On June 9, 1982, during the voir dire (the examination of prospective jurors), Mumia Abu-Jamal was suddenly and without good cause removed from conducting the examination for the defense. This was done at the request of the prosecution, and was the first step toward removing him as pro se counsel, and eventually expelling him from the courtroom entirely. What follows is the transcript of June 9 covering this shameful episode.
Transcript in PDF format. [1MB]
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
(CRIMINAL TRIAL DIVISION)
COMMONWEALTH
v
MUHIA ABU-JAMAL
a/k/a WESLEY COOX
: JANUARY SESSIONS 1982
: 1357-Pass. Instru. Crime Cenly
: 1359-Murder
: Voluntary Manslaughter
: 1359-Involuntary Manslaughter
Philadelphia, Pennsylvania, 9 June 1992
Room 253 City Ball
Before: EONORABLE ALBERT F. SABO
APPEARANCES:
JOSEPH MCGILL, Esquire
Assistant District Attorney
ANTHONY JACKSON, E8quiro
For the Defendant
MUMIA ABU-JAMAL
Pro Se
VOIR DIRE
VOLUME III
(Side-bar conference in the presence of The Court, Mr. McGill, Mr. Jackson and the defendant reported as follows:
THE COURT: Gentlemen, we are here at side-bar with reference to the question of dealing with the voir dire.
HR. MCGILL: Yes, Your Honor. I was going to make a motion. Judge, my motion is that Your Honor take over the voir dire. That will, of course, mean taking over voir dire for questions from both sides, not just Mr. Jamal's but also mine. I wouldn't be able to ask any either.
The authority, Your Honor, would be Pennsylvania Rule of Criminal Procedure 1106D. where it says that the Judge may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself conduct the examination. This is clear authority for Your Bonor to do this.
The reasons for this request are twofold: The first reason is that I believe that the speed of the.voir dire or I should say the pace of the voir dire is extremely deliberate, very slow. I am not saying it's intentionally slow. However, either because of Mr. Jamal's maybe inexperience in asking specifically framed questions or his decision to ask many questions, not all I believe to be relevant for the purposes of voir dire, it has caused in the last two days only 20 jurors to be questioned and one chosen. That means 30 in the first panel and this will be the third day for one panel. There are 30, more than half, as a matter of fact, 608 remain to be questioned.
I believe, Your Honor, that if the Court would ask the questions, questions that would safeguard the rights of both the Commonwealth and the defendant, this would expedite the matter without in any way infringing upon the rights of the defendant.
The second reason is, because of my own experience in past trials, I could say that in reference to what I have observed during the course of this voir dire it appears to me and it will appear on the record certainly on the last two witnesses, it appears to me that in many cases throughout the voir dire there is an unsettling effect when the defendant, who is charged with such a heinous crime, if the facts are accepted by the jurors, particularly that of shooting a policeman in the back and then shooting him in the face at close range, it tends to create in the venireperson an unsettling feeling, as a matter of fact in a few jurors outright fear.
Now, when we have a situation where an individual himself is asking questions and creating that type of anxiety, which would be different than the anxiety where another individual, his attorney, would be asking them, raferrlng to a third party in the courtroom, the possibility for answers which are not clear, that are confused or that in fact unfortunately I believe that these jurors inasmuch as some of them are fearful will begin to find reasons that they don't want to serve. Even though they would be arguably good jurors, because of the emotion that is presented to them, they are not giving either clear answers or too upset to be able to answer correctly.
So on that basis -- and the Commonwealth has as much a right as the defendant to a fair jury of 12 people and alternates -- I believe that this does have a direct effect on our ability to choose jurors who are free of such anxiety.
The argument presented yesterday that it infringes upon the rights of self- representation by this counsel I believe has no merit for this reason: Under the authority of 1106 the Court can do this when a defendant is represented by counsel, as is the case of an overwhelming number of cases: that is, a defendant is represented in an overwhelming number of cases. However, in reference to the judge taking over voir dire, he could do it when attorneys represent him as well as when attorneys do not represent the defendant, the defendant represents himself. So that particular argument falls from the very weight of the alternative, which is set out in the Rules of Criminal Procedure to begin with.
I would also point out, Your Honor, in the case of Commonwealth vs. Boone, a case which I will cite as 286 Pennsylvania Supreme court 384, 1981, this is a case where the issue was the lower court abused its discretion, exceeded its discretion by refusing to ask a particular question to probe the potential racial bias of a prospective juror. There were two questions submitted. The Court chose one question of the two and the Court asked the question. In giving its reasons for this the Court said the prosecution involved a confrontation between a black defendant and a white victim. It is true, of course, that in a proper case defendants have a right to inquire into the possible prejudice that a venireperson may have. The right, however, ia not boundless.
