Memorandum in Support of Motion


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
               v.                  |
     The United States, et. al.    |
           Defendants.             |



In an Order, filed January 27, 1995, the Court granted Defendant's Motion for a Stay of Discovery.

Because, through precluding plaintiffs from discovery, defendants have obtained protection against the revelation of facts which might prove the validity of plaintiffs' claims in the instant matter, defendants cannot be allowed to circumvent the discovery process by utilizing agents, acting under color of official authority, for the purpose of obtaining "facts" that might support their own legal advantage in the instant matter.


Defendants' Memorandum of Points and Authority (filed February 14, 1995) states, "Once these issues are resolved, the defendants intend to file a motion for summary judgment as to all of plaintiffs' claims." Id. pg. 14. ftn. 7.

However, as discussed below, plaintiffs cannot prudently discard every possibility that, in the absence of the factual foundation necessary to prevail on a Motion for Summary Judgment, defendents' may plan to pad their intended motion with "evidence" that should have been obtained through the discovery process. In light of this Court's Order to Stay Discovery plaintiffs think it is appropriate to insure that defendants do not obtain discovery through an improper entry.


According to D.C. Metropolitan Police Lt. Crockett (Pager number 202-515-1957), the killing of Marcelino Corneil, which occurred on the White House sidewalk on December 20, 1994, is being investigated by the District of Columbia Homicide Division.

After the shooting on December 20, 1995, Wade Varner accompanied Metropolitan Police to 500 Indiana Avenue, where he was questioned about the incident. See, Second Declaration of Wade Varner, filed February 24, 1995.

Metropolitan Police officers also requested Concepcion to accompany them to headquarters. When Concepcion declined, she was told that she could go voluntarily or the police would get a warrent and force her to go. See, Declaration of Concepcion, filed this date.

On January 31, 1995, two unidentified police officers attempted to question Concepcion Picciotto in connection with issues directly relating to the merits of the instant complaint.

They asked Concepcion to leave with them, in their car, to go somewhere else to be questioned.

Concepcion refused. There is some question as to what the officers then said to Concepcion. See Declaration of William Thomas in support of the instant motion.

The officers also made enquiries about Wade Varner, and said they were interested in questioning him also.

The officers left the Park with William Pugh riding in the rear seat of their car, and returned Mr. Pugh to the Park some hours later.


On February 10, 1994, U.S. Park Police Dectective Robert W. Johnson left a business card and said Wade Varner "should call U.S. Attorney Eric Marcy (514-6946) re: Marcelino Corneil investigation."

On March 2, 1995 Assistant U.S. Attorney Eric Marcy, accompanied by other presently unidentified agents from presently unidentifed Governent agencies appeared in Lafayette Park to question various individuals, including, but not limited to Ellen Thomas, David (see, Declaration of David Jackson, filed February 24, 1995, Plaintiffs' Motion to Reschedule Preliminary Injunction Hearing, Exhibit 3), Gregory Jackson. It is reported that Mr. Marcy and the agents accompanying him also questioned other individuals, who may or may not have had personal experience regarding the incidents proceeding the shooting of Mr. Corneil.


At the risk of sounding overly critical, it is conceivable that Dectective Robert W. Johnson, (if not Lts. Crockett and Ward) were attempting to solicit discovery of plaintiffs, while the U.S. Attorney has successfully [1] evaded discovery of defendants. Court's Order, January 27th.

What legitimate interest does AUSA Eric Marey have in the incidents which proceeded the killing of Marcelino Corneil, and are at issue in this present matter?

Plaintiff Concepcion Picciotto was an eyewitness to incidents at the heart of this litigation. She was before this Court at the January 6, 1995 TRO hearing when this honorable Court declined to hear the testimony, which she had specifically come to offer, regarding these very issues.

[1 See, Declaration of William, filed this date, paras. 7-14]


Likewise, Wade Verner, who is not party to this case, was an eyewitness to those events, and was before this Court at the January 6, 1995 TRO hearing when this honorable Court declined incidents at the heart of this litigation to hear the testimony, which he had specifically come to offer, regarding these very issues.

Similarly, David Jackson, who is not party to this case, was an eyewitness to events immediately relating to issues at the heart of the instant matter, although not to the shooting itself, and was also present at the January 6, 1995 TRO hearing when this honorable Court declined to hear the testimony, which he had specifically come to offer, regarding these very issues.

Gregory Jackson and Daniel Jackson, who are neither parties to this action, nor before the Court at the January 6th hearing, also have information relating to the issues of the instant complaint, but unrelated to the shooting itself.

On the other hand, with all due respect, in the unlikely event that defendants' intended motion for summary contains any reference to Mr. Pugh, it just wouldn't be fair, or consistant with the Federal Rules, for this Court to accept anything Mr. Pugh (or anyone similarly situated) before Mr. Pugh is subject to cross-examination, and only after after plaintiffs have been given access to all written or otherwise recorded statements made by Mr. Pugh (or anyone similarly situated) had been made available to plaintiffs prior to the cross-examination.



Upon the foregoing discussion it should be seen that the interests of balanced jurisprudence can only be served in the instant matter if defendants are not permitted the benefits of the discovery process while, by virtue of the Court's Order to Stay Discovery (January 27, 1995), denying plaintiffs the same benefits of discovery, and/or by taking discovery, through interrogation of potential witnesses by agents working under color of official authority outside the presence of plaintiffs, a representative of plaintiffs, while precluding plaintiffs from any participation in the questioning.

Respectfully submitted this 3rd day of March, 1995,

William Thomas
2817 11th Street N.W.
Washington, D.C. 20005
March 3, 1995