TO OUR LOCATION, OUT OF FEAR THAT THEY WERE NOT AT ALL ASLEEP. THE
COURT: WHAT YOU DID WAS SUMMON YOUR -
THE WITNESS: IMMEDIATE SUPERVISOR.
THE COURT: ALL RIGHT.
BY MR. SHMANDA:
Q. AND DID THAT SUPERVISOR COME?
A. HE DID RESPOND. HE LEFT THE OFFICE AND RESPONDED IMMEDIATELY TO MY LOCATION.
Q. AND WHAT WAS HIS NAME, PLEASE, THE SUPERVISOR?
A. SERGEANT JOHN PHILIP MALHOYT RESPONDED.
Q. AND ONCE HE RESPONDED, WHAT, IF ANYTHING, DID YOU DO, OFFICER HAYNES?
A. I RESPONDED OVER TO THE SERGEANT'S CRUISER, AND I ADVISED HIM THAT MY PERCEPTION WAS THAT THOMAS AND CONCEPTION WERE ASLEEP, ALTHOUGH I COULD NOT BE CERTAIN. WE HAD BEEN CAUTIONED AGAINST LOCKING -- OR ARRESTING THEM FALSELY. I TOOK ALL DUE PRECAUTION NOT TO JUST GO BEYOND THINKING THAT PERHAPS THEY WEREN'T ASLEEP AT ALL. SO I WANTED MALHOYT TO SEE THEM.
Q. ALL RIGHT.
A. HE GOT OUT OF HIS CRUISER. HE DISEMBARKED FROM HIS CRUISER TO RESPOND TO MY REQUEST.
THE COURT: I CAN'T UNDERSTAND YOU.
THE WITNESS: SERGEANT MALHOYT DISEMBARKED FROM HIS CRUISER, UPON MY REQUEST, TO TAKE A LOOK FOR HIMSELF AT CONCEPCION AND THOMAS.
AS I RETURNED TO THE TWO OF THEM, I SHOOK CONCEPCION AFTER CALLING HER, I SHOOK HER. MALHOYT, THE SERGEANT, THEN KEYED HIS MIKE TO REQUEST A VEHICLE TO TRANSPORT THEIR PROPERTY TO MY PROPERTY SECTION ON NEW YORK AVENUE, AND HE ALSO REQUESTED I BELIEVE, A TRANSPORT UNIT TO RESPOND, TO TAKE BOTH SUBJECTS TO HAINES POINT, TO THE PROCESSING SECTION.
BY MR. SHMANDA:
Q. YES, SIR. LET ME ASK YOU A COUPLE OF QUESTIONS, OFFICER HAYNES. YOU INDICATED THAT, AT YOUR REQUEST, SERGEANT MALHOYT CAME OVER?
A. YES, SIR.
Q. AND WAS IT AT THAT TIME THAT YOU WERE SHAKING THE FEMALE DEFENDANT?
A. YES. I SEEMINGLY LED SERGEANT MALHOYT TO THAT LOCATION. HE STOPPED SHORT OF WHERE THEY WERE TO KEY HIS MIKE. I SUPPOSE HE OBSERVED THEM, AS I DID. I WANTED HIM TO SEE THEM, AND I WAS NOT CERTAIN THAT THEY WERE ASLEEP.
Q. I UNDERSTAND THAT, SIR. JUST TELL US WHAT YOU DID, AND NOT YOUR REASONS; OKAY?
A. ALL RIGHT.
Q. SO MY QUESTION TO YOU IS: WHEN DID YOU ACTUALLY SHAKE THE FEMALE INDIVIDUAL YOU HAVE IDENTIFIED IN THIS COURTROOM?
A. AFTER I LED SERGEANT MALHOYT TO THE LOCATION.
Q. OKAY. NOW, WHEN YOU SHOOK HER, WHERE DID YOU SHAKE HER?
A. I SHOOK HER ON THE SHOULDER.
Q. HOW DID YOU DO THAT?
A. VERY GENTLY. VERY GENTLY.
Q. WITH ANY TYPE OF OBJECT OR A PART OF YOUR BODY?
A. NO, SIR, WITH MY HANDS.
Q. DID YOU GET, OR OBTAIN, ANY RESPONSE, IN RESPONSE TO YOUR SHAKING HER?
A. AN IMMEDIATE RESPONSE, REALLY, A QUITE --
Q. COULD YOU JUST DESCRIBE TO HIS HONOR AND DEFENSE COUNSEL EXACTLY WHAT YOU OBSERVED IN THE WAY OF THAT RESPONSE?
A. WELL, I SHOOK CONCEPCIONBUMPED ON THE SHOULDER, AND I SAID, "CONCEPCION, CONCEPCION." AND SHE ALMOST IMMEDIATELY GRABBED THOMAS, AND SHE SAID, "TOM, TOM, WAKE UP. THEY'RE HERE," YOU KNOW. AND THOMAS JUMPED IMMEDIATELY. SO l WAS
WELL, THAT WAS THE RESPONSE I GOT.