The trial judge was not required to put the question as to racial bias in any particular form or to ask any particular number of questiona on the subject simply because requested to do so by the petitioner. Accordingly, the permissible scope of voir dire questions remains within the sole discretion of the trial judge and his decision will only be reversed for palpable error.
The present record demonstrates that the trial judge did not exceed his question. The second question submitted by appellant and asked by the trial judge was adequately designed to disclose any possible racial prejudice that the venireman might have.
The reason I use that, although it is not quite the issue, is it shows where in a case, and in that particular case it was a racial case, and even if we assume that this is or the issue is present in this -- and certainly the issue should be presented if requested by counsel -- it shows on authority that it is most permissible for the Court to ask a question. And vhere there is even an objection to the type of question asked or the number of questions asked, the Court can choose within its own discretion as long as it is asked in a form which safeguards the rights of the defendant.
So I would suggest, Your Honor, that from now on until the end of voir dire -- and I have in front of me three sheets of questions, really two and a half sheets of questions, which are greatly limited yet covering all areas of I believe concern, vital areas of interest in the issue in this particular case. I would ask that this Court take over the voir dire, all of the questions, and review these questions to see if you feel there should be any additional or you should delete some. I will, of course, give them to counsel to take a look at or Mr. Jamal.
That is the Commonwealth's position.
(Mr. Jackson and the defendant confer.)
THE COURT: Mr. Jackson, do you have something? I will allow you to say something, so that you don't have to have him say it for you.
MR. JACKSON: Judge, I would like to respond first off to counsel's motion to have YOU take ovar the voir dire. We acknowledge and accept the fact that generally and traditionally the Court has the absolute discretion with regard to allowing counsel to conduct a voir dire as opposed to Your Honor conducting the voir dire. Obviously in this circunstance Your Honor has initiated the voir dire with counsel conducting the voir dire.
What we are saying at.this point is that once Your Honor has made that decision to allow, to provide an entitlement, a privilege for counsel to conduct a voir dire, unless and until there is some substantial or compelling reason for Your Eonor to withdraw that entitlement -- and that entitlement is coupled with a right, that is the right of self- representation as well as a right to a jury of his peers. We are saying that that privilege, that entitlement of counsel of conducting the voir dire is now coupled with a right and it should not be withdrawn without due process.
Counsel has made some representations that it is his belief that indeed some witnesses are fearful of the defendant.
THE COURT: Some jurors.
MR. JACKSON: Same prospective veniremen have fear caused by Mr. Jamal asking questions, quite specifically the last juror who expressed some fear indicated I believe that when Mr. McGill -- when there was an objection Mr. McGill nevertheless went on and asked the juror, 'Are you fearful or do you have fear because he's asking the question,' words to that effect and the venireman said yes. The question was not posed to that venireman as to whether or not that veniraman was in fear because Mr. McGill was asking questions, so that Your Honor could not make any finding with respect to that venireman or any other venireman without a colloquy, without some hearing to know in fact what the basis of the fear is.
Again, I remind Your Honor and ask Your Honor to take judicial notice of the fact that in all homicide cases, particularly in capital cases, virtually all or certainly the majority of the jurors express some apprehension, some unsettlement, some fears with regard to the whole process. I believe that it is the weight of the responsibility that's being placed upon them, and that fear is going to manifest itself whether I'm conducting or counsel is conducting the colloquy or Mr. Jamal. I think that that reason is specious, particularly since it is not founded on any fact that Your Honor hss been made aware of, only one fact where counsel asked the question, counsel for the prosecution asked a question, 'Do you have fear because Mr. Jamal is asking the questions?" He didn't ask what would happen if Your Honor asked the question or didn't ask whet would happen if Mr. McGill was asking the question. So I think that argument without more, Your Honor, does not have the basis for making that finding.
With regard to judicial economy, counsel has indicated that for the three days that we have been here 60% of the panel still remains to be questioned. I don't think that that is in any way a reflection on Mr. Jamal. Mr. Jamal, as Your Honor has noted, certainly he has not been chastised or disciplined in any way for any obstruction. There has not been any deliberate attempt to slow down the process. It seems to me, given Mr. Jamal's right of self-representation, his right to a jury of his peers, the certain questions that he has asked I believe are founded in the Court decisions, and we can provide those decisions.
