Transcript 1/28/88

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January 28, 1988 9:30 a.m.

THE CLERK: Criminal Action 87-0062, United States of America vs. William Thomas and Criminal Action 87 0064, United States of America vs. Ellen Thomas. For the government Mark DuBester. Also representing Miss Thomas, Mr. Robert Hurley.

MR. HURLEY: Good morning, Your Honor.

THE COURT: Good morning. All right, you may proceed. Mr. Thomas, are you ready to proceed?

MR. HURLEY: Yes, Your Honor.

THE COURT: We've been waiting 15 minutes.

MR. THOMAS: Sorry. Your Honor I had a little trouble getting here. We had a little trouble getting through security with all the boxes. Sorry. Are we hearing the motion for reconsideration?

THE COURT: We're here for sentencing.

MR. THOMAS: Oh.

THE COURT: I assume you have no counsel yet, still.

MR. THOMAS: No, I have no counsel, but are you aware of the motion for reconsideration? I received a notice that said that there was going to be a hearing and/or sentencing, and I wasn't sure.

THE COURT: Let me (pause) yes: I'm aware of it, Mr. Thomas. I have it and I have the government's opposition, and the Court's considered it. If you want to

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say anything that's not in the motion, I'll be glad to hear from you.

MR. THOMAS: I have nothing to say on the motion, if there's no questions.

THE COURT: Does the government have anything you wish to say?

MR. DuBESTER: No, Your Honor.

THE COURT: All right, then we'll proceed to the sentencing. The motion to reconsider will be denied. Anything you wish to say before the court imposes sentence Mr. Thomas?

MR. THOMAS: I'd like to ask for a continuation, postponement, of the sentence, so that I can submit written objections to the report, mostly for a video tape presentation that we would like the court to consider briefly it passes sentence.

THE COURT: could you refresh the court's recollection as to the date you were found guilty, sir?

MR. THOMAS: December 15th.

THE COURT: Mr. Thomas let me ask you this: When were you advised of the availability of the presentence Investigation report for your review?

MR. THOMAS: I reviewed it on Friday.

THE COURT: That didn't answer my question.

MR. THOMAS: That was the first day it was ready. I

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had to wait for it to be prepared.

THE COURT: Miss Best, when was it finished?

THE PROBATION OFFICER: On Friday Your Honor.

THE COURT: That's the 22nd of January?

THE PROBATION OFFICER: Yes Your Honor.

THE COURT: Did you read it on Friday, sir?

MR. THOMAS: Yes I did but I would make my motion pursuant to Local Rule 311, asking for 27 days.

THE COURT: Well, it is in the discretion of the court under Rule 311.

MR. THOMAS: Yes, sir.

THE COURT: That is not binding. Tell me why you need more time.

MR. THOMAS: Well, I would like, I think that the presentence report is lacking a lot of things. That's my main concern. There are a lot of things that should be in there that aren't, and I'm, I've tried to make some attempts to present it to you. I was thinking the video tape, for one, which is something that you could review at your leisure. I have a partial list of objections that I have, and I would

THE COURT: Well, how much time do you need? What it that you object to in the presentence investigation report that is material to the question before the court at sentencing?

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MR. THOMAS: Okay, I think that the main thing is the representation that I have done nothing to avoid rearrest. I think that that's a very damning representation, and I can't understand why it was made because

THE COURT: Well, let me ask you this, Mr. Thomas: Is it not true that you've had during the course of your career, life, 31 prior arrests, not counting the instant case? Isn't that true?

MR. THOMAS:: Well, that is one thing that I wanted to get into dealing with the inaccuracy.

THE COURT: Well, it's just a simple fact. Is it true or isn't it?

MR. THOMAS: Well, I haven't kept track, but there's more than that actually.

THE COURT: Been more than 31?

MR. THOMAS: Yes but I think

THE COURT: Let me ask you

MR. THOMAS: I think they fail into two distinct categories if I might point out.

THE COURT: What are they?

MR. THOMAS: The ones prior to my change of heart and the ones since my change of heart.

THE COURT: What do you mean by that, sir?

