THE WITNESS: SHE IS AT 1330 MASSACHUSETTS AVENUE.
THE COURT: SHE IS A NEIGHBOR?
THE WITNESS: YES.
THE COURT: AND YOUR ADDRESS IS WHAT, AGAIN?
THE WITNESS: 1440 N STREET.
THE COURT: 1440 N?
THE WITNESS: YES, SIR.
THE COURT: ALL RIGHT. COUNSEL MAY INQUIRE. MR. SHMANDA, DO YOU HAVE A FURTHER QUESTION?
MR. SHMANDA: YES, SIR, JUST TO DEVELOP A POINT YOUR HONOR HAD STARTED TO DEVELOP, AND I AM NOT SURE WHAT THE ANSWER WILL BE, SO I ASK THE QUESTION OF THE WITNESS AT MY PERIL.
FURTHER CROSS-EXAMINATION -- BY MR. SHMANDA:
Q. MISS PICCIOTTO AND MR. THOMAS, DOES ONE OF THEM, OR BOTH OF THEM, HAVE KEYS TO YOUR APARTMENT, MA'AM?
A. COULD I TALK TO THEIR COUNSEL BEFORE ANSWERING THAT? I REALLY DON'T KNOW HOW IT APPLIES, REALLY?
THE COURT: I WOULD NOT SUSTAIN AN OBJECTION TO THAT, MISS GALLANT.
THE WITNESS: YOU WANT ME TO ANSWER THAT?
THE COURT: I WANT YOU TO ANSWER THAT.
THE WITNESS: YES, SIR, THEY DO.
MR. SHMANDA THAT IS ALL I WANTED.
THE WITNESS: YES.
BY MR. SHMANDA:
Q. DO BOTH OF THEM HAVE A KEY?
A. ONE OF THEM HAS A KEY, AND THEY SHARE IT.
Q. ALL RIGHT. THANK YOU.
A. YES, SIR IT WAS VERY RECENT, BECAUSE I SIMPLY USED TO HAVE THEM PICK IT UP AT THE TELEPHONE-ANSWERING-SERVICE DESK, BUT THEN IT BECAME A LITTLE LABORIOUS FOR THE RECEPTIONIST. SO THEY HAVE ONLY HAD THE KEY A COUPLE OF WEEKS
THE COURT: LET ME ASK YOU --
BY MR. SHMANDA:
Q. BUT, BEFORE THAT, IT WAS AVAILABLE TO THEM?
A. IT WAS AVAILABLE TO THEM, SIR, YES.
THE COURT: LET ME ASK YOU THIS, MISS GALLANT.
THE WITNESS: YES.
THE COURT: YOU SAY THERE IS A TELEPHONE-ANSWERING SERVICE?
THE WITNESS: I HAVE ONE, YES.
THE COURT: IS THAT A PERSON OR A MACHINE?
THE WITNESS: A PERSON.
THE COURT: HAVE YOU IDENTIFIED MR. THOMAS AND MISS PICCIOTTO TO THE ANSWERING SERVICE?
THE WITNESS: YES, SIR.
THE COURT: AND CAN YOU TELL ME HOW YOU DESCRIBED THEM TO THE ANSWERING SERVICE?
THE WITNESS: I SAID THAT THEY WERE ANTI-NUCLEAR WHITE HOUSE DEMONSTRATORS.
THE COURT: DID YOU SAY ANYTHING ABOUT WHAT THEY WERE DOING IN YOUR APARTMENT?
THE WITNESS: YES, I DID.
THE COURT: WHAT DID YOU TELL THEM?
THE WITNESS: I SAID THAT THEY WERE USING IT FOR THEIR HEADQUARTERS.
THE COURT: ALL RIGHT.
THE WITNESS: I CONSIDER MYSELF AS A BASE CAMP, AND THEY ARE THE CLIMBERS.
THE COURT: ALL RIGHT.
DO EITHER DEFENSE COUNSEL WISH TO INQUIRE?
MR. GRABER: NO, YOUR HONOR.
MR. WOLL: NO, YOUR HONOR.
THE COURT: ALL RIGHT. THANK YOU, MISS GALLANT.
DOES THE DEFENSE HAVE ANY FURTHER EVIDENCE?
MR. GRABER: NOT FOR MR. THOMAS, YOUR HONOR.
THE COURT: MR. WOLL?
MR. WOLL: NO, YOUR HONOR, NOT FOR MISS PICCIOTTO.
THE COURT: DOES THE GOVERNMENT HAVE ANY REBUTTAL?
MR. SHMANDA: NO, YOUR HONOR.
THE COURT: DO YOU HAVE SOME EVIDENTIARY MATTERS?
MR. GRABER: NO, SIR. I JUST WANTED TO RENEW MY MOTION FOR A JUDGMENT OF ACQUITTAL, YOUR HONOR.
THE COURT: DO YOU WANT TO STATE THE GROUNDS?
MR. GRABER: YOUR HONOR, WE WOULD RAISE AGAIN THE GROUNDS THAT WE RAISED AT THE CLOSE OF THE GOVERNMENT'S CASE: THAT THERE WAS NO WARNING, AND THAT THEY WERE ENGAGED IN FIRST AMENDMENT ACTIVITY, AND THE STATUTE IS UNCONSTITUTIONAL, AS APPLIED.
ALSO, THE GOVERNMENT COULD NOT DEMONSTRATE WHICH PROPERTY BELONGED TO WHICH DEFENDANT, AND THERE IS NO EVIDENCE THAT INDICATES FROM THE PROPERTY SHEET WHICH SPECIFIC ITEM OF PROPERTY BELONGED TO WHICH SPECIFIC DEFENDANT.
THEY WERE AWAKE AT THE TIME OF THE ARREST. THERE WAS NO BEDDING MATERIAL LISTED ON THE PROPERTY INVENTORY; AND THAT THEIR LIVING ACCOMMODATIONS ARE NOT ON THE WHITE HOUSE SIDEWALK, BUT AT MISS GALLANT'S HOUSE.
THE COURT: MR. WOLL?
MR. WOLL: YOUR HONOR, I WOULD SUBMIT THAT THE EVIDENCE IS INSUFFICIENT TO SHOW THAT THESE TWO PERSONS WERE USING THIS AREA AT LAFAYETTE SQUARE FOR LIVING ACCOMMODATIONS.
AS POINTED OUT, THERE WAS NO BEDDING THAT WAS INTRODUCED INTO EVIDENCE HERE, NO EVIDENCE OF BEDDING FOR PURPOSES OF SLEEPING.
AS FAR AS PERSONAL BELONGINGS, YOUR HONOR, IN LOOKING OVER THE INVENTORY, THERE IS A MINIMAL AMOUNT OF PERSONAL BELONGINGS; AND I CERTAINLY THINK THAT THE TESTIMONY IS CLEAR THAT THEY WERE STORING THEIR PERSONAL BELONGINGS ELSEWHERE; AND THAT WHATEVER WAS NEEDED AT THE MOMENT, THEY BROUGHT WITH THEM.
I WOULD SUBMIT THAT A LOT OF THESE ITEMS THAT THEY DID HAVE WERE TO PROTECT THEM FROM THE ELEMENTS, WHICH IS CERTAINLY CONSISTENT, NOT WITH CAMPING, BUT WITH CONDUCTING A 24-HOUR VIGIL, AS FAR AS UMBRELLAS OR RAINCOATS OR BOOTS TO PROTECT THEM FROM THE ELEMENTS.
THERE IS NO EVIDENCE AND NO TESTIMONY CONCERNING ANY TYPE OF STRUCTURE OR ANY TYPE OF SHELTER THAT WOULD PROTECT THEM FROM THE ELEMENTS. THEY WERE JUST OUT THERE IN THE WIDE OPEN, WITHOUT ANY TYPE OF COVERING ON THEM; NO DIGGING, OR EARTH-BREAKING, OR ANY KIND OF COOKING ACTIVITIES.
THAT IS ANOTHER POINT, YOUR HONOR: APPARENTLY, WHATEVER FOOD WAS PREPARED, WAS NOT PREPARED AT THIS PARTICULAR SITE. IT WAS PREPARED ELSEWHERE.
SO I WOULD SUBMIT, YOUR HONOR, THAT, UNDER ALL OF THE CIRCUMSTANCES, THEY WERE NOT USING THIS AREA AS LIVING ACCOMMODATIONS, BUT MERELY JUST INCIDENTAL ACTIVITY TO CONDUCTING A 24-HOUR VIGIL.
THE COURT: THANK YOU.
I AM GOING TO DENY THE MOTION SIMPLY, AMONG OTHER REASONS, BECAUSE I WANT TO DECIDE THIS ON THE MERITS. I THINK THERE IS SUFFICIENT EVIDENCE TO GO TO THE TRIER OF FACT, AS TRIER OF FACT.
THE MOTION IS DENIED.
MR. WOLL: YES, YOUR HONOR.