Q. ALL RIGHT. AND DID MR. THOMAS MAKE ANY RESPONSE TO YOU, VERBAL RESPONSE, SUCH AS THE VERBAL RESPONSE YOU INDICATED YOU OBSERVED WITH RESPECT TO THE FEMALE? DID HE SAY ANYTHING?
NO, SIR.
Q. DID YOU DO ANYTHING?
A. WE ASKED THOMAS TO STAND UP ON HIS FEET.
THE COURT: I CAN'T UNDERSTAND YOU, OFFICER.
THE WITNESS: BOTH THOMAS AND CONCEPCION ROSE TO THEIR FEET -- WELL, FIRST, OFF THE GROUND, AND AT THAT TIME THERE WAS NO DENIAL THAT THEY WERE SLEEPING. MR. THOMAS -- SMELLED WHAT APPEARED TO HAVE BEEN ALCOHOL ON HIS -- HE APPEARED TO HAVE BEEN IN A DEEP SLEEP. HE DIDN'T RESPOND RIGHT AWAY TO CONCEPCION GRABBING HIM AND TELLING HIM THAT EE WERE HERE, WHOEVER "WE" WERE. I ASSUME HE SOON REALIZED HAT "WE" WERE THE POLICE.
THE COURT: DON'T ASSUME. WILL YOU PLEASE ELICIT THE TESTIMONY BY QUESTIONS? I DON'T WANT A MONOLOGUE HERE.
BY MR. SHMANDA:
Q. OFFICER HAYNES, JUST TELL US WHAT YOU SAW AND DID.
A. ALL RIGHT.
Q. MOTIVATIONS AND THINGS LIKE THAT ARE NOT IMPORTANT HERE.
A. ALL RIGHT.
THE COURT: JUST ASK YOUR QUESTIONS AND GET CRISP RESPONSES, AND LET'S GO.
MR. SHMANDA: YES, SIR.
THE COURT: WE ONLY HAVE A FEW MINUTES.
MR. SHMANDA: YES.
THE COURT: HAVE YOU FINISHED?
MR. SHMANDA: JUST ABOUT. JUST ABOUT, YOUR HONOR.
BY MR. SHMANDA:
Q. NOW, OFFICER HAYNES, DID YOU PLACE THESE PEOPLE UNDER ARREST?
A. I DID.
Q. WHAT DID YOU PLACE THEM UNDER ARREST FOR?
A. I CHARGED THEM WITH CAMPING.
Q. OFFICER HAYNES, DID YOU MAKE ANY OBSERVATIONS ABOUT THE AREA IMMEDIATELY AROUND WHERE THEY HAD BEEN ON THE PAVEMENT?
A. YES, SIR, THREE OBSERVATIONS.
Q. AND, AS A RESULT OF THOSE OBSERVATIONS, CAN YOU TELL US WHETHER OR NOT YOU SAW ANY OBJECTS, OTHER THAN SIGNS, AND OTHER THAN THE TWO DEFENDANTS?
A. YES. QUITE A FEW BOXES, BOOKS, AND WHAT I PERCEIVED TO HAVE BEEN FOOD ARTICLES.
Q. THANK YOU VERY MUCH, OFFICER HAYNES.
MR. SHMANDA: ONE LAST QUESTION, YOUR HONOR, IF I MAY.
BY MR. SHMANDA:
Q. OFFICER HAYNES, IT SOUNDS AS THOUGH YOU KNEW EACH OF THEM BY NAME BEFORE THIS INCIDENT; IS THAT CORRECT?
A. YES, SIR.
Q. HAD YOU, YOURSELF, EVER ARRESTED EITHER INDIVIDUAL BEFORE ANYWHERE AROUND THE WHITE HOUSE AREA?
A. NO, SIR.
Q. FOR ANY TYPE OF OFFENSE?
A. NO, SIR.
MR. SHMANDA: THANK YOU.