MR. THOMAS: Weil, I think that when I was a youth, was very confused and I did a lot of things that were

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antisocial. Since I've had my change of heart, every single arrest that I've had has been for basically what I'm here for now, just trying to communicate.

THE COURT: Very well. Now, isn't it a fact that you have been arrested for demonstrating in and around the White House and as a result of that sustained seven convictions?

MR. THOMAS: That's accurate, yes; however

THE COURT: Now, wait a minute. May I ask you some other questions?

MR. THOMAS: Yes.

THE COURT: Have you been placed on probation for those seven convictions?

MR. THOMAS: I have.

THE COURT: Is it also true or not true, tell me, that after having been convicted. placed on probation, you went back to Lafayette Park to do the same or similar thing that you had been convicted for?

MR. THOMAS: I did, and now I have a permit to do it.

THE COURT: All right. Now, let me ask you this: what means of support have you had during the past ten years, visible means of support, to earn a living pay your taxes, and do that sort of thing?

MR. THOMAS: That's the entire point of my beiiefs. I live very simply. I don't have any visible means of support.

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THE COURT: And your whole purpose in life, as the court understands it, has been to engage in activity to demonstrate against the policies of the government.

MR. THOMAS: No, that's not correct.

THE COURT: That's not true?

MR. THOMAS: It's not true.

THE COURT: All right. Well, let me see if I can make it so that is correct, and I thank you for your answer. Mr. Thomas, during this period of time, say the last ten years, you have been generally protesting against certain activitles pursuant to your claimed rights under the First Amendment to the Bill of Rights to the Constitution, have you not?

MR. THOMAS: If I have been protesting against anything, I have been protesting against force and violence I like to think that what I'm doing is acting as a proponent of reason and logic.

THE COURT: Whatever it is, sir, whatever it is, you have been exercising your rights under the First Amendment as you see it; Is that correct?

MR. THOMAS: As I see it, yes; however, and that's what all the boxes are for (indicating). You asked me what my visible means of support are. Those boxes are my work product for the last three years, that representing multiple thousands of hours. I've done the typing, filing, the

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research, the messenger work, I put in as many law hours, I would venture to say, as probably any lawyer in the District, and the purpose that I have been doing this for is specifically to avoid rearrest.

The civil action that I have pending Thomas vs. United States, 84-3552, the record is 46 inches tall. In my opinion, it boils down to one page, on the page where I asked for mandamus relief, to define the terms "casual sleep," "camping," and "storage of property," in order that I can maintain my continuous presence without running afoul of the regulations.

The reason that I've been staying in one place is because there's one of two possibilities: either I have something of value for people to hear or I'm crazy. If I have something of value for people to hear, my expcrience leads me to believe that they can't take it in all at one sitting, and on numerous occasions I've had people who have stopped and talked to me and maybe even went away angry the first time, but they've come back later and said, "I listened to what you said. I thought about it after I left, and I want to hear some more." So I stay in one place, first, as symbolic effort to show dedication, commitment; secondly, to be available if sonething that I say rings a chord in someone's heart or mind and they want to come back and talk some more.

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THE COURT: Well, I think that's an answer as to why, what you've been doing the last ten years, or approximately ten years, and the court understands that. The court doesn't think you're crazy, and I hope you don't.

MR. THOMAS: I have my doubts about everything.

THE COURT: Well, I think every human being, we all go through our lives from time to time and have doubts, a lot of propositions and premises, but we have to keep going as long as we're here.

I gather you don't really feel any remorse about this conviction that's before the court today for sentencing.

MR. THOMAS: Well, this is one of the things that I did address in my responses to the presentence report.

THE COURT: I know you did.

MR. THOMAS: I've contacted or I've tried to contact Miss Robinson every day since I reviewed the report. She hasn't been available, so up to this point I haven't had any opportunity to try to get things straightened out with her Nonetheless, I've prepared brief answers to the presentence report, and remorsefulness is one of the things that I did cover to some extent. You see, the way I see it, I know what I"m there for, I know what my purpose is. I know what my intent is, or I'm crazy, one or the other, and assuning that my intent is true, then I'm not guiity of that. So I can't feel, I can't feel any remorse.