THE COURT: LET'S TAKE A TEN-MINUTE RECESS DURING WHICH YOU ALL CONSIDER WHAT YOU WANT TO SAY IN THE ARGUMENT. I WILL HEAR CLOSING ARGUMENTS, AND ALSO BE CONSlDERING HOW LONG IT WOULD TAKE, AND WHAT THE PROCEDURE SHOULD BE, FOR
YOUR PREPARING, AND MY RECEIVING, PROPOSED FINDINGS OF FACT.
FOR INSTANCE, I AM NOT SURE WHETHER, IN A SITUATION LIKE THIS, I AM OBLIGATED TO RENDER A VERDICT IN THIS MATTER, OR WHETHER I CAN TAKE THE MATTER UNDER ADVISEMENT AND RENDER A WRITTEN VERDICT. I WOULD LIKE YOU TO BE PREPARED
TO ADVISE ME ABOUT THAT WHEN I COME BACK FROM A TEN-MINUTE RECESS.
THE DEFENDANT PICCIOTTO: MAY I HAVE SOMETHING TO SAY?
THE COURT: JUST A MOMENT. WILL YOU CONSULT WITH YOUR COUNSEL?
MR. WOLL: YOUR HONOR, ESSENTIALLY, WHAT MISS PICCIOTTO IS ASKING THE COURT IS TO DEFINE WHAT IS MEANT BY "CAMPING" AND WHAT IS MEANT BY "DEMONSTRATING."
THE COURT: I UNDERSTAND THAT THAT IS THE QUESTION OF LAW THAT I WILL HAVE TO DECIDE, AND I WILL HAVE TO DECIDE IT IN THE CONTEXT OF THESE FACTS.
THE DEFENDANT PICCIOTTO: BUT IN THE FUTURE, TOO --
THE COURT: DON'T SPEAK DIRECTLY TO ME, MISS PICCIOTTO EXCEPT FROM THE WITNESS STAND. THAT IS WHY I WANT THESE FINDINGS. IT SEEMS TO ME THAT IT MAY GET DOWN TO A MATTER OF EXQUISITE DETAIL, AS TO WHETHER THIS IS CAMPING OR SOMETHING
ELSE.
I WILL HEAR YOU IN ARGUMENT AND ALSO RECEIVE YOUR PROCEDURAL SUGGESTIONS WHEN I RETURN FROM THE RECESS.
(A BRIEF RECESS WAS TAKEN, AFTER WHICH THE FOLLOWING PROCEEDINGS WERE HAD:)
MR. SHMANDA: YOUR HONOR, THE GOVERNMENT WOULD NOT MAKE AN INITIAL CLOSING, BUT WOULD PERHAPS MAKE A FINAL CLOSING ARGUMENT, IF THAT IS APPROPRIATE WITH THE COURT.
THE COURT: VERY WELL.
MR. SHMANDA: AND, YOUR HONOR, WITH REGARD TO THE QUESTIONS THAT YOUR HONOR RAISED, I HAD AN OPPORTUNITY TO CONSULT THE FEDERAL RULES, AND THE APPLICABLE RULE SEEMS TO BE FEDERAL RULE 23(C), TRIAL WITHOUT A JURY. IF I COULD JUST STATE WHAT THAT RULE SAYS:
"IN A CASE TRIED WITHOUT A JURY, THE COURT SHALL MAKE A GENERAL FINDING AND SHALL, IN ADDITION, ON REQUEST MADE BEFORE THE GENERAL FINDING, FIND THE FACTS ESPECIALLY. SUCH FINDINGS MAY BE ORAL. IF AN OPINION OR MEMORANDUM OF DECISION IS FILED, IT WILL BE SUFFICIENT IF THE FINDINGS OF FACT APPEAR THEREIN."
WITH RESPECT TO THE GOVERNMENT, YOUR HONOR, WE ARE NOT GOING TO ASK FOR ANY SPECIAL FINDINGS OF FACT TO BE MADE. I CANNOT SPEAK TO WHAT THE DEFENSE WILL DO.
THE COURT: I THINK I SHOULD MAKE THEM. I THINK THIS CASE REQUIRES ME AT LEAST TO RESOLVE THE QUESTION OF WHETHER, AND TO WHAT EXTENT, A PERSON WHO HAS LIVING ACCOMMODATIONS IN ONCE PLACE AND IS ON THE WHITE HOUSE -- OR IN THAT AREA AS MUCH AS POSSIBLE IS VIOLATING THE CAMPING REGULATIONS IN THESE CIRCUMSTANCES.
I DON'T KNOW YET WHETHER I CAN SAY THAT YOU HAVE PROVED BEYOND A REASONABLE DOUBT --
MR. SHMANDA: I UNDERSTAND, YOUR HONOR.
THE COURT: (CONTINUING) -- WHICH IS YOUR BURDEN. I WOULD BE ASSISTED, EVEN IF YOU ARE NOT REQUESTING SPECIAL FINDINGS, IF YOU WOULD SUBMIT PROPOSED FINDINGS WITH THE APPROPRIATE REFERENCES.
MR. SHMANDA: ALL RIGHT, YOUR HONOR.
THE COURT: I WOULD ALSO APPRECIATE IT IF YOU WOULD ADDRESS IN YOUR CLOSING ARGUMENT, AND, THEREFORE, NOW, SINCE YOU HAVE THE BURDEN OF PROOF, THE QUESTION OF WHETHER YOU HAVE PROVED BEYOND A REASONABLE DOUBT THAT THE PLAINTIFFS HAVE MAINTAINED LIVING ACOMMODATIONS IN THE PARK.
IN MY VIEW OF THIS REGULATION, THE MOST SENSIBLE WAY TO CUT IT IS NOT -- I MAY FIND MYSELF CORRECTED WHEN I FOCUS AGAIN ON THE REGULATIONS, BUT THE MOST COMMON-SENSE APPROACH TO ME IN THIS IS TO DECIDE WHETHER THE PARK WAS THE PLACE WHERE THEY WERE MAINTAINING LIVING ACCOMMODATIONS.
NOW, THAT DOES NOT MEAN THAT A PERSON CAN HAVE ONLY ONE LIVING ACCOMMODITION. SOME PEOPLE HAVE HOUSES IN PALM BEACH AND LONG ISLAND AND OTHER PLACES, AND THESE DEFENDANTS COULD HAVE HAD ACCOMMODATIONS ON N STREET AND IN THE PARK.
BUT THAT IS THE PLACE WHERE I NEED TO HAVE THE BENEFIT OF A DETAILED ANALYSIS OF THE RECORD AND ARGUMENT AS IT IS PERCEIVED BY COUNSEL.
MR. SHMANDA: ALL RIGHT, YOUR HONOR. I WILL BE I HAPPY TO PREPARE THOSE ITEMS THAT THE COURT HAS REQUESTED.
I WOULD LIKE AT LEAST TO RAISE WITH THE COURT ONE OTHER CONSIDERATION, AND THAT IS, IN THE END, CERTAIN QUESTION OF CREDIBILITY MUST BE DECIDED.
THE COURT: OF COURSE.
MR. SHMANDA: RIGHT. AND THERE IS A CONFLICT IN THE TESTIMONY, IN THE SENSE THAT MISS PICCIOTTO CLAIMS THAT SHE AND MR. THOMAS WERE IN THE ACT OF REPOSING.
THAT THEY WERE NOT, AS THE OFFICER TESTIFIED THEY WERE, IN A SUPINE OR HORIZONTAL POSITION ON THE GROUND.
AND THAT SHE WAS CONSCIOUS AND, IN FACT, HEARD THE OFFICER ARRIVING.
NOW, I BELIEVE, AGAIN, BECAUSE OF THE PECULIAR STRUCTURE OF THE REGULATION, THAT, THEORETICALLY, I SUPPOSE YOUR HONOR COULD MAKE A FINDING, BASED ON, OF COURSE, THE PROFFERED FINDINGS THAT WE WILL SUBMIT, AS TO WHETHER OR NOT THEY WERE ACTUALLY SLEEPING, BUT THAT DOES NOT END THE MATTER.
THE COURT: DO YOU HAVE TO PROVE THAT THEY WERE SLEEPING?
MR. SHMANDA: NO.
THE COURT AND DO THEY WIN IF YOU FAIL TO PROVE THAT THEY WERE SLEEPING?
MR. SHMANDA: WELL, THE WAY I READ THE REGULATION -- WHILE LISTENING TO YOUR HONOR, I WAS TRYING TO GET MY COPY OF THE REGULATION, YOUR HONOR.
IT IS BASICALLY A -- THANK YOU. IT IS A MANIFOLD TYPE OF REGULATION, IN THE SENSE THAT: "'CAMPING' IS DEFINED AS THE USE OF PARK LAND FOR LIVING-ACCOMMODATION PURPOSES, SUCH AS SLEEPING ACTIVITIES, OR MAKING PREPARATIONS TO SLEEP (INCLUDING THE LAYING DOWN OF BEDDING FOR THE PURPOSES OF SLEEPING), OR STORING PERSONAL BELONGINGS, OR MAKING ANY FIRE," AND THEN SEVERAL OTHER EXAMPLES WHICH I DON'T BELIEVE --
THE COURT: THE EXAMPLES GIVE COLOR TO THE STATUTE, THOUGH.