Of oourse, Your Honor knows that we took some time to go over some questions that Your Honor would approve. Indeed, some of those questions that he continued to ask counsel continues to object to and Your Honor continues to overrule. If there is anyone at all obstructing or slowing up the process, certainly that can't be attributed to Mr. Jamal when counsel still objects when Your Honor has made a ruling.
I think Your Honor well knows that even if there is counsel legally trained to ask questions that doesn't mean that there will be the absence of what Your Honor would consider to be appropriate and admissible questions. Counsel all the time asks questions that may or may not be acceptable, and it's up to counsel to object.
So I think the argument with regard to economy just has ho merit, your Honor. The last case that I had before you, it took us nine days to select a jury and it certainly didn't have as much publicity as this case. The case of Binckley right here in front of Judge Latrone, it took five weeks to select a jury.
So I don't think that the speed or the pace with which the jury is selected is in any way a consideration. The Courts have never indicated that in fact speed is the objective; that in fact the objective is a fair and impartial juror and that the question should be allowed to in fact uncover whatever basis or bias the juror might have so that both counsel can determine whether in fact the venireman is a qualified juror and for those reasons that he should be allowed.
Your Honor, I will just close by saying that for Your Honor to consider again withdrawing the opportunity for counsel and Mr. Jamal and Mr. McGill to conduct the voir dire once you have set it in place, I believe the rule is saying again Your Honor has the diecretion to conduct the colloquy or to let counsel conduct the voir dire. If Your Honor were to conduct the voir dire, Your Honor could also, I believe must also accept supplemental questioning or supplemental inquiry by counsel. Again, Your Honor, I believe that that supplemental inquiry by counsel is what the rules require.
But in addition to which, Your Honor, you did not start that way. You started allowing both counsel to conduct the voir dire. We have one juror selected as this point, so it's not even a matter of well, nobody has been selected. So we are going to use one process for selecting one juror and we are going to use another process for selecting the other eleven and alternates jurors. I think that would be an error, Your Bonor,to change up the process unless there is again some Constitutional or compelling reason to change your mind at this point.
I would submit that counsel's arguments are simply that and there is no basis in fact for the fear of just Mr. Jamal and in fact it's an extraordinary fear.
The argument with regard to judicial economy I think at this point is not an issue, because there has not been until counsel indicated to the Court that he wanted to make this motion, that was the only time that the issue of judicial economy was brought to this Court's attention. If there was in fact an issue of Mr. Jamal delaying the process, counsel should have at any point that he noticed there was a delay brought it to the Judge's attention. I am suggesting now that this is a bootstrap argument, that once he decides to make this request of Your Honor he is saying, well, in addition to the fear it's taking too long. That was the first instance that was brought to Your Honor's attention.
So I would suggest to the Court that again Mr. Jamal and Mr. McGill be allowed to continue the voir dire.
THE DEFENDANT: I would like to enter a statement on the record. This was prepared by back-up counsel Jackson.
Before I do that, I think if there's any anxiety or fear, unsettlement, I think it's on the part of Hr. McGill. Surely, the questions that we have asked have been clear. We spent two hours back there talking about these questions. It was also clear that I could conduct the voir dire. Now it's no longer functional. It's no longer agreeable. I have a right to a jury by my peers. I have a right to that. That's an absolute riqht as well, and I haven't abused that.
It's very clear, Mr. McGill, perhaps if you can't handle it, you know, I would suggest that Mr. McGill contact his boss and have somebody else cover this case.
THE COURT: There is no doubt that the Court realizes that it does have jurisdiction to take over the voir dire under Rule 1106.
I think, Mr. Jackson, you are wrong when you say that the Court at any tine can't change the procedure that has started if in the court's opinion it's necessary.
Now, it is true I have not rebuked Mr. Jamal at any time, but the Court is not without cognizance of the fact that he has been very, very inexperienced in voir diring the venire panel and that he has been very, very slow in even getting started when it is his time to get started, and it has been a constant looking to you for phrasing of questions, which have taken a long time. I have been very patient about it and I haven't said anything, but that doesn't mean that I haven't noticed. I don't have to wait for the DA to tell me that. I am cognizant of it on my own.
The fact is I have been very cognizant of the fact that these venire people have been rather unnerved or upset when they have been questioned by Mr. Jamal. As a matter of fact, in some cases there has been outright dissension by these people, sort of like an antagonistic reaction.
