The Abolitionist Action Committee AAC is an ad-hoc group of individuals committed to highly visible and effective public education for alternatives to the death penalty through nonviolent direct action.

Washington, D.C.
Friday, June 28, 2002

The above-entitled action came on for trial before the HONORABLE MILDREN EDWARDS, Associate Judge, in Courtroom Number 217, commencing at 10:20 a.m.

APPEARANCES:

On Behalf of the Government:
JOHN HAN, Esquire

On Behalf of the Defendants Phillips, Bonowitz, and Kaz:
MARK GOLDSTONE, Esquire

On Behalf of the Defendants Halperin, Giffin, Langely and Conally:
PRO SE

PROCEEDINGS

DEPUTY CLERK: On the trial calendar, the cases of United States v. Peggy Jo Conally, M693-02, United States v. Pamela Phillips, M694-02, United States v. Abraham Bonowitz, M695-02, United Sates v. Rick Halperin, M697-02; United States v. Daniel Giffin, M698-02; and United States v. Scott Langley, M699-02.

THE COURT: Okay, defendants, you don’t all need to come up, but if you could stand for a minute. You are all here? Everyone is here, Mr. Goldstone?

MR. GOLDSTONE: Yes, Your Honfor.

THE COURT: Good morning. Good morning, Mr. Goldstone. Mr. Han, good morning.

MR. HAN: Good morning, Your Honor.

THE COURT: Mr. Han, is the Government ready?

MR. HAN: The Government is ready, Your Honor.

THE COURT: Likewise, Mr. Goldstone?

MR. GOLDSTONE: Yes, Your Honor.

THE COURT: Okay, why don’t you check back here with your witnesses at 10:45. By then I should have everything else cleared out, and we’ll be ready to start. Okay? You can get a cup of coffee or something in the meantime, if you like.

(Recess from 10:21 TO 11:00 a.m.)

DEPUTY CLERK: Okay, on the trial calendar, recalling the cases of United States v. Peggy Jo Conally, M693-02, United States v. Pamela Phillips, M694-02, United States v. Abraham Bonowitz, M695-02, United Sates v. Rick Halperin, M697-02; United States v. Daniel Giffin, M698-02; and United States v. Scott Langley, M699-02.

THE COURT: Good morning again, counsel and defendants. Logistics – how would you like your clients seated, Mr. Goldstone?

MR. GOLDSTONE: Your Honor, Mark Goldstone for the record. At this point appearing for all the defendants, but there are some oral motions for pro se representation, Your Honor.

THE COURT: Okay. So you’ve entered an – I hate to have to run through this, but I take it at some earlier point in this case, joint representation was discussed.

MR. GOLDSTONE: I don’t think it was. We haven’t had a lot of trial time yet, Your Honor, so –

THE COURT: Right, okay.

MR. GOLDSTONE: I’m happy to do a joint representation discussion now.

THE COURT: I think these are all things that I probably need to talk to people about. All right, maybe we better talk first about pro se representation. Who among you would like to represent himself or herself? Okay, there are four of you? I’m sorry. Three of you or four of you? Four of you. All right. I know this seems like a procedural hassle, but I just need to be painstaking about the record as to which defendants want to represent themselves. Your name, sir, on the end.

DEFENDANT HALPERIN: Rick Halperin.

THE COURT: Okay, good morning, Mr. Halperin.

DEFENDANT HALPERIN: Hi.

THE COURT: All right. What’s the highest level of education you’ve completed, sir?

DEFENDANT HALPERIN: Ph.D.

THE COURT: Okay, in what field?

DEFENDANT HALPERIN: History.

THE COURT: All right. Have you ever represented yourself in court before?

DEFENDANT HALPERIN: Yes.

THE COURT: Okay. Where and when?

DEFENDANT HALPERIN: Five years ago, in this court.

THE COURT: Here in Superior Court?

DEFENDANT HALPERIN: Yes, ma’am.

THE COURT: And I assume one of my colleagues conducted a question and answer with you about your understanding of the law, the rules of evidence, and things like that.

DEFENDANT HALPERIN: Correct.

THE COURT: Concluded that you were able to represent yourself?

DEFENDANT HALPERIN: Yes.

THE COURT: And you did it at a trial?

DEFENDANT HALPERIN: Yes.

THE COURT: Was there any problem?

DEFENDANT HALPERIN: Not to my knowledge.

THE COURT: You can represent yourself at this trial. Okay, the gentleman standing next to you.

DEFENDANT GIFFIN: I’m Daniel Giffin.

THE COURT: Could you spell your last name for me, please.

DEFENDANT GIFFIN: It’s G-I-F-F-I-N.

THE COURT: I-N? We’re determined to, Mr. Giffin, to make you Griffin, which probably happens a lot, but we’ll try to get it right here. What’s the highest level of education you’ve completed, sir?

DEFENDANT GIFFIN: High school, Your Honor.

THE COURT: Okay. Have you had any post-high-school study?

DEFENDANT GIFFIN: Yes, I nearly have a Bachelor’s.

THE COURT: Okay, and where are you in college?

DEFENDANT GIFFIN: Harvard College.

THE COURT: Okay, what’s your field, your major field?

DEFENDANT GIFFIN: Computer science.

THE COURT: Have you ever represented yourself before in Court?

DEFENDANT GIFFIN: I have not.

THE COURT: Okay. Are you familiar with courtroom procedures from watching trials –

DEFENDANT GIFFIN: I believe so.

THE COURT: - I’m tempted to say from watching TV and the movies, but I’m always afraid to do that. Have you watched trials in court?

DEFENDANT GIFFIN: Yes.

THE COURT: Okay. If you represent yourself, you’re going to be held to basically follow the same rules that a lawyer would have to follow, and those rules primarily in a trial are things like rules of evidence. If you understand the basic way a trial works, the Government has the burden of proof. They put on their evidence first, you have the opportunity to cross-examine their witnesses, then you can put on your case. You know, I think with Mr. Goldstone available, and I hope you will be, Mr. Goldstone, to answer questions for any of these pro se defendants, I think I could probably find that Mr. Giffin is also able to represent himself.

MR. GOLDSTONE: Yes, I’m happy to be available, Your Honor.

THE COURT: Let me state on the record I know I’m not going through a full-blown Ferrata (phonetic sp.) inquiry here, but I think with these defendants, that’s probably not necessary. I doubt this will be a post-conviction issue, and if it is, and I’ve got this wrong, the Court of Appeals will tell me. Okay, who else wants to be pro se here? What’s your name, sir?

DEFENDANT LANGLEY: Scott Langley.

THE COURT: Okay. And, Mr. Langley, what’s the highest level of education you’ve completed?

DEFENDANT LANGLEY: Bachelor of Science.

THE COURT: Okay. What field?

DEFENDANT LANGLEY: Sociology.

THE COURT: Okay. Have you ever represented yourself before at a trial?

