to this Jury in 1982?

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A. Yes.

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

BY MR. WEINGLASS:

Q. And aside from police officers, if there were Homicide detectives who are experienced at the scene, would you have expected them to smell the gun?

A. Yes.

Q. Would you have expected them to move swabs across the hand of the suspect?

A. They probably would have left that task to the criminalistics people, crime scene investigators.

Q. Is Mr. Land one of those?

A. I have no idea.

Q. Or Mr. Tumosa?

A. Ahh, I believe he works, to the best of my recollection, I believe he is rather in the laboratory, in the laboratory as opposed to in the field.

Q. Now, have you also had occasion recently to review or examine portions of the Medical Examiner's report in this case?

A. Yes, sir.

Q. And did you note that portion on page 1 of the Medical Examiner's report where it's indicated that

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the coroner conducting the examination retrieved a bullet specimen which he noted was a point 44 caliber?

A. Yes.

Q. Do you know of your own personal knowledge what he based that finding on?

A. No.

Q. Incidentally, what is the diameter of a .38 caliber bullet?

A. Point three-eighths or 38 hundredths of an inch.

Q. 38 inches?

A. Yes, sir.

Q. And what was the reported diameter of the specimen bullet that was retrieved from the body of Officer Faulkner?

A. Ahh, 10 millimeters, which is approximately 40 or 40 thousandths -- or 40 hundredths, I'm sorry, of an inch. .40 caliber.

Q. So would it be correct to say it was a .40?

A. Yes.

Q. Of an inch?

A. That is correct.

Q. Now, Mr. Faulkner, can you fire a bullet that has a diameter -- I'm sorry. I'm very sorry. Mr.

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Fassnacht, can you fire a bullet that has a diameter of .40 inches, which is the diameter of the bullet reported to be retrieved from Officer Faulkner's body, with a gun that's a .38 caliber gun?

A. No.

Q. Did you note if Dr. Hoyer, the Medical Examiner in this case, found a fragment of a bullet, as well as the specimen bullet, in Officer Faulkner?

A. Yes.

Q. Is it common for a fragment of a bullet to be knocked off from the bullet?

A. Yes, it happens frequently.

Q. And to your review, the Medical Examiner appropriately noted that he had retrieved from Officer Faulkner's body both the specimen bullet and a fragment of the bullet?

A. Yes, that is correct.

Q. Now, when you read the police laboratory report, or the forensic report -- or, I'm sorry -- the firearms report, was there any reference in those reports to a fragment of a bullet?

A. Not associated with that particular bullet, no.

Q. Do you have any idea what happened to the fragment, having read the record?

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A. No.

Q. Is it common for a fragment removed from the body of the deceased to be lost?

A. No.

Q. Are steps usually taken to preserve the fragment?

A. Yes.

Q. Do you have any explanation as to how that fragment was lost between the Medical Examiner's Office and the police laboratory?

MR. GRANT: Your Honor --

THE WITNESS: No.

MR. GRANT: -- there is no evidence that anything was lost. And I would ask that all speculation be stricken.

THE COURT: All right, the last question and answer is stricken.

BY MR. WEINGLASS:

Q. In addition to noting that he had removed a fragment, as well as a bullet, from Officer Faulkner's body, did the Medical Examiner also note the measurements of the fragment?

A. Yes.

Q. And noted the measurements of the bullet?

A. That's correct.

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Q. So both appear in the Medical Examiner's report?

A. Yes.

Q. And again, there is no mention of that fragment in the ballistics report?

A. To the best of my recollection, that's correct.

Q. Now, is one of the ways that you determine the caliber of a bullet weighing the bullet? Is it one of the considerations?

A. It can be a consideration.

Q. And so if you are trying to decide if a bullet is a .38 caliber or a .44 caliber bullet, one of the things you might do as an expert is to weigh the bullet?

A. Yes, that's possible.

Q. And if a fragment of the bullet is not available to be weighed, would that affect your ability to determine precisely the caliber of the bullet?

A. It could under certain circumstances.

Q. So under certain circumstances, the fact that a fragment was missing would impact the determination as to what caliber the bullet was if you are weighing them for that purpose?

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A. If you are weighing them for that purpose, yes.

Q. Since there was one fragment found in Officer Faulkner's body in addition to the bullet, is it possible that there were other fragments as well?

MR. GRANT: Objection. Anything is possible.

THE COURT: Could you rephrase your question somehow.

MR. WEINGLASS: I will rephrase it.

BY MR. WEINGLASS:

Q. Does the fact that one fragment is found indicate to you the possibility, because of that fact, that there are others, or might have been others?

MR. GRANT: Same objection, Your Honor.

THE COURT: Anything is possible in this world.

MR. WEINGLASS: No, Your Honor, what I am asking is not --

THE COURT: Well, then, rephrase your question.

MR. WEINGLASS: The fact that one --

THE COURT: Well, rephrase your

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question.

MR. WEINGLASS: That's what I am in the process of doing.

THE COURT: Okay, go ahead.

MR. WEINGLASS: Right.

BY MR. WEINGLASS:

Q. Does the fact that a fragment is found of the bullet alert the expert to any possibilities of other fragments also being present?

A. Well, that would depend on the Medical Examiner. I would assume that he would use radiography to locate radio opaque specimens which would represent other fragments.

Q. Right.

A. In conjunction with the weight of a bullet, the weight of the fragment could be considered. And if the total of the weight of the fragment and the weight of the bullet constituted the general normal weight of a bullet, one could infer that in fact you had all of the pieces.

Q. I see. You mentioned radiology. Does that, are you saying that the Medical Examiner would conduct an X-ray of the, of the deceased?

A. Yes. To locate the bullet itself and any fragments.

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Q. Right. And in your experience, an X-ray would reveal, particularly an X-ray of the head, the brain area, would be capable of revealing whether or not there were other fragments?

MR. GRANT: I don't think he is a radiologist either.

MR. WEINGLASS: No.

MR. GRANT: So I would move to strike any speculation by Mr. Fassnacht that's not within his field of expertise.

MR. WEINGLASS: Well.

THE COURT: The objection is well taken.

MR. WEINGLASS: I am not asking him the question as a doctor.

THE COURT: Well, he is answering as a doctor.

MR. WEINGLASS: Right, in his experience.

THE COURT: He is answering as a doctor.

MR. WEINGLASS: Right.

THE COURT: Objection is sustained.

MR. GRANT: He has to have experience as a radiologist in order to give that opinion.

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I am sure he doesn't. Do you, Doctor?

THE WITNESS: No, I do use X-ray machines but not on bodies.

MR. WEINGLASS: Do you want to withdraw that question?

THE COURT: You gave the question, he gave the answer.

MR. GRANT: No, that is my line. Do you want to withdraw the question?

MR. WEINGLASS: I don't remember what question it is anymore.

BY MR. WEINGLASS:

Q. Let me ask you this, Mr. Fassnacht. In working over 20 years in your field, you worked with medical examiners?

A. Yes.

Q. Have you worked with radiology equipment yourself?

A. Yes.

Q. And do you use radiology equipment sometimes in an attempt to locate fragments of a bullet in the deceased's body?

A. I have never radiographed any person or tissue. My use of radiography is for failure

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analysis to determine cracks, flaws in metal and so forth.

Q. But in your experience do medical examiner's use it for that purpose?

A. Medical examiners do use it for locating fragments of bullets which are radio opaque.

MR. WEINGLASS: May I have just a moment?

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

MR. WEINGLASS: Thank you, Mr. Fassnacht. I have no further questions.

- - - - -

CROSS-EXAMINATION

- - - - -

BY MR. GRANT:

Q. Good morning, Mr. Fassnacht.

A. Good morning, Mr. Grant.

Q. You have testified, sir, that prior to your present three-year assignment I believe you worked for International Advisory Group, Inc.?

A. That's correct.

Q. Prior to that, for 22 years, you identified yourself as an independent expert in forensic firearms; correct?

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A. That's correct.

Q. And as a consultant you would offer advice to people who were willing to pay you money for matters requiring expertise in munitions, ordnance, firearms, comparisons of missiles, fired cartridge casings and the like?

A. That is correct.

Q. And you have been qualified, according to your curriculum vitae, in about 16 states and two U.S. territories?

A. And overseas, yes.

Q. And overseas. And since you have become an independent expert, Mr. Fassnacht, on approximately how many occasions in the State of Pennsylvania have you appeared to give your opinion on behalf of the government of the United States, or the Commonwealth of Pennsylvania, when prosecuting an individual for murder?

A. None.

Q. And how many times have you appeared and testified as an expert on behalf of the people of the State of New York when they are prosecuting a person for shooting someone?

A. None.

Q. And how many times have you ever testified on

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behalf of the prosecution authorities, whether it be the Attorney General, the State's Attorney, the District Attorney of the various districts, or any law enforcement agency prosecuting a person for weapons violations in the State of New Jersey?

A. None. But I have to retract my answer on one of your questions. I recall after I had left the City, and I'm not certain if it was a case that I had worked on while I was working for the City -- because there were a number of those, obviously --

Q. Yes.

A. -- which I had to come back from Federal service to testify in the City. I believe I testified once for Richard Sprague while he was District Attorney in a case.

Q. Let's clarify that. You had worked on the examination of those particular evidentiary items before you left and you were getting paid by the City to do that; correct?

A. On that one case, sir, I'm not sure. I think that may have been the exception. The only exception.

Q. Well, if you are not sure are you changing your answer or --

A. Yes, yes, I am qualifying my answer to include

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that there may have been one case, and one only, where I was retained by Richard Sprague, who was then D.A. Or I think he was Chief of the Homicide Division.

Q. Are you saying, are you saying, sir, that you had worked on the case on which Mr. Sprague retained you, you had done work while you were getting paid to do work on it by the City before you left?

A. I don't believe it was. That's the reason, that is the reason I am excepting. It is a possibility, again, I am not sure.

Q. And you can't say with any certainty?

A. No, I can not.

Q. Even that that's true?

A. No, I just --

Q. Okay.

A. I just want to make sure that you are aware of that.

Q. I appreciate that and I'm so advised. How about in the State of Ohio where you were an expert?

A. No, sir.

Q. Never testified on behalf of the Cuyahoga County District Attorney's Office ballistics firearms examiners to confirm their findings?

A. Not to my recollection.

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Q. How about in the State of West Virginia?

A. For the state?

Q. Or the county or the city or --

A. No.

Q. Or the borough or the hamlet?

A. No. All of these people have their own independent laboratories. If they don't have one themselves, they have access to the next higher governmental unit. And there is no reason really for a private, under most circumstances, unless there is a conflict of interest of some type, there is no reason for the law enforcement community to step outside of it's own available laboratories.

Q. So you are qualified, in addition to those states that I have mentioned, in Kentucky; correct?

A. Sure.

Q. California?

A. Yes.

Q. Rhode Island?

A. Yes.

Q. Virginia?

A. Yes.

Q. Tennessee?

A. Yes.

Q. Illinois?

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A. Yes.

Q. Kansas?

A. Yes.

Q. Michigan?

A. Yes.

Q. Maryland?

A. Yes.

Q. Florida?

A. Yes.

Q. Wyoming?

A. Yes.

Q. Puerto Rico?

A. Yes.

Q. U.S. Virgin Islands?

A. Yes.

Q. Never once have you ever testified that the police department of those various states or any of the agencies who did their firearms work did a good job or did the correct job, have you?

A. No, as I say, they have their own facilities.

Q. But I asked you: Have you ever testified, taken the stand and said yes, those guys were right, in any of these states in the Union and outside the country?

(Pause.)

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George Fassnacht - Cross

A. Right as opposed to wrong, I think.

Q. No, no, no, we don't have to quibble.

MR. WEINGLASS: Your Honor, may the witness be allowed to answer? He was cut off.

THE WITNESS: I think that there are categories that would not be so sharply defined. There may have been a murder charge placed on someone, as a West Virginia case was, wherein the prosecutor did not realize that the gun could discharge accidentally or inadvertently which resulted in a change. Now, that of course was something that the police had overlooked. And if you weren't aware of it, and if you want to consider that wrong, yes, I would agree with you.

BY MR. GRANT:

Q. I agree with you there are fine shadings of distinction.

A. Yes.

Q. Let me give you something that is more to the point. Whenever you have testified it's been, for all intents and purposes, to criticize the work that was done or the work that was not done by all the law enforcement agencies, police departments, what have you, in all these states; correct or incorrect?

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A. Umm. I would have to say, adopting your phraseology, correct.

Q. Okay. So would it be fair to say that in virtually 100 percent of the times that you have been qualified as an expert in the field of forensic firearms expertise, you've always attacked or attempted to destroy the prosecution or the police department or the state's case?

A. I don't know that I would use the words attack and destroy. The object of any court proceeding is not to attack or destroy, it's to find the truth. And my efforts have been in that direction, I believe.

Q. Okay. And in your efforts to determine the truth, 100 percent of the time it has been for the person accused, if it's a murder, of the murder, right?

A. If it were a murder.

Q. And if it were a shooting that the person fortunately lived through by the miracle of science, you would still be testifying for the person who did the shooting or was accused of it, right?

A. Yes. With the caveat that, again, the police departments and the law enforcement bodies have access to their own laboratories. The defense can

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only rely on independent experts, unless it wants to accept the, the prosecution's version without question. Given we have an adversarial system, that would be foolish.

Q. Back in 1981, sir, how much did you charge for the hour?

A. I believe I charged $50 an hour at that time.

Q. And how much money did you get paid by Mr. Jackson or Mr. Jamal or persons on their behalf at that time?

A. I am not sure that I got paid. If I did get paid there are two numbers that stick in my mind: 150 and 350. I might have gotten one or the other or I might have billed for 350 and gotten nothing.

Q. Was it possible that you billed for 150 and 350 and you got both?

A. I just, I specifically said it was definitely not both. I recall it.

Q. I asked you, did I not, pursuant to a subpoena duces tecum, to bring with you any and all records that you presently possess of any of your work done, billing sent out, in this case; correct?

A. Yes.

Q. Did you bring them?

A. No, I have no records going back that far.

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Q. Where were you --

THE COURT: Counselor. That noise out there, it's sort of affecting this thing. Sheriff, send somebody outside and get rid of that.

BY MR. GRANT:

Q. Are you able to hear me?

A. Sir?

Q. Are you able to hear me?

A. I can't hear.

THE COURT: Are you able to hear him?

THE WITNESS: Yes.

THE COURT: Okay. That is the problem. That's why I have to get rid of that noise out there. I know you can't hear him.

BY MR. GRANT:

Q. Where were your offices located in 1981 and '82 when you were acting on behalf of Mr. Jamal, sir?

A. At my home.

Q. At your home?

A. Yes. That is correct.

Q. And where did you keep your records?

A. At my home.

Q. Were they kept in a storage facility of some sort that would allow you to retain them for a number

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of years?

A. Well, they were kept in a file cabinet for a couple of years.

Q. And then you destroyed them?

A. Yes, I threw them out.

Q. By the way, back in those days, sir, did you charge a different rate for people who were indigent, that is to say they didn't have money for counsel of their own, versus those who could afford to have a lawyer of their choice?

A. No. Not really. I have done pro bono work but under very stringent conditions. I would do pro bono work if the attorney represented to me that he wasn't being paid either. So I did do, I did do some cases like that.

Q. When did you stop doing court-appointed work for defendants who needed your services?

A. In Philadelphia?

Q. Yes, sir.

A. Sometime in the early to mid-8O's, I would guess.

Q. Well, early to mid-80's is 1981-'82?

A. Oh, well, it's obviously after that.

Q. So you stopped doing it after Mr. Jamal's case?

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A. Sometime after that, yes.

Q. How much in a distance after that?

A. I'm not certain, but it was eight or 10 years. As a matter of fact, I could tell you the first case that I took recently which broke that cycle, if you will, was with Joel Moldovsky in this past autumn.

And only because the City of Philadelphia has reformed it's payment system.

Q. How about in August --

MR. WEINGLASS: The witness was about to finish. Counsel inadvertently interrupted the witness.

MR. GRANT: I'm sorry. I thought he was through.

BY MR. GRANT:

Q. Please answer.

THE COURT: I'm sorry, I can't hear him either because of that noise out there. We may have to just hold up.

Sheriff, take those people into custody, all right. We will get rid of the noise once and for all.

MR. WEINGLASS: Your Honor --

THE COURT: I'm ruling here. Take them into custody if they don't move. I don't

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want that noise out there. I can't hear in here.

MR. WEINGLASS: I think the record should be clear.

THE COURT: The record should be clear that they are disturbing and trying to intimidate this Court, okay. And I say if they don't leave and stop that shouting I'm going to take them into custody. All right.

MR. WEINGLASS: The Court is not referring to anyone in the Courtroom.

THE COURT: No, not in the Courtroom. Outside.

MR. WEINGLASS: I think the record should show that.

THE COURT: What do you think I am talking about?

MR. WEINGLASS: I think the record doesn't make that clear.

THE COURT: The record makes it very clear: I said the noise outside.

MR. GRANT: May I proceed?

THE COURT: Okay.

BY MR. GRANT:

Q. I'm sorry if you hadn't finished your answer.

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I thought you had finished your answer, sir.

A. Ahh, yes, there is now in effect a payment system whereby expert witnesses are guaranteed a payment of 650 a day, or half of that for half a day. And at the conclusion of their work each day, whether it is a half day or full day, a slip of paper is submitted to the judge to certify that they are there present; and that payment is then taken and, that slip is then taken by the defense attorney and turned in to a City office and payment is guaranteed within 30 days. The reason for that system being in practice is because a lot of people no longer took Court-appointed cases because they didn't like waiting two years to get paid, if they got paid at all. Or got paid half of what they asked for.

Q. Number one, sir, you don't know if you got paid at all, right?

A. That is correct.

Q. And if you did get paid, since that is the obvious converse of what you don't know, you might have got paid before the time it normally takes; correct?

A. I haven't gotten paid?

Q. In this case --

A. Yes.

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Q. -- it's possible that you got paid, and not only that, but you got paid on an expedited basis?