THE COURT: CROSS-EXAMINATION.
CROSS-EXAMINATION -- BY MR. GRABER:
Q. OFFICER HAYNES, YOU INDICATED THAT YOU HAD BEEN TOLD SOMETHING BY SOMEBODY, AND THE COURT CUT YOU OFF. I WAS INTERESTED IN IF YOU HAD BEEN GIVEN ANY INSTRUCTIONS BY YOUR SUPERIORS WITH RESPECT TO THE ENFORCEMENT OF THE CAMPING REGULATIONS WHERE AN INDIVIDUAL MAY BE SLEEPING.
A. I AM SORRY. I DO NOT UNDERSTAND WHAT YOU ARE SAYING. I AM SORRY.
Q. WELL, HAVE YOU RECEIVED ANY INSTRUCTIONS FROM YOUR SUPERVISORS WITH RESPECT TO HOW SLEEPING RELATES TO A VIOLATION OF THE CAMPING REGULATION?
MR. SHMANDA: EXCUSE ME, YOUR HONOR. I OBJECT.
THE COURT: SUSTAINED. THAT WAS NOT PART OF THE DIRECT.
MR. GRABER: WELL, I CALLED THIS WITNESS, ALSO, YOUR HONOR.
THE COURT: OH, HE IS YOUR WITNESS. GO AHEAD.
THE WITNESS: WELL, CAMPING IS A VIOLATION OF THE CODE OF FEDERAL REGULATIONS.
THE COURT: WELL, HAVE YOU RECEIVED ANY INSTRUCTIONS ABOUT SLEEPING?
THE WITNESS: SLEEPING?
THE COURT: YES.
THE WITNESS: SIR, IT IS A VIOLATION.
THE COURT: ALL RIGHT.
BY MR. GRABER:
Q. SLEEPING IS A VIOLATION?
A. YES, SIR, AND WE ARE TOLD TO ENFORCE THE REGULATIONS AS THEY PERTAIN TO CAMPING IN FEDERAL PARKS.
Q. NOW, WHICH SUPERVISOR TOLD YOU THAT?
A. SIR, WE HAVE A CODE OF FEDERAL REGULATIONS MANUAL.
THE COURT: DID ANY SUPERVISOR TELL YOU THAT?
THE WITNESS: ALL OF OUR SUPERVISORS KNOW THAT.
THE COURT: I KNOW, BUT WHETHER THEY KNOW IT OR NOT, DID THEY TELL YOU THAT? THE
WITNESS: SIR, ALL OF OUR SUPERVISORS WANT US TO ENFORCE IT, AND MY IMMEDIATELY SUPERVISOR.
THE COURT: NAME A SUPERVISOR WHO TOLD YOU THAT.
THE WITNESS: WELL --
THE COURT: JUST ONE.
THE WITNESS: (CONTINUING) -- MY IMMEDIATE SUPERVISOR IS JOHN PHILIP MALHOYT, YES.
THE COURT: AND HE TOLD YOU THAT?
THE WITNESS: YES, SIR.
THE COURT: OKAY.
BY MR. GRABER:
Q. NOW, YOU HAD BEEN ON DUTY THE WEEK PREVIOUS TO THE DAY OF SEPTEMBER 24TH, WHEN YOU ARRESTED MR. THOMAS; IS THAT CORRECT?
A. I DON'T UNDERSTAND THE QUESTION.
Q. HAD YOU BEEN ON DUTY THE -- THE ARREST WAS ON A FRIDAY; IS THAT CORRECT?
A. NO, SIR.
Q. ON A SATURDAY MORNING?
A. YES, SIR.
Q. HAD YOU BEEN ON DUTY THE PREVIOUS MONDAY THROUGH FRIDAY?
A. SIR, MY DAYS OFF ARE SUNDAYS AND MONDAYS. I AM ON DUTY EVERY DAY, WITH THE EXCEPTION OF SUNDAYS AND MONDAYS, UNLESS I TAKE LEAVE.
Q. SO YOU WERE ON DUTY THE WEEK BEFORE THIS ARREST?
A. I CAN'T SAY. I DON'T KNOW WHETHER I WAS ON LEAVE IMMEDIATELY A WEEK BEFORE OR NOT. I AM SAYING MY DAYS OFF HERE SUNDAYS AND MONDAYS.