There is no doubt that I have that authority, and I will exercise that authority if I think I need to.
I may offer as a compromise, since we have about 60% of this panel left, that I offer it to you as a suggestion: That Mr. Jamal allow you as back-up counsel to conduct the voir dire. That will eliminate the two factors that are involved here: One, the unnecessary slowness of the process and the face-to-face confrontation between the defendant and the expectant jury men.
If you want to do it, I'm willing to try it that way.
MR. JACKSON: Your Honor, of course, that would be Mr. Jamal's decision.
MR. MCGILL: You mean for Mr. Jackson to conduct the voir dire?
THE COURT: Yes. I feel that Mr. Jackson with his experience could overcome these two factors that are involved here.
If they want to. But if they don't wish to, then I will take over.
Let me give them a few minutes to talk, it over between themselves.
(End of side-bar conference.)
(Brief recess.)
(Side-bar conference in the presence of The court, Mr. McGill, Mr. Jackson and the defendant reported as follows:
THE COURT: Have you made up your mind?
THE DEFENDANT: I object totally. I object totally to that so-called compromise.
THE COURT: Then I will take over the voir dire.
THE DEFENDANT: I'm not surprised. I said you would do it yesterday.
THE COURT: The rules allow me to do it, and I will do it in the interest of justice.
THE DEFENDANT: That's not in the interest of justice; it's in the interest of a conviction.
THE COURT: Do you have any additional questions?
MR. MCGILL: Your Honor, I have a sheet of two and a half pages. I would like to have an opportunity to show them to counsel.
THE COURT: Let me read them and see if I can sead them first. I may not be able to read your handwriting.
MR. MCGILL: They are not just my questions. I have included questions to cover areas I believe that safeguard the defendant's rights.
THE COURT: Let me go over them.
No. 1, residency, dealing with the area in the City where they live and zip code.
The employment, the years of prior employment.
Marital status.
(The defendant leaves the side-bar conference.)
THE COURT: Is he going to get some questions?
MR. JACKSON: Your Honor, I think he wanted to do it at the bar of the Court.
(Mr. Jackson and the defendant confer at defense table.)
(The following took place with The Court and Mr. McGill remaining at side-bar and Mr. Jackson and the defendant at defense table:
MR. JACKSON: I have been instructed by Mr. Jamal not to participate.
THE COURT: That's all right. I want you here just to listen.
MR. JACKSON: He has asked me not to participate.
MR. MCGILL: Your Honor may order Mr. Jackson to participate.
THE COURT: Just come over here.
MR. JACKSON: Your Honor, in all due respect, I think that I have to follow the wishes of my client.
THE COURT: That's not exactly true.
MR. JACKSON: Sir, under the circumstances I feel compelled to follow his wishes, Your Honor.
(The Court returns to the bench.)
THE COURT: Well, you realize that you would be in direct contempt of this Court and I may very well sentence you to six months in prison.
MR. JACKSON: I appreciate that, Your liDnOr, but I think under the circumstances my right to represent Mr. Jamal, even in this modified circumstance, I feel compelled to follow the wishes of my client. I appreciate and respect your Honor's intention with respect to this issue, but I think under the circumstances my allegiance to my client is superior, quite frankly, Your Honor, than my abidance by the rules of the bar. Consistent with that, I have indicated to the Court before that I did not want to be placed in this precarious position, because I anticipated that there might be a circumstance like this where I must choose to follow the orders of the Court or the wishes of my client. I think the wishes of my client are Constitutionally based. I think pursuant to that, Your Honor, I have to follow the wishes of my client.
THE COURT: I think you leave me no alternative but to hold you in direct criminal contempt of this Court and sentence you State prison for six months.
HR. MCGILL: Your Honor, may I address the Court in reference to this point?
THE COURT: Yes.
I want to tell you I'm also going to send a transcript of this to the disciplinary board,and I'm going to ask that you be suspended from the practice of law.
MR. JACKSON: Very well, Your Honor. May I have the opportunity to secure counsel?
TAE COURT: You will have the opportunity when you are up in the cell room.
MR. JACKSON: Fine, sir.
MR. MCGILL: Your Honor, if I may ask the Court to consider, there is some precedent to an unwillingness of counsel to represent defendants.
THE COURT: I didn't ask him to represent him. All I asked him was to stand there while I read these questions that you wanted to ask.