A. It's possible that I received a check for that bill that I submitted to Mr. Anthony Jackson, it's quite possible.

Q. And earlier than you were accustomed to receiving it?

A. If in fact I did receive it.

Q. Yes?

A. Yes.

Q. Now, how long had you been taking these appointments before you decided it wasn't worth it?

A. For about six years or so.

Q. And you really don't know when you stopped taking these appointments, do you?

A. I would say somewhere '84 or '85, somewhere in there.

Q. And the normal rate for payment was an initial fee of $150 and if you did additional work then you could, your attorney, the attorney you worked for, could apply to the Court for more monies to pay you for any work that you felt was material and needed; right?

A. I have no idea of how the attorney was reimbursed because my funds came from him and not

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directly from the City.

Q. Oh, I see. I see. So you did know that the normal rate, because Mr. Jackson told you, was $150, right?

A. I don't know that that is a normal rate. It is an observed rate.

Q. Is that the rate he quoted to you?

A. That figure was mentioned, yes. I don't know whether or not Mr. Jackson told me that or not, but.

Q. Well, let me ask you this. Mr. Jackson contacted you by phone or in person initially?

A. By telephone.

Q. And he said I have a case, I would like to know if you are available to take it, a criminal matter, and assist me; correct?

A. Yes. Correct.

Q. And you agreed, that's what you said on direct, didn't you?

A. Yes.

Q. Well, from six years experience you knew what you were agreeing to, didn't you?

A. No. Because some people pay their bills promptly. And as a matter of fact, there is one judge who is the exception in that eight-year or l0-year hiatus who personally went up to the clerk in

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George Fassnacht - Cross

the Chief Justice office and got the funds for me. By personal intervention.

Q. And since that's the exception --

A. Yes.

Q. -- your knowledge of six years experience says that the rule was that you knew what you were agreeing to?

A. The rules --

Q. Yes or no, sir?

A. No, the rules were arbitrary and capricious. And those two words could not be better used in the English language than to describe the payment system that was in effect at that time for experts at that time.

Q. Nobody is contending, Mr. Fassnacht, that the City of Philadelphia is the paragon of fiscal accountability. That's not why we are here. And they have reformed it I think presently to your satisfaction now?

A. Now.

Q. Well, I certainly appreciate that. Well, when you worked in the ballistics laboratory, sir, did you feel that your work was accurate and well done?

A. Certainly.

Q. And during those two-and-a-half years when you

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were the supervisor of those who worked for you, did you feel that the people that you supervised and for whose work you were responsible was accurate and well done?

A. Yes, Philadelphia has an excellent ballistics laboratory.

Q. Well, I guess it must have changed in 1981 when Mr. Paul examined the ballistics material in this case; is that the idea?

A. Ahh, I have no idea what was going through his mind or the mind of the other experts who had signed that report, but obviously you don't have to be an expert to see that there is something wrong.

Q. Yes, I see. Now, in order to arrive at your expert opinion, is it necessary to talk to the accused?

A. No. That was done at the request of Mr. Jackson.

Q. And you billed him for that; correct?

A. That was part of what was included in my services, certainly.

Q. I see. And what scientific or expert information or insight did you get from Mr. Jamal?

A. None that contributed anything to the case.

Q. And you knew that before you went there,

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right?

A. I went there because Mr. Jackson asked me to. And for all I know, maybe Mr. Jamal had asked him to ask me to do that. I have no idea. You'll have to ask Mr. Jackson why he asked me to go to the prison.

Q. Now, you told Mr. Jackson your hourly rate at the time he first contacted you by phone, I take it?

A. Yes.

Q. And what was that rate?

A. $50 an hour. 350 a day.

Q. And did you give him the daily rate or the hourly rate?

A. Whichever is cheaper. It goes to 8 hours it's 350.

Q. And you were available and consulting with Mr. Jackson with your expertise from the first day he contacted you up until almost the very last day of this trial, weren't you?

A. I don't know when he last called me.

Q. How about June 3Oth, 1982?

A. What is the date, sir?

Q. June 3Oth, 1982?

A. I don't know.

Q. Is it possible that you were consulting and advising him even though you were working for peanuts

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up until the very last day of the testimony?

A. I might as a consideration have talked to him and given him some consultation even though I wasn't being paid for it. And again, that's not unusual.

Q. And do you know or recall when you were first retained to start your billing meter to tick?

A. Somewhere in the late winter or early spring.

Q. Late winter would be what, March?

A. March, April. Spring I guess would be April.

Q. March, April, May, June. Assuming that there was conversations with Mr. Jackson offering your expertise, and you so testified, up until and on the day of June 30th for an hour and a half I believe on that date, you did all that for 350 lousy dollars?

A. I may have done that for no lousy dollars, for all I know.

Q. I see.

A. Given the track record of the City of Philadelphia in paying their bills to expert witnesses at that time.

Q. I understand your problems with Philadelphia's fiscal policy, I understand. Now, you reached four conclusions in this affidavit that you signed on behalf of Mr. Jamal. A, you would have expected to find gunpowder residue on Police Officer Faulkner's

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jacket where the bullet entered his back. That's one of them?

A. Yes.

Q. B, that the Firearms Identification Unit report was incomplete in that there was no mention of the number, width or depth of the lands and grooves in the recovered bullet.

A. Yes.

Q. Three, that no one tested the gun for recent firing by the olfactory nerve: Smelling?

A. Yes, sir.

Q. And lastly, that no one performed a neutron activation test, or scanning electron microscopy test, or atomic absorption test on the hands of Mr. Jamal to see if there was gunshot residue on them; correct?

A. Correct.

Q. Now, you further claim in your affidavit, I note, that you were surprised that the laboratory didn't perform one of these tests, and the test you are referencing is, to be simplistic about it, to stick the gun barrel in your nose and take a sniff: That's a scientific test that you are surprised that they didn't take?

A. Yes, you don't have to stick it in your nose.

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You get it within a couple inches. Yeah, I'm surprised because it's so very easily done.

Q. Well, why is it that the smell dissipated nearly 20 percent from the time you wrote this affidavit until you got on the witness stand; do you know what I mean?

A. No, sir.

Q. Well, in your affidavit it said the smell lasts for four to five hours. And all of a sudden you get up on the stand and now it's lingering in there for six hours?

A. I said persistence can be as high as six hours. As we all know, it depends on humidity, heat, and various other factors.

Q. And the human nose?

A. Well.

Q. That is a factor, isn't it?

A. Well, assume that you are not smoking a pipe with some noxious mixture in it. Unless your nose, your olfactory nerves have been completely destroyed, you should be able to smell it.

Q. How about cigarette smokers?

A. Some of them can't taste their lunch, some can. I don't know, that is a medical question.

Q. So depending on whether they smoke cigarettes

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or pipes or can't taste their lunch, this test would have little or a lot of value?

A. It's pretty strong and I really, not speaking too closely, I think that any normal person should be able to smell it rather easily.

Q. Do you know how long after this weapon was confiscated, how long, how much time elapsed before the Firearms Identification Unit received it?

A. No.

Q. Well, based on the notes of testimony that transpired in the peoples' testimony, Police Officer Forbes got the guns, took them to the ballistic lab, received a property receipt for them identifying them and where they came from, then took them to the chemical lab where they were dusted for fingerprints. The guns remained there for the completion of the test and Officer Forbes then took it back to the Firearms Identification Unit for safekeeping to await testing by the Firearms Identification Unit. Now, you don't know how long it was before people with your expertise even received that weapon, do you?

A. No.

Q. Then if you don't know this information, why are you surprised that they didn't perform this scientifically advanced sniff test?

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A. This is not scientifically advanced and any police officer in his training, this should be included in the syllabus, that upon recovering a gun the first thing he should do, among other things, is to sniff it to see if it's been recently fired. I mean he is taught not to do anything that would damage the interior of the barrel and to preserve other parts of firearms evidence. I don't know why this can't been included. It's, it's dirt simple.

Q. Well, were you trained to do that by Joseph E. Smith? I believe that was your mentor, wasn't it?

A. No, I was not trained to do that by him. That work was completely different and did not involve forensics at all.

Q. Who turned you on to this sniff test, Mr. Fassnacht?

A. The people I worked with in the ballistics laboratory when I was there.

Q. Well, I take it that you stay abreast of the literature in your field of expertise, and you try to remain current and review studies that are done, research efforts made and general publications in the area, I take it, do you not?

A. I try.

Q. Do you think that you succeed?

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A. I hope so.

Q. And because you stay abreast with these publications, books, research studies and the like, you are of course familiar with a work done by a Major General Julian Hatcher, it is titled 'Firearms Investigation Identification And Evidence,' first published in 1957, at about the time you were cutting your teeth in this field, right?

A. Ahh, no, sir. That was before I got involved in the forensic end of it. And actually there are three books with Hatcher.

Q. Yes, that's right?

A. Hatcher is involved in, Hatcher, Weller and Jerry being the last one. Is that the one you are speaking of?

Q. No, I am not speaking of that one. But you are right, he has published more than one.

A. Yes.

Q. This was published in 1957, was called 'Firearms Investigation Identification and Evidence.' And you are familiar with Mr. Hatcher, are you not?

A. General Julian Hatcher, certainly.

Q. And you, like other experts in your field, respect his opinions and feel that he enjoys a good reputation in the community in which you operate,

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don't you?

A. Yes. He is somewhat dated and there have been a lot of advancements since then but he is one of the people that was in on the ground floor, if you will.

Q. Yes. There's been a lot of advancements since then but we are in 1995 and you are still sniffing gun barrels, right?

A. Yes.

Q. Okay, let me read you this excerpt from Chapter 11, page 299 of this particular volume. Quote, a general idea of the time since the weapon was fired can usually be determined but not however within any precise and close limits. For instance, a bore -- that is the inside rifling of the barrel, right?

A. That is correct.

Q. A bore which shows dust, red rust, the accumulation of lint or tobacco fragments or the like, probably has not been fired for some time. A similar weapon which smells characteristically of powder was probably fired a relatively short time ago.

That appears to be in agreement with you, does it not?

A. So far.

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Q. Yes, that's right.

However, this smell test is not really worth anything at all because few men are sufficiently trained both as smellers and as shooters to know the difference between one brand of powder and another.

Would you agree or disagree with that statement?

A. Well, that's an interesting statement. What's it got to do with brands of powder? If he is speaking on discerning the brand of powder, that is quite impossible to do. We are talking about relatively recent firing, and that's a different story. And as I say, people, I think people being trained in the use of firearms, every policeman is trained in the use of firearms, every policeman is trained in the proper recovering of evidence, the handling and use of firearms. And it would be a simple matter to teach them to check the smell of the bore of a recently-fired gun, and on a firing range they could do that.

Q. Doesn't gunpowder come in different strengths and different compounds, by the way?

A. It does but something burnt smells like something burnt recently. Whether it's cornine, or

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double base, or single base powder, you can smell it.

Q. So the same person that has this expertise in smelling guns can smell a chimney fireplace because something burnt is something burnt; is that what you are suggesting?

A. Well, the odor of gun powder, because of the guncotton substance they are all based on, has a peculiar odor.

Q. Gunpowder is the base and there are various types?

A. Smokeless gunpowder.

Q. Smokeless gunpowder?

A. Smokeless.

Q. They started using smokeless gunpowder and stopped using black powder about how long ago?

A. Oh, 100 years ago.

Q. So gunpowder does affect the type of smell you are smelling and if you use different kinds of powder you are going to have different strengths, are you not?

A. No, the smell of a freshly-fired firearm bore smell is distinct and self-evident.

Q. Okay. Well, what does the term analytical study mean in connection with your expertise, Mr. Fassnacht?

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A. Analytical study pertaining to what?

Q. Firearms identification. Smells characteristic of gunpowder firing.

A. The smell of the muzzle or the breach of a recently-fired firearm is distinct. And we have, I have been warned off comparing the human olfactory organ, I won't use the word, because I'm not a doctor. But I can assure you that mine works and I've tested it frequently and my results are as I say: I can tell a recently-fired firearm from one that hasn't been fired for awhile.

Q. Have you ever subscribed to the Crime Laboratory Digest? It is a forensic journal published by the FBI Laboratory Division of the U.S. Department of Justice?

A. I don't believe I get that particular journal.

Q. Did you ever skim through it, whether you subscribed to it or not?

A. I can't recall. I don't think so.

Q. Well, let me read to you from January 1995, Volume 22, Number 1, at page 5, a statement by them, and see if you agree with it or disagree. Until recently there was no reliable analytical method to determine the recency of discharge of a firearm due to problems associated with the identification and

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detection of elements or compounds in gunshot residues which change with time.

Now, until recently -- and January of '95 is pretty recent -- apparently the U.S. Department of Justice says that, and the FBI Laboratory Division says that your nose is not very reliable?

A. I don't read, I don't get that from what you just read to me.

Q. What do you get from it?

A. We are talking about an analytical test.

Q. That's why I asked you what your definition was?

A. It means laboratory analysis in this context.

Q. Oh?

A. And the context, in the context definition that you asked for it is meaningless for me. This has nothing to do with smell.

Q. That's right, so they are saying that even with laboratory machines and tools --

A. Yes.

Q. -- they still can not reliably say when a weapon was fired?

A. What's that got to do with smell?

Q. And you are saying that your nose is better

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than all these analytical tests?

A. I don't want to use that word, I have been warned off it, but my human olfactory organ is very sensible to the smell of freshly burned gunpowder. And I assure you anyone can tell the difference between a recently-fired firearm and one that's been fired, say, more than six hours ago.

Q. Do you consider what you do an art or a science?

A. The identification of fired projectiles as being fired from the same firearm is an art. It is not science.

Q. And art is subjective to the beholder?

A. You have described it precisely. I couldn't have used the word better myself. It is exactly subjective. It is entirely a subjective judgment. The science of fingerprinting, if you will, of determining whether or not your fingerprints match those found somewhere, is a science because there is a certain number of points without which you do not have an identification. Doesn't exist in forensic firearms examination. It is entirely a subjective judgment in the mind of the examiner. You've phrased it very well.

Q. So your opinions are no more valuable or as

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limited as the next firearms examiner because it's up to you what you think you got, right?

A. I think a good question for any firearms examiner would be have you ever had a disagreement with your confreres as to whether or not a forensic comparison was in fact valid.

Q. So your answer is?

A. Sir?

Q. So your answer is this is just your opinion and your opinion only?

A. For what it's worth.

Q. And all people in your position have their own opinion about what you are saying?

A. I suppose.

Q. Now, in section D in your affidavit you say that the gunshot residue tests weren't performed on Mr. Jamal; correct?

A. Yes.

Q. What do you know about Mr. Jamal's physical activity, especially involving his hands, immediately following the firing of this weapon?

A. Nothing.

Q. You didn't read any trial testimony from the transcript that Mr. Weinglass gave you?

A. I did not receive any pertaining to any

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physical activity.

Q. Okay, well, let me give you some background to see if you could examine your views on this neutron activation analysis. Page 2.20, June 2nd, 1982. Based upon the trial testimony of Cynthia White, upon direct examination by the prosecutor, police arrived within 30 to 60 seconds following the shooting. On June lst, 1982, page 54, according to Police Officer Shoemaker, from the time he received the initial call made by the officer who was later killed until his arrival on the scene 45 seconds transpired.

Now, at that point Mr. Jamal began struggling with several policemen at the scene of the crime, he attempted to keep his hands from being handcuffed behind his back by flailing his arms. It took several officers to bring his hands behind his back in order to properly handcuff him. You were not aware of that, were you?

A. No.

Q. I assume you were also not aware that after Mr. Jamal was transported to Jefferson Hospital to be treated for the gunshot wound he received from Officer Faulkner, that upon being removed from the police wagon he then engaged in another struggle with the police, refusing to be removed from the wagon,

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then refusing to walk on his own and then refusing hospital treatment, all the time resisting police. It got to the point where a Municipal Court judge had to order the hospital because of his refusal to comply with their requests, she ordered the doctors to save his life if they could despite what he was doing. Defendant was handcuffed to the hospital gurney while awaiting this order for medical personnel to provide their services. Then the emergency room personnel removed his clothing, which consisted of a jacket and two shirts, in order to operate on him, of course. Then he was operated upon and remained in the hospital several days.

Now, we are talking about, the area that you're, I guess, referring to is the web (indicating), the surface right here (indicating)?

A. And the palm.

Q. And the palm. And you have already said that you remain abreast of literature in the field and you try to, basically, consider these factors, don't you, when you give your expert opinion?

A. The factors that you have just annunciated?

Q. Yes.

A. The struggles and various --

Q. Yes.

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A. Well, it is entirely possible that during a struggle, I don't know where he was grasped, but if you are saying that they had contacted his hands, particularly where a great deal of pressure was applied, they could have very well destroyed traces of powder residue if in fact such did exist. That is a possibility.

Q. Yeah, well, let's just assume that when you are handcuffed behind your back most people are handcuffed like this (displaying)? Can you see me?

A. Yes.

Q. This means that that web surface that you are describing is in direct contact with your body surfaces or the clothing that he wears; would that be fair to say?

A. Is that what, sir?

Q. Would that be fair to say?

A. I didn't catch the last few words.

Q. This portion between the index finger and the thumb would generally be in direct contact --

A. Yes.

Q. -- with the body surfaces and the clothing he wears?

A. That's reasonable, yes.

Q. Well, I would like to read for you an excerpt

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from a text by, which was edited by the doctor slash attorney -- both a doctor and a lawyer, I guess -- Cyril Wecht?

A. I know him well.

Q. You know him well?

A. Yes, sir.

Q. His book was published in 1981, just about the time this murder was occurring. It's called 'Forensic Science, Law, Science, Civil and Criminal.' Dr. Wecht's publication, is his publication relatively widely known in your profession?

A. Yes; it is a three-volume set which is frequently updated, I guess, like an lot of legal texts, once a year.

Q. That's right. This is volume three.

A. Yes.

Q. And to quote it it says, firearm discharge residues that may be deposited on the shooter's hands can easily be washed off, wiped off, or, after a short period of time, worn off. Research has indicated that after approximately two hours of a normal day's activity, substantial amounts of the residue will be spontaneously lost, making it difficult to conclude that gunshot residue was present on the suspect's hands.

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Would you agree with that?

A. Not entirely.

Q. What part don't you agree with?

A. I would, I would say if you adopted Dr. Wecht's statement as it stands there would be no further use for a police department using this test. But in fact they do. And why? Because they expect to find something. So why do this, why spin wheels, why do a test if you don't expect to find the residue?