Q. WHEN WAS THE LAST TIME YOU HAD LEAVE, OTHER THAN SATURDAYS OR SUNDAYS?
A. I HAVE NO IDEA.
Q. YOU CAN'T RECALL BACK TO THE END OF SEPTEMBER AND RECALL WHETHER YOU WERE ON LEAVE?
A. MOST CERTAINLY NOT, NO, SIR.
Q. ALL RIGHT. DID YOU ACCOMPANY THE DEAFENDANTS TO THE HAINES POINT PROCESSING CENTER?
A. I ACCOMPANIED, I BELIEVE IT WAS, CONCEPCION IN THE CAGE CAR I TOOK TO MY OFFICE.
Q. YOU ENDED UP AT THE PROCESSING CENTER AT SOME POINT IN TIME THAT MORNING, THOUGH; ISN'T THAT TRUE?
A. THAT IS CORRECT.
Q. DO YOU RECALL A CONVERSATION THAT YOU AND I HAD THAT MORNING WITH RESPECT TO MR. THOMAS' ARREST?
A. I RECALL HOLDING A CONVERSATION WITH SOMEONE. I DON'T RECALL THE NAME. SORRY.
Q. BUT YOU RECALL A LAWYER SPEAKING WITH YOU THAT MORNING CONCERNING MR. THOMAS' ARREST?
A. THERE WERE SEVERAL CALLS CONCERNING MR. THOMAS' ARREST.
Q. BUT DO YOU HAVE A RECOLLECTION, SIR, OF A CONVERSATION WITH AN ATTORNEY WITH RESPECT TO MR. THOMAS?
A. EVERYONE I TALKED TO THAT MORNING SAID THEY WERE AN ATTORNEY. I DON'T KNOW WHETHER YOU WERE THAT INDIVIDUAL OR NOT.
Q. DO YOU HAVE A RECOLLECTION OF TALKING TO SOMEBODY WHO SAID THEY WERE AN ATTORNEY FOR MR. THOMAS?
A. YES.
Q. DO YOU RECALL TELLING, THAT ATTORNEY THAT . . . WOULD BE TAKEN TO COURT BY 11:00 O'CLOCK FOR A . . .
A. NO. SIR.
Q. YOU DON'T REMEMBER THAT?
A. WE WOULD HAVE TO TAKE MR. THOMAS OR ANY ARRESTEE COURT OR TO THE CELLBLOCK IMMEDIATELY AFTER PROCESSING THEM.
Q. DO YOU HAVE ANY IDEA WHAT TIME MR. THOMAS WAS ACTUALLY TRANSPORTED OUT OF YOUR SUBSTATION THAT MORNING?
A. NO, I DON'T, NOT RIGHT OFF.
MR. GRADER: YOUR HONOR, I SUBPOENAED SOME RECORDS FOR THIS OFFICER WHEN I ORIGINALLY FILED THE SUBPOENA, AND I WAS WONDERING IF THE OFFICER HAD BROUGHT THEM.
BY MR. GRADER:
Q. DID YOU BRING THE RECORDS WITH YOU?
A. I'VE GOT -
Q. WITH RESPECT TO HOW MANY ARRESTS YOU MADE THAT MORNING HOW MANY PEOPLE WERE IN THE CELLBLOCKS?
A. NO, I DIDN'T.
Q. DO YOU RECALL RECEIVING THE SUBPOENA IN THIS CASE?
A. I RECEIVED A SUBPOENA, YES. UPON CHECKING THE ARREST BOOK, I COULD FIND NO OTHER ARRESTEES ON THAT MORNING BUT THE TWO DEFENDANTS.
NOW, MY OFFICE IS USED AS A PROCESSING CENTER FOR DETAINEES, AS WELL AS FOR ARRESTEES. SO THE RECORD DOES NOT REFLECT THAT ANYONE ELSE WAS ARRESTED, BUT NUMEROUS PEOPLE WERE IN MY OFFICE THAT MORNING BEING QUESTIONED FOR ONE REASON OR ANOTHER.
Q. BUT, SO FAR AS YOU KNOW, MR. THOMAS AND MISS PICCIOTTO WERE THE ONLY INMATES, ARRESTEES, AT THE SUBSTATION AT THAT TIME?