MR. SHMANDA: YES.
THE COURT: OR THE REGULATION.
MR. SHMANDA: BUT THEN --
THE COURT: SO THAT --
MR. SHMANDA: (CONTINUING) -- THE SECOND SENTENCE --
THE COURT: YES.
MR. SHMANDA: (CONTINUING) -- "THE ABOVE-LISTED ACTIVITIES CONSTITUTE CAMPING WHEN IT REASONABLY APPEARS, IN LIGHT OF ALL OF THE CIRCUMSTANCES, THAT THE
PARTICIPANTS, IN CONDUCTING THESE ACTIVITIES, ARE, IN FACT, USING THE AREA AS A LIVING ACCOMMODATION."
NOW, THAT IS BASICALLY, IN THE END, I GUESS, THE ULTIMATE CONCLUSION OF LAW THAT THE COURT WILL HAVE TO ADDRESS ITSELF TO AT THE APPROPRIATE TIME.
THE COURT: ISN'T THAT CONCLUSION INFORMED BY THE FACTS?
MR. SHMANDA: YES, THAT WOULD BE --
THE COURT: IT WOULD SEEM TO ME, IN ANY EVENT, THAT YOUR CASE WOULD BE MUCH CLEARER IF THEY HAD NOT PROVED WHATEVER THEY HAVE PROVED BY MISS GALLANT, AND WITH RESPECT TO HER PLACE.
IF THEY HAD NO OTHER PLACE TO HANG A HAT AND NO OTHER PLACE TO REPAIR TO, AND THIS WAS PLAINLY THEIR ONLY RESIDENCE ON THE WHOLE PLANET, THAT WOULD BE AN EASIER CASE.
NOW, I AM NOT SAYING THAT A PERSON WHO CAMPS CANNOT CAMP AND STILL HAVE ANOTHER LIVING ACCOMMODATION, BUT THAT IS A QUESTION, IT SEEMS TO ME, THAT WE HAVE TO RESOLVE.
MR. SHMANDA: I DID TALK TO MY FELLOW COUNSEL. I WILL BE MOST HAPPY TO SUBMIT THE PROPOSED FINDINGS OF FACT AND THEN CONCLUSIONS OF LAW, BASED ON THOSE FINDINGS OF FACT. BUT I THINK ANOTHER PROBLEM THAT WE HAVE TO ADDRESS HERE -- AND I DON'T KNOW WHETHER THEY CHOOSE TO MAKE AN ISSUE OUT OF THIS OR NOT -- IS WE ARE DUTY-BOUND, I THINK, IN TERMS OF APPLYING CRIMINAL LAW -- THAT, IN OTHER WORDS, IT HAS TO BE READILY APPARENT ONE WAY OR THE OTHER THAT THE ACTION IS CRIMINAL, OR ELSE YOU START TO RUN INTO ALL SORTS OF CONSTITUTIONAL PROBLEMS. SO WE HAVE THAT PROBLEM, TOO.
THE COURT: I UNDERSTAND THAT.
MR. SHMANDA: YOUR HONOR, I SAID I WASN'T GOING TO ARGUE THE CASE, BUT --
THE COURT: WELL, I THINK YOU SHOULD.
MR. SHMANDA: (CONTINUING) -- ON MISS GALLANT, I HAD A SLIGHTLY DIFFERENT PURPOSE. I SEE THE WAY YOUR HONOR IS LOOKING AT IT, BUT MY PURPOSE WAS TO SHOW THAT, NOTWITHSTANDING THEIR CLAIMS THAT THEY ARE DOWN THERE AND PERHAPS REPOSING BECAUSE THEY ARE CONDUCTING AN ALL-NIGHT VIGIL, THAT THEY ARE NOT ALWAYS THERE.
THAT THEY DO GO BACK TO TAKE CARE OF THE NORMAL AND USUAL THINGS IN LIFE. SO AT LEAST MY QUESTIONS TO HER WERE DESIGNED TO BRING OUT THOSE KINDS OF FINDINGS THAT WE WOULD SUBMIT.
AS I UNDERSTAND, FROM LISTENING TO THE PROCEEDINGS, THEIR WHOLE RATIONALE FOR BEING DOWN THERE THAT MORNING IS THAT THEY WERE STILL IN THE PURSUIT OF AN AROUND-THE-CLOCK VIGIL, WHICH ESSENTIALLY BEGAN IN JUNE OF 1981.
AND I WANTED TO SHOW, AT LEAST BY MY CROSS-EXAMINATION N OF HER, THAT THERE CERTAINLY HAVE BEEN TIMES WHEN THEY HAVE ABSENTED THEMSELVES FOR NORMAL PERSONAL REASONS THAT WE ALL, YOU KNOW, HAVE TO TAKE CARE OF.
NOW, I DON'T KNOW HOW MUCH WEIGHT, YOU KNOW, SHOULD BE GIVEN TO SOMETHING LIKE THAT. BUT I GUESS THE GOVERNMENT'S POSITION -- AND, OF COURSE, WE WILL PUT THIS ON PAPER IN MORE SPECIFICITY -- WOULD BE THAT WE HAVE PROVEN THAT THEY WERE USING THIS AREA AS A LIVING ACCOMMODATION ON THE MORNING IN
QUESTION: THE COMBINATION OF SLEEPING ACTIVITIES, OR, CERTAINLY, MAKING PREPARATIONS TO SLEEP, TOGETHER WITH THE LARGE AMOUNT OF BELONGINGS AND FOODSTUFFS AND OTHER PERSONAL ARTICLES THAT WERE FOUND IN AND AROUND THEIR LOCATION.
THAT WOULD BE OUR GENERAL THEORY OF THE CASE.
THE COURT: SURELY.
MR. SHMANDA: I THINK THAT IS ALL I WOULD CARE TO SAY AT THIS TIME, YOUR HONOR, UNLESS YOUR HONOR HAD MORE SPECIFIC QUESTIONS.
THE COURT: I HAVE ONE OTHER QUESTION IN FORMING THE RECORD HERE. YOU ASKED FOR, AND WERE GIVEN, A STIPULATION BY THE DEFENDANTS THAT WE COULD RELY ON THE TESTIMONY AT THE SUPPRESSION HEARING.
MR. SHMANDA: YES, YOUR HONOR.
THE COURT: NOW, I HAVE SOME BELL RINGING IN MY HEAD THAT AT THE SUPPRESSION HEARING WE MADE SOME CROSS-REFERENCE TO THE STRUCTURES HEARING.
NOW, DOES THE RECORD THAT YOU ARE TRYING THIS CASE ON INCLUDE THE TESTIMONY AT THE STRUCTURES HEARING, AND SOME OF THAT TESTIMONY, I BELIEVE, WAS DEFENDANT'S TESTIMONY ABOUT HARASSMENT. THE QUESTION IS WHETHER THAT IS PART OF THIS RECORD.
MR. SHMANDA: WELL, YOUR HONOR, I REALLY HAD NOT THOUGHT ABOUT THAT, BUT THAT RAISES, I GUESS, A GOOD POINT.
THE COURT: I THINK THAT WHAT I WOULD LIKE TO ASK YOU TO DO IS TO PREPARE, BEFORE YOU PREPARE THE FINDINGS, A STIPULATION WITH COUNSEL OF PRECISELY WHOSE TESTIMONY, ON WHAT OCCASION, AND WHICH DOCUMENTS, CONSTITUTE THIS RECORD. THAT IS, I SAY THAT IN ORDER TO PERMIT YOU BOTH TO MAKE A CONSIDERED JUDGMENT ABOUT WHETHER, AND TO WHAT EXTENT, YOU WANT TO INCORPORATE INTO THIS RECORD ANYTHING FROM THE STRUCTURES TRIAL OF MR. THOMAS.
MR. SHMANDA: OKAY, YOUR HONOR.
I THINK THE LOGICAL STARTING POINT TO DO ALL OF THIS, AFTER WE MAKE OUR INITIAL ORAL REMARKS HERE, WOULD BE TO ORDER THE TRANSCRIPT.
BECAUSE THERE WERE CERTAIN STIPULATIONS AGREED UPON, ESPECIALLY ON THE SELECTIVE-PROSECUTION ASPECT, THAT I DID STIPULATE TO SEVERAL THINGS THAT MR. GRABER ASKED ME TO.
THE COURT: YES.
MR. SHMANDA: BUT I DO NOT HAVE A PRECISE RECOLLECTION AS TO WHAT THEY ARE, SO I WILL MAKE ARRANGEMENTS WITH THE REPORTER.
THE COURT: I DO NOT WANT YOU TO RELY ON YOUR RECOLLECTION. I WANT YOU TO DO THAT ON PAPER.
MR. SHMANDA: YES.
THE COURT: THANK YOU.
MR. SHMANDA: THANK YOU, YOUR HONOR.