MR. MCGILL: Your Bonor, I believe that this, of course, would be, granted an order of Court, I think there is an analogy to a recent case, a recent case some years ago. The situation exists as such, Your Honor, where the defendant -- and I'm referring now to the Move trial itself held before Judge Maimed where the defendant has under those circumstances, where they were ejected from the courtroom in various times, although this is somewhat different, but the analogy is similar because of the principle. Havinq been ejected because of disruptive behavior, counsel then were ordered to replace as back-up counsel to replace and represent them. Counsel was told by the defendants that they did not wish to go on and represent the defendants because the defendants had told them that they did not wish them to do that. At that point, Your Honor, the Court then ordered the counsel to represent the defendants. Counsel then not wanting to be in derogation of the Court's order asked for an opportunity to go to the Supreme Court, which was granted them and it wes done really in a matter of a half a day at the most, to determine whether or not they were required against their client's wishes to represent them at the trial. This was in the Move case.
In a unanimous Supreme Court decision on that order the Courts in very prompt fashion said that it is your duty as a lawyer to represent your defendant. In compliance with the Supreme Court's order or at least averments of the order of Court the counsel then went and represented them.
Your Iionor, I suggest that this is a similar point. I would ask Your Honor, first of all, to perhaps state orally the basis of your ruling why you decided in terms of the questions, the procedure of voir dire, and then at that time if Your Honor could ask the defense whether they had, because they were told yesterday by the Court to do this, if they wanted to present questions to the Court.
After both of these things are done, Your Honer, I would ask the Court then if necessary to give some time to frame questions. Mr. Jackson and Mr. Jamal are well aware of the questions. They already had some other ones that Your Honor had considered. At that point in time after they have had this opportunity then Your Honor would proceed with the voir dire. If counsel does or does not act at that particular time, Your Honor would then have your option to order.
I believe that Mr. Jackson does not want to violate the Court's order. Perhaps, Your Honor, as long as this position is made clear to the Court that he really does not have an option once the order is made by this Court whether to represent this defendant or even to stand there and listen to questions. But to clear the record I would at least ask the Court to orally state the basis of what Your Honor's decision was so that we can move from that point on.
THE DEFENDANT: I would like to comment on that, Judge. I asked Mr. Jackson not I to step over to side-bar at my request, because it's very clear from the discussions we have had this morning that neither you nor the DA can be trusted.
We had a meeting in there and we talked about the questions to be asked. We had 115 questions. We came out with 20 of them. Now after it was agreed that I could conduct my own voir dire for a fury of my own peers, now let's forget about what we agreed about. It seems very - can I finish, Judge?
THE COURT: There was no agreement. Don't tell me. There was no agreement.
THE DEFENDANT: There was an agreement for individual voir dire. If you want to check the record, the record is there.
THE CDURT: The Court at any time can change that ruling.
THE DEFENDANT: Without ause, without reason, because the DA says so?
THE COURT: There are tvo reasons: one -
THE DEFENDANT: The reasons are because you are holding the DA's hand.
THE COURT: No. I an trying to hold your hand.
THE DEFENDANT: No, you are not trying to hold my hand. I want John Africa. If you want to hold my hand, you are not doing me any favors.
THE COURT: I bend over backwards for you to allow you to try --
THE DEFENDANT: NO, you did not.
THE COURT: You have indicated to this Court that you do not have the expertise necessary to conduct a voir dire.
THE DEFENDANT: I think I have too much expertise for Mr. McGill.
THE COURT: And your actions have unnecessarily delayed the proceedings.
THE DEFENDANT: You are looking for a speedy voir dire?
THE COURT: NO. I have jurors that are out there that are disgruntled because they have been here three days. They thought they were here for one day, one trial.
THE DEFENDANT: I didn't tell them one day, one trial, you did.
THE COURT: The Court told them.
THE DEFENDANT: You should have known better, Judge.
THE COURT: That's truly one day, one trial.
THE DEFENDANT: Do we have a time limit on voir dire, Judge?
TAE COURT: In addition to that, your questioning on the voir dire has made them unsettled.
THE DEFENDANT: Judge, you have not found that from the witness stand. You have not judged that. You have assumed that.
THE COURT: I have observed that by my own observation.
THE DEFENDANT: I have observed your own prejudice and bias in this case, Judge.
THE COURT: I have seen the jurors actually become antagonistic towards you, and in fairness to everyone concerned the Court has ruled that under the Rules of Criminal Procedure NO. 1106 the Court has a right to conduct the individual voir dire.