A. THEY WERE MY ONLY ARRESTEES. THERE WERE OTHER PEOPLE THERE, I AM QUITE CERTAIN.
Q. OTHER ARRESTEES?
A. ARRESTEES OR DETAINEES.
Q. CAN YOU TELL US WHAT IS THE NORMAL PROCEDURE IN TRANSPORTING PEOPLE TO COURT ON SATURDAY MORNING, AND SPECIFICALLY IF YOU CAN RECALL WHY WAS NOT MR. THOMAS AND MISS PICCIOTTO TRANSPORTED TO THE SUPERIOR COURTHOUSE FOR ARRAIGNMENT THAT MORNING?
A. WELL, FIRST OF ALL, THE TWO DEFENDANTS WERE ARRESTED AND THEY WERE TRANSPORTED TO THE DISTRICT ONE U. S. PARK POLICE CENTRAL DISTRICT SUBSTATION FOR PROCESSING.
UPON ENTRY TO THE SUBSTATION, THEY ARE PROCESSED AT THE FRONT DESK. THEIR PROPERTY, OR MONEY, OR WHATEVER, IS TAKEN.
Q. WELL, IS THERE A RECORD THAT WOULD REFLECT AT WHAT TIME THAT PROCESSING WAS COMPLETE?
A. THERE WOULD BE A RECORD AS TO WHAT TIME THEY GOT TO THE OFFICE AND WHAT TIME THEY DEPARTED FOR THE CELLBLOCK.
Q. MY QUESTION IS: IS THERE A DOCUMENT THAT WOULD REFLECT WHAT TIME THEIR BOOKING WOULD BE COMPLETED?
A. WE HAVE A BOOKING TIME, YES.
Q. WELL, DO YOU RECALL IF THAT WERE ONE OF THE DOCUMENT I ASKED YOU TO BRING TO COURT?
A. NO, l DON'T.
MR. GRABER: YOUR HONOR?
THE COURT: DO YOU HAVE THE SUBPOENA? WHY DON'T YOU WORK THIS DISCOVERY THROUGH MR. SCHMANDA?
MR. GRABER: I THOUGHT WE HAD GIVEN HIM A COPY OF THE SUBPOENA.
THE COURT: I DON'T MEAN TO GIVE HIM A COPY, BUT ARRANGE WITH HIM WHEN YOU ARE GOING TO HAVE A HEARING, GET TOGETHER WITH HIM.
THE POLICE OFFICERS HAVE SOMETHING TO DO BESIDES COME HERE, AND MR. SHMANDA CAN COORDINATE WITH THEM AND TELL THEM WHAT TO BRING AND WHETHER THEY SHOULD BRING IT. WE HAVE HAD SOME POSTPONEMENTS OF THIS THING.
MR. GRABER: YOUR HONOR, I BELIEVE I DID THAT. I GAVE MR. SHMANDA AT THE CONCLUSION THE LAST TIME WE MET A COPY OF THE SUBPOENA WHICH INCLUDED THE DOCUMENTS THAT I WAS TRYING TO OBTAIN.
AND I THOUGHT MY UNDERSTANDING WAS THAT THEY WOULD BE HERE TODAY.
MR. SHMANDA: IF I CONVEYED THAT, IT WAS NOT INTENTIONAL ON MY PART. MR. GRABER HAS BEEN SO PRESSED BECAUSE OF HIS OTHER CASE THAT WE HAVE HAD VERY LITTLE TIME TO TALK TO ONE ANOTHER.
THE COURT: ALL RIGHT.
MR. SHMANDA: THE OFFICER WILL DO WHATEVER WE ASK HIM TO DO.
THE COURT: OF COURSE. IT IS A MATTER OF GETTING THE ACT TOGETHER.
MR. SHMANDA: WE ARE NOT TRYING TO HIDE ANYTHING.
THE COURT: I UNDERSTAND THAT.
MR. SHMANDA: IF COUNSEL WILL GIVE ME A LIST, I WILL BE GLAD TO HAVE IT ALL HERE MONDAY, OR TUESDAY, OR WHATEVER THE COURT WANTS.
THE COURT: ALL RIGHT.
MR. GRABER: ALL RIGHT, YOUR HONOR. WE WILL TAKE CARE OF THAT.
THE COURT: LET'S NOT BAT EACH OTHER AROUND HERE ABOUT WHETHER HE DID OR DID NOT BRING IT WITH HIM.