THE COURT: MR. GRABER, DO YOU WISH TO ARGUE FOR THE DEFENDANT?
MR. GRABER: YES, YOUR HONOR.
YOUR HONOR, FIRST, WITH RESPECT TO THE PROCEDURAL ASPECT OF THE FINDINGS, I HAVE SOMETHING TO SAY ON THAT. WOULD YOU PREFER THAT I ADDRESS THE MERITS FIRST OR --
THE COURT: YOU MAKE THE ARGUMENT. I DON'T HAVE ANY FEELING ABOUT WHICH WAY YOU DO IT.
MR. GRABER: WELL, LET ME GO AHEAD AND TAKE CARE OF THIS HOUSEKEEPING STEP.
THE COURT: SURELY.
MR. GRABER: MR. DOURlAN INFORMED US THAT HE HAS NOT TRANSCRIBED ANY PROCEEDINGS FROM THIS CASE YET, AND IF THE COURT FEELS THAT IT WOULD BE ENEFITED BY A SUBMISSION OF PROPOSED FINDINGS, I WOULD FEEL, ON BEHALF OF MR. THOMAS, THAT WE SHOULD ASK THAT A TRANSCRIPT BE PREPARED OF TODAY'S
PROCEEDINGS AND THE MOTIONS PROCEEDINGS.
I DON'T KNOW IF THERE ARE ANY SPEEDY-TRIAL CONSIDERATIONS INVOLVED IN THIS OR NOT, BUT I WOULD BE HAPPY TO SPEAK TO MY CLIENT ABOUT THAT, WITH A VIEW TOWARD WAIVING ANY, IF THEY DO APPLY.
YOUR HONOR, ON THE MER ITS --
THE COURT: WHY DON'T YOU GET THAT DONE, WHILE WE ARE THINKING ABOUT IT.
MR. GRABER: FINE, YOUR HONOR.
MR. THOMAS IS WILLING TO WAIVE, AND WE DO WAIVE, ANY SPEEDY-TRIAL ISSUES THAT MAY BE RAISED BY A DELAY IN GETTING THE TRANSCRIPT PREPARED.
THE COURT: MR. WOLL?
MR. WOLL: YES, YOUR HONOR, WE WAIVE.
THE COURT: THANK YOU.
MR. GRABER: YOUR HONOR, I WILL GET A VOUCHER AND SUBMIT IT THIS WEEK FOR THE TRANSCRIPT.
WITH RESPECT TO THE MERITS OF WHETHER OR NOT THE DEFENDANTS HAVE BEEN PROVEN BEYOND A REASONABLE DOUBT TO BE GUILTY AS CHARGED, YOUR HONOR, WE WOULD SUBMIT THAT, IN THE FIRST PLACE, THERE IS EVIDENCE THAT THE DEFENDANTS WERE USING THE RESIDENCE OF WINNIE GALLANT AS A LIVING ACCOMMODATION.
THEY HAD A PLACE WHERE THEY KEPT BELONGINGS AND RECEIVED MAIL AND 'PHONE CALLS AND PREPARED THEIR FOOD THAT THEY WOULD TAKE WITH THEM TO THEIR DAILY VIGIL.
THEY HAD A PLACE WHERE THEY WOULD MAINTAIN SHOWERS AND BATHS, AND THEY WERE NOT USING THE WHITE HOUSE SIDEWALK AS A LIVING ACCOMMODATION.
THEY WERE, PERHAPS, PRESENT THERE, IN THE SENSE OF LIVING THERE, BUT THEY WERE NOT USING IT AS A LIVING ACCOMMODATION, IN FACT.
AND, WITH RESPECT TO MR. THOMAS, OUR POSITION IS THAT, ALTHOUGH THERE IS A LARGE LIST OF PROPERTY THAT WAS SEIZED IN THIS CASE, NONE OF THAT HAS BEEN TIED IN THIS TRIAL TO MR. THOMAS SPECIFICALLY; AND THAT, IN THE ABSENCE OF ANY SPECIFIC ABILITY OF THE GOVERNMENT TO SAY THAT THE ITEMS ON PAGES 2 THROUGH 4 OF GOVERNMENT'S EXHIBIT 2 WERE ITEMS IN THE POSSESSION OF MR. THOMAS, THAT WE ARE LEFT WITH A SITUATION WHERE THE GOVERNMENT SIMPLY HAS NOT MET ITS BURDEN OF PROVING THAT THERE WERE SO MANY BELONGINGS OF MR. THOMAS, THAT THAT WAS SUFFICIENT TO --
THE COURT: WELL, NOW, DOES HE HAVE TO HAVE FEE-SIMPLE OWNERSHIP OF THOSE THINGS IN ORDER TO HAVE CONTROL AND USE OF THEM ON THE SCENE?
WHY IS TITLE AN ISSUE? I THINK THEY TESTIFIED THAT THEY WERE MUTUALLY SUPPORTIVE. SO THAT WHETHER HE OWNED THOSE THINGS OR NOT, OR OWNED ANYTHING, IF HE HAD THE BENEFIT OF THAT STUFF OUT THERE, HE WAS USING IT.
HE COULD HAVE RENTED IT FROM APPALACHIAN OUTFITTERS, AND NOT HAVE OWNED IT, OR HE COULD HAVE BORROWED IT, AND IT WOULD STILL BE CAMPING.
MR. GRABER: WELL, YOUR HONOR, THAT MAY BE, TO SOME EXTENT, BUT --
THE COURT: I MEAN WHY DO I HAVE TO MAKE A FINDING, AND WHY DOES THE GOVERNMENT HAVE TO PROVE, THAT HE OWNED THAT STUFF?
MR. GRABER: MANY OF THE MATERIALS, MR. THOMAS, I BELIEVE IN THE MOTION, SUBMITTED WERE NOT HIS SOME THINGS HE MADE USE OF, BUT, TO THE EXTENT ONE INDIVIDUAL ACCUMULATES POSSESSIONS, TO THE EXTENT THAT MIGHT PREJUDICE THE SECOND INDIVIDUAL MAINTAINING THE VIGIL, I THINK --
THE COURT: THERE ARE SOME PLACES IN PUBLIC PARKS WHERE THERE ARE ACCOMMODATIONS THAT ARE ALL FITTED OUT WITH WOOD AND SHEETS AND FOOD AND WATER AND EVERYTHING. YOU KNOW ABOUT THEM, UP IN SHENANDOAH.
BUT IF SOMEBODY GOES IN THERE WITH NOTHING ON BUT A PAIR OF SHORTS AND CAMPS THERE, EVEN THOUGH THEY DON'T OWN ANYTHING OF WHAT IS THERE AND MAKE USE OF IT, AND DO NOT HAVE A PERMIT, HAVE THEY NOT VIOLATED THIS STATUTE, THIS REGULATION
MR. GRABER: WELL, THE QUESTION IS WHETHER OR NOT THEY ARE USING THAT AREA AS LIVING ACCOMMODATIONS.
THE COURT: BUT IT IS A QUESTION OF WHETHER THEY ARE USING IT, AND NOT WHETHER THEY OWN IT.
MR. GRABER: RIGHT, BUT --
THE COURT: OKAY.
MR. GRABER: (CONTINUING) -- THERE WAS MATERIAL THERE I THINK THAT IT IS NOT THE BE-ALL AND END-ALL OF THE CASE.
THE COURT: MY POINT IS: I QUESTION WHETHER THE GOVERNMENT HAS TO PROVE WHICH OF THESE DEFENDANTS OWNED, OR EVEN CONTROLLED, WHICH ITEMS OF PROPERTY THAT WERE LOCATED THERE; AND TO WHAT EXTENT THEY HAVE TO PROVE, ON THE BASIS OF THE RECORD I HEARD, THAT ONE OR THE OTHER CONTROLLED IT, IF BOTH HAD THE BENEFIT OF IT AND THE USE OF IT.
MR. GRABER: WE WOULD SUBMIT THAT THEY WOULD HAVE A --
THE COURT: I DON'T GET VERY EXCITED ABOUT THAT ISSUE.
MR. GRABER: I THINK THEY WOULD HAVE A STRONGER CASE IF THEY WERE ABLE TO SHOW THAT. BUT I CERTAINLY DON'T FEEL THAT THAT IS THE BE-ALL AND END-ALL OF THIS CASE -
THE COURT: I AGREE.
MR. GRABER: (CONTINUING) -- ANY MORE THAN WHETHER OR NOT THEY WERE SLEEPING WOULD BE THE BE-ALL AND END-ALL.
THE COURT: I AGREE.
MR. GRABER: WE HAVE TO LOOK AT THE ENTIRE CIRCUMSTANCES OF THE CASE. THERE WAS CERTAINLY NO PREPARING OF THE FOOD. THAT WAS DONE ELSEWHERE.
THERE WAS NO BEDDING MATERIAL.
THERE MAY HAVE BEEN SLEEPING ACTIVITIES, OR PERHAPS NOT, DEPENDING ON HOW YOUR HONOR MIGHT RESOLVE THESE CREDIBILITY ISSUES.