Q. Well, no test was done, was it, in this case?

A. No.

Q. So they weren't spinning their wheels, were they?

A. Well, they didn't do the test. They didn't attempt to do the test.

Q. Well, let me read you this.

A. But is the test still available is the question and is it presently used and if so why if it has no value?

Q. Well, I guess I will ask the questions for a little bit longer.

A. Well, I don't mean to put that in interrogatory fashion. I am aware of my position, I am not asking you a question. It's rather a, by way

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of explaining.

Q. Okay.

A. It is a rhetorical question, if you will.

Q. Yes. You likewise are familiar, of course, I am sure with a work called 'Techniques of Crime Scene Investigation,' it is the third edition, by authors Svensson, Wendell and Fisher?

A. Yes.

Q. Yes. At page 240-241 of that text, which is, that chapter is entitled Gunshot Residue Analysis?

A. Yeah.

Q. They say that when primer is detonated, microscopic particles of gunshot residue are deposited on the hands of the shooter. They are present on the hands of the shooter with the greatest concentration being in the web area. The area that you described?

A. Yes.

Q. These particles adhere to the hands but are removed by washing, wringing the hands, placing the hands in the pockets, and even handcuffing behind the back. Studies have shown that gunshot residue material will remain on the shooter's hands for up to about six hours. The particles are in the highest concentration immediately after the shooting and are

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eventually all lost over time, depending on what actions the shooter takes.

Now, in addition to disagreeing with doctor-attorney Cyril Wecht, do you disagree with that statement?

A. Well, I would say first off I observed that they disagreed with Cyril Wecht. Because he says two hours. And it seems to be a disagreement among the published experts.

Q. Not as to the activity that removes it?

A. We agreed on that.

Q. That what?

A. I believe I agreed with you that being handcuffed with the hands behind the back could expose the web surfaces to the clothing and result in the loss of residue.

Q. If you were them, the Philadelphia Police, knowing the activity that I have described to you that Mr. Jamal was engaging in, tell me when you would have snuck in there and taken that test from him, at what juncture, at which struggle?

A. Well, if they really wanted to take the test and if there were enough officers on hand I suppose he could have been spread-eagled and his hands held out and somebody grabbed a leg or two. It sounds

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preposterous but if he were struggling that vigorously, I suppose that would have been the only way to do it. And in light of what you told me, that test may have been very difficult to perform.

Q. And when he was finally released from the hospital days later, are you suggesting that they should have taken the test then?

A. Oh, certainly not. That's --

Q. Certainly what?

A. Certainly not. That's preposterous. The test has to be done almost immediately.

Q. Well, what did they do that you are criticizing, sir?

A. The test as a tool, as an investigative tool to law enforcement, was available. The test was in use by the Philadelphia Police Department at the time. The test could have been used to determine whether or not in fact this gentleman had fired a firearm at the time he was alleged to. And the test was not used, whether there are reasons that it could not be effective or there was no attempt to use the test.

Q. What do you think would have been the likely results if they had taken this residue at any point?

A. That would be speculation on my part.

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Q. And it would be fair to assume that they would have gotten no results because if people lose these particles 100 percent over the course of an ordinary day -- and they are not handcuffed behind their back and fighting with lots of police, are they?

A. No.

Q. -- would it be reasonable to assume, Mr. Fassnacht, that it would have been a futile act and worth nothing at all?

MR. WEINGLASS: Objection, Your Honor. Because Counsel's hypothetical did not include the fact that Mr. Jamal's hands were handcuffed to a stretcher within a half hour of the shooting when he was in the hospital but he did not include that in the hypothetical. So I object to the question as not being inclusive of all the facts in the record and available to Counsel who questions him but who conveniently omits key facts and then asks hypotheticals with those facts omitted.

MR. GRANT: I will rephrase the question.

BY MR. GRANT:

Q. If we add in Counsel's little addition here, that would be all the more reason why it would be a

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likely failure to show anything on this test -- now we got another handcuffing of the hand -- does that help show that there is more residue or make it less likely that there is residue?

A. It depends on where the handcuffs, as you have stated, where the hands were handcuffed. Where they remained. You have given me a position behind the back with the dorsal surface of the hand against the clothing, the back of the coat jacket, whatever. And we agreed that that could result in the destruction of residue. But if, on the other hand, somebody had a hand handcuffed and it was stretched out there is no reason the test couldn't be performed.

Q. So does Mr. Weinglass' addition aid you in this inquiry?

A. Well, I believe as I understood just now what he said, that a hand was handcuffed --

Q. Yes.

A. -- not behind the back.

Q. Yes.

A. And that hand would have been proper, a proper subject for the test we've discussed.

Q. Does that aid you in answering this question, Mr. Weinglass' addition?

A. I think I just answered it.

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Q. I didn't --

A. Unless I missed something, I'm sorry.

Q. I didn't hear an answer in those words. I was wondering.

A. Well, I am saying that given the conditions that he has --

Q. Yes?

A. -- set forth, that there would be purpose in doing the test and one could expect reasonably to find residue. Is that --

Q. Are you saying here today, that within a reasonable degree of, I guess for you it's artistic certainty, you after all that activity would have expected to find gunshot residue on the hands of Mr. Jamal?

A. First off I have to, all of this business is not art. Only the forensic comparisons of fired bullet specimens and fired cartridge cases. The rest is science.

Q. The part you are talking about is science?

A. Yes.

Q. Are you saying within a reasonable degree of scientific certainty you expect to find gunshot primer residue on Mr. Jamal's hands?

A. It's possible.

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Q. No, beyond a reasonable degree of scientific certainty is beyond possibly, it is beyond --

A. It would be speculation on my part. In fact you are speculating that the residue had been destroyed and therefore there would be no point in taking the test. But in fact you don't know that the residue was destroyed. You're assuming that because of certain activity that took place, that this residue is gone and therefore it would be pointless. I don't know that.

Q. So when you were working on behalf of Mr. Jamal, you would have testified before the Jury within a reasonable degree of scientific certainty that the tests probably would have shown that he had fired the gun recently?

A. I wouldn't have, no.

MR. WEINGLASS: Objection to part of the question. The question to the expert should be should the test have been taken and not what the test would have shown.

THE COURT: No, he has a right to ask his questions the way he wants. You will be able to ask any questions you want the way you want to ask it.

MR. WEINGLASS: It is just an improper

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question.

THE COURT: No, okay.

MR. GRANT: At this juncture I believe the standard is that had he testified, the outcome of the trial would have been different.

BY MR. GRANT:

Q. So my question is, are you saying here now that in 1981 you would have testified beyond a reasonable degree of scientific certainty that had the test been performed it would have revealed whether or not Mr. Jamal fired that weapon?

A. No, I wouldn't phrase it like that.

Q. Well, would you answer my question, though?

A. Yes.

Q. Would you have so testified, Mr. Fassnacht?

A. No, I wouldn't have so testified.

Q. Thank you. You also say that some of the elements or chemical components of gunshot residue were not found on the jacket surface or the interior of the jacket of Police Officer Faulkner upon examination; correct?

A. Yes.

Q. And the significance of that is what?

A. They're missing.

Q. Does that show that Mr. Jamal did not shoot

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the officer in the back?

A. Ahh, it shows that the distance determination could have been made if the residue was found and residue was not found and I don't know why. The test should have been repeated. I believe it was repeated by the prosecutor to determine the deposition of primary nitrates -- primer residue, I'm sorry -- which is largely zinc or lead stiffening. That's different in this case. I don't know why the gunpowder residue was not found but I certainly think an investigation on the part of the defense should have been done to determine why.

Q. I see. This gunshot residue, what you are saying, describing here, actually encompasses three components --

A. Exactly.

Q. -- to this phenomenon? This residue is shown in various ways. Like scorching and burning is like evidence of the closest range of firing?

A. Exactly.

Q. And then there is this fine particulate matter, like dust deposits?

A. Soot.

Q. Soot?

A. Yes.

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Q. And then there is those partially burned or unburned rings of powder that don't get oxidized or burned up because they don't for whatever chemical reason?

A. Yes. That's correct.

Q. Now, they found some of that on his jacket, didn't they?

A. No, from my reading of the report as I recall it they found lead residue.

Q. Okay.

A. Which is, which is a fourth product of combustion of a small arms cartridge which results from the primer. And that's found from contact out to about 18 inches maximum.

Q. From contact to 18 inches lead primer residue --

A. Yes.

Q. -- would show up?

A. Yes.

Q. And so you are saying that whoever shot Officer Faulkner shot him from probably no more than 18 inches away?

A. If the lead residue test is accurate, that's what would be the determination. But I didn't see the lead residue test they did. And obviously they

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must have, one hopes they did a comparative test on another surface to determine, using the same type of ammunition, the same barrel of the gun and so forth, at what distances they would expect to find that amount of lead stiffening that they found on the jacket.

Q. You read Mr. Tumosa's report, did you not, the criminalist?

A. Yes, sir.

Q. He testified in this case, did he not?

A. Yes.

Q. He testified that the man was shot in the back from a distance of 12 inches, more or less?

A. Yes.

Q. Is his testimony inconsistent with yours here today?

A. With mine?

Q. Yes, are you are saying --

A. No, I am only questioning the absence of the gunpowder residue.

Q. Okay.

A. Two types of which should have been present at that distance.

Q. You said that given the factors relied upon by the prosecution, the failure to find gunpowder

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residue raises questions about whether or not Mr. Jamal's weapon was involved. You said that in your affidavit, didn't you?

A. Yes.

Q. Are you saying here, and would you have testified in 1981 to a jury, that within a reasonable degree of scientific certainty, finding this primer lead on his jacket but not finding the other parts of the gunpowder residue you want to find would show that Mr. Jamal's weapon did not shoot that officer?

A. No, I would have testified only after I had access to the weapon in question and had conducted my own tests. Then I would have testified to whatever I had found.

Q. Well, let me enlighten you a little bit. You didn't read the trial testimony involving the jacket possessed by Police Officer Faulkner either, did you?

A. If it was in Mr. Tumosa's testimony I must have.

Q. Well, it was not.

A. Oh.

Q. First of all, the officer was shot in the back, spun around, and fell onto the ground onto his back. Officer Shoemaker then testified at this time I walked over to Officer Faulkner who was lying on

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his back unconscious and bleeding very heavily. There was testimony from an eyewitness who said Officer Faulkner was, after being upon his back, was shot in the face which caused his whole body to jerk while lying on his back. Officers then came to rescue him, picked him up from the sidewalk, while on his back, grasping him underneath his shoulders and arms, which would be in that very area, would it not?

A. Could be.

Q. And tried to place him in the back seat of a small vehicle to rush him to the hospital.

Question by Mr. Jackson -- the person paying you -- of Officer Heftner on 6-21-82, page 4.13. Cross-examination. Question: What was the very first thing you did to Officer Faulkner.

I picked him up underneath his shoulder. By his shoulders. Underneath his arm.

Question: So it would be fair to say that you stood at his head with your hands under respective arm pits.

That's correct.

At that point multiple officers then removed Officer Faulkner from the vehicle that was too small, placed him in a police van. In transport to the hospital, they then removed Officer Faulkner's

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clothing while inside the moving vehicle in order to uncover the wounds that he had suffered.

Now, knowing that this jacket that you are questioning went through these various exercises, for lack of a better word -- add to that that the officer who removed that clothing then took that jacket, placed the property receipt with it and stuffed it into a plastic bag and took it to the evidence locker room -- now, does that give you some additional insight upon which to base an opinion here today?

A. The opinion is, my opinion would be that an independent expert should have verified or conducted a test to determine if in fact the test done by the Police Department was in fact accurate. And at that time I imagine he would have been supplied with the data that you have just related and have to take that into consideration as to whether or not it would cause the loss of the powder residue. Which in fact, as you have explained, it probably could.

Q. Isn't it a fact, sir, that these trace metals that you are talking about -- and what metals are we talking about, by the way?

A. Well, they are not trace metals. We have been talking about the gunpowder residue, which is

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nitrites and nitrates.

Q. Copper?

A. No, nitrates and nitrites.

Q. It is what, a nitrite?

A. Well, gunpowder starts off as a nitrate in cellulose and they may add nitroglycerin to it. And the element nitrogen in compound with other elements constitutes a nitrate or a nitrite. And these are the particulate things we are looking for exclusive of the burning and charring.

The lead, so we don't confuse it, that being a separate item, the lead stiffening residue from the primer is something entirely different. That's, that's lead. That's the element of lead they are testing for. It is a different test, it is a chemical test.

Q. Isn't it a fact, sir, that these nitrites and nitrates are known even by experts such as yourself to fall off with handling, moving the item of clothing that's involved, and that they drop off in the regular course of everyday exercise when they are subjected to these kind of stresses -- excuse me, let me finish.

A. Yes.

Q. When they are subjected to the stresses I have

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described to you, it is not uncommon at all, as a matter of fact it is usual, that these elements that you are talking about are found to be missing; isn't that so?

A. Well, you are partially right. And the one thing that you didn't include in your consideration is the type of material, the surface to which the residue is attached. Some things like rip-stop nylon, if you are familiar with that.

Q. That's like Macy jackets that they wear now?

A. Like golf, like golf jackets. Rip-stop nylon will create less of a base for the adherence. Loosely-woven wool, wool fabric, are much more conducive to retaining the particulates. Of course, rough handling can dislodge them. But again, it determines, it is determined by the distance from the muzzle to target. Obviously, the further away the softer the adhesion of the particles. And they would be lost first. Rough handling could cause successively closer particles to be dislodged, until you get to a point where the soot markings may be the only thing left.

Q. Right. And you didn't know because you didn't look at the jacket that this was one of those polyester, shiny jackets with a little fur collar

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that police officers wear in the wintertime and it wasn't a police officer's jacket like you may see on some Court officers, for instance, and shiny polyester material is less conducive to these metals -- excuse me, sir. You don't mind me asking you this question, do you, sir?

A. No, sir.

Q. These kinds of fabrics are less conducive to controlling or containing or holding those nitrates and nitrates that you are describing; isn't that so?

A. It depends on the weave. If the weave is very tight, as I said, if it's rip-stop nylon, which the weave is almost invisible, like a golf jacket, it's rain proof, then the possibility of adhesion is much less.

Q. Well, you have seen the jackets that I am describing, haven't you?

A. No.

Q. Oh, so you don't have an idea of the type of fabric we are talking about here?

A. No, sir.

Q. Well, if you are going to do these tests and you say that it would be helpful to the Defendant and you would have so done had you been paid more money, you can 't do those tests by just taking a gun and

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shooting it into a police jacket, you have to try to duplicate the conditions so that they are substantially similar before that even gets into evidence; isn't that so?

A. I would have to duplicate the surface onto which the test was done. Same type of material, as you just explained. I would have to duplicate the gun and the cartridges.

Q. The bullets and their powder charge?

A. The exact same type of ammunition.

Q. Back in 1981?

A. Yes, yes, same type of ammunition.

Q. And wouldn't you have to duplicate -- and how would you propose to do this -- the blood and body fluids that passed through the holes in an officer's body through the hole in that coat? How are you going to duplicate that to give validity to your ballistics test?

A. That's not necessary to duplicate. Exudation of serous exsanguination, excessive bleeding, could cause the loss of powder residue if it were there. If I saw the jacket and I saw evidence of sufficient bleeding, then obviously I would know that I would not be able to find evidence of powder residue. But blood flows usually in one direction. There are

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exceptions. There are exceptions.

Q. How do you propose to reproduce the body movements of Officer Faulkner on his back, on that very surface you want to examine, in the throes of death?

A. One doesn't attempt to reproduce such things. One either finds the residue or doesn't find it. A factor to be considered is exsanguination.

Q. You can't reproduce two of the variables that are going to effect the decision that you would make, even if you could get a substantially similar jacket, substantially similar weapon, substantially similar ammunition; correct?

A. No. Because if you are telling me that the whole jacket was covered with blood, that there were no remnants of the circular pattern left that were not damaged by blood, from which undamaged part we could deduce what we are trying to do. If you are telling me that, say, half of the, of the pattern were damaged, if you are telling me that then we can not perform a scientific test, no, I wouldn't agree with you.

Q. And how do you propose to duplicate all the body movements contributed by these other police officers trying to save this man's life?

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A. Either -- that couldn't be done. If it happened, that would be a reason for the loss of the gunpowder residue. Less for the soot. I'm surprised the soot wasn't found at that distance. But it's possible. These are things you take into consideration. But now all we have is the representation by the prosecution that in fact this test revealed whatever they said it was.

Q. Did you ever work --

A. It has not been verified by independent examination by a defense expert.

Q. Did you ever work with Anthony Paul?

A. Sure. Oh, I'm sorry, did I work with him?

Q. Yes, sir.

A. Did I work alongside of him at the same time? Or in an adversarial fashion? The second is correct.

Q. Okay.

A. Yes.

Q. Do you respect his work?

A. Yes, he's, he's, he's improved quite a bit.

Q. Does he respect yours?

A. I don't know.

Q. Okay. So you are telling us that it would be impossible to do what you propose to do for the Defendant, which is to duplicate using similar fabric

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with the same weapon and come up with what you think should have been the results obtained by the Firearms Identification Unit; was that fair to say?

A. No, because I haven't seen the evidence.

Q. Didn't you look at the pictures provided you by Miss Wolkenstein, sir?

A. I haven't seen any pictures.

Q. Did you ask Mr. Jackson for any pictures?

A. I didn't, Mr. Jackson didn't give me any pictures.

Q. Well, you charged him $350?

A. Maybe.

Q. Maybe. And you say that the majority of what you charged him for was for you to brush up on your own expertise and find out things that you probably were getting paid for because you knew it already; correct?

A. Wrong.

Q. Well, most of the time consumed was in reviewing literature -- and we concentrated on that -- tracking down the study and reading it, you got paid for doing that, right?

A. Yes. If I got paid. Probably did.

Q. Isn't that why he was paying you: Because you know that kind of stuff already?

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A. No, ESP is not one of my fortes. This was a recent scientific test that had been just published in the literature, if I recall, in 1981. The test had been conducted in 1978. In order for me to make use of it, and pout it in a fashion that Mr. Jackson could make use of it, or attempt to, it would be necessary for me to first get the test and then study it and then reduce it to a synopsis that he could use in his Court work.