DEFENDANT LANGLEY: I’m currently in the process.

THE COURT: Okay. And is that in some other jurisdiction or here?

DEFENDANT LANGLEY: It’s in this court.

THE COURT: Okay. Different case?

DEFENDANT LANGLEY: Yes.

THE COURT: All right. Has the case actually gone to trial yet?

DEFENDANT LANGLEY: No, ma’am.

THE COURT: Has one of my judicial colleagues made a determination about your ability to proceed pro se?

DEFENDANT LANGLEY: Yes.

THE COURT: I will respect that determination and allow you to represent yourself here today. Okay, who else?

DEFENDANT CONALLY: Peggy Conally.

THE COURT: Ms. Conally, what’s your highest level of education?

DEFENDANT CONALLY: Master’s.

THE COURT: Okay. What field?

DEFENDANT CONALLY: Government.

THE COURT: All right. Have you ever represented yourself in court before?

DEFENDANT CONALLY: No.

THE COURT: Have you watched criminal trials? Do you know how they work?

DEFENDANT CONALLY: Yes.

THE COURT: Okay.

THE COURT: The same thing I said to Mr. Giffin I would simply repeat for you. You have to basically follow the same rules that we would hold a lawyer to, in terms of how the trial proceeds, you know, what kinds of things you can object about, how to go about questioning witnesses. Mr. Goldstone will be available to answer questions if you have any questions. Do you think you can handle all of that?

THE COURT: Fine. I find you eligible to represent yourself. That’s it – you four. Okay, now I need to say something to the other three of you, and I guess that’s you, Ms. Phillips?

DEFENDANT PHILLIPS: Yes.

THE COURT: Okay. And –

DEFENDANT BONOWITZ: Mr. Bonowitz.

THE COURT: Okay, Mr. Bonowitz, good morning, and who’s our other defendant?

DEFENDANT KAZ: Mr. Kaz.

THE COURT: Mr. Kaz. Okay. This is about joint representation. You have a right – and again I’m going to sketch this out in fairy straightforward and simple terms because I assume you’ve had an opportunity to think about this a little bit. You have a right to have the undivided loyalty of the lawyer who represents you in court. What that translates into in ordinary, everyday courtroom business is you have a right to have a lawyer who’s acting only in your interests, and who will not have any reason to feel a conflict between action in your interests and action in a codefendant’s interests. When one lawyer represents more than one defendant in a criminal case, it is possible for such conflicts to arise; for example, on of you might have a defense that is helpful to you but harmful to one of the other of you. One of you might have a witness you’d like to have called in the case, whose testimony would be helpful to you, but would be harmful to some other defendant represented by the same lawyer. One of you may want to resolve your case in a way that’s beneficial to you but not to another defendant Mr. Goldstone would be representing. You have to be aware of the possibility of such conflicts and willing to give up any concerns you might have about that, if you agree that one lawyer should represent the three of you. Have you thought about that at all, Ms. Phillips?

DEFENDANT PHILLIPS: Yes, Your Honor.

THE COURT: Have you talked to Mr. Goldstone about it?

DEFENDANT PHILLIPS: Yes.

THE COURT: Have you talked to your other codefendants about it?

DEFENDANT PHILLIPS: Yes.

THE COURT: And is it your wish that Mr. Goldstone represent you along with your two codefendants?

DEFENDANT PHILLIPS: Yes, Your Honor.

THE COURT: All right. Mr. Bonowitz.

DEFENDANT BONOWITZ: Yes.

THE COURT: Have you thought about this issue also?

DEFENDANT BONOWITZ: Yes.

THE COURT: Have you talked it over with Mr. Goldstone?

DEFENDANT BONOWITZ: Yes.

THE COURT: And your fellow codefendants?

DEFENDANT BONOWITZ: Yes.

THE COURT: And is it your wish that Mr. Goldstone represent you, notwithstanding the fact that he’s representing some of your codefendants?

DEFENDANT BONOWITZ: That is correct.

THE COURT: Okay. Mr. Kaz, how about you – have you talked it over with Mr. Goldstone?

DEFENDANT KAZ: Yes.

THE COURT: All right. Do you have any possible conflicts that would concern you if Mr. Goldstone were to represent you as well as Ms. Phillips and Mr. Bonowitz?

DEFENDANT KAZ: Not at all.

THE COURT: All right. I think that I’ve done everything I need to with respect to joint representation. Thank you. Getting back to my original question, logistically, we can’t have you folks standing up for the next X period of time. I guess we can either try to get some more chairs in, or they could sit in the jury box, leaving you free to go over and consult with them as you wish?

UNIDENTIFIED: We’ll be happy to sit over there.

THE COURT: Okay, those are pretty comfortable seats. Why don’t you just avail yourself of the seats. And actually I’d like to see you in order of your case numbers. Forgive me for being so compulsive about this, but it’s just easier for me to keep track of who is who. So if you will indulge me, please, Ms. Conally, to take seat number one over here. Just like I’m seating a jury. And let’s see, 693, 694 is Ms. Phillips. Okay. 695 is Mr. Bonowitz. 696 is Mr. Kaz. Am I saying it right – Kaz, Koz?

DEFENDANT KAZ: Kaz, like jazz.

THE COURT: Okay, good. All right. 697, Professor Halperin. 698, Mr. Giffin. And 699, Mr. Langley.

MR GOLDSTONE: I accept this jury, Your Honor.

THE COURT: I’m sure you do.

MR. HAN: I move to strike 1 through 7. I don’t think they’re impartial.

THE COURT: All right. Are there any witnesses in the courtroom? None for the Government, not for the defense. Any preliminary matters?

MR. HAN: Yes, there are a few preliminary matters, Your Honor.

THE COURT: Okay.

MR. HAN: Mr. Goldstone and I discussed several stipulations, and I’d like to put them on the record. That will help move our case along a lot quicker.

THE COURT: All right. That’s fine.

MR. HAN: I believed that the defendants stipulated to identity, that they were in fact the individuals who were holding the banner, and that they were the ones who were arrested on that day, and that they are the ones who are in this courtroom today.

THE COURT: All right. Well, that certainly helps.

MR. HAN: Also, there was a banner recovered from the Supreme Court, and there’s a stipulation as to its authenticity.

THE COURT: All right. Any other stipulations?

MR. HAN: None from the Government.

THE COURT: Okay.

MR. GOLDSTONE: We have one matter we’d like to raise, and that is that we’d like to proceed on the theory that all of the defendants that are pro se are in agreement with something the defense says, unless they stand up specifically and object. We’re doing that for the purposes of streamlining, so we don’t have to ask seven individuals –

THE COURT: Excellent.

MR. GOLDSTONE: - whether or not they agree.

THE COURT: Okay. How does that sound to you, Professor Halperin, Mr. Giffin, Mr. Langley, and Ms. Conally – are you clear about how that’s going to work?