BY MR. GRABER:
Q. DO YOU HAVE ANY KNOWLEDGE OF YOUR OWN AS TO WHY THERE MIGHT HAVE BEEN A DELAY, OR WHY THEY WERE NOT BROUGHT TO THE SUPERIOR COURTHOUSE FOR ARRAIGNMENT BY 11:30 THAT MORNING, IF YOU KNOW?
A. I DID THE PROCESSING. I WAS RESPONSIBLE FOR THE PROCESSING OF THOMAS AND CONCEPCION AT MY OFFICE.
Q. DO YOU RECALL WHAT TIME YOU FINISHED THAT PROCESSING, APPROXIMATELY?
A. NO, I DON'T. BUT I GOT SEVERAL 'PHONE CALLS. I DON'T KNOW WHETHER YOU WERE THAT GENTLEMAN OR NOT, BUT I GOT SEVERAL 'PHONE CALLS, WHICH INTERRUPTED ME.
WE HAD AN ALLEGATION THAT -- MRS. CONCEPCION TOLD ONE OFFICER THAT I HAD TAKEN SOME MONEY FROM HER, $21. SO THAT TOOK A CONSIDERABLE AMOUNT OF TIME: TO FIND THE MONEY.
Q. DO YOU RECALL TELLING THE ATTORNEY WHO CALLED AND INDICATED THAT HE REPRESENTED MR. THOMAS THAT YOU HAD COMPLETED THE PROCESSING OF MR. THOMAS AT ABOUT 7:00 O'CLOCK A. M.?
A. NO, SIR.
Q. YOU DON'T RECALL MAKING THAT STATEMENT?
A. IMPOSSIBLE. THAT WAS IMPOSSIBLE, SIR.
MR. SHMANDA: I DID NOT HEAR YOUR LAST REMARK.
THE WITNESS: IT WAS IMPOSSIBLE FOR ME TO PROCESS BOTH INDIVIDUALS BY 7:00 A. M., SIR.
BY MR. GRABER:
Q. WELL, IT WAS CERTAINLY DONE BY 10:00 O'CLOCK; WAS IT NOT?
THE COURT: ARE YOU TESTIFYING?
MR. GRABER: NO, I AM ASKING HIM.
BY MR. GRABER:
Q. WAS IT DONE BY 10:00 O'CLOCK?
THE COURT: HE HAS NOT SHOWN HIMSELF TO BE HOSTILE. HE IS YOUR WITNESS, AND YOU CAN EXAMINE HIM LIKE A LAWYER EXAMINES A WITNESS, OR YOU CAN --
MR. GRABER: WELL, YOUR HONOR, I THINK HE IS A HOSTILE WITNESS.
THE COURT: I DON'T THINK HE IS A BIT HOSTILE. I THINK HE WILL ANSWER ANY QUESTION YOU ASK.
MR. GRABER: WELL, I DON'T SAY HE IS HOSTILE BECAUSE HE DOESN'T LIKE ME. HE IS HOSTILE AS THE FEDERAL RULES DEFINE AN ADVERSE WITNESS.
THE COURT: I DON'T THINK SO. GO AHEAD. YOU CALLED HIM. IN ANY EVENT, I WANT HIS TESTIMONY AND NOT YOURS.
BY MR. GRABER:
Q. OFFICER, BY 10:00 O'CLOCK, DO YOU RECALL WHETHER OR NOT THE PROCESSING WAS COMPLETE WITH RESPECT TO MR. THOMAS AND MISS PICCIOTTO?
A. IT COULD NOT HAVE BEEN COMPLETE, SIR.
MR. GRABER: BUT THE DOCUMENT WOULD BE CLEAR ON THAT, SO THE BEST THING FOR US TO DO WOULD BE TO LOOK AT THE DOCUMENT.
THE COURT: ARE YOU TESTIFYING AGAIN?
MR. GRABER: EXCUSE ME, YOUR HONOR?
THE COURT: YOU ARE TESTIFYING AGAIN. I WANT YOU TO ASK QUESTIONS. YOU ARE THE LAWYER, AND THIS IS THE WITNESS. I DON'T WANT YOUR INFORMATION. I WANT HIS.
MR. GRABER: YOUR HONOR, I WOULD SUGGEST THAT WE RECALL THE WITNESS AFTER WE HAVE THE DOCUMENTS.
THE COURT: VERY WELL. LET'S ADJOURN THIS, AND LET'S CALL ANOTHER WITNESS. WOULD IT BE HELPFUL IF WE GOT ALL THE DOCUMENTS AND THE WITNESSES TOGETHER BEFORE WE CONTINUED?