THERE WAS SOME STORING OF PERSONAL BELONGINGS, CERTAIN HOWEVER, THERE WAS NO STRUCTURE. THERE WAS NO SHELTER. THERE WAS NO ACTUAL COOKING GOING ON THERE.
THE COURT: NO BATHING.
MR. GRABER: EXCUSE ME?
THE COURT: NO BATHING.
MR. GRABER: THERE WAS NO BATHING- THEY WERE THERE. THERE IS A FAIR AMOUNT OF PROPERTY THAT WAS THERE. THERE WERE SIGNS THAT WERE THERE.
THE COURT: THERE WERE WHAT?
MR. GRABER: THERE WERE SIGNS THAT WERE THERE, BUT THE DEFENDANTS WERE BASICALLY ON THE SIDEWALK. NOW, THE REGULATIONS, AND, PARTICULARLY, THE PREFATORY COMMENTS, SPEAK ABOUT ONE OF THE CONCERNS, IF THE NOT THE PRIMARY CONCERN, FOR THIS CAMPING REGULATION IS THE GOVERNMENT'S CONCERN FOR MAINTAINING THE INTEGRITY OF PARK LANDS. AND THAT IS A LEGITIMATE CONCERN.
HERE, HOWEVER, WE ARE TALKING ABOUT PEOPLE WHO ARE NOT ON THE GRASS. THIS IS NOT LIKE THE CCNV CASES, WHERE THEY HAD TENTS ON THE GRASS IN THE PARK. THEY WERE ACTUALLY ON THE SIDEWALK, AND THERE IS NO EVIDENCE THAT THE SIDEWALK WAS IN ANY WAY DAMAGED AS A RESULT OF THEIR ACTIVITIES.
THEREFORE, THE GOVERNMENT'S ASSERTED INTEREST IN THIS CASE, I DON'T THINK IS IMPLICATED BY THE DEFENDANTS' SPECIFIC ACTIVITIES. THERE IS CERTAINLY NOTHING TO BE --
THE COURT: THE GOVERNMENT COULD HAVE A REGULATION THAT FOREBADE SLEEPING ON THE SIDEWALK, JUST BECAUSE IT WOULD l BE A HAZARD TO PEDESTRIANS; COULD IT NOT?
MR. GRABER: IN MY OPINION, IN THE AREA OF THE WHITE HOUSE, THAT WOULD PRESENT
SOME CONSTITUTIONAL QUESTIONS.
THE COURT: REALLY? SUPPOSE 300 PEOPLE SLEPT IN A ROW?
MR. GRABER: WELL, THAT IS DIFFERENT. I THINK THAT 300 PEOPLE SLEEPING IN ONE PLACE CAN BE MANAGED THROUGH A PERMIT SYSTEM.
IF WE ARE GOING TO SAY THAT YOU CAN MAINTAIN A 24-HOUR VIGIL, WHICH IS WHAT THE COURTS HAVE SAID, THEN --
THE COURT: WHAT COURT SAID THAT?
MR. GRABER: WELL, THE CCNV COURT REAFFIRMED IN ITS --
THE COURT: THEY SAID THOSE PEOPLE COULD MAINTAIN A 24-HOUR VIGIL. THEY HAVE NOT SAID THESE PEOPLE CAN.
MR. GRABER: IT RECOGNIZED THE CONSTITUTIONAL BASIS FOR MAINTAINING THE 24-HOUR VIGIL AND REAFFIRMED THE --
THE COURT: THEY RECOGNIZED THAT THERE WAS ONE.
MR. GRABER: YES.
THE COURT: THAT THERE WAS A CONSTITUTIONAL THEORY ON WHICH YOU COULD MAINTAIN A 24-HOUR VIGIL.
MR. GRABER: RIGHT. AND I BELIEVE THE CCNV COURT REAFFIRMED ABNEY TO THAT EXTENT, OR MADE CLEAR THAT ABNEY WAS VIEWED, AT LEAST BY THE EN BANC IN CCNV II, TO BE READ IN THAT WAY.
SO IF ONE TAKES AS A CONSTITUTIONAL PRINCIPLE A PROTECTION OF THE 24-HOUR VIGIL, THEN IF WE LOOK AT AN INDIVIDUAL WHO IS TRYING TO DO THAT OVER AN EXTENDED PERIOD OF TIME, IT SEEMS TO ME THAT WE HAVE TO MAKE SOME ACCOMMODATION IN
THE LAW THAT AT SOME POINT THEY ARE GOING TO SLEEP. AT SOME POINT THEY ARE GOING TO HAVE TO EAT.
AND PERHAPS THIS IS WHAT THIS REGULATION IS ALL ABOUT.
BUT WE WOULD SUBMIT THAT WHEN YOU HAVE AN AREA THAT IS SO CRUCIAL TO THE EXERCISE OF FIRST AMENDMENT RIGHTS AS THE AREA AROUND THE WHITE HOUSE, THAT THE BALANCING SHOULD BE HEAVIER ON THE FIRST AMENDMENT SIDE AND LESS HEAVY ON THE GOVERNMENT SIDE.
AND WHERE THERE IS REALLY NO SHOWING OF HARM THAT THE GOVERNMENT IS SUFFERING AS A RESULT OF THESE ACTIVITIES, IF MOST OF THE TIME THEY -- WELL, THE TESTIMONY ABOUT SLEEPING WAS THAT THEY MIGHT SLEEP AT NIGHT, BUT THERE IS NO TESTIMONY OFFERED BY THE GOVERNMENT THAT THAT, IN ANY WAY, DETRACTS FROM THE USE OF THE SIDEWALK AT LAFAYETTE PARK, OR THAT IT MAKES IT DIFFICULT FOR PERSONS AT NIGHT TO FREQUENT THAT AREA.
ONE WOULD ASSUME THAT THERE ARE FEWER USERS OF THE SIDEWALK AT NIGHT THAN DURING THE DAYTIME.
THE COURT: LET ME ASK YOU THIS, FROM YOUR MEMORY OF THIS RECORD. YOU HAD TESTIMONY, AS I RECALL, ABOUT PEOPLE SLEEPING IN THE PARK --
MR. GRABER: YES, YOUR HONOR.
THE COURT: (CONTINUING) -- AS PART OF YOUR SELECTIVE-PROSECUTION ARGUMENT.
MR. GRABER: YES, SIR.
THE COURT: DID YOU HAVE ANY EVIDENCE OF ANYBODY SLEEPING ON THE SIDEWALK?
MR. GRABER: l DON'T BELIEVE WE HAD ANY EVIDENCE OF INDIVIDUALS SLEEPING ON THE SIDEWALK.
THE COURT: NOW, SUPPOSE THIS REGULATION WERE CONSTRUED AS SAYING THAT IT MEANS YOU CAN'T SLEEP EITHER ON THE SIDEWALK OR IN THE PARK; BUT, BECAUSE THE GOVERNMENT HAS WINKED AT SLEEPING IN THE PARK, ENFORCEMENT OF THAT REGULATION AGAINST SOMEONE WHO IS JUST SLEEPING IS NOT PERMISSIBLE BECAUSE OF SELECTIVE-PROSECUTION CONSIDERATIONS; BUT THAT SOMEONE WHO IS JUST SLEEPING ON THE SIDEWALK HAS VIOLATED THE REGULATION?
MR. GRABER: WELL, YOUR HONOR --
THE COURT: BECAUSE YOU DON'T HAVE THE SELECTIVE-PROSECUTION DEFENSE THERE.
MR. GRABER: THAT IS TRUE, BUT THE PURPOSE OF THE REGULATION WAS TO PROTECT PARK LANDS, AND IT SEEMS THAT THERE IS MORE OF A THREAT TO PARK LANDS IN THE AREA WHERE THE GRASS IS --
THE COURT: I AGREE.
MR. GRABER: (CONTINUING) -- THAN ON THE SIDEWALK.
THE COURT: BUT THAT IS FOR THEM TO SAY. THEY DID NOT SAY THAT. THEY COVERED THE SIDEWALK AND THE PARK LANDS. IT IS SORT OF AN OBVERSE OF THE SUPREME COURT'S DECISION IN GRACE AGAINST BURGER.
MR. GRABER: YES, IT IS. I DO AGREE WITH YOUR HONOR THAT THE GOVERNMENT MAY HAVE WAIVED, OR, SOMEHOW, BY ALLOWING SLEEPING IN THE PARK, IT SEEMS THAT IT SHOULD NOT BE ABLE TO RELY ON SLEEPING WITH RESPECT TO --
THE COURT: JUST QUA SLEEPING.
MR. GRABER: THAT IS CORRECT.
THE COURT: IN THE PARK.
MR. GRABER: IN THE PARK OR --
THE COURT: BUT I AM SAYING THAT PRINCIPLE DOES NOT APPLY TO THE SIDEWALK.
MR. GRABER: THAT COULD BE, YOUR HONOR.