UNIDENTIFIED Yes.

THE COURT: Okay, good, all right. Anything else?

MR. GOLDSTONE: No, Your Honor.

THE COURT: Mr. Han?

MR. HAN: No, Your Honor.

THE COURT: Okay. All right. These seven defendants are before the Court, all charged with the same offense, and let me refer to the information. That offense is the charge of parading and assemblage on Supreme Court grounds in that they are alleged to have paraded, stood and moved in processions and assemblages in and on the Supreme Court building and grounds and displayed therein any flag, banner or device designed or adapted to bring to public notice any party, organization or movement in violation of Title 40, Section 13(k), of the United States Code, and that offense is alleged to have occurred on January 17th, 2002. You may make your opening statement, Mr. Han.

OPENING STATEMENT
MR. HAN: Thank you, Your Honor.

Your Honor, this case is about the integrity of the United States Supreme Court. It’s about observing the order and decorum of the United States Supreme Court. It is about preserving the very appearance of the United States Supreme Court as a body that cannot be swayed by external influence. That is why 13(k) was enacted by Congress, and that is why these defendants were arrested on that day.

Your Honor, on January 17th, 2002, at approximately 10:45 a.m., Supreme Court Officer Coleman was on duty, standing outside the United States Supreme Court. As he was on duty in uniform, he say seven individuals walking up he steps of the Supreme Court toward the top. Once they reached the top, the seven individuals unfurled a very large banner that said, stop executions. At that time, Mr. Coleman, knowing that this was a violation, or believing it was a violation of 13(k), approached them, and on the way radioed for assistance, indicating to his superiors and other officers that a demonstration was taking place.

At that time, another officer, Officer Mott was stationed just inside the doorway at the front t entrance of the United States Supreme Court, heard the radio for assistance, and went outside and saw the seven individuals on the front of the steps, on the top steps of the United States Supreme Court holding this very large banner, approximately 30 feet in length and four feet wide. Officer Mott instructed the individuals to put down the banner; they refused. Mr. Mott and another officer then took away the banner. The defendants stood there peacefully, they didn’t chant, they didn’t try to run, they didn’t try to resist arrest, but they stood there.

Supervisors came on the scene, another officer of the United States Supreme Court police. Officer Ruff came to the scene and instructed each one individually and as a group that they were in violation of the statute, Title 40, 13(k), that they were parading, assembling, flying flags in violation of the law, that they would be arrested if they didn’t disperse. Another official came to the scene, Officer Graff (phonetic sp.). Officer Graff once again went individually to each one and told them that they were in violation of 40, 13(k), parading, assembling, displaying flags in the United States Supreme Court, and that they would be arrested if they didn’t disperse. The defendants heard this warning, gave an acknowledgement to Officer Graff that they heard the warning, but they refused to leave. They didn’t try to resist arrest, they didn’t try to hit anyone, they were peacefully staying there, refusing to disperse. At that time, Officer Graff gave the instruction to have these individuals arrested.

Your Honor, these facts prove beyond a reasonable doubt that they were in violation of 40, 13(k). they went up there with a banner, 30 feet in length, four feet wide, that said, stop executions. This is a violation of the congregation clause of 13(k), violation of the flag clause of 13(k), and it threatens and undermines the appearance of the Supreme Court as a body that cannot be swayed by external influence.

THE COURT: Thank you. Mr. Goldstone.

MR. GOLDSTONE: Your Honor, I’d like to reserve my opening statement at this time.

THE COURT: Professor Halperin, would you like to make an opening statement?

DEFENDANT HALPERIN: Not at this time, Your Honor.

THE COURT: How about you, Mr. Giffin?

DEFENDANT GIFFIN: No, Your Honor.

THE COURT: Mr. Langley.

DEFENDANT LANGLEY: Yes, Your Honor.

THE COURT: You may make your opening statement.

DEFENDANT LANGLEY: From my seat?

THE COURT: Well, actually, why don’t you walk over there to the lectern just so I can make sure that our digital recording system – since we’re proceeding without a court reporter – will pick up what you say.

OPENING STATEMENT
DEFENDANT LANGLEY: My name is Scott Langley, and I’m one of the seven defendants arrested at the Supreme Court on January 17th. I am one of the seven who represent a wide, geographical location. We have people from Florida, South Carolina, Texas, Massachusetts and even Canada.

THE COURT: What do you expect your evidence to show at this trial, Mr. Langley?

DEFENDANT LANGLEY? We expect our evidence to show at this trial that we were acting within our First Amendment rights for freedom of speech, that we were not obstructing any traffic inside the courtroom, outside the courtroom, not obstructing the business of the Court. We were there to present our message, stop executions, and we did it without malice, and we did it non-violently, and just to make a small correction to what was already presented and what we will address today is that the banner was taken away from us without warning, without any, being addressed by the Supreme Court police officers at that time. And also more importantly for myself, we will be presenting this morning why we were there and why the death penalty is an issue that is of concern to us.

THE COURT: All right, thank you. Ms. Conally, would you like to make an opening statement? You can also waive your opening statement, you three who have elected not to give one now. You have the opportunity if you like to reserve it to present an opening statement after the end of the Government’s evidence. Do you understand that? Okay. All right, Mr. Han, you may call your witness.

MR. HAN: The Government calls Officer Coleman.

THE COURT: Officer Coleman, good morning, if you’ll step up to the witness stand, please. Please raise your right hand.

Thereupon,
PAUL COLEMAN
having been called as a witness for and on behalf of the Government and having been first duly sworn by the Court, was examined and testified, as follows:

THE COURT: Please have a seat, sir.

DIRECT EXAMINATION
BY MR. HAN:

Q Good morning, Officer.

A Good morning.

Q Could you please state and spell your name for the record.

A Paul Coleman, P-A-U-L C-O-L-E-M-A-N.

Q Where do you currently work?

A The United Supreme Court.

Q. What do you do for them?

A I’m a police officer.

Q How long have you been employed as a police officer of the United States Supreme Court?

A Seven years.

Q Mr. Coleman, let me direct your attention to January 17th, 2002, at approximately 10:45 a.m. Where were you at the time.

A I was on the front plaza on post, and just standing post out there.

Q Were you in uniform at that time?

A Yes, I was in uniform.

MR. HAN: Your Honor, let the record reflect that I’m showing Government’s Exhibit No. 1 to defense counsel, and I’ll be showing it to the defendant.

(Government’s Exhibit No. 1 marked for identification.)

THE COURT: Okay. You can just take a look at that exhibit, ladies and gentlemen.

MR. HAN: Your Honor, may I approach the witness?

THE COURT: You may.

DIRECT EXAMINATION CONTINUED.
BY MR. HAN:

Q Officer Coleman, I’m showing you what has been marked as Government’s Exhibit No. 1 for identification. What is this that I’m showing you?

A It is a picture of the United States Supreme Court, front plaza.