Q. So you were doing on-the-job training at Mr. Jamal's expense, is that the idea?

A. I don't know if it was at my expense or Mr. Jamal's or the Commonwealth's or nobody's. I highly suspect the later.

Q. So, sir, are you saying that had you conducted those tests, despite all the problems of duplicating the situation, that you could sit here and testify, and could have done so in 1981 before a jury, that beyond a reasonable degree of medical certainty, without being able to reproduce these events, you could state that Mr. Jamal's weapon probably did or did not fire the bullet that went into Officer Faulkner's back?

A. Based on the study of the bullet.

Q. Based on the primer residue found or not

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found?

A. That only concerns the distance from which the gun was fired.

Q. Okay. So what would that have --

A. It has nothing to do with the identification of a gun having fired that bullet. If in fact we found some disparity because of the short barrel and the deposition of the powder residue in a test we would have a question.

Q. What does distance have to do with this case, then?

A. It must have something to do with the case because the prosecution used it in the case as one of the points of evidence.

Q. What would you have used it for or what are you using it for now?

A. The question is was it ever, was it ever questioned or possibly refuted by an independent examiner employed by the Defendant. And the answer is no.

Q. In other words, it has no significance from your point of view as an expert ballistician?

A. I don't recall saying that. What I said was that we have only the prosecution's findings. We don't know that an independent test and review of

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that material would have led us to another conclusion.

Q. I see.

A. Or would have verified that test. It wasn't done.

Q. And if you found that you didn't have enough information because there wasn't enough gunpowder, that still would not have refuted or proven anything because there are reasons you have just given us why you may not find that evidence on the jacket; correct?

A. That would certainly have to be taken into consideration, certainly.

Q. Lastly, you say in your affidavit you want to know the number, the width and the depth of the lands and grooves despite the mutilated nature of the bullet taken from between Officer Faulkner's eyes; correct?

A. Yes.

Q. I believe you say if I would have had the opportunity to examine the alleged murder weapon and bullet specimen, I might have been able to determine the number of lands and grooves, their width and their depth. That's the statement from your affidavit; correct?

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A. Yes.

Q. Are you familiar with the works of Dr. J. H. Matthews, who is a Harvard-educated scholar and author of a work entitled 'Firearms Identification'?

A. Yes, three-volume set, last one done after his death.

Q. That's right, Volume 1, Chapter 2, page 19. The depth of the grooves on a fired bullet has little application to the problem of identification of a firearm. While it is fairly easy to determine by measurement the depth of the grooves in a rifled barrel, it is very difficult to measure the depth of a groove on a fired bullet, and even when measurements are possible, they ordinarily have little meaning.

Now, you of course, obviously, disagree with this?

A. Obviously, I do.

Q. And do you agree or disagree with the commentary of Charles and Jack Gunther -- you are familiar with the Gunther brothers?

A. Yes, that's an old, old, old, old book. You are going back to, to the beginning of this as an art.

Q. Well, if it is an art, and if it is not a

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science, I guess anybody's opinion is as good as anybody else's, right?

A. It is opinion.

Q. Okay. They state, although it is possible to obtain by appropriate measurements the class, characteristics of the firearm from which the bullet was fired, it is perhaps a better plan to compare the questioned bullet -- that is the bullet you want to find out about -- with bullets fired from known types and makes of firearms --

A. Exactly.

Q. -- using the comparison microscope for this purpose.

A. Exactly. That's perfectly correct.

Q. And that's exactly what the Firearms Identification Unit did, didn't they?

A. I don't know.

Q. Pardon me?

A. I don't know that. I imagine they attempted to do that.

Q. Oh. You don't know?

A. Unsuccessful.

Q. I see. I see.

A. What we are talking about now is the attempt on the fired bullet specimen, the damaged bullet, to

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learn if there are any sections of that that could be measured which would possibly exclude the evidence gun.

Q. I see. And that's a nice theory if you have an undamaged bullet and all things are relatively equal?

A. Depends on the damages and degrees, like anything else.

Q. Okay.

A. It could be damaged and still be very valuable. It could be damaged and be totally useless. And it could be damaged to the point where there are no general rifling characteristics.

Q. Right. And this bullet was described, I believe, as extremely mutilated, distorted, gouged, bearing numerous foreign markings destroying the major portion of the rifling markings. And the base edge was distorted and mutilated; correct?

A. Right. What's major? And again a rhetorical question, sir, I am not questioning you. What is major? Is there sufficient, is there a sufficient quantity left -- a minor quantity, if you will -- which would enable us to make a measurement and determination under the proper microscopy techniques. I don't know.

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Q. Let's take some recourse to Dr. Matthews again and his volume. He states, if all fired bullets were undamaged and perfectly symmetrical and if each represented precisely the cross section of the barrel, measurements could be made and they would have some significance. But these bullets do not exist. No two bullets even when fired successively will be the same in every particular. The majority of bullets brought to the laboratory show some degree of mutilation and many of them show extreme mutilation.

So what makes you think that you could do better?

A. I would refer to a later book prepared at the taxpayers' expense called the CLIS, or the Crime Laboratory Information Service, compendium of rifling markings, wherein the FBI set forth, first on a computer, now in printout, various careful measurements of the bores of various firearms, including the lands, widths and depths, so as to enable investigators to determine if a particular bullet could have been fired in a particular type of firearm. If this lands and width measurement is so useless, then the taxpayers have been had once again.

Q. When was this study performed, sir?

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A. It is the current study, last one I have is 1992. It's been going on for years.

Q. Yeah, when did it start?

A. I don't recall.

Q. Well, that's nice that you recall that, or don't recall that, but we have to put our minds and our thought processes back to what was the state of the art in 1981. Because as good as they were, perhaps they can't predict the future, nor can they live in the future. So go back to 1981 and tell us what the state of the art was then in answer to this question?

A. I believe the CLIS program was in effect then except the FBI did not release it to the public, it was on computer and available only directly to police departments. I am sure the people from the ballistics lab could give you the particulars.

Q. So now you are sure that they had availability when just 10 seconds ago you didn't know when?

A. I didn't know when it started but I believe, you asked me for a date. You didn't ask me did this date overlap this particular incident. And I think it probably did.

Q. Now, the firearms examiner's report concluded, and was so testified to, fired bullets from Mr.

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Jamal's gun, when compared with the bullet removed from Daniel Faulkner -- and that phrase is important because you said you didn't know whether they compared the bullet that they took from Officer Faulkner's body with the test-fired bullet from Mr. Jamal's gun, didn't you?

A. No. I said that that test that you are referring to was made in order to determine if there were sufficient markings. Striae, if you will. Fine scratches, fine lines, peculiar to one gun. That if those were present on the evidence bullet, which would specifically then identify it as being fired from the gun which killed Officer Faulkner. That's the comparison that I understand that you are talking about.

Q. Well, I didn't think so but maybe you're right.

A. Oh.

Q. Test-fired bullets from Mr. Jamal's gun when compared with the bullet removed from Officer Faulkner, although insufficient to permit a positive comparison, are nevertheless consistent with the rifling characteristics of Defendant's Charter Arms revolver.

Now, they didn't say that the

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Defendant's gun shot the bullet in Officer Faulkner, did they?

A. No, but they also said that the general rifling characteristics were indeterminable. This is very strange. This is very strange.

Q. To you it's strange?

A. It sure is.

Q. Let us consider the Gunther brothers -- who you think, I guess, are archaic?

A. Who, sir?

Q. The Gunther brothers, Charles --

A. Charles.

Q. The lawyer and the --

A. Yes.

Q. -- mathematician?

A. Yes.

Q. If the evidence bullet is so distorted and mutilated that only a small portion of the signature -- that is the identifying markings -- remain intact, it will often be impossible to reach any definite conclusions. In some cases it may be possible to determine definitely only whether or not the evidence bullet was fired from a firearm with the same class characteristics as those of a suspected firearm.

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Now, that is exactly what the lab concluded and did, right?

A. The lab said that the general rifling characteristics were indeterminable. In plain English.

Q. Well, you have opined that since you didn't have a chance to look at the evidence, test the evidence -- all you did was read a report?

A. Yes.

Q. And you did not, basically, inspect the bullets, inspect the weapons, test-fire the weapons, visually compare under the microscope any of the bullet specimens, or inspect the fired cartridge cases, you could have made a difference in Mr. Jamal's case back then, right?

A. It's possible.

Q. Is it in your opinion to a reasonable degree of scientific certainty that you would have made a difference?

A. Only if you can predict with a reasonable degree of scientific certainty what a jury will do, and I don't think anybody in this world can. I can't.

Q. Well, we have what you didn't have in 1981. Would you be willing to try a hand at it now?

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A. Would I be willing to reexamine this evidence?

Q. Yes.

A. No, I would not.

Q. Oh. Well, you wrote this affidavit, you challenged the competency of the lab, you found that their reports were deficient, their tests were deficient: Certainly you would want to prove that you are right and they are wrong, wouldn't you?

A. I believe it would be unethical for me to do so.

Q. Why?

A. Because I have been retained by the defense and because I believe that if my report was adversarial you would go out and hire another expert anyway. So why waste time?

Q. I am not asking you to work for me.

A. Yes.

Q. So you could still be ethical and work for them.

A. I think they should hire someone who has not been involved to reexamine the evidence, if they are going to do that, if the Court so permits.

Q. I will talk your game but I am not going to back this up?

A. I don't think that is quite, this is not a

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game and it's my observations. I believe that the evidence should have been examined in the first place. I believe that if the Court is so disposed, that it should be done again. And you are asking me will I do it and I am not interested in doing it.

Q. Of course you are not. What if you were the Court's expert and we would rely on your opinion, sir, and you would have to take the money whatever your fee is -- and we have the evidence here today -- we scrounged all over City Hall for this, and other places -- wouldn't you want to take a shot?

A. I, I really don't want to re -- to examine this evidence for the reasons that I have explained. I think it's unethically -- it's unethical.

Q. It's unethical?

A. Yes, sir.

Q. Was it unethical to give your reminiscences in this affidavit, sir?

A. Reminiscences?

Q. Well, you are talking about possibility and speculation and I am talking about reality here?

A. I've analyzed the evidence that was proffered as far as ballistics go. And I've given my opinion as to whether or not the Defendant had adequate assistance in this particular area, for ballistics.

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And my opinion is that he did not. Now, that doesn't mean that I want to undertake to do it. And besides which, I don't want to open myself to the, to the accusation of churning.

Q. Well, let me say this to you.

A. That is of making work of attacking someone's findings to generate more work for myself.

Q. No one is accusing you of that.

A. Well.

Q. Let's assume that if you looked at these items -- excuse me -- if you looked at these specimens that you could determine that Mr. Jamal's gun was not the murder weapon. Wouldn't you want to do that, based on what you said in this affidavit?

A. Would I want to do it?

Q. Yes, sir.

A. As I say, there are competent people out there. I really feel that it would be unethical for me to do it at this point.

Q. What if the defense asked you? They are the ones paying you now, right?

A. I still, I will still, I would have to give it some serious thought and talk to them about it.

Q. How much are they paying you to come in here and say this today?

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A. I hope that they'll pay my daily rate.

Q. Which is?

A. 750 a day.

Q. $750 a day?

A. Yes, sir.

Q. And that includes each day that you come down to Court?

A. Unfortunately not.

MR. GRANT: Thank you.

THE COURT: Could we recess for lunch?

MR. WEINGLASS: There is redirect. There is redirect.

THE COURT: At 2:30.

THE COURT OFFICER: This Court now stand in luncheon recess until 2:30 this afternoon at the call of the Crier.

(Luncheon recess was held until 3:00 p.m.)

MR. GRANT: Your Honor, Mr. Fassnacht is on the stand and has not begun redirect yet and there was an area about .44 bullets that I failed to inquire into and I would like to have leave to reopen and ask him about that .44

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bullet.

THE COURT: Okay.

MR. WEINGLASS: I object to this, Your Honor. Because yesterday Mr. Williams asked to reopen and he was denied that privilege by the Court. And I think those applications, if they are denied on one side, in fairness ought to be denied to the other side as well.

MR. GRANT: He didn't ask to reopen, Judge. He hasn't cross-examination.

THE COURT: Okay. I will allow you to proceed.

MR. GRANT: This will be very, it will be very brief.

(George Fassnacht, having been previously sworn,
was examined and testified as follows:)

CROSS-EXAMINATION (Continued)

BY MR. GRANT:

Q. Good afternoon, sir.

A. Good afternoon.

Q. You mentioned that Dr. Hoyer measured the base

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of the bullet taken from Officer Faulkner.

A. Yes, sir.

Q. And you said it measured 10 millimeters?

A. That is correct.

Q. And then you expressed how it was four-tenths of an inch, that is the equivalent of 10 millimeters?

A. Yes, that's right.

Q. What is the true diameter of a .38, such as the snub-nose used by Mr. Jamal, what would that be?

A. .35 inches.

Q. In millimeters?

A. 9 millimeters.

Q. So the distinction we are talking about between the .38 and the measurement of Dr. Hoyer was 1 millimeter; is that right?

A. No, it's more like 5 millimeters.

Q. Well, no, between a 9 millimeter measurement --

A. Oh, millimeters, I'm sorry. I'm sorry, I'm thinking in terms of tenths of an inch or -- yeah, you are quite correct: 1 millimeter.

Q. A true .38 snub-nose, the diameter across would be 9 millimeters?

A. Yes.

Q. The bore?

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A. The bore.

Q. And this bullet was measured at 10 millimeters?

A. That is correct.

Q. So we are talking about 1 millimeter?

A. Yes.

Q. Now, did you know, from reading the report or from reading the autopsy report or the FIU report, that this bullet had a hollowed base?

A. I believe so.

Q. And what is the significance of that in terms of the expansion of the base upon firing, sir, from a short-barreled weapon?

A. Ahh, from a short-barreled weapon it could expand.

Q. Do you think it could expand as much as half a millimeter on either side of the bullet base?

A. Possible.

Q. And you don't know whether or not Dr. Hoyer was measuring this bullet with a simple ruler, do you?

A. I have no idea.

Q. If you were going to give your expert opinion in this area of ballistics, would you use precision instruments or an everyday ruler?

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A. Probably an optical instrument.

Q. Meaning a microscope?

A. Or a, there are a number of optical measuring devises you could use, sure. A microscope -- short of a microscope. You could use a microscope of course.

Q. And the last thing is that the base of this bullet was mutilated and distorted on the base edge; correct?

A. Yes.

Q. Now considering all those three variables, is it unlikely -- strike that. Considering those three variables -- the only distinction we are making here is 1 millimeter, mind you -- is that explainable by looking at the fact that this is a hollow-based bullet which expands upon firing from a short-barrel gun, that the base of the bullet when found was mutilated and distorted, and precision instruments may not have been used, would that explain the millimeter?

A. Yes.

Q. In any event, no matter whether that explains it or not, you know from your own expertise that this is no way close to being a .44 caliber bullet, don't you?

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A. Yes.

Q. It's consistent, if anything, with a .38 caliber bullet, isn't it?

A. Or a .40 caliber bullet. I haven't seen it so I can't tell.

Q. .40 caliber bullet? How much would a .40 caliber bullet weigh, anyway?

A. Oh, I don't know. There are .40 caliber automatics and --

Q. Well, can you tell that this bullet was fired from an automatic as opposed to a revolver?

A. You should be able to if it hadn't been too badly distorted.

Q. And if it was fired from a revolver and not an automatic --

A. There is also a 10 millimeter automatic which is roughly the same.

Q. But I am not talking about automatics, I am talking about revolvers.

A. I am just giving you types of guns in response to your question.

Q. No, my question is considering revolvers only.

A. Yes.

Q. What's the closest approximation in terms of diameter that this bullet would have come from were

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it not an automatic?

A. I would say a .38. But there's also a .4l caliber revolver.

Q. I am sure. Is that an automatic too?

A. No, it is a revolver.

Q. To your knowledge, is there any indication in this case whatsoever of a .41 caliber weapon?

A. No, no, not at all.

Q. And if Dr. Boyer, or anybody, said that the bullet that was taken from Daniel Faulkner's skull was .44 caliber, you, even you, paid by them, would say that can not be, wouldn't you?

A. Was .44 caliber? I haven't seen it.

Q. No, but I didn't ask you that.

A. Yes.

Q. If it were .44 caliber -- you saw the FIU report: You based your testimony on reading it?

A. Yes.

Q. Considering what you read, you must admit to a reasonable degree of scientific certainty that a .44 caliber that was not?

A. Yes, I would agree with that.

MR. GRANT: Thank you.

- - - - -

REDIRECT EXAMINATION

- - - - -

Page 161.

George Fassnacht - Redirect

BY MR. WEINGLASS:

Q. Based on what you read of the police laboratory. But if that information was in error you would have to change your opinion?

A. Yes, that's true also.

Q. You haven't had a chance to see that bullet yourself?

A. That is correct.

Q. So what you were doing is you were answering Counselors' question on the assumption that the police laboratory was accurate?

A. Yes.

Q. And you found the police laboratory in other instances to be contradictory?

A. Yes.

Q. And also incomplete?

A. Yes.

Q. Now, you were asked a series of questions about your performance as an expert over the last 20 years. Do you recall that?

A. Yes, sir.

Q. And you indicated that you primarily or almost exclusively, I believe, testified for the defense?

A. Yes.

Page 162.

George Fassnacht - Redirect

Q. Mr. Fassnacht, if you had been asked by any agency of the United States, or any state government involved in law enforcement or prosecution, to testify as their expert, would you have done so?

A. Certainly.

Q. So it isn't that you have a bias against prosecutions, it's just that you have been asked and employed by one side of a criminal case?

A. Yes.

Q. And in your background at Aberdeen Proving Ground, who employed you there?

A. The United States Army.

Q. And were you also employed by the Central Intelligence Agency?

A. Yes.

Q. Were you also employed by the Police Department of Philadelphia?

A. Yes.

Q. Are you a person who has a bias against law enforcement?

A. No.

Q. Are many of your friends in law enforcement?

A. Yes.

Q. And when you testified for the defense in the ordinary course, would you indicate to the Court how

Page 163.

George Fassnacht - Redirect

you ordinarily enter a case?

A. Well, I'm requested by the attorney to, who believes that he has a case, to examine the evidence and render an opinion.

Q. And in your experience does the attorney do a pre screening of the ballistics material that he has before he or she brings you in?