THE COURT: I KNOW I SHOULD HAVE ASKED THEM THIS, BUT, AS COUNSEL, IS IT YOUR POSITION THAT THE SLEEPING ON THE SIDEWALK IS DIFFERENT IN ANY RESPECT PROM SLEEPING ON THE GRASS?
MR. GRABER: IT PRESENTS LESS OF A THREAT TO A LEGITIMATE GOVERNMENT INTEREST, AND, THEREFORE, WE FEEL THAT THE FIRST AMENDMENT BALANCE SHOULD BE STRUCK MORE IN FAVOR OF THE FIRST AMENDMENT SIDE ON THE SIDEWALK, ESPECIALLY WHERE, AS HERE, THERE IS NO EVIDENCE OF BLOCKING PEDESTRIAN FLOW, OR ANY OTHER REAL, VALID INTEREST.
IT IS JUST THAT THE PEOPLE ARE THERE, AND THERE IS A REGULATION.
THERE IS CERTAINLY NO HARM THAT HAS BEEN DEMONSTRATE BY THE GOVERNMENT THROUGH THE FACT OF THE PRESENCE OF THESE INDIVIDUALS.
AND IF THE GOVERNMENT IS GOING TO MAKE SLEEPING ILLEGAL ON THE SIDEWALK, THEY SHOULD DO THAT THROUGH A REGULATIONS THAT SPECIFICALLY --
THE COURT: SAYS "NO SLEEPING ON THE SIDEWALK."
MR. GRABER: (CONTINUING) -- SAYS THAT, YES.
IT MAY WELL BE, WHEN THE CAMPING CASE THAT IS PRESENTLY IN THE SUPREME COURT IS REACHED, THE COURT MAY ADDRESS THE ISSUE OF SLEEPING, PER SE. RIGHT NOW THE SITUATION IS SORT OF CLOUDED BY THE DIFFERENT DECISIONS, AND IT SEEMS CERTAINLY CLEAR THAT THE POLICE, FOR WHATEVER REASON, SEEM TO FOCUS ON SLEEPING.
THE COURT: HAS JUDGE BRYANT ADDRESSED THIS IN THE CIVIL CASE HE HAS? HAVE YOU ALL ARGUED THIS BEFORE HIM?
MR. GRABER: NOT CAMPING. THERE IS A CRIMINAL CASE ON CAMPING WITH RESPECT TO MR. MARK MONTGOMERY.
THE COURT: WHAT DID HE DO THERE?
MR. GRABER: WELL, WE RAISED MOTIONS, AND HE HELD A TRIAL AND CONVICTED MR. MONTGOMERY ON THE FACTS, BUT WITHHELD A DECISION ON THE MERITS OF THE MOTIONS UNTIL SENTENCING, WHICH IS THIS THURSDAY.
AND AT THAT TIME THE JUDGE INDICATED HE WOULD INDICATE HIS RULING ON THE MOTIONS, AND IF THE DEFENDANT'S MOTIONS WERE DENIED, HE WOULD PRONOUNCE SENTENCE AT THAT TIME.
SO THE CONSTITUTIONAL MOTIONS ARE STILL PENDING BEFORE JUDGE BRYANT. THEY SHOULD BE RESOLVED BY THIS THURSDAY, YOUR HONOR.
MR. GRABER: YOUR HONOR, I REALLY DON'T HAVE MUCH MORE TO SAY.
THE COURT: LET ME JUST ADD THERE: IF HE DOES DECIDE THAT ON THURSDAY, IN YOUR SUBMISSION OF PROPOSED FINDINGS, WOULD YOU ALSO ADDRESSS ANY INTERVENING DECISION BY HIM ON THIS SUBJECT?
MR. GRABER: I AM SURE WE WILL BRING IT TO YOUR HONOR S ATTENTION.
THE COURT: WELL, YOU MAY HAVE ARGUMENTS FROM IT.
MR. GRABER: IF JUDGE BRYANT EVER ISSUES A WRITTEN ORDER, OF COURSE, WE WOULD IMMEDIATELY MAKE THAT AVAILABLE TO YOUR HONOR.
THE COURT: OKAY. THANK YOU.
MR. GRABER: IN OUR PROPOSED FINDINGS, WE WILL CERTAINLY REPRESENT THE JUDGE'S ORAL RULINGS, IF ANY, FROM THE BENCH ON THAT ISSUE.
THE COURT: THANK YOU.
MR. GRABER: YOUR HONOR, JUST IN SUM, WE DO NOT FEEL THE GOVERNMENT HAS MET ITS BURDEN IN THIS CASE THAT THE DEFENDANT'S WERE USING THE SIDEWALK AS A LIVING ACCOMMODATION.
WE THINK THERE IS SOME ROOM FOR DOUBT IN A SENSITIVE AREA SUCH AS THIS, WHERE THEY WERE ENDEAVORING TO EXPRESS THEIR VIEWS. WE WOULD HOPE THAT THE COURT WOULD FIND THAT THE GOVERNMENT SIMPLY DID NOT MEET ITS BURDEN.
IN FACT, I WOULD URGE THE COURT TO FIND THE STATUTE -- TO RECONSIDER ITS RULING ON THE CONSTITUTIONALITY OF THE STATUTE, AS IT APPLIES TO THE AREA OF THE WHITE HOUSE.
THE COURT: LET ME ASK YOU THIS. THIS, AGAIN, IS OUTSIDE THE DECISION ON THE MERITS.
BUT DO YOU GIVE THESE PEOPLE IN THIS SITUATION LEGAL ADVICE AS TO WHERE THE LINE IS BETWEEN MAINTAINING A LIVING ACCOMMODATION IN THE PARK AREA AND WHAT IS NOT A L LIVING ACCOMMODATION?
MR. GRABER: I HAVE GIVEN THEM LEGAL ADVICE AS TO HOW I FEEL THEY COULD MINIMIZE THEIR PROSPECTS FOR ARREST AND --
THE COURT: YES.
MR. GRABER: (CONTINUING) -- I HAVE SPOKEN TO GOVERNMENT COUNSEL ABOUT POSSIBLE, FACTUAL HYPOTHETICALS AND WHETHER IT WOULD LEAD TO AN ARREST SITUATION.
THE COURT: WELL, DO YOU KNOW WHETHER THERE WAS ANY APPLICATION FOR A LICENSE HERE?
MR. GRABER: NO. AND MY UNDERSTANDING IS THAT THE GOVERNMENT SIMPLY WOULD NOT PERMIT PEOPLE TO BE THERE, IF THEY WERE GOING TO SLEEP AT ALL, NO MATTER HOW LITTLE THEY HAVE IN TERMS OF PERSONAL POSSESSIONS, BLANKETS, OR WHATEVER. MY CLIENTS HAVE INDICATED THEY CAN'T KEEP AWAKE ALL THE TIME, AND, THEREFORE, THERE SEEMS TO BE AN IMPOSSIBLE SITUATION.
THE COURT: THE GOVERNMENT'S THEORY, NOT NECESSARILY THEIR THEORY IN THIS TRIAL, BUT THE THEORY OF THE AGENCY SEEMS TO BE THAT SLEEPING IS THE GRAVAMEN.
MR. GRABER: AND THAT DOES SEEM TO BE HOW IT lS ENFORCED.
THE COURT: OKAY. THANK YOU
MR. GRABER: THANK YOU, YOUR HONOR.
THE COURT: MR. WOLL.
MR. WOLL: YOUR HONOR, I WOULD JUST CERTAINLY JOIN IN THE ARGUMENT OF MR. GRABER. WITH RESPECT TO LIVING ACCOMMODATIONS, YOUR HONOR, I DON'T THINK WE HAVE THAT HERE. AN "ACCOMMODATION," TO ME, MEANS AT LEAST SOME SORT OF CONVENIENCES, AS FAR AS WHAT CAMPERS WOULD WANT TO HAVE TO MAKE THEIR STAY IN ANY PARK LANDS CONVENIENT.
I JUST DON'T THINK WE HAVE ANYTHING THAT APPROACHES ANY TYPE OF LIVING ACCOMMODATIONS, BASED ON WHAT PERSONAL BELONGINGS THEY HAD THERE, IF ANY.
THERE WAS NO BEDDING MATERIAL. PERHAPS THERE WAS SLEEPING ON THE SIDEWALK.
NOW, IN REFERENCE TO MISS PICCIOTTO, I WOULD ALSO SUBMIT, YOUR HONOR, I DON'T THINK THERE IS SUFFICIENT EVIDENCE CONCERNING SLEEPING. AND I DON'T THINK HER TESTIMONY IS NECESSARILY INCONSISTENT WITH THE POLICE OFFICERS'. BECAUSE,
AS I RECALL THE POLICE OFFICERS' TESTIMONY, THEY INDICATED THEY WERE APPROACHING. THAT SHE APPEARED TO HAVE HER EYES CLOSED AT SOME POINT.
NOW, SHE INDICATED SHE WAS IN REPOSE.