Q Does this picture fairly and accurately show the front plaza of the United States Supreme Court?

A Yes.

Q Your Honor, the Government moves Exhibit No. 1 into evidence.

THE COURT: Any objection, Mr. Goldstone?

MR. GOLDSTONE: No, Your Honor.

THE COURT: Pro se defendants, any objection to the admission of No. 1?

UNIDENTIFIED: No, Your Honor.

THE COURT: All right, No. 1 is admitted without objection.

(Government’s Exhibit No. 1 received into evidence)

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q Officer Coleman, what we’re talking, as we talk today, what we’re saying is being recorded and it may be transcribed into real words, so the transcription may not have the benefit of the picture, so I’m going to ask to describe the front plaza –

THE COURT: But the record will have the picture as an exhibit in evidence.

MR. HAN: Yes, Your Honor.

THE COURT: Okay.

DIRECT EXAMINATION CONTINUED:
BY MR. HAN:

Q Now, what is the address of the Supreme Court?

A No. 1 First Street. N.E., Washington, D.C.

Q What area, what street does the front of the Supreme Court face?

A First Street.

Q And as you approach First Street toward the front of the Supreme Court, could you describe the different areas that you walk through?

A From First Street, you’ll be facing the United States Supreme Court building. There’s a sand cobblestone-type walkway, which is about 40 to 50 feet in width.

Q Is that the sidewalk?

A Yes.

Q Is there any separation – what separates the streets from that sideway?

A Nothing, a curb.

Q And as you pass through the sidewalk, what is the next area as you approach the Supreme Court?

A As you approach the building, you’ll come upon a set of stairs, the first set of stairs that lead up onto the plaza.

Q Now, is there a color difference between the sidewalk and the first set of stairs?

A Yes, the sidewalk is brown and the stairs are marble, white marble.

Q As you go up that first set of stairs, what’s the next area that you cross?

A Then you’ll be on the plaza area.

Q What does – describe the plaza.

A The plaza area is probably about he size of a hockey rink, two large fountains on the north and south side of the plaza.

Q Is it a flat area?

A Yes, it is flat.

Q And as you cross the plaza, what is the next area that you’re approaching.

A As you cross, you will come upon the main plaza steps.

Q And as you pass the plaza steps, what is the next area?

A As you go up the first set of steps, you’ll have a landing area, and then you’ll go up another set of stairs, and you’ll come up to another landing, which is underneath the portico, right before the main entrance to the building.

Q Now directing your attention to January 17th at about 10:45, did anything unusual happen?

A Yes, I was out on the north side of the building on the front plaza by the first set of stairs.

Q Let me stop you right there, Officer. Would you please point in the picture of Government’s Exhibit 1, approximately where you were standing at this time?

A Here, approximately here.

THE COURT: Do you want him to mark it?

MR. HAN: Yes, Your Honor.

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q You can mark with initials

THE COURT: With initials.

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q - PC for Paul Coleman, approximately where you were.

A Okay. It doesn’t really write.

MR. HAN: Your Honor, may the record reflect he put his initials at the bottom left-hand corner of the picture.

THE COURT: Okay.

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q What id you see at this time that was unusual?

A Normal day, a few tourists coming up onto the plaza. I noticed seven people in general coming up onto the plaza, no different than any other day. I turned around to look at, just observe my area and turned back around a few seconds later and noticed seven individuals with a banner displayed that read, stop executions.

Q Your Honor, I’m showing defense counsel and the defendants what has been marked as Government’s Exhibit No. 2 for identification. Officer Coleman, I’m showing you what has been marked as Government’s Exhibit No. 2 for identification. What is this that I’m showing you?

(Government’s Exhibit No. 2 marked for identification.)

A It is a photograph of the individuals holding up the banner that were arrested that day.

Q Does this picture fairly and accurately depict the defendants as they held the banner that day?

A Yes, sir.

MR. HAN: Your Honor, the Government moves Government’s Exhibit No. 2 into evidence.

THE COURT: Mr. Goldstone, any objection?

MR. GOLDSTONE: No, Your Honor.

THE COURT: Any objection, pro se defendants/ All right, Government Exhibit 2 is admitted without objection.

(Government’s Exhibit No. 2 received into evidence)

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q Now, Officer Coleman, how many people were holding the banner?

A Seven.

Q That was each one holding the banner at some time in your vision?

A Yes, yes, from observation, yes.

Q Approximately how big is this banner?

A Approximately 28 feet in length by four feet in width.

Q And what did you do after you saw them unfurl, when you turned around and saw this banner being displayed?

A At that time, I moved towards the plaza steps and what was going on I had radioed for assistance from the officers at the main door, and then subsequently I radioed for a supervisor to come out.

Q Did you see any officers respond to the scene?

A Yes.

Q Who is the first officer that you saw respond to that?

A Officer Keith Mott.

Q And what did Officer Keith Mott do?

A Officer removed the sign from the individuals.

Q Approximately how long had that banner been displayed before Officer Mott took it down, to the best of your recollection?

A My best recollection, maybe, let’s say 30 seconds, I guess.

Q And from you, could you hear whether or not Officer Mott gave any instructions to the individuals to take away the banner?

A No, I did not.

Q How far away were you from Officer Mott at the time you took the banner away?

A I was right there. He was no more than a few feet away from me. I was actually standing in back of the individuals.

Q And when you first saw them unfurl the banner, or first saw them display the banner, how far away from them were you?

A When I first saw them, I was approximately about 120 feet away.

Q And how far away were you from them when you first saw Officer Mott respond to the scene?

A Let’s say, maybe five feet, five to ten feet.

Q Court’s indulgence, Your Honor.

MR. HAN: No more questions of this witness.

THE COURT: May I just ask one before cross. Let me just make sure I understand this. When you first saw the banner being held by the seven people, you were 120 feet away.

THE WITNESS Yes.

THE COURT: You radioed for help and for a supervisor, and then you went around behind where they were standing with the banner, and you were positioned behind them when Officer Mott came and took the banner away.

THE WITNESS Well, I – when he was taking the banner – as I’m walking up the steps –

THE COURT: Okay.

THE WITNESS - he’s coming down.

THE COURT: Okay, all right.

THE WITNESS Okay. He takes the banner –

THE COURT: And you position yourself behind the seven people.

THE WITNESS And then I position myself behind them.

THE COURT: Thank you. That’s helpful. Any further questions in light of mine, Mr. Han?

MR. HAN: No, Your Honor.

THE COURT: Okay. Mr. Goldstone.

MR. GOLDSTONE: Your Honor, I would ask that the pro ses be allowed to inquire first.

THE COURT: That’s fine. Let me just begin with you, Ms. Conally, do you have any questions for Mr. Coleman?

DEFENDANT CONALLY: No.

THE COURT: All right. How about you, Mr. Langley?

DEFENDANT LANGLEY: No, Your Honor.

THE COURT: Okay. Mr. Giffin?