A. Yes, usually the attorney wouldn't attempt to hire an expert unless he felt that he had something to hang his hat on that was worth looking into.

Q. So there is, so far as you know, a preliminary decision made that there is something in the case that they want you to look at?

A. That bears looking into. Bears investigation, yes.

Q. Now, in some of those cases when you are brought in and you examine the ballistics material, usually by a police laboratory or by the FBI, do you find on occasion that the ballistics information or work done by law enforcement was correct and accurate?

A. Certainly.

Q. And do you tell the attorneys that?

A. Yes.

Q. So you don't always find police or law

Page 164.

George Fassnacht - Redirect

enforcement work to be inaccurate or wrong?

A. That's correct.

Q. Now, when you worked for the City of Philadelphia Police Department, did you also teach at the Police Academy?

A. Yes.

Q. And who would you teach at the Police Academy?

A. The training class of police, as they came through each class received a lecture from someone at the Firearms Unit.

Q. And you would lecture them on firearms?

A. Yes.

Q. And in those lectures that you gave the new police officers, or the new police officers to be, would you tell them about this test of smelling the barrel of a gun to see if it had recently been fired?

A. Yes.

Q. And that was part of their training?

A. Yes.

MR. WEINGLASS: May I have this next object marked?

THE COURT OFFICER: D-15.

(FIU report was marked Defense Exhibit
D-l5 for identification.)

MR. WEINGLASS: Showing Counsel a

Page 165.

George Fassnacht - Redirect

four-page document marked Commanding Officer, Homicide Division, Firearms Identification Unit, marked D-l5 (handing).

(Pause.)

MR. GRANT: Thank you, Counselor.

MR. WEINGLASS: Could the document be shown to the witness?

THE COURT OFFICER: D-15, sir (handing).

BY MR. WEINGLASS:

Q. Now, preliminarily, Mr. Fassnacht, I would like to ask you this. Do you recall on cross-examination with respect to the smell test to determine recent firing, Counsel asked you if you knew when the Firearms Identification Unit received the gun, the suspect gun in question? Do you remember being asked that question?

A. Yes.

Q. And you indicated that you didn't know.

A. Right.

Q. Could you read the first full paragraph of that report?

A. Examination has been made December 9th, 1981 of the following evidence received from Police Officer J. Forbes, Number 9811, Stakeout Unit,

Page 166.

George Fassnacht - Redirect

December 9, 1981, at 5:55. It looks like a.m. but... the letter is partially occluded.

Q. Having looked at that Exhibit now, does that refresh your recollection that the Firearms Identification Unit had the guns at 5:55 a.m.?

MR. GRANT: Objection to leading.

MR. WEINGLASS: I am asking if it refreshes his recollection. He might say no.

MR. GRANT: I will withdraw my objection.

THE COURT: I thought he said he wasn't sure what it said because he couldn't read it, it was smudged or something.

MR. WEINGLASS: He said he thought it was a.m.

THE COURT: Well, he wasn't sure.

MR. WEINGLASS: Well, I appreciate the Court's observation.

THE COURT: That's what he said. I am only repeating what he said. I didn't see the document, I don't know. Do we have a better document here?

MR. GRANT: I do (handing).

MR. WEINGLASS: Thank you. Counsel generously gave me his document which is a

Page 167.

George Fassnacht - Redirect

clearer document.

THE COURT: What does it say?

MR. WEINGLASS: It says -- if we can agree -- a.m.

THE COURT: A.m.?

MR. GRANT: We can agree. And I object because it doesn't say that testing was done, it said they got the gun from the officer at that time.

THE COURT: Okay.

MR. WEINGLASS: Yes, thank you (handing).

BY MR. WEINGLASS:

Q. So according to this document, the Firearms Unit had the suspect weapon at 5:55 a.m.?

A. Yes, sir.

Q. Within about two hours of the alleged shooting?

A. Yes.

Q. Right. And your testimony was that the smell test could be employed between four and five hours, and possibly up to six hours?

A. Yes.

Q. Any indication in the Firearms Unit report that they smelled the gun at 5:55 or any time

Page 168.

George Fassnacht - Redirect

thereafter?

A. Hmm, none that I have seen.

(Discussion was held off the record at
this time among defense Counsel.

BY MR. WEINGLASS:

Q. With respect to your expertise, the fact that the report is silent with respect to any odor from the gun, does that indicate to you that there was no odor coming from that gun?

MR. GRANT: Objection, Your Honor. How is he going to answer that?

THE COURT: I'll sustain that.

BY MR. WEINGLASS:

Q. Now, you were asked a hypothetical about the evening in question with respect to whether or not a trace metal detection test could have been employed on Mr. Jamal. And I want to ask you this hypothetical. If Mr. Jamal was taken into custody at approximately 3:54 a.m. on December 9th, 1981, and he was in a hospital within 20 minutes and his hands were handcuffed to a stretcher, if you were present in the hospital at that time and you were in charge of the law enforcement investigation, as an expert would you have requested that a, a test, the swabbing test be employed to see whether or not he had

Page 169.

George Fassnacht - Redirect

recently fired a weapon?

A. Yeah.

MR. GRANT: Your Honor, first of all, he was not handcuffed to any stretcher. A stretcher was never used. If he is going to use a hypothetical he must quote from the record the facts that existed, not the ones he would like.

MR. WEINGLASS: Strike stretcher and use gurney.

MR. GRANT: And that didn't happen until after he was in the hospital and about to be operated on.

THE COURT: Rephrase your question so it's not objectionable.

MR. WEINGLASS: Right.

BY MR. WEINGLASS:

Q. If he were --

THE COURT: He says quote from the record itself.

MR. WEINGLASS: I don't have it available immediately. And I might point out Counsel didn't quote from any record when he used his hypothetical with the Court's blessing.

MR. GRANT: If he objected I would have. I have it right here before me

Page 170.

George Fassnacht - Redirect

MR. WEINGLASS: I hear no objection so I am proceeding.

BY MR. WEINGLASS:

Q. Now, Mr. Fassnacht, if he had been arrested at about 3:54 a.m., admitted to the hospital at 4:10, and placed in a treatment area, and if you were present at that time, would you have requested that he be tested to determine whether or not he had recently fired a weapon?

A. Yes.

Q. Now, when you were questioned on direct, were you offering any expert opinion as a, with a reasonable degree of scientific certainty as to what tests would have shown in 1982, tests that you never performed?

A. I ...

Q. On direct.

A. Yes.

Q. Could you offer any expert opinion to a reasonable degree of scientific certainty on a test that you never have performed?

A. No.

Q. On your direct testimony the only expert opinion you were offering, was it not, was that you should have been able to conduct such tests so that

Page 171.

George Fassnacht - Recross

you would have been able to testify before a jury?

A. That's correct.

Q. And you wouldn't venture an expert opinion with respect to a test that you hadn't yet conducted?

A. Yes.

Q. And based on your review of the materials that were provided to you, you determined that you should have been employed as an expert back in 1982 since you could have offered evidence in support of defense contentions in that trial?

A. Yes.

Q. And that you weren't because there were no funds available to retain you?

A. That's correct.

MR. WEINGLASS: Fine. I have nothing further.

RECROSS-EXAMINATION

BY MR. GRANT:

Q. Sir, he just asked you a series of questions and what those questions went to was that if you had been given the money you wanted when you were employed beginning in late March, early April, you could have conducted tests on Mr. Jamal's hand to

Page 172.

George Fassnacht - Recross

tell whether he shot that gun five months before?

A. No.

Q. That's what he just asked you and you just said yeah.

MR. WEINGLASS: Objection. He wasn't asked that.

THE WITNESS: I didn't understand the question to be that at all.

BY MR. GRANT:

Q. What did you understand it to be?

A. He said should that test have been conducted, and the last question that he asked was pertaining to the examination of evidence that was examinable after the fact.

Q. I thought he said to you --

A. Not my understanding, sir.

MR. GRANT: Well, we could read the record back and we will resort to that.

MR. WEINGLASS: Could we read the record back? I accept Counsel's request.

THE COURT: Just sit down, will you please. Let him rephrase his question.

MR. WEINGLASS: Well, Counsel asked that the record be read back. I join in that.

MR. GRANT: I did not ask and I will

Page 173.

George Fassnacht - Recross

ask when I am ready.

MR. WEINGLASS: No wonder you didn't ask, because you are wrong again.

THE COURT: Strike all of those extra comments by the attorneys. Strike them from the record, please.

MR. WEINGLASS: Now, Your Honor, you always permit leeway to the other side.

THE COURT: I will not have this record cluttered with unnecessary comments. Just strike the comments from both sides. Okay.

MR. WEINGLASS: You never struck the other side's comments.

THE COURT: Did you ever ask?

MR. WEINGLASS: Many times. And I will from now on.

THE COURT: Okay.

BY MR. GRANT:

Q. Mr. Fassnacht --

A. Yes, sir.

Q. -- do you not recall attorney Weinglass saying to you, and do you feel that you should have been able to conduct the tests on Mr. Jamal so that you could have offered evidence to support the defense position, and he was asking you at that time about

Page 174.

George Fassnacht - Recross

gunshot residue from the shooter; do you recall that question?

A. No, I don't. And I don't recall understanding his question in that fashion.

MR. GRANT: Could I go back to that portion of the record if I may, Your Honor. And ask, I think it was the last four questions Mr. Weinglass asked.

THE COURT: If he can find it.

(The Court reporter read the following questions and answers at this time:

Question: On your direct testimony the only expert opinion you were offering, was it not, was that you should have been able to conduct such tests so that you would have been able to testify before a jury?

Answer: That's correct.

Question: And you wouldn't venture an expert opinion with respect to a test that you hadn't yet conducted?

Answer: Yes.

Question: And based on your review of the materials that were provided to you, you determined that you should have been employed as an expert back in 1982 since you could have

Page 175.

George Fassnacht - Recross

offered evidence in support of defense contentions in that trial?

Answer: Yes.

Question: And that you weren't because there were no funds available to retain you?

Answer: That's correct.)

THE COURT: Read that first one again, please.

(The Court reporter read the
following question and answer at this time:

Question: On your direct testimony the only expert opinion you were offering, was it not, was that you should have been able to conduct such tests so that you would have been able to testify before a jury?

Answer: That's correct.)

MR. WEINGLASS: Could Counsel apologize to the Court? It was misstated so now we know.

THE COURT: No comments, please.

BY MR. GRANT:

Q. What that question said, was that your position: You should have been able to conduct that test?

Page 176.

George Fassnacht - Recross

MR. WEINGLASS: Such tests. Counsel is still misstating even after it's been read twice. Your Honor, this is hopeless. Counsel can't hear what he's just been read and he is misstating it.

BY MR. GRANT:

Q. By such tests --

MR. WEINGLASS: Could it be read a third time?

THE COURT: Counselor, please.

BY MR. GRANT:

Q. By such tests, that includes the swabbings you were talking about taking from Mr. Jamal's hand, sir?

A. Certainly not.

Q. Because that would be a ridiculous position to take?

A. Preposterous, absolutely preposterous.

Q. And there is no way that you would ever, no matter how much money they gave you, take a test for gunpowder residue on a person three months down the road, would you?

A. It's ludicrous. That's not what he was talking about, as I understood it.

Q. All right, now, sir, you said that this smell test, this sniff test or whatever it is --

Page 177.

George Fassnacht - Recross

A. Yes.

Q. -- is it a generally accepted method to determine recent firing?

A. Yes.

Q. Is it used in the Los Angeles Police Department?

A. I'm afraid to speculate on what the Los Angeles Police Department might do.

Q. Do you know anybody --

THE COURT: Okay.

THE COURT OFFICER: Order in the Court.

BY MR. GRANT:

Q. Do you know anybody in the Chicago Police Department that uses this?

A. So that you won't think that I'm referring to the wrong thing, or the wrong event, we all know, what I am referring to is the fact that the Los Angeles Police Department Ballistics Laboratory was fired en mass, every last man jack of them, and replaced by outside help because they made so many errors. In this science, as some of us think.

Q. Do you know if anybody in the Chicago Police Department smells guns when they get them?

A. I have no idea.

Page 178.

George Fassnacht - Recross

Q. Do you know of anybody that works for them?

A. No.

Q. Do you know of anybody that works in the San Francisco Police Department that smells guns when they get them?

A. No.

Q. Do you know of anybody in any major urban area that you personally know that sniffs guns?

A. I don't personally know any of them.

Q. Well, how can you say in your affidavit under penalty of perjury that this is a generally accepted method of determining recent firing?

A. It is the only method and it is generally accepted by people.

Q. By whom?

A. By people in my field.

Q. But you don't know any of them, do you?

A. Certainly I know --

Q. Name two?

A. Howard Montgomery, who was former supervisor of the Philadelphia Police Department, now in Delaware County with the State Police.

Q. So was he your teacher?

A. My teacher?

Q. Yes, was he your boss at some point and taught

Page 179.

George Fassnacht - Recross

you how to smell guns?

A. It was the other way around.

Q. You taught him to smell guns?

A. He knew that without being told.

Q. So the only people you know to do this are people you told to do this?

A. It's something that anyone who has a lot of experience with firearms realizes.

Q. Could that test be reproduced so that defense counsel, when they want to go back and say I want to test to see if that person's nose was accurate, can you reproduce that test so they can check it out?

A. No more so than you could reproduce an eyewitness' vision of the scene, no, certainly not.

Q. Are your answer is no?

A. No.

Q. And except for your version of what your nose smells, you could say that right on the report, condemn an individual to a prison sentence or worse, and there is no way that they can challenge it?

A. That is a test that can not be reproduced, if that's what you are driving at.

MR. GRANT: Thank you.

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

Page 180.

MR. WEINGLASS: I have no questions.

THE COURT: You are excused, Mr. Fassnacht.

Mr. Weinglass? Robert Harkins?

MR. WEINGLASS: No, our next witness is present, Steve Hawkins. The affidavit has been submitted with Mr. Hawkins on Mr. Hawkins' testimony.

THE COURT: Okay? wait awhile. I thought I ruled he was out.

MR. GRANT: Yes, Your Honor, I thought they were supposed to submit cases on him as to why he should even be allowed to testify in this Courtroom.

THE COURT: Yes, that's what I said.

MR. GRANT: We have a case here for you, it is called Commonwealth versus Neal and it is cited at 618 Atlantic 2nd, page 438. It is a Pennsylvania Superior Court case, 1992 vintage. And I would be glad to hand it up to this Court.

MR. WEINGLASS: I am familiar with that case and it has no application to Mr. Hawkins' testimony. We are not calling him as an expert on any area in this case, we are

Page 181.

calling him as a fact witness.

MR. GRANT: Well, then his affidavits were in the area of I'm an expert in death penalty litigation and I found -- just a minute -- and I found ineffectiveness. If that's not an expert opinion I don't know what is.

The other affidavit dealt with I talked to a Juror and I asked her about what went on in her mind in the Jury room and outside the Jury room. But not because some third party intervened or a foreigner came in, but among the Jurors what happened. And that is incompetent.

So he is a legal expert and he is not permitted to testify as an expert, or he is a hearsay representative of what a Juror said and that is incompetent testimony.

MR. WEINGLASS: Once against Counsel omits or he hasn't read Mr. Hawkins' affidavit. He says some of those things that Counsel alludes to but he says more, and that's what he will be --

THE COURT: Give me a copy of that and when I get a chance tonight I will be glad to read it over.

Page 182.

MR. WEINGLASS: Your Honor has it.

THE COURT: I don't have them with me, okay. All right.

MR. WEINGLASS: Sorry you didn't.

THE COURT: Counselor, I want to read the case too.

MR. WEINGLASS: Sure.

THE COURT: Do you have any cases to give me?

MR. WEINGLASS: None are necessary.

THE COURT: Okay, fine. I will take it under advisement.

MR. GRANT: Your Honor, with respect to, with respect to the Juror incompetence, I do have -- Are you going to contest that, Counsel?

MR. WEINGLASS: The Neal case?

MR. GRANT: No, are you going to contest whether or not he is allowed to comment about the Juror's statements, hearsay statements?

MR. WEINGLASS: We are going to -- I will answer Counsel's question. I am not accustomed to being questioned by Counsel.

Page 183.

MR. GRANT: I'm sorry.

MR. WEINGLASS: But I will answer it anyway. Mr. Hawkins was tendered in exhibit 10 and exhibit 11, both of which are sworn affidavits by Counsel.

MR. GRANT: I will give the Court cases on the Juror issue (handing). I just have excerpts, I don't have the copy of the case but I do have citations for Your Honor.

MR. WEINGLASS: One affidavit, which is exhibit 10 by Mr. Hawkins, deals with the issue of the Jurors. The second affidavit, which is exhibit 11, deals with the question of ineffective assistance of Counsel on the appellate stage of the proceedings.

Now dealing with number 11 first: Mr. Hawkins' testifies under oath in the affidavit that he personally interviewed appellate Counsel. And that in response to an inquiry by him, appellate Counsel acknowledged to him that the trial record was never read.

MR. GRANT: It does not say that here.

MR. WEINGLASS: It does, Counsel, paragraph 3A.

MR. GRANT: Read it into the record.

Page 184.

MR. WEINGLASS: Right. During the course of my interview -- I will transliterate -- with appellate Counsel --

MR. GRANT: No. Well, yes.

MR. WEINGLASS: With appellate Counsel.

MR. GRANT: Yes.

MR. WEINGLASS: During the course of my interview with appellate Counsel, as well as after reviewing her files, I learned of several irregularities --

MR. GRANT: That's what I am saying: It doesn't say she told me anything.

MR. WEINGLASS: -- that occurred in her representation of Mr. Jamal. A, appellate Counsel never read the trial record in Mr. Jamal's case.

MR. GRANT: It doesn't say she told him that.

MR. WEINGLASS: He will say that on the stand, I represent that.

MR. GRANT: May we go to sidebar? I think Counsel wants to go to sidebar.

THE COURT: All right, back here.

- - - - -

Page 185.

(Discussion held in the Judge's robing
room was transcribed and was sealed by Court order.)

- - - - -

THE COURT OFFICER: Court is back in session.

MR. WEINGLASS: The Court has made a ruling with respect to exhibit 11. We take exception to that ruling.

THE COURT: You don't have to take exception: It's automatic.