THE DEFENDANT: What you are saying has nothing to do with fairness. It may be procedure, but it may not be fair. What I am Saying to you is that --
THE COURT: What I amsaying to you is that I will conduct the voir dire.
THE DEFENDANT: Fine. can I argue on that point?
THE COURT: Sure.
THE DEFENDANT: It seams very clear once again that the Court is holding the DA's hand, accusinq me of holding John Africa's hand a few days ago. I would like John Africa to conduct the voir dire. You have said that Mr. Jackson cannot.
THE COURT: I have given you the opportunity to allow Mr. Jackson to ask the questions.
THE DEFENDANT: I didn't ask you for that. I think I was doing pretty well.
MR. MCGILL: Your Honor, I object. Could the Court finish with what the Court was trying to say?
THE COURT: I had offered you the opportunity to let Mr. Jackson conduct the voir dire. You have refused that suggestion. Therefore, the Court will conduct the voir dire itself.
THE DEFENDANT: I haven't refused that suggestion.
Judge, don't I have a right to a jury of my peers?
TAE COURT: You told us that you have.
THE DEFENDANT: Don't I have a right to a jury of my peers?
THE COURT: You will pick the jury. I'm not going to pick them. I am just going to ask the questions.
THE DEFENDANT: Sure. What's wrong with me asking questions?
THE COURT: For the two reasons I have already spelled out.
THE DEFENDANT: Judge, you have heard what McGill has said. It's very clear, it's very clear to me. it's very clear to me that it's en act of prejudice and bias on your part. You have not found from the witness stand that unjustified fear, that unsettling effect that you are talking about.
THE COURT: I have been sitting in this courtroom for the last two days on this venire panel selection and I can see what's going on.
THE DEFENDANT: I can see what's going on too, Judge.
THE COURT: From my observation I feel that in the interest of justice I must take over the individual voir dire.
THE DEFENDANT: It has nothing to do with justice.
THE COURT: Yes, it does.
THE DEFENDANT: It has to do with getting a conviction.
THE COURT: No, it doesn't.
THE DEFENDANT: Yes, it does.
THE COURT: I will not make that decision. It will be the jury that is selected.
THE DEFENDANT: You have made the decision already.
THE COURT: No, I haven't.
THE DEFENDANT: You decide who will represent me. You decide who is going to sit at the table. You decide who is going to ask the prospective jurors questions, even though you agreed that I could do it two days ago.
THE COURT: I did not exactly agree.
THE DEFENDANT: You did exactly agree, if you check your records.
THE COURT: I would allow you or Mr. Jackson or anybody to conduct the voir dire, but --
THE DEFENDANT: I don't want him to conduct the voir dire for me and I don't want you to do it for me. I want John Africa.
THE COURT: I will do it on my own.
MR. MCGILL: I was just standing here, Your Honor, in case a response was necessary to anything. There is one thing though Mr. Jamal said that you had decided who would represent him. As a matter of fact, you did decide who would represent him. At his own motion you decided that he would represent himself. So that's at least one accurate thing that he said.
TAE COURT: I told him he could be removed if it becomes necessary.
MR. MCGILL: That's correct. That is absolutely correct. I just want to make it clear on the record that you decided that he could represent himself.
THE DEFENDANT: Not now on the voir dire individually.
MR. MCGILL: Now, in reference to that, Your Honor, the argument which Your Honor had heard and I would recite very briefly is that the Rules of Criminal Procedure, Pennsylvania Rule of Criminal Procedure 1106, which is promulgated by the Supreme Court of this Commonwealth that all of us, myself and Mr. Jackson as members of the Bar are required to follow, is, of course, as the Court also you have the discretion to either allow counsel or the Court to conduct individual voir dire.
THE DEFENDANT: Or both.
MR. MCGILL: Now, this discretion, Your Honor, is given to the Court in all cases. Inasmuch as that discretion is given to the Court in all cases, it does not matter whether the defendant represents himself or has someone represent him. The Court still has the discretion.
So therefore an argument which states that you are in some way denying the defendant's right to self-representation falls as meritless because it has nothing to do with who represents him. It has to do with the orderly and appropriate voir dire procedure that the Court in its discretion determines is correct under the circumstances.
THE DEFENDANT: Who determined that the voir dire process was disorderly?
THE COURT: The Court.
THE DEFENDANT: Based on what, Judge?
THE COURT: Based on what I have seen so far.
THE DEFENDANT: Based on what you have seen for the last two days, which you just addressed.