DEFENDANT GIFFIN: No, I don’t, Your Honor.

THE COURT: Mr. Halperin.

DEFENDANT HALPERIN: I do.

THE COURT: You may inquire. And I again request that you just go over to the microphone there, so we can make sure that our digital system is picking up all of that.

CROSS EXAMINATION
BY DEFENDANT HALPERIN:

Q Good morning.

A Good morning.

Q It’s a little warmer in here than outside.

A Yes.

Q Officer Coleman, the prosecutor has said in his opening remark –

THE COURT: Okay, got to help you out a little, Professor. You may frame your cross examination questions based on the witness’s testimony on direct examination, not with reference to the prosecutor’s opening.

DEFENDANT HALPERIN: I see.

THE COURT: Okay. The opening statement of the lawyer is not evidence in this case. I’m not going to review the opening statement when I decide this case. I’m going to review the testimony that the witnesses have given.

DEFENDANT HALPERIN: Okay.

THE COURT: So your cross needs to be confined to what the officer himself has said.

CROSS EXAMINATION
BY DEFENDANT HALPERIN:

Q All right. Officer Coleman, could you say, could you testify again, please, or sate – I believe you said that you did not hear Officer Mott give any verbal admonition, warning, or statement to the defendants about releasing the banner. Is that correct?

A That’s correct.

Q Was Officer Mott the only officer involved in removing the banner from the defendants? This is a lengthy banner –

THE COURT: Okay, I think I understand your question. Officer Coleman.

THE WITNESS From what I recall, Officer Mott – there was another officer out there, another officer that was with him at the main doors that came out, but Officer Mott was the one that I recall removing the banner, that took the banner.

CROSS EXAMINATION CONTINUED
BY DEFENDANT HALPERIN:

Q Could you be a little more specific as to how the banner was removed?

A He just, from what I recall, just got it out of your hands –

THE COURT: Did he have to pull it out?

THE WITNESS - and rolled it up, and rolled it up. He kind of bunched it all, bunched it all up.

CROSS EXAMINATION CONTINUED
BY DEFENDANT HALPERIN:

Q Did any of the defendants resist – was it –

A No.

Q - did he yank it away –

A No, just –

Q - did he –

A I didn’t see any resistance, he just pulled it out of your hands without struggle.

Q And as he went down, did he go down the line and order to do this? Did he take it one by one to the best of your knowledge?

A To the best of my knowledge –

THE COURT: You don’t remember –

THE WITNESS - kind of as he grabbed, just rolled it up, and that’s what I recall.

THE COURT: Moving from one person to the next.

THE WITNESS Yeah.

CROSS EXAMINATION CONTINUED
BY DEFENDANT HALPERIN:

Q And at any time during this procession, would you state in your opinion about how long you think it took him to remove the banner from all seven defendants?

A A few seconds.

Q And at any time across this procession as he approached each defendant, did you hear any, any statement at all, requesting or ordering the defendants to release the banner – any verbal admonition or statement at all for any of these defendants to the best of your recollection, prior to the banner being taken from them?

A From Officer Mott, no.

DEFENDANT HALPERIN: Thank you.

THE COURT: Thank you, Mr. Halperin. Mr. Goldstone.

CROSS EXAMINATION
BY MR. GOLDSTONE:

Q Good morning, Officer.

A Good morning, sir.

Q How are you?

A Fine.

Q Do you recall what day January 17th, 2002, was?

A I don’t recall. I believe Thursday.

Q Do you recall if the Court was in session that day?

A Negative, no.

Q Negative meaning the Court was not in session.

A Was not in session, I’m sorry.

Q Who would have been in the building on that particular day?

MR. HAN Objection, Your Honor. It’s outside the scope.

THE COURT: I’ll give you a little latitude here, overruled. I take it in general terms, you’re not asking for an itemized list of everybody inside.

MR. HAN: Also, Your Honor, on the ground of relevance. Case law makes it clear this statute applies equally whether or not the Court is or is not in session.

THE COURT: Be that as it may be, counsel is entitled to inquire. The objection is overruled. In general terms, who would have been in the building that day?

THE WITNESS The justices could have been in the building, as well as all the other employees, the tourists, visitors, court officers, as a normal working day, functioning day.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Now, if the Court is not in session, is the Court still open for public tours?

A Yes, sir.

Q Would individuals be entitled to take photographs on the steps of the Supreme Court on that day?

A Yes, sir.

Q Would individuals be entitled to take video photography on the steps of the Supreme Court that day?

A Well, a tourist or visitor, yes. If you’re a professional –

THE COURT: Like a camera news crew.

THE WITNESS - camera news crew, no. You can only take video, if you’re a news crew, from the sidewalk. But a normal handheld video cameras, that is allowable.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Now, you’ve testified that you could take a photograph on the steps of the Supreme Court. Would there be anything to prohibit someone from taking a picture on the steps of the Supreme Court holding up a flag or banner? Let’s say a school, a school banner or something.

MR. HAN: Objection, Your Honor, I believe this calls for a legal conclusion.

THE COURT: Well, I’m not sure he’s asking for a legal conclusion as much as a practical law enforcement question. Maybe, you just need to rephrase your question, Mr. Goldstone, in terms of what this officer knows to be permitted or not permitted.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Could individuals who are taking – you testified that they could take a photograph on the steps. Could an individual or a group of individuals stand behind a banner that says, so and so high school – or would that be permitted?

THE COURT: I think your question is – could a group display, for example, a high school banner –

MR. GOLDSTONE: And have it photographed –

THE COURT: - on the steps of the Supreme Court.

MR. GOLDSTONE: Correct.

THE COURT: - and have the class picture taken?

THE WITNESS If it’s something like that, if these, if it’s going to have the Supreme Court behind it, no, we do not allow that. If it’s going to be displayed commercially or anything like that, any type of banner of that sort, I would say no. I would say no.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q What steps would you take to prevent a school group that was taking the photograph from displaying the school flag?

A We would just ask them not to display the flag and why.

Q What would you tell them?

A That Title 40, regulation 13(k), prohibits any type of displays of any flags or banners while on Supreme Court property.

Q Would a group of seven individuals be entitled to pray on the steps of the Supreme Court?

MR. HAN: Objection, Your Honor. Once again I believe that these are calling for legal conclusions and not the actions of this individual officer, Also, I think that –

THE COURT: What’s the relevance, Mr. Goldstone.

MR. GOLDSTONE: I’m trying to get a sense of what this officer knows to be allowed and disallowed on the steps of the Supreme Court.

THE COURT: Well, what’s the relevance of that?

MR. GOLDSTONE: To see whether or not – I think he was, he testified that he was the first officer on the scene, and he saw a banner being displayed. And the relevance would be then as to whether or not he correctly understands what you can and cannot do on the steps of the Supreme Court, and what his training is, and what his experience is.