NOW, THERE ARE NO FURTHER INDICATIONS SO THAT YOU CAN SAY, BEYOND A REASONABLE DOUBT, SHE WAS SLEEPING. BECAUSE APPARENTLY, SHE WAS AWARE OF WHAT WAS GOING ON. THEY HAD NO DIFFICULTY IN AWAKENING HER, OR TOUCHING HER, OR PUSHING HER.
I THINK HER TESTIMONY WAS THAT, AS THEY WERE APPROACHING SHE WAS TELLING THOMAS SOMETHING ABOUT: "WAKE UP. THEY ARE HERE." THERE WAS SOME EVIDENCE CONCERNING THIS.
SO THAT IN REFERENCE AT LEAST TO MISS PICCIOTTO, I THINK IT IS VERY AMBIGUOUS AS TO WHETHER OR NOT SHE WAS SLEEPING. I THINK THE BURDEN RESTS WITH THE GOVERNMENT TO SHOW THAT, BEYOND A REASONABLE DOUBT, SHE WAS SLEEPING.
CERTAINLY, YOUR HONOR COULD FIND THAT IF THEY HAD TROUBLE ROUSING HER, OR SHE WAS DROWSY, OR WAS NOT ORIENTED. BUT --
THE COURT: YOU THINK THE GOVERNMENT HAS TO PROVE THAT SHE WAS SLEEPING, IN ORDER TO SUSTAIN A CONVICTION HERE?
MR. WOLL: WELL, YOUR HONOR, THE STATUTE INDICATES SLEEPING ACTIVlTIES. SO I THINK IT IS IMPORTANT FOR THE GOVERNMENT TO SHOW THAT AT LEAST THERE WAS SOME SLEEPING ACTIVITY.
NOW, THERE WAS NO TESTIMONY THAT EARLIER THAT DAY THEY HAD SEEN HER SLEEPING, OR TWO HOURS EARLIER. APPARENTLY, THESE OFFICERS HAD JUST COME ON THEIR SHIFT.
THE COURT: IT SAYS: "CAMPING' IS DEFINED AS THE USE OF PARK LANDS FOR LIVING-ACCOMMODATION PURPOSES, SUCH AS SLEEPING ACTIVITIES."
MR. WOLL: SO THE QUESTION IS: WAS SHE --
THE COURT: MY QUESTION IS: COULD YOU BE USING THE LAND FOR LIVING ACCOMMODATIONS -- SUPPOSE THEY WENT OVER TO MISS GALLANT'S PLACE REGULARLY FOR A NAP. THEY MIGHT FALL ASLEEP ACCIDENTALLY, BUT THEY MADE IT A POINT, WHEN THEY WERE SLEEPING, TO GO OVER THERE TO SLEEP.
DO YOU THINK THEY STILL COULD NOT BE CHARGED UNDER THE CAMPING REGULATIONS? I AM ASKING. I AM NOT ARGUING.
MR. WOLL: WELL, I THINK "SLEEPING ACTIVITIES" IN THE STATUTE MEANS THAT THEY ARE FACILITATING GOING TO SLEEP. BECAUSE YOU HAVE TO READ IT WITH MAKING PREPARATIONS FOR SLEEPING PUTTING ON OTHER CLOTHING, PAJAMAS, OR PUTTING DOWN BEDDING MATERIAL, SLEEPING BAGS, MAKING THE GROUND SOFT SO THAT YOU
CAN SLEEP --
THE COURT: WAIT A MINUTE.
"'CAMPING' IS DEFINED AS THE USE OF PARK LANDS FOR LIVING-ACCOMMODATlON PURPOSES, SUCH AS SLEEPING ACTIVITIES."
MR. WOLL: YES, YOUR HONOR. I THINK THERE HAS TO BE MORE THAN A PERSON WHO HAS THEIR EYES CLOSED AT A PARTICULAR TIME TO SAY: WELL, THEY ARE SLEEPING, AND THAT THIS IS SLEEPING ACTIVITY, PARTICULARLY IF YOU DON'T HAVE ANY TYPE OF BEDDING MATERIAL OR ANY TYPE OF A TENT.
THE COURT: WHAT I AM ASKING YOU IS: DO YOU THINK ANY INDICTMENT SHOULD BE DISMISSED THAT DOES NOT CHARGE SLEEPING, OR ATTEMPTING TO SLEEP?
MR. WOLL: WELL, I DON'T THINK THEY HAVE TO SHOW SPECIFICALLY IN EVERY CASE THAT SOMEONE IS SLEEPING. I MEAN IF SOMEONE IS IN A TENT, AND THERE IS BEDDING MATERIAL IN THE TENT, AND THEY ARE COOKING FOOD AND MAKING A FIRE, THESE ARE ALL INDICATIONS, YOUR HONOR, OF CAMPING.
I DON'T KNOW IF I ANSWERED YOUR HONOR'S QUESTION, BUT --
THE COURT: OKAY.
MR. WOLL: (CONTINUING) -- I AM TRYING TO POINT OUT THAT THE STATUTE IS PRETTY LIMITED SO FAR AS THE FACTORS THAT ARE TO BE CONSIDERED, AND IT SPECIFIES THESE FACTORS. THEN IT USES THE LANGUAGE: "WHEN IT REASONABLY APPEARS IN LIGHT OF ALL THE CIRCUMSTANCES THAT THE PARTICIPANTS IN CONDUCTING THESE ACTIVITIES ARE, IN FACT, USING THE AREA AS LIVING ACCOMMODATIONS."
SO, AGAIN, IT GOES BACK TO THESE INDICIA. AND I DON'T THINK WE HAVE ANY OF THAT INDICIA IN THIS CASE. WHAT WE HAVE, AT LEAST SO FAR AS MY CLIENT IS CONCERNED, IS VERY AMBIGUOUS, AS TO WHETHER OR NOT SHE WAS SLEEPING. THERE WAS NO BEDDING MATERIAL OR ANY TYPE OF A FIRE.
SO FAR AS THE INVENTORY, THERE WERE VERY FEW CLOTHING ITEMS. AND I WOULD SUBMIT, YOUR HONOR, THAT THEY ARE CONSISTENT WITH ITEMS THAT A PERSON WOULD BRING WITH THEM, JUST TO PROTECT THEM FROM THE ELEMENTS, SO THAT THEY CAN CONDUCT THE 24-HOUR VIGIL THAT MISS PICCIOTTO WAS ATTEMPTING TO CONDUCT.
SO FAR AS UMBRELLAS, SO FAR AS KEEPING THE RAIN OFF HER, SO FAR AS BOOTS TO KEEP HER FEET DRY, I DON'T THINK THESE ARE INDICIA OF LIVING ACCOMMODATIONS. I THINK THEY ARE MATERIALS THAT ARE INCIDENTAL TO A DEMONSTRATION.
OF COURSE, THAT WAS HER TESTIMONY: THAT SHE WAS CONDUCTING A DEMONSTRATION. THAT IS WHY SHE WAS OUT THERE. SHE WAS NOT OUT THERE TO CAMP OR TO USE THE PARK LAND AS A LIVING ACCOMMODATION. BUT SHE WAS THERE TO CONDUCT A DEMON-
STRATTON.
AND I THINK THAT THE PERSONA, ITEMS WERE VERY LIMITED AND ARE CONSISTENT WITH WHAT SHE WAS TRYING TO DO: CONDUCT A DEMONSTRATION.
AND THAT WHAT OTHER ITEMS WERE NECESSARY, SO FAR AS LIVING ACCOMMODATIONS, WERE AT MISS GALLANT'S HOUSE. THAT WAS HER BASE, AND THAT IS WHERE SHE PREPARED FOOD OVER THERE. AND THAT ANY FOOD THAT SHE HAD ON HER AT THE PLACE WHERE SHE
WAS CONDUCTING THIS DEMONSTRATION WAS USED BY HER IMMEDIATELY DURING THAT DAY. I MEAN LIKE SANDWICHES. I MEAN IT IS LIKE TAKING FOOD FOR A PICNIC IN ORDER TO CONSUME IT RIGHT THEN AND THERE, AND NOT TO STORE IT.
THANK YOU, YOUR HONOR.
THE COURT: THANK YOU, MR. WOLL. MR. SHMANDA?
MR. SHMAN DA: JUST A FEW BRIEF COMMENTS IN RESPONSE TO THE ARGUMENTS OF FELLOW COUNSEL, YOUR HONOR.
ONE THING THE GOVERNMENT WOULD LIKE THE COURT TO CONSIDER IN THIS CASE IS THE ACCEPTANCE OF ITS THESIS THAT THIS CASE DOES NOT INVOLVE DEMONSTRATING, AND THIS REGULATION DOES NOT INHIBIT ANY CITIZEN'S RIGHT TO DEMONSTRATE IN LAFAYETTE PARK, OR ON THE SIDEWALK IN FRONT OF LAFAYETTE PARK, YOUR HONOR
THE REGULATION ONLY SPRINGS INTO EFFECT WHEN INDIVIDUAL DEPART FROM DEMONSTRATING AND START TO USE -- "USE" IS THE KEY WORD -- USE THE LAND FOR LIVING-ACCOMMODATION PURPOSES. THAT IS THE ONLY TIME THIS REGULATION SPRINGS INTO EFFECT.