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You dismissed the charges, in the first place, on the grounds of religious Exercise. the governnent can't question me, they can't question the sincerity of my belief. The Court of Appeals allowed it. That's what's motivating me, my religious belief, and there's nothing I can do. I have to do what I'm doing. So I feel remorse, I feel renorse that it's very obvious to me that you understood that motion. You cited the cases to support your order. I feel remorse that we're in this position today. I feel remorse because I think there is something wrong, and, although I have my doubts, I don't strongly believe it's me that's wrong. I sort of feel sorry for you, because you did what is right in the first place, and it seems that you're caught in something that's wound up making you do what seems to me to be wrong. I mean, that's my belief. I believe your first opinion was correct.

THE COURT: So do I, but, you know, Mr. Thomas, federal trial judges are bound to uphold the laws of the United States, and part of the laws of the United States, or an important part of the laws of the United States are those handed down by the United States Circuit Court of Appeals and the United States Supreme Court. This court thought it rendered the decision under the facts as then presented on your motion that was consistent with the jurisprudence of the Suprerne Court; however, there was an appeal, and the Court of Appeals said that I erred and that you were wrong, even

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though I agreed with you. So thls court is bound by that. I have no other choice, and I hope you understand that.

MR. THOMAS: I understand.

THE COURT: They upheld, as you know, the validity of the regulation, and after hearing the evidence fairly and impartially, the court founud, based on the evidence presented, that you were in fact guilty of the charges placed against you at the time of your arrest. It would probably do the court little good to say it, but the fact is, Mr. Thomas, that we're not here to make the law; we're here to apply the law and to do it fairly and in accordance with the elements. So we've gotten beyond the point as to whether it is constitutional or not, based on your religious belief, to do what you were doing at the time of your arrest and what you've been found guilty of. We're now at the point of whether you should be punished by way of incarceration or some other means within the discretion of the court to deal with your having been found guilty. That's what we're here for today.

Now, if you want to tell me, I wish you would tell me now, what facts material to the issue of sentence you wish to tell me and have me consider in connection with passing sentence in this case.

MR. THOMAS: I'm really not prepared outside of the objections that I've put together to the presentence report.

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The only fact I can tell you is all this paper that I've brought in here that shows I haven’t been doing anything.

THE COURT: Shows you haven't done anything; what do you mean?

MR. THOMAS: I beg your pardon. That shows that I haven't been doing nothing. It shows that I've been doing something. There's another passage in the presentence report that says something like I have, I show great purpose and direction and determination, but it seems like it's saying that I show these things toward leading an unconventional lifestyle, and I think those are the most damning things in the report, and I don't think either of them is true, and I think that the paper proves it. I've been trying to behave in a civilized mannerr and I think that there's some questions as to other, others are behaving in an uncivilized manner, which, of course

THE COURT: All right, Mr. Hunter and Ms. Best, let's take this presentence investigation report, let's review it right now, and give him a copy, if you will, please, except for the last page.

All right, Mr. Thomas, the first sentence on page 2, well, starting with page 1, that's obviously correct, isn't it?

MR. THOMAS: Yes.

THE COURT: All right. Paragraph one under the

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prosecution version of this offense is also obviously correct, is it not?

MR. THOMAS: I'm not sure about the red bag, but

THE COURT: I just asked you if the first paragraph was obviously correct. That's true, is it not? On February 18, 1987, a one count information was filed charging you, William Thomas, with camping in Lafayette Park, in violation of Title 36, C.F.R., Section 7.96(i). That's truer is it not?

MR. THOMAS: Yes.

THE COURT: All right, and there was an incident on December 22, 1986, on the south sidewalk of Lafayette Park, directly across from the White House. That first sentence is obviously correct, isn't it?

MR. THOMAS: Yes.

THE COURT: And you were arrested by the patrolman on December 22, 1986.

MR. THOMAS: actually, we were given a citation, technicaily, but

THE COURT: You call it a citation or arrest, whichever you choose.