MR. GRADER: THIS IS THE ONLY WITNESS THAT THOSE DOCUMENTS PERTAIN TO, YOUR HONOR.
THE COURT: ALL RIGHT.
WELL, IS MONDAY MORNING TIME ENOUGH, OR DO YOU THINK YOU WILL HAVE TIME BY MONDAY TO GET THE DOCUMENTS TOGETHER?
MR. SHMANDA: I THINK, YOUR HONOR, BEFORE WE ADJOURN, IF WE CAN ESTABLISH PRECISELY WHAT DOCUMENTS HE WANTS, THAT WOULD BE HELPFUL. HE IS REFERRING TO DOCUMENTS AS IF FORMAL DOCUMENTS EXIST.
THE COURT: I DO NOT NEED TO BE A PARTY TO THIS. YOU ALL HAVE A CONFERENCE ON THIS.
MR. SHMANDA: EXCUSE ME, YOUR HONOR. I DO HAVE ONE ADDITIONAL OFFICER WHO IS HERE ON HIS DAY OFF, BUT I THOUGHT HE SHOULD COME DOWN HERE, AND THAT IS OFFICER SHERBA.
THE COURT: EXCUSE OFFICER HAYNES, AND YOU ALL WILL CONFER.
MR. SHMANDA YES, I WOULD L I KE THE OFFICER TO WAIT FOR ME OUTSIDE, AND WE WILL GET IT ALL SQUARED AWAY.
THE COURT: OFFICER, YOU WAIT, IF YOU DON'T MIND, UNTIL MR. SHMANDA AND MR. GRABER CAN TALK TO YOU.
MR. SHMANDA: WHEN WOULD YOU LIKE TO SEE US ON MONDAY MORNING, YOUR HONOR?
MR. . GRABER: A 9: O’CLOCK?
THE COURT: YOU ARE GRIMACING, MR. WOLL.
MR. SHMANDA: OFFICER SHERBA, PLEASE.
MR. WOLL: I HAVE TO BE BEFORE JUDGE JOHNSON -- IT SHOULD BE THE CONTINUANCE OF A SENTENCING -- AT 9:30.
THE COURT: SHE IS RIGHT NEXTDOOR. YOU CAN DO THAT. JUST TELL HER YOU WILL COME IN AT 10:00 O'CLOCK.
MR. GRABER: I HAVE A PRELIMINARY HEARING BEFORE MAGISTRATE BURNETT AT 9:30.
THE COURT: SEE IF YOU CAN CONTINUE THAT UNTIL 10:00 O'CLOCK. I AM GOING TO HAVE TO GET THIS THING DONE. I CAN'T KEEP DRAGGING IT OUT LIKE THIS.
MR. SHMANDA: I SYMPATHSIZE WITH EVERYBODY'S CALENDAR YOUR HONOR, BUT WE HAVE TO GET IT DONE AND TO TRIAL.
THE COURT: RIGHT. OKAY.
DID YOU ARRANGE TO HAVE THE NEXT WITNESS WAITING OUTSIDE?
MR. SHMANDA: I DID, YOUR HONOR, BUT IN VIEW OF THE PAUCITY OF TIME -- WE ONLY HAVE 15 MINUTES -- I WANTED TO CALL SHERBA, BECAUSE HE DID COME IN ON HIS DAY OFF, YOUR HONOR.
THE COURT: ALL RIGHT.
WHEREUPON,
WALTER SHERBA WAS CALLED AS A WITNESS, AND, HAVING BEEN FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED, AS FOLLOWS:
THE DEPUTY CLERK: BE SEATED, PLEASE.
MR. SHMANDA: MAY I PROCEED, YOUR HONOR?
THE COURT: YES.
MR. SHMANDA: THANK YOU, SIR.
DIRECT EXAMINATION -- BY MR. SHMANDA:
Q. SIR, WOULD YOU PLEASE INTRODUCE YOURSELF?
A. YES, SIR. MY NAME IS OFFICER WALTER SHERBA, ASSIGNED TO THE CENTRAL DISTRICT OF THE UNITED STATES PARK POLICE.
Q. COULD YOU SPELL YOUR LAST NAME?
A. S-H-E-R-B-A.
Q. OFFICER SHERBA, IN CONNECTION WITH THIS PROCEEDING, WERE YOU ASKED TO CHECK WHETHER OR NOT YOU WORKED ON A SPECIFIC DATE AND TIME?