MR. WEINGLASS: Referring to exhibit 10, which deals with the question of the Jurors. And if you read exhibit 10, there is one thing that has to be said right at the outset, and it's this: Mr. Hawkins will not testify at all about the deliberative process that the Jury engaged in, or any aspect of any Juror's conduct, thinking in the course of deliberative, the deliberative process. He will only testify as he is entitled to testify, about Juror misconduct that happened after the Court hours. That happened in the hotel. And that involved named Jurors that are named in his affidavit.

And so I want to be clear at the

Page 186.

outset: We are not talking about attacking a verdict by inquiring of the deliberative process. We are talking about Jury misconduct, the violation of two Court orders by Jurors. And that this witness Mr. Hawkins had received this information directly and personally in a conversation with a Juror, who informed him that Jurors met in the hotel behind closed doors and conducted what, according to the one Juror, appeared to be private deliberations by a group of three Jurors out of the presence of the others while the case was being tried and prior to the conclusion of the evidence.

And I think that's evidence that the Court should hear at this time. Because, Your Honor, if we are talking about Juror misconduct, we are talking about the core of the truth-seeking process. Where because of acts taken by Jurors, the entire process is infected by wrongdoing and therefore has no credibility and has to be set aside. I think the law on that is very clear. I think jury misconduct always leads to a new trial in the interests of justice. And I think there is evidence of that here and it's direct evidence from one of the

Page 187.

seated Jurors to Mr. Hawkins. And he's here to testify about that under oath.

MR. GRANT: And that's not admissible either. Let's assume that he was allowed, if he were allowed to present this. That means he would have to bring that Juror in and subject that Juror to cross-examination so he could say well, how did you, through closed doors, cordoned off from these people that you say were involved in open wrongdoing, did you hear this. Did you have a hole. Did you see through a window. Have a glass door. And he knows very well that is not admissible testimony. What has to be shown for them to get into that is some third-party or outside influence on the Jury. What he is accusing the Jurors of is interfering with themselves. It doesn't matter whether it is in a hotel room, in the basement of this building, or in a subway station, it is not an outside influence, it is the influence that they have on one another. And Counsel is not giving you any cases because he knows the law is the same in New York as it is in Pennsylvania. And the cases say you can't do it. And if he could find a case that says he can do it I would agree

Page 188.

with him.

THE COURT: All right.

MR. WEINGLASS: I never wanted to have to make reference to this particular trial and this case but I am afraid I am going to have to. In a noted case that's being tried right now in the state of California, 10 jurors have been dismissed, not because of any outside influence, but because of an interaction within the jury, that the sitting court there, under the same law that governs Pennsylvania and New York --

THE COURT: I don't want to get involved with California or OJ Simpson. All I am saying to you --

MR. WEINGLASS: Apparently anybody who reads the newspaper incisively is familiar with what is happening, and it is all what Counsel referred to: Interrelations of an improper nature between the jurors.

THE COURT: Counselor, give me a case on it. Research the law, give me a case on it, I will read it. If you are right I will let it in.

MR. WEINGLASS: I believe our memorandum of law does give the --

Page 189.

THE COURT: I don't want a memorandum, I want a Xerox of the case. Get me the case so I can read it myself.

MR. WEINGLASS: Well, we gave you a memo.

THE COURT: In the meantime I will hold him in abeyance. Let's go on with the next witness.

MR. WEINGLASS: Your Honor, we gave you a memorandum of law on this issue on June 5th.

THE COURT: I want a Xerox copy of the case. Don't give me the memorandum, okay.

MR. WEINGLASS: Your Honor, we call witnesses to Court and prior to putting them on the stand --

THE COURT: Well, he is an attorney and he is available to you at any time. There is no big deal.

MR. WEINGLASS: He doesn't practice in Philadelphia.

THE COURT: I can't help that.

MR. WEINGLASS: I know but.

THE COURT: I will hold that under advisement. Give me a case. Xerox the case for

Page 190.

me, I will be glad to read it. And if you are right then I will let you do it.

MR. WEINGLASS: The proposition the Court wants to hear about is what constitutes juror misconduct as opposed to deliberative process?

THE COURT: Counselor, please. I think you understand what his objection was from the D.A.'s Office.

MR. WEINGLASS: But he is not the Judge.

THE COURT: I know that but he has given me a case to read. You give me a case to read and I will be glad to read it.

Counselor, I have made a ruling. Now please. Please. Okay, let's go. If you have any other witness today give me the other witness.

MR. WEINGLASS: Here are the cases, Your Honor.

THE COURT: I don't want to hear the cases.

MR. WEINGLASS: United States --

THE COURT: I am not going to look them up. You Xerox the case for me and give it

Page 191.

to me and I will read them. I didn't ask you for a brief. I said Xerox the case for me.

MR. WEINGLASS: One is a Pennsylvania case. Does Your Honor have the Court Reporter?

THE COURT: Don't give me that. Xerox the case for me. I want to take it home with me.

MR. WEINGLASS: I can't give it to you by the time you go home. I have to go home too.

THE COURT: Well, okay. We will all go home.

MR. WEINGLASS: We all go home.

THE COURT: Who is your next witness? Xerox it for me.

MR. WEINGLASS: I thought the Court was directing us to --

THE COURT: Counselor, please. No more comments like that. I don't want to have to hold you in contempt. So please. Let's go. I said I would take it under advisement. I will read this. And Xerox the cases for me. You have a Philadelphia attorney here: Call him on the phone, let him Xerox it for me and bring it in.

MR. WEINGLASS: At this point we would

Page 192.

like to call attorney Kracoff. K-R-A-C-O-F-F.

THE COURT: That one is out too according to my notations here.

MR. GRANT: Yes.

MR. WEINGLASS: That one's out?

THE COURT: Yes.

MR. WEINGLASS: We submitted an affidavit.

(Discussion was held off the record at
this time between Commonwealth and defense Counsel.)

MR. WEINGLASS: He is a Pittsburgh attorney.

THE COURT: Wait.

MR. WEINGLASS: He is out also?

THE COURT: For the time being he is. How about Robert Harkins?

MR. WEINGLASS: Hold on just a minute.

(Discussion was held off the record at
this time between Commonwealth and defense Counsel.)

MR. WEINGLASS: Your Honor, we have lost three out of our four witnesses today.

THE COURT: I know that.

MR. WEINGLASS: It imposes a certain

Page 193.

Robert Harkins - Direct

hardship.

THE COURT: How about Harkins? You said you --

MR. WEINGLASS: District Attorney has made him available. I want to thank him for that.

THE COURT: Okay.

MR. WEINGLASS: We will call Robert Harkins.

THE COURT: Robert Harkins, please.

THE COURT OFFICER: Yes, Your Honor.

- - - - -

Robert Harkins, having been duly
sworn, was examined and testified as follows:

- - - - -

DIRECT EXAMINATION

BY MR. WILLIAMS:

Q. Mr. Harkins, right? Good afternoon.

A. How do you do?

Q. Now, you and I have never met, have we?

A. I don't think so.

(Discussion was held off the record at
this time between Commonwealth and defense Counsel.)

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BY MR. WILLIAMS:

Q. Mr. Harkins, if you could do us a favor: If you could pull the microphone a little closer to you I would appreciate it, okay. Do you need assistance with your chair or anything?

Now, Mr. Harkins, do you understand what these proceedings are about?

A. A little bit.

Q. A little bit. Do you understand that there has been a Petition filed by Mr. Jamal, seated here (indicating), for a new trial?

A. Yes.

Q. Now, were you ever contacted by any member of the District Attorney's Office since June of this year?

A. No, I don't think so.

Q. Were you ever contacted by any member of law enforcement since June of this year?

A. Only down the Roundhouse to talk to them for routine records.

Q. I'm sorry, I didn't --

A. I go down to give another statement to them.

Q. Oh, somebody from law enforcement asked you to give another statement?

A. No, come down and ask me to read the statement

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they already had.

Q. To read the statements?

A. Yes, sir.

Q. Do you remember who that was?

A. Who came out to see me?

Q. Yes.

A. Detective Welsh and Detective Miller.

Q. Do you remember when that was?

A. No, in July sometime, I think, if I am not mistaken.

Q. Just a few weeks ago?

A. Yes. Ahh...

Q. I'm sorry?

A. I am trying to remember the date, but.

Q. Dates are difficult, I know. But in any event, sometime in July two detectives went to see you and asked you to come to the police precinct?

A. No, they didn't come to ask me to go to the police station. They come up to where I work at and they asked me to talk about the case. And I said I won't talk to nobody until I go down the Roundhouse and talk down there. Because I didn't know who they was.

Q. And you did do that?

A. Yes, they come back with a car and picked me

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up and took me down.

Q. Did they tell you what they wanted or how they wanted you to help them?

A. No, this one told me the trial would be reopened and they just wanted me to give them a statement if I could remember what I told them back in '81.

Q. And what did you tell them when they asked you that?

A. I said I remember some of it.

Q. And did you read some police reports containing your statements that you gave back in 1981 and '82?

A. Yes, I did.

Q. And did that help you refresh your recollection?

A. A little bit.

Q. A little bit. Okay. And did they discuss anything about what's happening here in this Courtroom?

A. No, they haven't.

Q. Did they talk to you about whether people from the defense side of the case or an individual from the defense side of the case had ever talked to you or tried to talk to you?

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A. No, they did not tell me to say anything to anybody, I did that on my own. I told them I wouldn't talk to anybody until I went down the Roundhouse.

Q. Until you...?

A. They took me down the Roundhouse. I talk to them down there.

(Discussion was held off the record at
this time between Commonwealth and defense Counsel.)

BY MR. WILLIAMS:

Q. Before those detectives visited you, had you talked with any detectives or anybody from law enforcement since 1982?

A. No, I have not.

Q. Now, do you remember back in January of 1994 -- to be specific, January 9th, 1994 -- receiving a visit from an investigator named Robert Bugler?

A. That I don't remember, no, sir.

Q. You don't remember?

A. No.

Q. Being visited by an investigator?

A. There were so many came around, so many different ones came around. They come up my, where I

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work at and came down my house, and I told them I didn't want to talk to them.

Q. Let me get this straight. You are saying many people came to visit you?

A. In -- let's see. It was about two of them came up the gas station where I worked at. Then a couple of them came to the house. And a couple more came to the house. Since after it started and I told them I wasn't talking to anybody.

Q. I see.

A. And the last two that came around I told them that I won't talk to them unless it was in a courtroom.

Q. Now, back in January of 1994, do you remember a man named Mr. Bugler talking to you?

A. No, I don't.

Q. Do you remember having a discussion of some kind with some individual where you told that individual that the detective downtown told you not to talk to anybody?

A. No, I never said that to anybody.

Q. Were you aware, Mr. Harkins, that there was an affidavit filed in this case where your name was mentioned?

A. No, not till Detective Welsh and Morgan came

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up the gas station and told me that.

Q. They told you that?

A. Yeah.

Q. Did you see that affidavit?

A. Hmm, no, I don't think so.

Q. Did anybody read to you that affidavit where your name is mentioned?

A. No, I don't think so. I can't remember.

MR. WILLIAMS: If you could pardon me for one moment.

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

BY MR. WILLIAMS:

Q. But you're aware that there is such an affidavit that contains your name, somebody told you that?

A. What do you mean by affidavit?

Q. Well, an affidavit is a sworn statement that, a sworn statement has been filed in this Court that contains your name in it. Not that you signed it but that you were mentioned in an affidavit. Are you aware of that?

A. I don't think so.

Q. You don't think so?

A. No, I don't remember.

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Q. Now, you mentioned that you had given some interviews with the police many years ago, back in 1981 and '82?

A. '81, I think it was.

Q. Now I want you -- and I know it's difficult -- but I want you to focus on that for a little while. I am going to ask you some questions about that; do you understand?

A. Hmm-hmm.

Q. Now, on December 9th, 1981, at about 6:00 a.m. in the morning, do you remember being interviewed by a detective?

A. I think the detective did come down that morning at the gas station where I used to work at.

Q. What was your occupation back then?

A. I was a manager and a mechanic for United Cabs.

Q. Did you ever drive a cab?

A. I drove off and on, not for there. One guy came in I might take the cab. And that night I was driving a cab to go out and push another cab in which broke down.

Q. I see. Now, you know what the significance of December 9th, 1981 is, don't you? You know why that date is important?

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A. Yeah, I think the date the officer got shot.

Q. You saw that?

A. Yeah.

Q. And is that why some police officer or detective on that, actually that morning, December 9th, wanted to talk to you?

A. I think so, yeah.

Q. And you tried your best to tell them what you saw?

A. Yes, I did.

Q. Now, and you reviewed that report that was written by the detective which reflected what you told that detective, right?

A. Yes.

Q. Do you remember telling that detective that the first thing you saw was Police Officer Faulkner grabbing a guy?

A. They both had one another.

MR. GRANT: Objection, Your Honor. This witness, according to their supporting affidavit and claims of error, the only relevance of this witness is because they say he was shown photographic arrays or in person line-ups and the Commonwealth did not alert them or tell them, therefore we suppressed the

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evidence. We are not here to try the case. And I would ask that they be restricted to their proofs.

MR. WILLIAMS: Your Honor --

THE COURT: You are restricted to your affidavit, okay.

MR. WILLIAMS: What I am endeavoring to show -- and I hesitate to do it in front of the witness -- but what I am endeavoring, I am leading up to the critical point that Counsel has raised regarding the photographic array. I need to lead him up to that, Judge.

THE COURT: I don't think you have to lead him up to that.

MR. WILLIAMS: I feel that you do.

THE COURT: I don't think that you should. We are not here to rehash that. You gave an affidavit for a certain purpose, now let's stick to that.

BY MR. WILLIAMS:

Q. Do you remember what you told Detective Sutton on December 9th, 1981?

A. About the shooting?

Q. About what you saw, yes.

A. I was coming down, coming down Locust Street,

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17th and the Warwick --

MR. GRANT: Objection.

THE COURT: Objection is sustained.

MR. GRANT: Move to strike.

THE COURT: If you are leading him, lead him right to the issue that is involved.

MR. WILLIAMS: That's what I am trying to do.

THE COURT: No, you are not.

MR. WILLIAMS: I am trying to.

THE COURT: No, you are not.

MR. WILLIAMS: I am going to the photographic array that is referred to.

THE COURT: Well, ask him about it.

MR. WILLIAMS: I need to lead him up to it.

THE COURT: You don't have to lead him up to it. You could ask him about it.

MR. WILLIAMS: It seems to me, Your Honor, we call an issue we want to explore a wish. We want to explore an issue and it goes to what he recollects about what he told the police.

THE COURT: Well, Counsel --

MR. WILLIAMS: What happened at the

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police station.

THE COURT: Who made up that affidavit, you?

MR. WILLIAMS: Mr. Bugler, our investigator.

THE COURT: Okay? You are stuck with the affidavit.

MR. WILLIAMS: And we intend to explore what is precisely in that affidavit.

THE COURT: Well, go right to it. That's what I am trying to tell you.

MR. WILLIAMS: That's what I am doing. I am going into what happened at the precinct.

THE COURT: All right, you said he was shown some photographs. So ask him that. Get right into it.

MR. GRANT: Your Honor, I will read into the record what they allege this witness has to do with this case, if I may, from their supporting papers.

MR. WILLIAMS: Your Honor, that is in the record, there is no need to read it into the record. The Petition has been filed, it is in the record.

THE COURT: Well, stick to it.

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MR. WILLIAMS: Your Honor, that is exactly what I am doing.

THE COURT: No, you are not.

MR. WILLIAMS: I am inquiring as to what happened within the four corners of the precinct.

THE COURT: No, your affidavit talks about photographs being shown. So let's go right to it.

BY MR. WILLIAMS:

Q. Let me ask you this, Mr. Harkins. There were discussions, were there not, on December 9th, 1981 about what happened, right?

A. Yes.

Q. And you told the police that you were very near where the shooting happened, right?

A. Yes.

Q. And that you saw the shooter; is that right?

A. Yes.

Q. You didn't see the shooter get shot, did you?

A. No, I did not.

Q. And how many people did you see there when you witnessed this shooting?

A. Two.

Q. You saw the shooter?

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A. Hmm-hmm, and the cop.

Q. And the police officer?

A. Yes.

Q. You didn't see a third person, did you?

A. I wasn't looking around.

Q. So when you were trying to describe people you were only trying to describe the officer and the shooter?

A. Right.

Q. Is that right?

A. Right.

Q. Did you see a man running across the street?

A. No, I did not.

MR. GRANT: That certainly sounds like a photo ID to me, Judge. I object. I move to strike it. This whole line of questioning I object to.

THE COURT: He said he didn't see anybody running across the street.

MR. WILLIAMS: Precisely.

MR. GRANT: I object to him continually trying to do the same thing. Could we get to the point.

THE COURT: Would you get right to the issue here, Counselor.

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BY MR. WILLIAMS:

Q. This was on December 9th, right?

A. Yes.

Q. Were you asked if you could identify the shooter?

A. Yes, I was. And I told them maybe.

Q. You told them maybe?

A. Right.

Q. Because this all happened very fast?

A. Right.

Q. Did you try to give a description of the shooter?

A. Hmm, no.

MR. GRANT: Objection.

BY MR. WILLIAMS:

Q. Did anyone ask you to look at any photographs on December 9th?

A. No.

Q. Now, do you remember being interviewed again?

A. Yes, I was taken down again but the date I couldn't tell you. But I remember being taken back down the Roundhouse but I don't remember what date it was.

Q. Some detectives came to your house and did they bring you to the police station?

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A. No, they came by and I drove myself down to the Roundhouse.

Q. Okay. So you went to the Roundhouse because some police officers or detectives asked you to?

A. Yes.

Q. Do you remember when that was?

A. No, I do not.

Q. Was that about a week later?

A. I don't remember.

Q. Okay. Well, in any event, when you had to go down to the Roundhouse the second time, do you remember who was there?

A. No, I do not.

Q. Was there some law enforcement people there?

A. A couple of detectives and stuff and all were there, yes.

Q. And were they interested in asking you some questions about what you saw on December 9th?

A. They asked some questions and all but I couldn't tell you what, I don't remember.

Q. Did they ask you questions about who did the shooting?

A. No, I just, they just said, I just told them I seen the guy, he shot the thing, having the gun, the guy was laying there. They were spinning around the

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pavement.