THE COURT: I’m not sure that that really has any relevance. You know, what we’re talking about here is a banner – I mean, the code section is quite specific. It is unlawful to display therein any flag, banner or device designed or adapted to bring into public notice any party, organization or movement. Whatever may be his views about whether people are allowed to pray on the Supreme Court steps, I’d sustain the objection on relevance grounds.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Now, Officer Coleman, you’ve been a Supreme Court officer for seven years. Have you been - what sort of roles do you have at the Supreme Court?

A Roles?

Q Yes, I mean what sort of responsibilities and functions have you had during those seven years.

A Various functions, doing various details works with the justices. I’m part of a response team that responds to any civil disobedience, any type of – I don’t know – demonstrations. We would be responsible for either getting them, if there’s any type of civil disobedience, getting them out of the crowd, and then placing them under arrest or detaining them, and being –

Q That’s fine. How often are you on the front plaza?

A During the course of a day, maybe, it various, two or three times a day, depending on rotation.

Q During your seven years, have you seen press conferences take place on the steps of the Supreme Court?

A Yes, sir.

Q How often?

A Usually if it –

MR. HAN: Objection, Your Honor. I believe this is the same grounds as relevance. This has nothing to do with the facts of this case.

THE COURT: I’ll give you a little latitude, Mr. Goldstone, overruled. Press conferences.

THE WITNESS Yes, usually if there’s a big case or an opinion handed down, you often see news crews on the plaza, but they do have to get permission from our public information office prior to doing that.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Have you seen motion pictures being filmed on the steps of the Supreme Court?

MR. HAN: Objection, Your Honor, I believe that these – if I may be heard. These are facts that are being elicited I believe to challenge the constitutionality of 13(k). That is not an issue here. There’s no motion to dismiss based on the constitution of the statute.

THE COURT: I don’t know that the defense is presenting a constitutional challenge to the statute. I mean I don’t believe that these questions are necessarily addressed to that. You’re overruled. Mr. Goldstone, you may inquire.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Have you seen motion pictures filmed on the steps?

A I’ve seen – not on the steps – I’ve seen camera people from – I was actually there, one picture that was being filmed, but the cameras were on the public sidewalk. Now, the other individuals who were part of the movie, of course, they went up the steps. They didn’t display anything, they were just walking up the steps like normal, everyday visitors to the Court.

Q Now, are there any signs that are visible to the public, which would indicate that people do not have the ability to display any banners on the steps before the plaza of the Supreme Court?

A Can you repeat that?

Q Is there any signage, any signs that would indicate to the public that they cannot display any flags or banners?

A Any signs – no, I don’t believe so.

Q So a citizen would have to rely upon officers to tell him or her that it was against the law.

MR. HAN: Objection, Your Honor.

THE COURT: Overruled.

THE WITNESS That’s correct, or if they were to come to us and state what their business is, we would send, we would direct them to our supervisor, who would then give them the, what to do if they want to parade, assemble in our area.

CROSS EXAMINATION
BY MR. GOLDSTONE:

Q Now, demonstrations and unfurling of banners is allowed on the Supreme Court sidewalk, is that correct?

A On the sidewalk.

Q But not the steps of the plaza, correct?

A Correct.

THE COURT: By sidewalk, Mr. Goldstone, are you inquiring about the public sidewalk that’s on First Street before you actually step onto the Supreme Court grounds?

MR. GOLDSTONE: Yes.

THE COURT: People can hold a banner on that sidewalk?

THE WITNESS Yes, they can. Yes, they can.

THE COURT: Okay.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Now, demonstrations and unfurling of banners is allowed on the Supreme Court sidewalk, is that correct?

A One the sidewalk.

Q But not on the steps of the plaza, correct?

A Correct.

THE COURT: By sidewalk, Mr. Goldstone, are you inquiring about the public sidewalk that’s on First Street before you actually step onto the Supreme Court grounds?

MR. GOLDSTONE: Yes.

THE COURT: People can hold a banner on that sidewalk?

THE WITNESS Yes, they can. Yes, they can.

THE COURT: Okay.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Now if someone were to hold a banner on the steps or on the plaza, would your office or would you direct them to the sidewalk?

A We would give them a warning, and state what they are doing wrong, and to give them a chance to disperse, move their party, their group to the public area.

Q But that didn’t occur in this case, did it?

A Yes, it did.

Q Is it your testimony that you gave a warning to the individuals that they could move their demonstration lawfully to the sidewalk, is that your testimony?

A Actually, I did not state such action.

Q Did you hear someone advise them that they could demonstrate on the sidewalk?

A Yes, sir.

Q And who did you hear and what did you hear?

A For them to go back. The individual, my sergeant, Sergeant Russ, warned them multiple times of what they were doing and the particular regulation and gave them ample opportunity to disperse or move to the sidewalk.

Q Did you hear Sergeant Russ say that they could move to the sidewalk?

A No, I did not hear that.

Q Who was the first officer that snatched their banner from their hands?

A Officer Mott.

Q And it’s your testimony that in 30 seconds at most the banner was being displayed?

A Yes.

Q Now why is it that you actually called for assistance, for help. You testified that you radioed for the assistance of a supervisor. Why is that you radioed for assistance, as opposed to approaching the group and asking them, could they take their demonstration onto the sidewalk?

A Well, it has been my training that – I mean, any situation you have to look at it and assess if for yourself – I don’t want to put myself in a dangerous situation. I saw, you know, seven people up there. I didn’t know what they had on them, what they could do, so it’s in my training to ask for assistance, call for assistance or backup.

Q And that assistance resulted in the snatching of the banner rather than a request to move to the sidewalk, isn’t that correct?

A No, the officer came out and removed the banner. There was no snatching involved. It was all peaceful, no problems, no nothing.

Q No problems except that the banner was taken out of the hands of the defendants, isn’t that right.

A No problems, yeah, it was taken.

MR. GOLDSTONE: I have no further questions.

THE COURT: Redirect?

MR. HAN: Yes, Your Honor.

REDIRECT EXAMINATION
BY MR. HAN:

Q Now in cross examination, defense counsel asked if you heard whether Mott gave a verbal warning to the defendants to let go of the banner. Do you recall that part of the question?

A I –

Q I’m just going to try to bring you to the point of his question. Do you remember?

A Okay, um-hmm, yeah.

Q Is it possible that Mott could have said something to the Defendant and you not hear it?

MR. GOLDSTONE: Objection, Your Honor.

THE WITNESS Yeah.

MR. GOLDSTONE: Speculative.

THE COURT: Overruled. The answer stands.

REDIRECT EXAMINATION
BY MR. HAN:

Q And your answer was:

A Yes.

Q Now you said that you have seen motion pictures being filmed on the plaza area of the Supreme Court. Do you recall that part of the question and answer the defense asked?

A Yes, sir.

Q To your knowledge, did these people who were making these motion pictures get prior approval from the public information office of the United States Supreme Court?