A. YES, SIR, I WAS.
Q. AND WERE YOU ASKED TO -- THAT IS, WERE YOU ASKED WHETHER OR NOT YOU WERE ON OFFICIAL DUTY ON JULY 1, 1983, AT APPROXIMATLEY 2:15 A. M.?
A. YES, SIR.
Q. . AND HAVE YOU CHECKED ON THAT?
A. YES, SIR, I HAVE.
Q. AND WITH WHAT RESULT?
A. I WAS ON DUTY AT THAT TIME IN QUESTION.
Q. OKAY. AND DO YOU RECALL, OFFICER SHERBA, ON THAT DATE AND APPROXIMATELY AT THAT TIME HAVING SOME TYPE OF CONTACT WITH THE GENTLEMAN TO WHOM I AM POINTING NOW IN THE COURTROOM?
A. YES, SIR, SEVERAL TIMES ON THE EVENING IN QUESTION.
Q. AND COULD YOU BRIEFLY RELATE WHAT THOSE CONTACTS WERE?
A. YES, SIR. I AWOKE MR. THOMAS SEVERAL TIMES DURING THE MORNING HOURS.
Q. OKAY. AND DID YOU EVER -- WELL, LET ME ASK YOU THIS: HOW DID YOU AWAKEN HIM, OFFICER SHERBA?
A. WITH MY FOOT -- NORMALLY, HE WAS ASLEEP ON THE SIDEWALK IN FRONT OF THE WHITE HOUSE -- BY TAPPING HIS FOOT WITH MY FOOT, I WOKE HIM UP.
Q. SO YOU WOULD MAKE PHYSICAL CONTACT HOW?
A. YES, SIR.
Q. HOW?
A. WITH MY FOOT.
THE COURT: HE SAID HE TAPPED HIS FOOT. THE OFFIER USED HIS FOOT TO TAP MR. THOMAS' FOOT IS WHAT I HEARD HIM SAY.
MR. SHMANDA: I GUESS I MISSED THE LATTER PART, YOUR HONOR. I AM SORRY.
BY MR. SHMANDA:
Q. DID THERE EVER COME A TIME ON THAT MORNING THAT YOU DELIVERED ANY TYPE OF KICK TO THE BODY?
A. NO, SIR.
Q. OF MR. THOMAS?
A. NO, SIR.
Q. DO YOU RECALL WHETHER ANYONE WAS UP AND AROUND AT THESE POINTS IN TIME WHEN YOU WERE CHECKING ON MR. THOMAS' CONDITION ON THIS PARTICULAR MORNING?
A. NO ONE WAS UP AND AROUND UNTIL I WAS PRESENT ON THE SIDEWALK AND I AWOKE MR. THOMAS, AND THEN THERE WAS A GENTLEMAN, A BLOND-HAIRED GENTLEMAN. I DON'T RECALL HIS NAME.
Q. AND, LOOKING AROUND THE COURTROOM TODAY, DO YOU SEE WHETHER OR NOT THAT INDIVIDUAL THAT YOU SAW THAT MORNING IS HERE TODAY?
A. YES, SIR, SEATED IN THE REAR OF THE COURTROOM.
Q. COULD YOU JUST POINT IN HIS DIRECTION AND DESCRIBE WHAT HE IS WEARING?
A. CERTAINLY. THE GENTLEMAN WITH THE RED, WHITE, AND BLUE SCARF IN THE BACK THERE.
Q. ALL RIGHT. DO YOU KNOW THAT GENTLEMAN'S NAME?
A. NO, SIR, I DO NOT.
MR. GRABER: YOUR HONOR, WE WOULD BE HAPPY TO STIPUATE THAT IS MR. DORROUGH FOR THE RECORD.
MR. SHMANDA: THANK YOU. THANK YOU.
BY MR. SHMANDA:
Q. DID YOU AND MR. DORROUGH HAVE ANY CONVERSATION ABOUT YOUR CONTACTS WITH, INCLUDING YOUR AWAKENING OF, MR. THOMAS?
A. TO THE BEST OF MY RECOLLECTION, HE TOLD ME THAT I HAD NO RIGHT TO BE DOING WHAT I WAS DOING. THAT I WAS WRONG. THAT I DIDN'T KNOW THE LAW. HE WAS VERY INTENT ON MAKING
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