SO THAT ENTIRE NIGHT THAT THEY WERE IN FRONT OF THEIR SIGNS, TALKING TO PASSERS-BY, SEATED THERE WITH PERHAPS MISS GALLANT, ACCORDING TO OUR READING OF THE REGULATION, THE REGULATION IS NOT APPLICABLE. BECAUSE THEY WERE, ARGUABLY IN THE ACT OF COMMUNICATING, OR ATTEMPTING TO COMMUNICATE, THOUGHTS TO OTHERS.
BUT WHEN THEY START TO REPOSE, TO LIE DOWN, TO SHUT THEIR EYES, TO SLEEP, IF YOU BELIEVE THE WORD OF THE OFFICERS, AND THEY HAVE IN PROXIMITY TO THEM, IN CONSTRUCTIVE POSSESSION WE, TOO, AGREE, YOUR HONOR, THAT WHO OWNED WHAT IS NOT IMPORTANT.
IT IS WHO WAS IN CONSTRUCTIVE POSSESSION, OR WERE THEY IN CONSTRUCTIVE POSSESSION OF THINGS THAT WE WOULD SAY EVIDENCED AN INTENT TO USE THE PLACE TO STORE PERSONAL BELONGINGS.
WHAT WE ARE SAYING IS THAT WHEN THEY END THE COMMUNICATION ACTIVITIES AND THEY SAY, AS SHE INDICATED, THAT THEY WERE SO EXHAUSTED THAT THERE CAME A POINT THAT SHE HAD TO REPOSE, THAT YOU CAN'T DO IT. YOU JUST CAN'T DO IT ON EITHER I THE SIDEWALK OR IN THE PARK.
I THINK, AS A PRACTICAL MATTER, YOUR HONOR, PERHAPS YOU ARE MORE NOTICEABLE WHEN YOU ARE ON THE SIDEWALK TO THE POLICE. BECAUSE, IN THIS PARTICULAR CASE, I THINK THE OFFICER HAS TESTIFIED THAT IF THEY HAD BEEN IN THE PARK, HE PROBABLY
WOULD NOT HAVE SEEN THEM, BECAUSE HE WAS ON HIS WAY UP TO RELIEVE HIS PREDECESSOR THAT MORNING. HE COULD NOT HELP BUT SEE THEM.
THE COURT: YOU DON'T CLAIM THAT YOU HAVE TO PROVE THEY WERE SLEEPING TO WIN; DO YOU?
MR. SHMANDA: NO, YOUR HONOR. NO. WE CONTEND THAT ONE WAY WE COULD MAKE A PRIMA FACIE SHOWING --
THE COURT: YES.
MR. SHMANDA: (CONTINUING) -- WOULD BE TO INTRODUCE EVIDENCE THAT THEY WIRE, INDEED, SLEEPING, BECAUSE THE STATUTE SAYS THAT THAT IS ONE OF THE INDICIA THAT THE COURT CAN CONSIDER IN MAKING ITS OVERALL DETERMINATION.
IN THIS CASE, WE WOULD SUGGEST THAT THE EVIDENCE IS SUCH THAT IF YOUR HONOR WERE TO RESOLVE CREDIBILITY QUESTION IN FAVOR OF THE GOVERNMENT WITNESSES, YOU COULD CONCLUDE, INDEED, THAT THEY WERE SLEEPING.
NOW, THE PROBLEM SEEMS TO BE THAT NO ONE ACTIVITY, IN ITSELF, REALLY IS AN
ABSOLUTE VIOLATION. IN OTHER WORDS, YOU STILL HAVE TO GO TO THE SECOND STEP AND SAY: WELL, DOES THE SLEEPING, TOGETHER WITH THE TIME OF THE MORNING, PERHAPS, 6:00 A. M., ON A SATURDAY, AND THE PRECISE LOCATION, TOGETHER WITH THE THINGS THAT WERE SEIZED IN AND AROUND THE AREA -- DOES THAT MAKE IT REASONABLY APPEAR THAT THEY WERE USING THE AREA AS A LIVING ACCOMMODATION?
THAT IS THE MORE DIFFICULT, I GUESS, CONCLUSION, AND ULTIMATE CONCLUSION, THAT THE COURT HAS TO MAKE. AND, AS YOUR HONOR IS AWARE, I THINK ONE REASON WHY THE REGULATION IS THIS WAY IS BECAUSE THESE TYPES OF ISSUES HAVE BEEN IN LITIGATION NOW FOR APPROXIMATELY, OH, AT LEAST A GOOD DOZEN YEARS.
THERE IS A STEADY DICHOTOMY, STARTING WITH QUAKER ACTION I AND GOING UP TO THE PRESENT STATE OF THE LAW, SO THAT THE AUTHORlTlES, THE INTERIOR DEPARTMENT --
THE COURT: GO AHEAD, MR. SHMANDA.
MR. SHMANDA: YES. THE INTERIOR DEPARTMENT HAS TRIED, AS FAR AS IS HUMANLY POSSIBLE, YOUR HONOR, TO PUT PEOPLE ON NOTICE OF WHAT SPECIFIC BEHAVIOR WILL EXPOSE THEM TO POSSIBLE, IN THIS CASE, CRIMINAL ACTION, AT THE SAME TIME RECOGNIZING A PERSON'S RIGHT TO DEMONSTRATE.
WE WOULD SUBMIT TO YOU THAT THEY HAVE MADE A WORKMANLIKE EFFORT IN THIS REGULATION; AND THAT, AGAIN, IN THE END, YOUR HONOR, THE ONLY ARGUMENT THAT I WOULD WISH YOUR HONOR TO CONSIDER, OTHER THAN THE DETAILED FINDINGS OF FACT
AND CONCLUSIONS OF LAW, AS YOUR HONOR HAS ALREADY POINTED OUT -- I AM SORRY. I CAN'T EVEN HEAR MYSELF TALK WHEN SHE IS DOING THAT.
THE COURT: GO AHEAD. LET'S PLAY HER. GO AHEAD.
MR. SHMANDA: OKAY. I WILL FINISH UP, YOUR HONOR.
AS YOUR HONOR HAS INDICATED, HIMSELF, IN THE MEMORANDUM OPINION AND ORDER THAT I RECEIVED AND READ THIS MORNING -- I AM SORRY, YOUR HONOR. I HAVE JUST LOST MY TRAIN OF THOUGHT. I AM SORRY, YOUR HONOR.
THE COURT: ALL RIGHT.
MR. SHMANDA: IF IT COMES TO ME, I WILL STAND UP AGAIN. I AM SORRY, YOUR HONOR.
THE COURT: 1 WILL TAKE THIS UNDER SUBMISSION. I WILL ASK YOU TO SUBMIT THE PROPOSED FINDINGS TEN DAYS AFTER THE TRANSCRIPT IS AVAILABLE. IS THAT FEASIBLE FOR THE DEFENDANTS?
MR. GRABER: YES, SIR, YOUR HONOR, TEN DAYS AFTER THE TRANSCRIPT HAS BEEN RECEIVED.
MR. WOLL: YES.
THE DEFENDANT PICCIOTTO: MAY I SAY SOMETHING,YOUR HONOR?
THE COURT: THROUGH YOUR COUNSEL, MA'AM.
THE DEFENDANT PICCIOTTO: I TALKED TO HIM ALREADY.
THE COURT: ALL RIGHT. THIS MATTER IS ADJOURNED.
THE DEFENDANT PICCIOTTO: I WANT TO SAY SOMETHING FOR THE RECORD.
THE COURT: I AM SORRY. YOU HAVE TESTIFIED. THE CASE IS OVER. IF, AFTER I HAVE DECIDED, YOU WANT TO PETITION FOR A REHEARING, YOU ARE ENTITLED TO DO THAT.
THE DEFENDANT PICCIOTTO: I WANT TO TELL YOU THE TRUTH.
(WHEREUPON, AT 4:00 O'CLOCK P. M., THE COURT ADJOURNED THIS MATTER.)
REPORTER'S CERTIFICATE
I, THOMAS TOROS K. DER DOURIAN, CERTIFY THAT THE FOREGOING IS THE OFFICIAL TRANSCRIPT OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER; AND THAT IT IS COMPLETE AND ACCURATE TO THE BEST OF MY KOWLEDGE AND ABILITY.
/S/ Thomas Toros Der Dourian
OFFICIAL REPORTER
I N D E X
WITNESSES DIRECT CROSS REDIRECT RECROSS
CONCEPCION PICCIOTTO 230 235 (GRABER)
237 (SHMANDA)
WINIFRED GALLANT 249
250 (WOLL)
252 (SHMANDA)
E X H I B I TS
G OVERNMENT'S FOR IDENT. IN EVIDENCE 226
ThomasToros K. Der Dourian