Rumsfeld Foretold
The entire first half of the hearing84 was devoted to the direct examination and cross examination85 of Daniel DeVincentis of the Probation Department of the Court of Common Pleas, a process that was in reality more or less a talking duel between defense attorney Daniel Alva and ADA Joseph McGill. Based on a pre-sentence investigative report prepared by him as well as on other factors, DeVincentis, who had not been present at the trial itself, at first “recommended a period of incarceration followed by strict parole.”86 But when told by Alva during direct examination that “there was no testimony of any injury, and … no observable injury” Faulkner suffered from Billy Cook’s actions, he told the court in that case he would recommend probation instead.87
And so it went, with DeVincentis flipping sides again after ADA McGill had hammered him with a short, but emotional cross examination:
McGill: “Well, there he is at that time and at that place with a uniformed police officer behind him, and turning around, and then he hits him in the face … which led to someone’s death, the individual very shortly thereafter was shot in the back, and then shot in the face, but as far as that man is concerned, he had done that a moment before the killing, now, taking that into account, sir, … that the doctor, the Medical Examiner would say about the fact of no observable injury on the face of an individual who died as quickly as he did after the incident … that the extent of any kind of observable injury would be minimal, and … possibly not even observable at all, … I am asking you now, if you would now [be] taking into account all of those circumstances, including the blow, would that be consistent with your recommendation of jail?
DeVincentis: The way it is stated, yes, it would be.88
The same flip-flop happened during redirect and recross, until Judge Meyer Rose himself asked the final questions of this witness, who at the opportunity again switched back to the defense demand for probation:
Well, Your Honor, … the officer was struck. That in itself to me is aggravated assault. If he sustained any type of an injury, … [combined with] the fact that it was a police officer that was struck, … then I would say the recommendation should stand as it is. But if there was no injury sustained, the I would have to go with probation.89
Understandably for a legal lay person, Probation Officer DeVincentis was unsure about the law pertinent to the case, but during this whole argument, there was one thing he wasn’t unsure about at all right from the start, namely, that if there was no evidence of any injury Faulkner suffered from Cook’s alleged blow, he would not recommend a prison sentence.90 And it was crystal clear that Medical Examiner Dr. Paul Hoyer, who had examined Officer Faulkner’s body after attempts at Philadelphia’s Jefferson Hospital to bring him back to life had failed had stated that he had found no physical signs of any such injury in the Officer’s face whatsoever.91
As it turned out, McGill had a solution to this problem that was just as ingenuous as his “Chinese menu” during the guilt phase of Billy Cook’s trial: What really counted was not the actual presence of evidence of any injury in the officers face, but the fact that it couldn’t be disproven that such evidence might have emerged in the form of a hematoma, had the officer’s blood circulation not stopped shortly thereafter on account of his shooting death:
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