HR. MCGILL: As I understand Your Honor, you have permitted Mr. Jackson, who is an attorney, back-up attorney for Mr. Jamal, to ask the questions.
THE COURT: I made that suggestion.
MR. MCGILL: Also, if Your Honor would take over the questioning, of course, that would mean that neither the Commonwealth nor the defense would be able to ask questions; that only your Honor would be asking questions, which would make it equal for both sides.
Is that also my understanding, Your Honor?
THE COURT: That's correct.
THE DEFENDANT: Judge, you have got a DA with years of experience in homicide cases. He has picked countless jurors. It's very clear to me that once again you are holding his hand.
THE COURT: I'm not holding anybody's hand, because I am taking away from him his right to individually voir dire.
THE DEFENDANT: He offered that to you, Judge. You didn't have any problem picking a voir dire in any other case.
THE COURT: I have in other cases conducted individual voir dire myself.
THE DEFENDANT: Have you made a decision that counsel can represent himself?
THE COURT: I have al [transcript obscured]
THE DEFENDANT: And hi [transcript obscured] voir dire and then terminate the [transcript obscured]
THE COURT: Yes, if I [transcript obscured] proper. Other judges --
THE DEFENDANT: You have no basis for that, Judge.
THE COURT: Other Courts have done the same thing.
MR. MCGILL: Your Honor, I would like to make for the record a statement. In November of 1981 through January of 1982 there was a case, three defendants, before Judge Shoyer. These three defenaants names all were Africa and these defendants were also tried before a jury. It was determined at that point by Judge Shoyer that it would be appropriate for the Judge to handle all of the voir dire questions, which he aid. That was very recent, November through 1982.
(Mr. Jackson and the defendant confer.)
MR. MCGILL: Your Honor, through the experience of the Court there are many reasons for courts to determine [transcript obscured] for the Court to handle [transcript obscured] questions that I handed [transcript obscured] Course, were questions [transcript obscured] quehtions that I would at [transcript obscured] understand were the main [transcript obscured] was trying to put forward.
THE DEFENDANT: You didn't ask me though, did you?
MR. MCGILL: I heard something to the right of me. Your Honor.
However, I think the response to that would be -- if Your Honor would just allow me to respond to that -- I did make access or give access to both Mr. Jackson and as well as Mr. Jamal a list of the questions that I thought would cover his rights based upon the issues in this case. Also it was mentioned that he could himself add additional questions for the Court to consider. I think not only is it a question of the Court conducting the voir dire, but the limit of the questions I think is also important to consider for the purposes of voir dire, which is to determine whether or not you can get a fair and impartial jury to determine whether or not the jurors should in fact be challenged for cause and not for the purposes of determining how to exercise your peremptory challenges. For that reason there should not be a long list of questions, unless a particular juror appears to have a problem in certain areas, which, of course, it could be pursued.
So, Your Honor, I would again ask the Court to give an opportunity to Mr. Jamal and Mr. Jackson to formulate whatever additional questions they think appropriate.
I would also, Your Honor, from the Commonwealth's position argue against questions that I felt beyond the scope of voir dire, which many of them have been so far, and have caused a good deal I believe of delay in this process.
THE COURT: I will hold in abeyance my ruling as to this criminal contempt. I Will give defense counsel and the defendant time and opportunity to prepare or formulate whatever quastions they wish the potential jurors to be asked and give them an opportunity to think over what I have said.
THE DEFENDANT: I think you tried this case already, Judge. I don't want him to ask questions. I don't want McGill to ask questions. I don't want you to ask questions.
(The judge left the bench.)
(Recess.)
THE COURT: Do you have any questions that you wish to submit to the Court for the individual voir dire, Mr. Jamal, Mr. Jackson?
MR. JACKSON: On advice of Mr. Jamal I am not to make any representations to this Court with respect to his defense at this point.
THE COURT: Have you reconsidered my offer?
MR. JACKSON: Your Honor, I have considered it and reconsidered. I can only say to the Court, based on what I have said previously with respect to those righta I believe to be Constitutionally based of Mr. Jamal, Your Honor has certainly agreed Mr. Jamal; has a right to represent himself. Under the circumstances he is representing himself. I have been assigned backup, whatever "backup" means. I think under the circumstances I have no authority to act in excess of the authority that Mr. Jamal gives me. Pursuant to that, Your Honor, I would not be in a position to review any questions that Mr. McGill or submit any questions on behalf of Mr. Jamal unless otherwise directed. He has now begun, so, Your Honor, I most respectfully refuse to participate in reviewinq those questions unless told by him.