Q. I'm sorry, who was spinning around on the pavement?

A. The cop and the -- and they was like wrestling a little bit and the cop fell down.

Q. Right, you explained all of that to the detective?

A. Yes.

Q. And the detective wanted you to help them find out who the shooter was? Was that your understanding?

A. I don't understand the question.

Q. When they were talking to you, Mr. Harkins, did the detectives, were they trying to find out who the shooter was?

A. I guess so.

Q. And you told them that the person, the police officer fell down and that's when the shooting happened?

A. Well, he leaned over and two, two to three flashes from the gun. But then he walked, sat down on the curb.

Q. The guy that done the shooting walked and sat down on the curb?

A. On the pavement.

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Q. When you talked to the police on December 17th, 1981, did they ask you about the description of the shooter?

MR. GRANT: I object. We are not here for descriptions, we are here for identifications in the form of photographic or other IDS.

THE COURT: Why don't you get right to it, Counsel. Get right to it, will you.

BY MR. WILLIAMS:

Q. Do you remember whether anyone asked you, Mr. Harkins, whether you could identify the shooter?

A. I told them --

Q. First of all --

A. When he asked me I told him maybe.

Q. You told him maybe. Did they ask you if you could look at any photographs?

A. I told them -- no, nobody asked me.

Q. Nobody asked you that?

A. Nobody either side.

Q. Do you know why they asked you to come back a week after the first interview?

A. No, I do not know.

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

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BY MR. WILLIAMS:

Q. Now, you mentioned something about the shooter sitting down. Do you remember that?

A. Yes.

Q. Did you tell that to any of the detectives?

MR. GRANT: Objection.

MR. WILLIAMS: It's his testimony, Your Honor.

THE COURT: I know that. But that's not part of the affidavit.

MR. WILLIAMS: Then I move to strike that testimony. If I can't inquire into it I move to strike it.

THE COURT: You asked the question.

MR. WILLIAMS: No, that was non responsive to my question.

THE COURT: Well, you should have objected then and asked to strike it.

MR. WILLIAMS: I now move to strike it.

THE COURT: Too late, it's there.

MR. WILLIAMS: Your Honor, I have never read any evidence code that puts a time frame on when I can move to strike.

THE COURT: Well, sorry about that,

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Counselor. I can't help what you read.

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

MR. WILLIAMS: Your Honor, I may be a young lawyer but I am simply flabbergasted by the rulings. Let me say this. I am trying, I am getting an answer from a witness --

THE COURT: Counselor, I will tell you one more time. Look up the law. Xerox the case for me. If you are right, I will do it accordingly, all right. Okay.

MR. WILLIAMS: By that time Mr. Harkins is long off the stand.

THE COURT: Okay.

MR. WILLIAMS: What I am trying to do now is, I got an answer from Mr. Harkins -- with all due respect to you, sir -- and I am attempting now to impeach him. Impeach the witness with the police reports. I am entitled to do that.

MR. GRANT: While he is trying to impeach him -- if I may, Mr. Williams, so we could focus on the issue -- they are saying the Commonwealth hid Brady material that he identified someone else, or implied that he

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identified someone else, not the Defendant, therefore, the Defendant may be innocent. May be an innocent man.

THE COURT: Yes.

MR. GRANT: And that the police told him don't talk to them. He has denied both of those things, so now let's go and try the case. Let's try to impeach him about what did you really see anyway. We are not talking about photographs anymore because they lost that one. Let's just talk about the case. Which he is not here for.

MR. WILLIAMS: Let me be clear to Mr. Grant. If he wants to throw the gauntlet down, if I were allowed the latitude to question Mr. Harkins I could demonstrate to the Court that in fact his scenario, his own testimony exonerates Mr. Jamal. I say that to the Court.

THE COURT: Well, you didn't say that in your affidavit. You just said that he was --

MR. WILLIAMS: Now, if Mr. Grant wants to throw the gauntlet down (indicating), I pick up the gauntlet. I could demonstrate that Mr. Jamal's scenario is the scenario that Mr. Harkins would testify to, it would exonerate

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him. That's what I am asking the Court: To give me the latitude to do that. I could assure the Court of that.

MR. GRANT: We don't know what Mr. Jamal's scenario is and it really doesn't matter because he is here on photographic ID and the accusation that I, and us, hid evidence from them.

MR. WILLIAMS: He is afraid that we could show innocence. We could always show innocence. Actual innocence is, as I understand it, notwithstanding any language by the United States Supreme Court, is a grounds for a new trial. I can demonstrate actual innocence through Mr. Harkins. He has already indicated that there were only two people at the scene, the shooter and Officer Faulkner.

THE COURT: Yes, but that's what he saw.

MR. WILLIAMS: Exactly. An eyewitness.

THE COURT: I know that, but everybody sees things differently.

MR. WILLIAMS: Isn't that the essence of this tribunal? That's exactly right.

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THE COURT: Right, the fact that he only saw two people there doesn't mean that there wasn't three.

MR. WILLIAMS: That is only the first question. I want to explore that, and what I am telling the Court --

THE COURT: Your affidavit should have so stated. That is not what your affidavit said. You were calling him for a specific purpose, for which the Commonwealth is ready to answer, okay.

MR. WILLIAMS: What Your Honor is saying is -- and I appreciate the Commonwealth's fear in my questioning this witness -- what I am saying to the Court is that I could demonstrate actual innocence through this witness.

THE COURT: Counselor, you show me --

MR. WILLIAMS: The Court is barring me from doing that.

THE COURT: I will limit you to your affidavit, that's what you filed.

MR. WILLIAMS: Well, let's accept that as true. Let's accept that as true.

THE COURT: Aren't we here, how does that advance the cause of justice? Plain and

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simple. How does it?

MR. WILLIAMS: To seek justice.

THE COURT: What do you mean by justice?

MR. WILLIAMS: To insure that an innocent person is not executed.

THE COURT: How about when it is guilty.

MR. WILLIAMS: If I could demonstrate through this witness actual innocence.

THE COURT: It's already been demonstrated to a prior Jury. Counselor, justice is an emotional feeling. That's all it is. If I win my case --

All right, quiet in the room or you will be asked to leave. You are going to go out.

Justice is an emotional feeling. When I win my case, it's justice. When I lose my case, I didn't get justice, you know. So take it from there.

MR. WILLIAMS: I think there is a concept that we call truth.

THE COURT: That's right, truth. And you are bringing him in here because you have

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accused the District Attorney's Office of doing something. Let's concentrate on that.

MR. WILLIAMS: Exactly.

THE COURT: Okay. Get to the photographs.

MR. WILLIAMS: What I am trying to demonstrate is actual innocence, which is always available --

THE COURT: You didn't say you were going to call him to show that there was actual innocence. You said you were calling him to show that the District Attorney's Office did something wrong.

MR. WILLIAMS: Okay, let me offer this to the Court. What we will then do is make a motion to amend the Petition naming Mr. Harkins as a witness that would demonstrate actual innocence. Then we could call him back in support of that allegation in our amended petition. Fair enough, Your Honor?

MR. GRANT: The amended petition, as I understand Your Honor's ruling, must be in writing. And if it is going to be in writing -- and he is already your witness, you are leading him all over the place, I haven't objected --

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can't we just do this according to the rules of evidence?

MR. WILLIAMS: The objection is to whether I could inquire into a certain line of questioning. What I am asking is, I would like to be able to pursue that. I will use open-ended questions, if that's what they are asking.

THE COURT: I don't know what they are asking.

MR. WILLIAMS: I don't either.

MR. GRANT: I am asking if they don't have anymore questions about photographs and line-ups and us telling him don't talk to them, then he should be excused. And let's put the next witness on that satisfies anything in their filing, moving papers.

MR. WILLIAMS: Fine. What I am proposing to the Court is this: We will amend the Petition.

THE COURT: I will say to you, Counselor, you will have to do it another time. As far as I know he didn't sign that affidavit.

MR. WILLIAMS: No.

THE COURT: One of your people signed

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it.

MR. WILLIAMS: Exactly.

THE COURT: Okay, you said you wanted to bring him in for a limited purpose. So that's what you are limited to.

MR. WILLIAMS: Well, now I am saying I want to bring him in for purposes of showing actual innocence.

MR. GRANT: I object.

MR. WILLIAMS: Of course they object. Of course they don't want the actual innocence evidence to come out.

THE COURT: You will have to do that at another time.

MR. WILLIAMS: We will have to burden Mr. Harkins to come back at another time.

THE COURT: Okay, burden him.

MR. WILLIAMS: Very well.

MR. GRANT: I have no questions of Mr. Harkins.

MR. WILLIAMS: Mr. Harkins, I --

MR. WEINGLASS: This morning the Court I believe invited the defense to put on a witness of actual innocence, and we have.

THE COURT: Not necessarily. If you

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want to amend it, have him sign some affidavit, fine.

MR. WEINGLASS: In the Petition itself before the Court we claim actual innocence.

THE COURT: I made a ruling already. You have an exception. Now, come on.

MR. WEINGLASS: We have a witness --

THE COURT: If you want to supplement your Petition, do it in the proper way, all right.

MR. WEINGLASS: It's already in our Petition: Actual innocence.

THE COURT: No, it is not. In that it says merely that somehow the District Attorney's Office did something wrong. That's the only reason he's here today.

MR. WEINGLASS: They didn't put him on the stand in the trial. They didn't.

THE COURT: So what does that mean?

MR. WEINGLASS: Maybe the closest person to the shooting. Does that say something?

THE COURT: Maybe he wasn't, maybe he wasn't.

MR. WEINGLASS: He was. If you let

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him testify.

THE COURT: Counselor, if you want to, if you could get an affidavit from him as to what he is going to say, fine.

MR. WEINGLASS: Your Honor, we have a witness here today who was the closest person to the shooting who they didn't produce.

THE COURT: You could bring him back tomorrow. You could bring him back the next day. You could bring him back the day after that. Bring him back whenever you want, but amend your Petition. And get an affidavit from him as to what he is going to say so that the District Attorney --

MR. WEINGLASS: He won't talk to us, that is the problem. We have tried to talk to him. He will tell you on many occasions we went to his house, we went to his place of business. The witness exercised his right not to talk to us. So we can't talk to him. Only the D.A. could talk to him. And only the D.A. talked to him in '81, but they wouldn't put him on the stand. Now we have him on the stand. And we want him to tell this Court his story.

THE COURT: Okay, Counselor, I say to

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you again: You show me in the law, give me a case that says I could compel him to testify to anything, all right.

MR. WILLIAMS: He is here ready to testify.

THE COURT: I know he is here already.

MR. WILLIAMS: We are not --

THE COURT: He is here only for one purpose. Look up the law, give me a Xerox copy of the case, Counselor. Please, I won't argue with you anymore. I have made a decision, that's it. Now give me a case on the issue, all right. Give my a case on the issue. I don't want anymore arguments as to what he is going to do, what he is not going to do.

MR. WILLIAMS: I am not here to quarrel with the Court.

THE COURT: I told you what I am saying, okay. Listen, just listen to me.

MR. WILLIAMS: I will.

THE COURT: Xerox a case and give it to me, okay.

MR. WILLIAMS: I understand that.

THE COURT: Okay, that's all I want to hear from you.

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MR. WILLIAMS: But I want to give Your Honor a case that addresses your concerns. You want a case that says that we can show, if we can show --

THE COURT: Counselor, whatever you want to do, whatever you want to do, you give me a case that shows that you can do it. That's all. I am not going to limit it to what I want. It's what you want to do. Give me a case. Xerox the case that says you can do it, that is all I am saying.

MR. WILLIAMS: A case that says that we can put on evidence?

THE COURT: Whatever you want to do, Counselor. I can't make it any clearer to you. I am not confining you to any particular area. Xerox the case and give to it me and I will read it and if you are right you are right.

MR. WEINGLASS: Your Honor, could the witness testify subject to being struck if it turns out he is not relevant to any issue?

THE COURT: No, no, no, no, no.

MR. WEINGLASS: Frequently that is done by courts when the witness is already here.

THE COURT: Frequently, but we are not

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going to do that here. Give me a case that says that you can do whatever you want to do.

MR. WEINGLASS: This morning Your Honor implored me to bring a witness to establish innocence. You have one.

THE COURT: Counselor, I don't know what we have here.

MR. WEINGLASS: Well, let's explore it.

THE COURT: No, we are not going to explore it. You are going to do it the proper way. You are going to put it in, amend your Petition, serve the D.A. with it, let them answer it if they want to answer it. In the meantime, look up your cases. You have a lawyer here in Philadelphia, let him look it up for you, okay.

All right, can the witness be excused?

MR. GRANT: I have no questions of Mr. Harkins, Your Honor. Thank you, sir.

MR. WEINGLASS: Your Honor, before Mr. Harkins leaves, just one thing: Could the Court request that the witness talk to defense Counsel?

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THE COURT: Hey, I can't tell anybody to do anything.

MR. WEINGLASS: I am not asking you to order or direct.

THE COURT: I am not going to order him, I am not going to ask him, I am not going to do anything. That is not my prerogative. I am not here as an advocate for you or the Commonwealth or anybody.

MR. WEINGLASS: The witness is leaving.

THE COURT: It is all right if he wants to talk to you, it is all right with me.

MR. WEINGLASS: Is it all right with the Court if he wants if he talks to me?

THE COURT: Anytime. Anytime. If he wants to talk to you he can talk to you. But I am not ordering him and I am not suggesting that he --

MR. WEINGLASS: While Mr. Harkins is here: Would Mr. Harkins be willing to talk to us?

MR. GRANT: Your Honor, if I may --

MR. WEINGLASS: Again the prosecution

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Robert Harkins - Direct

interferes.

MR. GRANT: Finish your question.

MR. WEINGLASS: Thank you. Mr. Harkins, would you be willing to talk to the lawyers in this case?

THE WITNESS: Well, mainly every time I say something you come back with something different than what I say to you, and I don't like that.

MR. WEINGLASS: We never talked.

MR. GRANT: May the record reflect what the man just said to Mr. Weinglass.

THE COURT: I think he has it.

MR. GRANT: He said every time, he said I don't mind talking to you --

THE WITNESS: If you call up the gas station.

MR. GRANT: -- and you say I said something else and I don't like that.

MR. WEINGLASS: We could meet not at your house but at a place that's convenient for you.

THE WITNESS: Can I say something? Can one of the detectives from Homicide be there when you talk to me?

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Robert Harkins - Direct

MR. WEINGLASS: If you feel more comfortable that.

THE WITNESS: Yes, I would like Detective Welsh there.

MR. WEINGLASS: Detective Wells?

THE WITNESS: Yes.

MR. GRANT: Detective Walsh, W-A-L-S-H.

THE WITNESS: Walsh.

MR. WEINGLASS: Could we meet then -- is it best now?

THE WITNESS: I just took some medication. I worked last night and I didn't get done until eight o'clock. And I had to go to the doctor. I got home from the doctors, and I had to come down today and I'm very tired.

MR. GRANT: Would the record reflect that the highly unusual plea is from Mr. Weinglass -- nobody is interfering with him, but Detective Walsh is asked to be there -- who is charging us with crimes of criminal behavior.

MR. WEINGLASS: I am overwhelmed by the courtesy and I will be there.

THE WITNESS: A detective or police officer, anyone could be there.

Page 228.

THE COURT: Just somebody from the --

MR. WEINGLASS: What we will do is we will talk to Detective Welsh and he will talk to you about what's a good time for you, all right.

THE WITNESS: All right.

MR. WEINGLASS: Then we will all get together.

THE WITNESS: All right, Detective Welsh.

MR. WEINGLASS: Thank you.

THE COURT: Do we have anyone else for today?

MR. GRANT: I only brought in one for him, Judge, I didn't know if he wants more.

THE COURT: Who else?

(Discussion was held off the record at
this time between Commonwealth and defense Counsel.)

MR. WEINGLASS: I think that exhausts...

THE COURT: Well, who are you going to bring in tomorrow, so they have a chance to...I don't want to delay.

MR. WEINGLASS: Our list.

THE COURT: I don't know on your list.

Page 229.

I know you have a whole list here but which ones are you going to bring in? You are skipping all over the list.

MR. WEINGLASS: Gary Bell.

MR. GRANT: That subpoena was quashed yesterday, Your Honor.

THE COURT: So.

MR. GRANT: And he was a witness at the first trial. And the offer of proof they made was basically retry the case through him. That is not the subject of this proceeding.

MR. WEINGLASS: Gary Bell, I beg to differ, was not quashed but the Court indicated after it heard from Officer Wakshul that it would consider Mr. Bell. Your Honor will recall.

THE COURT: I quashed it yesterday.

MR. GRANT: He did. He quashed it.

THE COURT: Sorry if you didn't remember that. Who else do you want?

MR. WEINGLASS: I can't keep up with it.

THE COURT: Well, I'm sorry.

MR. WEINGLASS: Deborah Kordansky, who we would ask the District Attorney to make

Page 230.

available.

MR. GRANT: I will try to contact her.

THE COURT: Okay. Who else?

MR. WEINGLASS: Dessie Hightower, the defense will call.

William Thomas was the Homicide detective in charge of the investigation. We have subpoenaed him but I got a message from the Court attendant today that he wanted another subpoena for his work: He is no longer a police officer. And we are going to have to try to talk to Mr. Thomas, if the District Attorney could --

MR. GRANT: I could help you contact him but he is going to need a subpoena because he is not a police officer.

MR. WEINGLASS: Right, he needs a subpoena. We did subpoena him. And there was some question about the subpoena. Oh, he was served again.

(Discussion was held off the record at
this time between Commonwealth and defense Counsel.)

MR. WEINGLASS: Okay, we don't have a problem, I'm sorry.

Page 231.

THE COURT: Will he be available tomorrow?

MR. GRANT: Yes, Your Honor.

THE COURT: Oh, okay. Who else?

MR. WEINGLASS: Mr. Hawkins. Well, we need a case to bring Mr. Hawkins back.

THE COURT: Yes. Who else?

MR. WEINGLASS: May I have just a moment?

THE COURT: Yes, sure.

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

MR. WEINGLASS: I'm sorry. Page 2.

THE COURT: Oh, page 2.

MR. WEINGLASS: Kenney, Heftner, Hinkel, Cook.

THE COURT: Wait awhile. Wait awhile.