MR. THOMAS: I'm sorry.

THE COURT: That's all right. How about the next sentence? That's true, isn't it?

MR. THOMAS: Yes.

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THE COURT: The third sentence, they were jointly covered by

MR. THOMAS: Yes.

THE COURT: That's correct, isn't it?

MR. THOMAS: (Pause) The next sentence I would disagree with.

THE COURT: All right.

MR. THOMAS: The police officer testified that Ellen at all times

THE COURT: You're talkinq about Ms. Thomas when you say "Ellen"?

MR. THOMAS: Yes. at all times appeared to be awake and conscious of what was going on.

THE COURT: All right, the court has made a finding of fact in respect to that. In summation, the U. S. park officer concluded that the defendants were camping, as defined, etc., such as sleeping, making preparation to sleep and storing personal belongings. I gather, have you some quarrels with that?

MR. THOMAS: No I can't speak for the police officer.

THE COURT: All right. How about the, there was no plea agreement?

MR. THOMAS: No plea agreement, that's correct.

THE COURT: All right. Under bail detention

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adjustment, you don't have any quarrel with that, do you?

MR. THOMAS: No, that's fine. I guess I could go to the problems that I have.

THE COURT: All right. Well, I want to know what specifically is in this report that is material. Listen to me, now, please. I want to know what specifically is in this report that is material to sentencing that you say is incorrect or inaccurate. That's what I'm here for this morning, and also to impose sentence.

MR. THOMAS: First of all, it misrepresents my work history.

THE COURT: Now, where? Direct me to the page and the portion which you claim is inaccurate.

MR. THOMAS: He states that he previously worked as a stone carver.

THE COURT: That page of the report is this?

MR. THOMAS: Page 7, last paragraph.

THE COURT: Is everything before page 7 correct?

MR. THOMAS: Not with respect to the history of the

THE COURT: Well, why don't we start from the beginning? And then you tell me that's wrong with it and what's not wrong with It.

MR. THOMAS: Well, because I think that the most material things are the things that relate to this sentencing

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today.

THE COURT: All right, and I'll look at page 7. I'll follow your preference. What is there that is incorrect, inaccurate, that is material to sentencing?

MR. THOMAS: It states that he previously worked as stone carver in New Mexico and did odd jobs as needed duning his travels.

THE COURT: Can you show me where that appears, sir?

MR. THOMAS: That's in the bottom paragraph of page 7.

THE COURT: Is that incorrect?

MR. THOMAS: Yeah, it's incorrect.

THE COURT: You never were a stone carver?

MR. THOMAS: No, I was a stone carverr but I owned a jewelry manufacturing business.

THE COURT: Wait a minuter sir. Did you tell the probation officer you were a stone carver in New Mexico?

MR. THOMAS: Among other things that aren't there.

THE COURT: Wait a minute. Did you tell them that?

MR. THOMAS: Yes, I did.

THE COURT: Did you tell them you did odd jobs to support yourself?

MR. THOMAS: I don't think I ever said I did odd jobs; I think I said I've held a number of different jobs.

THE COURT: In order to support yourseif during your

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travels?

MR. THOMAS: No, I mean, for example, I drove a semi for two years. I told her that. That's not in there. I worked as a carpenter. That's my profession. That's not in here. I've worked at different jobs for considerable Periods of times. That's not in there. So I think that makes it look like, I don't think that makes me appear as, you know.

THE COURT: As what?

MR. THOMAS: Maybe directed, well, directed as I should, and then it talks about, it just says

THE COURT: Well, if you have a quarrel with that sentence in the sense that it makes you appear misdirected or undirected, having failed to live a structured life, as many people do

MR. THOMAS: That's it, having failed to lead a structured life.

THE COURT: I will take your version of that, that element of the presentence report. Now, what else do you claim is inaccurate that is material to the matter of sentencing here this morning in the presentence investigation report before me now?

MR. THOMAS: Well, the last paragraph. I think, is

THE COURT: Page what?

MR. THOMAS: Page 8.

THE COURT: Very well.