A I’m sure, like I said.

THE COURT: If you don’t have personal knowledge.

THE WITNESS The individuals that were making the motion picture, from what I recall, they were on the public area.

THE COURT: If you are sitting on the sidewalk filming somebody walking up the steps of the Supreme Court, you wouldn’t have to get permission from the public information office, correct?

THE WITNESS Right, right.

REDIRECT EXAMINATION
BY MR. HAN:

Q As they were talking, defense counsel was asking about whether warnings were given to the defendants to come, to disperse and to go to the sidewalk. Do you recall that question answer?

A Yes, sir.

Q Did an official arrive on the scene after the banner was taken away?

A Yes, sir.

Q And who was the official, who was the first official?

A Sergeant David Russ.

Q Ad when Sergeant Russ came, did he talk to the defendant?

A Yes, sir.

Q Could you hear what Sergeant Russ was telling the defendants?

A Yes.

Q And what was he telling them?

A He was telling them that, about Title 40, Section 13(k), and that they were in violation of that, and went to each one of them and explained what the actions would be if they did not comply.

Q Would they comply - comply with what?

A With dispersing.

Q With regard to dispersal, what did Sergeant Russ tell them to do?

A That they’re just in violation of Title 40, Section 13(k), and would be subject to arrest.

Q Did he say anything about dispersal? Did he ask them to disperse?

A Yes, he did, he did.

Q Now, did another official ever come on the scene?

A Yes, Sergeant Jason Graff.

Q And when Sergeant Graff arrived on the scene, did he given any warnings to the defendants?

A Yes, he did.

Q Did you hear what warnings he gave them?

A He just said that they would be subject t arrest, and again stated what regulation, Title 40, Section 13(k), and went to each of them, and they acknowledged that they understood what could happen.

MR. HAN: No further questions, Your Honor.

THE COURT: Okay, thank you very much, Officer Coleman, you may step down. Please don’t talk to any of the other witnesses about what you’ve just said here in the court until the whole trial is over. Thank you.

(Witness excused.)

Could we take about a five-minute break? Let’s take a five-minute recess. We’ll be back into this in about five minutes.

(Recess from 11:48 to 11:59 a.m.)

DEPUTY CLERK: The Court is again in session. Okay, we’re back on the record in the cases of Peggy Conally, U.S. v. Pamela Phillips –

THE COURT: You don’t have to say them all. Peggy Jo Conally, et al. Okay.

DEPUTY CLERK: The cases are M693-02 through M699-02.

THE COURT: Counsel and the defendants are again before the Court. Are you ready to proceed, Mr. Han?

MR. HAN: Yes, Your Honor.

THE COURT: You may call your next witness.

MR. HAN: The Government calls Officer Mott.

THE COURT: Good morning, sir, if you’ll step up to the witness stand and raise your right hand.

Thereupon,
KEITH MOTT,
having been called as a witness for and on behalf of the Government and having been first duly sworn by the DEPUTY CLERK, was examined and testified, as follows:

DIRECT EXAMINATION
BY MR. HAN:

Q Good morning, sir.

A Good morning.

Q Could you please state and spell your name for the record.

A Keith Mott, K-E-I-T-H M-O-T-T.

Q Where do you currently work?

A Supreme Court of the United States.

Q And what do you do?

A I’m a police officer.

Q How long have you been a police officer with the United States Supreme Court?

A Two years and five months.

Q Officer, let me direct your attention to January 17th, 2002, at approximately 10:45 a.m. Where were you at the time?

A At 10:45 a.m., I was on the front steps on the front entrance, positioned behind the doors.

Q When you say behind the doors, you’re inside the Supreme Court building?

A Yes, correct.

Q And if you were to go out the front doors of the Supreme Court building, where would you be?

A I would be at the top of the steps, main steps.

Q And at about 10:45 on this morning, did anything unusual happen?

A Yes, I received a radio call from Officer Coleman that he needed assistance on the front steps. Myself and Officer Slanger went out through the front of the building to the front steps.

Q And how long did it take you to get from your position to the front of the steps?

A About two seconds.

Q And as you got outside on the front steps, what did you see?

A When I got outside the front steps, I saw seven individuals holding a banner across the front of the steps.

Q Did you say anything to these individuals?

A Yes, when I came around to the front, I told the individuals that they had to drop the sign, let go of the sign, because they were in violation.

Q And what did they do?

A They just continued to hold the sign.

Q How many times did you give this warning?

A I told them twice.

Q And how did they respond the second time?

A They just stood and held the sign.

Q What did you do at that point?

A At that point I proceeded to remove the sign from their hands/

Q Did you remove it forcibly or peacefully – how did you remove it?

A I removed it peacefully. As I removed the sign, they let go of the sign.

Q Did you have to use force to remove the sign from them at all?

A No.

Q What did the sign say?

A The sign said, stop executions.

Q I’m showing defense counsel and defendants Government’s Exhibit 3 for identification.

(Government’s Exhibit No. 3 marked for identification)

THE COURT: All right.

UNIDENTIFIED: (Indiscernible)

THE COURT: I knew somebody was going to say that. I could see it coming. Head down towards the doors of the courtroom. And you need to walk over a little bit, Mr. Reed. Mr. Reed, they didn’t tell you when you moved into trials, you were going to have these kinds of responsibilities, did they?

UNIDENTIFIED: Is this parading?

THE COURT: Some kind of parading and sign holding.

MR. HAN: Your Honor, I’m showing defense counsel Government’s No. 3 for identification, and I believe defendants also.

THE COURT: All right. And I guess the record will also reflect that this sign stretches from the well of the courtroom just about to the first set of doors outside it, from inside the well of the courtroom actually.

MR. HAN: We can bring it around so we can show the witness.

THE COURT: I – let me just – okay, can you see it – or it might be easier for the witness to step down. Okay. And you can shout your question, Mr. Han.

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q Officer Mott, I’m showing you Government’s Exhibit No. 3. What is this I’m showing you.

A This is the banner that the individuals were holding.

Q Is this in the same of substantially the same condition as when you saw it?

A Yes.

MR. HAN: Your Honor, the Government moves Government’s Exhibit No. 3 into evidence.

THE COURT: Mr. Goldstone, any objection?

MR. GOLDSTONE: No objection.

THE COURT: Pro se defendants, any objection.

UNIDENTIFIED: No objection.

THE COURT: All right. No. 3 is admitted without objection.

(Government’s Exhibit No. 3 received into evidence.)

You can step back up, Officer Coleman, thank you.

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q Officer Mott, did you come to learn the dimensions of this banner?

A It’s my understanding the banner is 28 by 4.

Q Your Honor, may the record reflect – are there any objections about the size of the banner?

THE COURT: I don’t think there’s any dispute about the size of the banner. All right. Now you’re going to leave Mr. Reed with the task of pulling that thing up, right?