MR. MCGILL: Way I address the Court, Your Honor?
THE COURT: Yes.
MR. MCGILL: The posture of the relationship between Hr. Jamal and Mr. Jackson may be relevant to review at this point to determine who can be ordered to do what. Mr. Jackson's present posture through the Court's order is a back-up counsel to Mr. Jamal, not co-counsel, although admittedly he has been used, quite often throughout the course of the motion and the first two days of voir dire for advice, questions, et cetera. However, as it stands at this moment, Mr. Jamal still represents himself.
Therefore, if Mr. Jamal does not want to review anything at all with Mr. Jackson, does not want to discuss questions with him, that is perfectly within his right to do that and Mr. Jackson is perfectly within his right not to answer questions or give advice to Mr. Jamal at this point.
Your Honor, after hearing argument from Mr. Jamal representing himself as well as the assistance from Mr. Jackson, has determined on the two bases that you had stated that in the interest of justice it would be appropriate that you as the Court would ask the questions to the venirepersons. You gave as an option, strictly as an option for Mr. Jamal, the opportunity of Mr. Jackson to handle the questions, whatever ones he wishes and Mr. Jamal wishes for the voir dire, but only as an option. Your primary ruling, inasmuch as Mr. Jamal at this point represents himself, was that counsel would not question, but the Court would.
At this point, Your Honor, inasmuch as I can tell from counsel he has decided not to review questions, if he could also be asked -- I believe I know the answer, but if he could also be asked whether or not there was a decision at this point that Mr. Jackson would ask questions. Assuming that the answer is that he will not ask questions because his client does not wish him to do that, even at that point Mr. Jamal and Mr. Jackson are acting quite properly. Mr. Jamal still is the leader of his defense at this point.
I would then suggest to this Court, since Your Honor has ordered that the questions be asked by this Court, since the option has not been taken, that Your Honor then call the first venireperson and then ask questions.
THE COURT: All right, I will proceed.
MR. JACKSON: Your Honor, may it please the Court, with respect to contempt of Court, may I have a ruling so I will know my status at this point?
THE COURT: I said I had held it in abeyance.
Call the next juror.
MR. JACKSON: Your Honor, may it please the Court, may I be heard on this issue?
THE COURT: I said I was holding up on it.
MR. JACKSON: I understand that, Your Honor. There is just a sole issue that I need to know for my own purposes, and that is with Your Honor holding that matter under abeyance, with respect to what my actions should or should not be, it therefore inhibits me in the future in terms of what my relationship to this Court and Mr. Jamal might be. For that reason I will need some ruling, Your Honor.
MR. MCGILL: Your Honor, I'm quite sure that Mr. Jackson did not intentionally violate the Court's order.
At this point, Your Ronor, I would make the request at least to all conduct to date there has been no violations from Mr. Jackson's actions. I would ask that the Court consider withdrawing that order at this point. If things occur in the future, of course, Your Honor would act accordingly.
THE CQURT: In order to expedite the matter I will withdraw that contempt.
THE DEFENDANT: Judge, I would like to make a statement. You are going to call in the next juror. You are going to question based on some questions submitted to you from Mr. McGill. I have had no input in that decision. We had that meeting for several hours on Monday. Even though you made an agreement then, you are taking the agreements back on Wednesday. I don't want to participate, because you made an agreement and then you broke it. You can make an agreement today and break it tomorrow.
I want John Africa to sit and ask questions for me. I don't want you. I don't want McGill. I don't want Jackson. So you can play your game. You can select your fair jury. It's a damn farce and you know it, a fair and impartial jury selected by a judge.
COURT OFFICER: 143, Grainer-Galiczynski.
. ..CHRISTINE GREINER-GALICZYNSKI...
BY THE COURT:
Q. Is 18 that Miss or Mrs.?
A. Mrs.
Q. What area of the City do you live, without giving us yours exact address?
A. I live in the Fishtown area.
Q. What is the zip code there?
A. 19125.
Q. Are you presently employed outside of the home?
A. Yes. I have worked for the Philadelphia Board of Education. I'SI a classroom teacher.
Q. What grade do you teach?
A. Third.
Q. Bow long have you been teaching?
A. Ten years.
Q. Do you have any children?
A. No.
Q. What is the last school you attended?
A. Temple University.
Q. Did you have any legal training?
A. No.
[updated 10/1/00]
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