MR. WEINGLASS: They are in order: Kenney, Heftner, Hinkel, Cook, Dunn and Bob.

THE COURT: All of them for tomorrow?

MR. WEINGLASS: Well.

MR. GRANT: Well, Judge, first of all, what is the offer of proof, sir?

MR. WEINGLASS: They were all mentioned in Mr. Williams' direct examination of

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Officer Wakshul. These are officers who were present at the same time, submitted to interviews, the Commonwealth has copies of all their interviews. And we wanted to call them because the Court invited it when the Court refused to allow Mr. Williams to go into that area. And so in response to the Court invitation, we subpoenaed them. They were all police officers present at the hospital.

MR. GRANT: I forgot to mention something yesterday, Your Honor, and that is the same thing they were trying to do with Mr. Harkins here today. They brought in Mr. Wakshul because their claim was that he was not allowed to go on vacation, we found out they wanted him and we whisked him away. Now, that's the only reason that man was sitting on the stand. The only reason, by the way. But they wanted to go into his statements and the times when he didn't say something, when he did say something. But the only reason he was there was because we sent him on vacation, you see.

Now they want to bring in these other officers to talk about something that had nothing to do with their claims but just to

Page 233.

expand upon something that he said because they lose these battles and then they want to go play in another playground.

I object to these people, some of whom were witnesses at the first trial. We are not trying this case again.

THE COURT: Well, I don't want to try it again, of course. I mean at least not in this PCRA. That is not the purpose of a PCRA.

MR. WILLIAMS: Your Honor, there is another claim that Mr. Grant is ignoring. The other claim is ineffective assistance of trial Counsel. There's two prongs to that claim.

THE COURT: Well, I know that, but you had him on the stand.

MR. WILLIAMS: Had who on the stand?

THE COURT: Anthony Jackson.

MR. WILLIAMS: Yes, to establish prong number one, that is that his performance was objectively deficient.

THE COURT: But where. You had to be specific.

MR. WILLIAMS: The second prong is the prejudice prong. That is what didn't Mr. Jackson do and what effect did it have on the

Page 234.

Jury.

MR. GRANT: Wrong, that is not the prong. The prong is if you didn't do something did you have a strategic or tactical reason. And I didn't ask him because this wasn't even in contemplation in your mind. Counselor, you are making it up as you go, and you know it.

THE COURT: Wait awhile. I thought they were going to bring Anthony Jackson back anyway.

MR. GRANT: I doubt that, Judge.

THE COURT: Well.

MR. WILLIAMS: Your Honor, we inquired into the whole aspect of the confession. Mr. Jackson's testimony was that he did not respond to or refute the confession, which he indisputably could have done at the time of trial. And that he had no tactical reason for doing that.

THE COURT: Did you ask him why he didn't bring in certain witnesses?

MR. WILLIAMS: We asked why didn't you refute the confession.

THE COURT: Wait. That is a general statement. Did you ask him why he didn't bring

Page 235.

in certain witnesses? You are talking about the emergency room in a hospital: There are a lot of people there.

MR. WILLIAMS: Exactly.

THE COURT: And I am sure there was a lot of commotion there, and I am sure there was a lot of noise there.

MR. WILLIAMS: Right.

THE COURT: And I am sure there was a lot of people that heard things that other people didn't hear things.

MR. WILLIAMS: But what is remarkable is that no one heard the confession until two months later they recalled it. That's what is remarkable. Or three months later.

THE COURT: What do you mean recall it? There was a guard there that recalled it right away. She was not a part --

MR. WILLIAMS: Are you are talking about Priscilla Durham?

THE COURT: She was not part of the police.

MR. WILLIAMS: The only publicized report of her hearing the confession is in February, two days before Mr. Wakshul recalls

Page 236.

the confession.

THE COURT: No, if you read the notes you would have found out she testified that she gave a copy of that to her supervisor.

MR. WILLIAMS: And I have never seen that exhibit.

THE COURT: Well, I'm sorry you didn't see it but you weren't here for the trial.

MR. WILLIAMS: I have looked at the exhibits, there is no statement handwritten by Miss Durham.

THE COURT: This is 13 years, 14 years later. I don't know where the statement is either.

MR. WILLIAMS: There is no statement.

THE COURT: Well, that is your statement.

MR. WILLIAMS: There is no statement.

THE COURT: That is your statement.

MR. GRANT: They didn't ask Mr. Jackson if he had a reason for not doing it.

THE COURT: That's what I am trying to say.

MR. GRANT: But I asked Mr. Jackson can you see any strategic or tactical reason why

Page 237.

he wouldn't bring in Mr. Wakshul to refute the confession and he said certainly. And the portion that he read into the record, or I read with him was, he said he had a bad copy, was the very reason. And that was the 2-11-82 statement as to what Mr. Wakshul said as to why he wouldn't touch Mr. Jamal any further, why he went out in the hallway. That was Counsel's statement. Counsel stated that, if you believe him, he had a strategic or tactical reason. And you can't get over that hump by bringing in more evidence: You've got to deal with that. And they didn't want to deal with it, they didn't deal with it.

THE COURT: Well, you have to bring Anthony Jackson back if you want to.

MR. WILLIAMS: The redirect examination --

THE COURT: Counselor, for the time being, they are not going to be called. If you want to get around that, you call Mr. Jackson back and let's find out why he didn't call them, okay. Anything else?

MR. GRANT: Yes, Your Honor. There is

Page 238.

a Mr. Kracoff, one of their affiants, who is in the room.

THE COURT: Who?

MR. GRANT: Mr. Kracoff from Pittsburgh, he was here this morning. If he is going to be a witness I would ask that he be --

THE COURT: You are talking --

MR. GRANT: -- sequestered. But if he is not going to be I would like them to state so on the record.

THE COURT: Where is he on the list?

MR. GRANT: He is on page 1, Your Honor. He was right after the other lawyer they wanted to make a witness.

THE COURT: What is his name?

MR. GRANT: He is the third one down, Mr. Jerry Kracoff.

MR. WEINGLASS: Your Honor will recall a half hour ago I asked for Mr. Kracoff to be called as a witness and the Court quashed him.

THE COURT: Yes, I said he was out.

MR. WEINGLASS: He is a quashed person.

MR. GRANT: Very well. Okay. Thank you, Your Honor.

Page 239.

MR. WEINGLASS: He has joined the legions of our quashed witnesses.

THE COURT: But who else? Just those three, then, for tomorrow?

Anybody else on here that you could think of?

MR. WEINGLASS: Are we calling all the police officers?

THE COURT: No, I said no. We are not calling those police officers. That's what I said.

MR. WEINGLASS: The way this happens is Mr. Williams' questions, he is invited by the Court to call the police officers, we subpoena them, they come here and the Court quashes the subpoena.

THE COURT: Regardless of what I suggest to anybody, you have to do it properly. You have to ask Jackson why he didn't call these people. Let him tell us why, okay.

MR. WEINGLASS: Anthony Jackson, I will try to respond to that invitation as well. But --

THE COURT: Okay.

MR. WEINGLASS: -- each time we do so

Page 240.

when the witness appears we are told we can't use them.

THE COURT: Counselor, I am not going to tell you again: You have to first do it through Mr. Jackson. He has got to tell us why he didn't call them.

MR. GRANT: He already told us, Judge, first of all.

THE COURT: If he did he did. Get the notes, order the notes and if it's in there.

MR. WEINGLASS: That's it. I invite them to order the notes. It is the same as when they had them read back this afternoon.

THE COURT: Okay.

MR. WEINGLASS: What Counsel says is not in the notes.

THE COURT: Okay. Besides that you have a lot of other names here. Are you going to call any of those other people?

MR. WEINGLASS: We would like to, in light of the testimony that was given, in light of the cross-examination of Mr. Fassnacht this morning, where Counsel asked Mr. Fassnacht a hypothetical which included struggles inside the Jefferson Hospital, we would like to call,

Page 241.

recall witness Carol Young, who is a registered nurse who was in the emergency area, who will testify concisely to the fact that there was no struggle.

MR. GRANT: Your Honor --

MR. WEINGLASS: That Mr. Jamal was laying on the floor and there was no struggle. And so now that they have brought it up in the cross-examination of Mr. Fassnacht, we would like to renew our application that Carol Young come in here to testify as to what happened inside the Thomas Jefferson emergency room.

MR. GRANT: That's nice. That same old thing. Judge, in the trial, and I gave a hypothetical and on each point I am referring to places in the notes of testimony of witnesses who testified before that Jury. I don't give hypotheticals based on what I want to hear like Mr. Weinglass. I give it based on trial testimony, which is what the law requires. And if he wishes me to cite him to page number and volume I will do it right here in the record.

But absent that, you can't bring in some person 13 years later and say yeah, I didn't see this or I did see that. That's not

Page 242.

the basis of a hypothetical and I object.

And this morning they were told you have to supply some law, bring me a case. Now, they don't want to do that. They haven't brought the case this afternoon, by the way, but they still didn't tell me her name because they always want to go around the back door to see if it is open or not. They always want to do that.

THE COURT: Well, maybe they ought to spend the rest of their time looking up cases, I don't know. But if you have nobody else, you just want to call those three, it's all right with me.

MR. GRANT: I am always watching the back door, Mr. Weinglass.

THE COURT: Then for tomorrow all we have is those three.

MR. GRANT: I could make some witnesses available tomorrow to them.

THE COURT: Which ones?

MR. GRANT: Dr. Hoyer I believe is one of the persons that they are claiming is incompetent and he affected the outcome of the trial. I will object. Would you like me to?

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

Page 243.

MR. WEINGLASS: We would prefer Mr. McGill.

MR. GRANT: Well, if we could establish those foundation area bases that the Court ordered you to produce with Mr. Hightower, Miss Kordansky and those other people, then we could deal with the issue of whether you will even get him legally.

THE COURT: Who is this Dr. John Hayes, who was he?

MR. GRANT: He is a doctor that says Dr. Hoyer is incompetent.

THE COURT: Oh.

MR. GRANT: Why don't we bring him in here. A New York doctor.

MR. WEINGLASS: Well, Your Honor, Your Honor, Dr. Hayes has filed an exhibit which is an affidavit attached to the Petition in which he sets forth what he would testify about. None of it has to do with what Counsel just represented. If the other side doesn't read our Petition, and if the Court doesn't read our Petition, but misrepresentations are made here, and rulings are made on the basis of

Page 244.

misrepresentations, it's very difficult to proceed.

Dr. Hayes is a practicing doctor, a pathologist. The assistant coroner in New York. He is available Friday morning. And he will be here Friday morning.

MR. GRANT: And he did say in his affidavit, page 2, line 6, or paragraph 6: Furthermore, I was asked to and did examine the Medical Examiner's findings respecting the cause of death of Officer Daniel Faulkner. I strongly disagreed with the medical --

MR. WEINGLASS: Pardon --

MR. GRANT: -- conclusion that the gunshot wound to Officer Faulkner's back was a contributing cause of death. Given the fact that the protocol recites that the pathway of the bullets which struck Officer Faulkner's back went through soft tissue in the upper back and neck and exits in the left side of the neck without impacting or injuring regional blood vessels or nerves and causing no significant injury, it was inappropriate to list that as a contributing cause of death. I read him.

MR. WEINGLASS: Right, but that's --

Page 245.

THE COURT: What does the death certificate say he died of?

MR. GRANT: Gunshot wound, manner of death was homicide.

THE COURT: Okay.

MR. WEINGLASS: Counsel is misreading that.

THE COURT: Yes.

MR. WEINGLASS: The cause of death listed in the Medical Examiner's report --

THE COURT: Not the Medical Examiner.

MR. WEINGLASS: -- is gunshot wound to the head and to the back. And that's where, that is past --

THE COURT: You mean he didn't die from something else?

MR. WEINGLASS: I'm positive. He did not die from a gunshot wound to the back. He would have to be in the middle of the Sahara.

THE COURT: That was only one of the injuries that he suffered.

MR. WEINGLASS: Right, but no responsible doctor would have put it that way.

THE COURT: Well, what is the difference how you put it? The man is dead and

Page 246.

he died as a result of gunshot wounds.

MR. WEINGLASS: No, in the Medical Examiner's report, as I understand it, it has to be put accurately. And this was inaccurate. And it was inaccurate for a reason. But Counsel read only part, and the last part. It starts with furthermore --

THE COURT: Okay, you said you will have him here Friday morning, okay.

MR. WEINGLASS: We will have him here Friday to testify about matters other than what's been read.

THE COURT: Okay. All right. You are going to have him Friday. Anybody else for tomorrow? Just those three?

MR. WEINGLASS: And Mr. McGill.

THE COURT: No, he is not available. I am sure he is going to be a long time if he gets on.

MR. WEINGLASS: What does the Court mean he is not available?

THE COURT: I am talking about at the present time. You were supposed to do the foundation before you were going to put him on. Now, you haven't laid the foundation yet.

Page 247.

MR. WEINGLASS: We have laid the foundation.

THE COURT: You are premature with McGill. Now, is there anybody else that you want tomorrow?

MR. WEINGLASS: Commissioner of jurors.

THE COURT: Who?

MR. WEINGLASS: Michael McAllister.

THE COURT: I struck him off this morning. He wasn't even the Jury Commissioner at the time this occurred.

MR. WEINGLASS: It is a duces tecum subpoena. It is bringing the records of his office.

THE COURT: What records?

MR. WEINGLASS: The records indicating the way the jurors were selected.

THE COURT: Juries, they were selected from a jury panel. The voting list that we have.

MR. WEINGLASS: It is a question of whether the panel was Constitutionally selected.

THE COURT: Oh, we are not getting into that now. Please. Please.

Page 248.

MR. WEINGLASS: That's in our Petition, Your Honor. If you read it.

THE COURT: Yes, I know.

MR. WEINGLASS: It's there.

MR. GRANT: Oh, Mr. McAllister, I think why they are bringing Commissioner McAllister in is the case of Commonwealth versus Rosa. And that was a case where the Defender's Association of Philadelphia litigated a claim that jury selection which was done based on voter registration was not fairly done and there were not randomly selected panels at certain times of the year. For instance, when they would take certain people from certain districts, some are smaller than others, and at certain times of the year there is an inequitable distribution of people from different segments. Judge Arnold New decided that issue. It's a case of the Court of Common Pleas level. And he decided that even if randomness, or what Counsel calls unrandomness, if it affects jury decisions, the jurors are picked fairly throughout those available even though at times it fluctuates based on how many people are in a certain section. And therefore

Page 249.

he found no improper jury pools impaneled. But they are bringing Mr. McAllister in as a witness in that. And after hearing his testimony and the reputation of the Defender's Association, the Judge made his finding. It has been written and recorded and they know it. And they know the claim they are making has already been decided here in this jurisdiction and they lost but they are going to try to revisit it by bringing in the Jury Commissioner and putting him up there and making him go through all this, when the precedent has been set and it's already been litigated and the rule of law already exists.

THE COURT: Can you give me a Xerox copy of that case?

MR. GRANT: I think I can: I happen to be the one that tried the case.

MS. WOLKENSTEIN: In point of fact, Commissioner McAllister could testify to the fact that the jury pool system was changed during or after the Rosa case. In fact, he changed the entire way the jurors were selected in this district. Whether it exactly came from the Rosa case or other determinations, in point

Page 250.

of fact the way that the jury panels are structured now and drawn from is totally different from the way it was at the time Mr. Jamal was tried.

It is our contention that the way those pools were selected is in violation of Constitutional law. It is a violation.

THE COURT: Will you give me cases on that?

MS. WOLKENSTEIN: The cases are in our Petition, they are cited in our Petition.

MR. GRANT: The rules change.

THE COURT: Xerox them for me, please.

MR. GRANT: Jury selection changed because the Commonwealth asked Mr. McAllister to include drivers' licenses, and put them in the pool if you have a license. In addition to voter registration. Some people don't want to vote, they don't care about that. To include drivers' identification cards. Meaning some people don't drive but they still, the State gives them ID.

We suggested a number of things to expand the jury pool to bring more people in. And it is not because anybody sued, it is

Page 251.

because the Commonwealth requested it, Miss Wolkenstein.

And I will bring Your Honor a copy of that case. And by the way, that was 1993, if I am not mistaken. So I don't know --

MS. WOLKENSTEIN: The testimony of that hearing, there was a stipulation between Commissioner McAllister and the people bringing the lawsuit that said that the jury pool had been selected in the same way for the prior 20 years. Which covers the period of time that Mr. Jamal was tried, and the period of time that that jury pool was selected.

MR. GRANT: And found to be Constitutional.

THE COURT: All right.

MR. WEINGLASS: May we have a ruling on Commissioner McAllister?

THE COURT: Yes, I said it's not relevant to the issue. It's already been resolved. He is going to Xerox me a case.

MR. WEINGLASS: The Court is going to wait until it receives the case?

THE COURT: He says he is going to give it to me. I am assuming he is going to

Page 252.

give it to me.

MR. WEINGLASS: Is the Court ruling on whether or not the Commissioner could testify?

THE COURT: Yes, based on his assertions.

MR. GRANT: In order for that to have happened, Mr. Jackson would have to raise that claim to preserve it for them to tag along now and get it. And he didn't raise it. He couldn't predict future events, nor could he predict that somebody would question it and it would be found to be okay. Even the greatest lawyers don't have a crystal ball to look at. They don't have a basis to subpoena him.

THE COURT: I know that.

MR. GRANT: And that claim's been waived.

MR. WEINGLASS: Has the Court ruled?

THE COURT: Anybody else?

MR. WEINGLASS: I am unclear on the Commissioner McAllister.

THE COURT: I said for the time being he is out. Who else do you have for tomorrow, if anybody?

MR. GRANT: There are only a few

Page 253.

witnesses left on this list, Judge. We should get through with this hearing by Tuesday.

(Pause.)

THE COURT: Is that it?

MR. WEINGLASS: That's it, Judge.

THE COURT: All right, I guess we will have to adjourn until tomorrow morning.

THE COURT OFFICER: This Court stands adjourned until 9:30 tomorrow morning.

- - - - -

(The hearing was adjourned for the day at this time.)

- - - - -

Page 254.

I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct transcript of the same.

Official Stenographer

Date


The foregoing record of the proceedings upon the trial of the above cause is hereby approved and directed to be filed.

Judge