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q Officer Mott, what did you do with this banner after you took it away from the defendants?

A Once I had taken the banner away, I placed it behind the front steps, behind the doorway of the front steps.

THE COURT: Inside or outside the building, sir?

THE WITNESS Inside the building.

THE COURT: Okay.

DIRECT EXAMINATION CONTINUED
BY MR. HAN:

Q What did you do at that time – after that?

A After that, I went back out to the front steps where the other officers are located.

Q Did any officials come to the scene?

A Yes.

Q Who was the first official to come to the scene?

A It was Sergeant David Russ.

Q Could you hear if Sergeant Russ gave any warnings to the defendants?

A Yes, he did.

Q What did you hear Officer Russ say?

A I heard Officer Russ tell them they were in violation. I heard Officer Russ repeat to each individual the statute, what they were in violation of.

Q Did he give any instructions about the dispersal?

A Yes, he did.

Q What were those instructions?

A He asked them after he told them they were in violation, he gave them an opportunity to leave, told them they could leave. Nobody said anything.

Q Did another official come to the scene?

A Yes.

Q And who was that?

A It was Sergeant Jason Graff.

Q And did Sergeant Graff say anything to the individuals?

A Yes, Sergeant Graff gave them the same instructions as Sergeant Russ.

Q And what were those?

A The instructions that they were in violation. After he gave them the violation code, he told them they could leave, he asked them to leave, and nobody said anything.

Q Did the defendants attempt to leave?

A No.

MR. HAN: No further questions, Your Honor.

THE COURT: Okay. Mr. Goldstone, do you want to wait for the pro se defendants?

MR. GOLDSTONE: Yes, Your Honor, thank you.

THE COURT: All right. Ms. Conally, any questions for the officer?

DEFENDANT CONALLY: No.

THE COURT: Okay. Mr. Giffin.

DEFENDANT GIFFIN: No questions, Your Honor.

THE COURT: Mr. Langley.

DEFENDANT LANGLEY: No.

THE COURT: Mr. Halperin.

DEFENDANT HALPERIN: Yes, Your Honor.

THE COURT: If you’ll step over to the lectern, thank you, sir.

CROSS EXAMINATION
BY DEFENDANT HALPERIN:

Q Did you hear any verbal – did you make or did you hear any verbal statements from either yourself or any other officer present before the banner was removed from the hands of these defendants as to being allowed to take such banner to the sidewalk or anywhere else? Did you hear of any such alternative site offered to the defendants?

A I do not recall.

DEFENDANT HALPERIN: I have no further questions.

THE COURT: Mr. Goldstone, you may cross-examine.

DEFENDANT HALPERIN: Thank you, Your Honor.

CROSS EXAMINATION
BY MR. GOLDSTONE:

Q Good afternoon, Officer Mott.

A Good afternoon.

Q You’ve been a police officer with the Supreme Court police for two years now.

A That’s correct.

Q Now during that time, have you had occasion to guard the steps and plaza area of the Supreme Court?

A Yes.

Q And is that one of your main areas of responsibility?

A Yes and no.

Q Okay, tell us about that.

A The shift I work as my main responsibility is the interior of the building. There are times when I have to work another shift, which would require me to work the exterior of the building, but my main position is the interior.

Q Now how is it that you’re familiar with the code provisions regarding displaying a banner on the steps of the Court?

A Every officer is given a card with the codes on it.

Q Do you recall what the card says?

A Yes I have the card with me, Your Honor.

THE COURT: Okay.

THE WITNESS This card here says, parades, or assemblages, display of flags, Supreme Court buildings and grounds. It shall be unlawful to parade, stand or move in processions or assemblage in Supreme Court buildings or grounds or to display therein any flag, banner or device designed or adapted to bring into public notice any party, organization or movement.

THE COURT: I would not for the record that is verbatim, Title 40, 13(k).

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Your testified on direct that you received a radio call from Officer Coleman, is that correct?

A That’s correct.

Q And what did that radio call say?

A A radio call for assistance on the front steps.

Q Assistance for what purpose?

A He just called and said he needed assistance on the front steps.

Q He didn’t say anything about a demonstration or a banner.

A I don’t recall.

Q You testified that it took a couple of seconds for you to arrive on the scene.

A That’s correct.

Q Upon arriving on the scene, you saw seven individuals holding a banner.

A That’s correct.

Q Were you able to read the words on the banner?

A Not from the back.

Q Did you know what the individuals were protesting about?

A Not until I walked around to the front.

Q Were you aware of whether or not there was a death penalty case being heard by the Supreme Court on that day?

A No, I wasn’t.

Q Were you aware whether the Court was open for business that day?

A What do you mean, for business?

Q Well, was the Court in session on that day?

A I don’t recall.

Q Have you received any advance warning that there would be a demonstration regarding the death penalty on that day?

A Not that I recall.

Q Now you testified that when you arrived on the scene that you saw seven individuals holding the banner, and that you asked them to, quote, drop the sign, is that correct?

A That’s correct.

Q You asked them to drop the sign because they would be in violation of that code provision that you just read, isn’t that correct?

A That’s correct.

Q And that’s regardless of whether the sign was taking a particular viewpoint, is that correct?

A That’s correct.

Q Okay, it has nothing to do with the viewpoint of the sign.

A Nothing to do with the viewpoint.

Q Just the fact of the sign.

A That’s correct.

Q Now you testified that the individuals continued to hold the sign, is that correct?

A That’s correct.

Q Did they sing or chant or do anything else besides hold the sign?

A Not that I recall.

Q Now you testified that you removed the sign peacefully, was your testimony on direct, is that correct.

A That’s correct.

Q Isn’t it a fact, Officer Mott, that you had to rip the sign out of the hands of the seven individuals?

A That’s not correct.

Q You also testified that you did not recall hearing any officers given the demonstrators an alternative site to continue their demonstrations, is that correct?

A That’s correct.

Q But yet it’s a fact that you can demonstrate on the sidewalk in front of the Supreme Court, isn’t it?

MR. HAN: Objection, Your Honor, again, this calls for a legal conclusion.

THE COURT: Sustained.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q They were not given the opportunity to demonstrate on the sidewalk of the Supreme Court, is that correct?

A You say, given, I don’t understand what you’re saying by given an opportunity.

Q They were not informed that they could continue to demonstrate by moving their demonstration away from the steps onto the sidewalk, is that correct?

A They were informed that they were in violation of 13(k).

Q Correct, and they were not informed that they could continue to hold their banner on the sidewalk, is that correct?

A They were informed that they were in violation of 13(k).

THE COURT: Okay, just answer the question that’s asked, please, Officer. Did you tell them that they could move to the sidewalk with their banner?

THE WITNESS No, I didn’t tell them.

THE COURT: Did you hear anyone else tell them that?

THE WITNESS Not that I recall.

MR. GOLDSTONE: I have no further questions.

THE COURT: All right. Redirect?

REDIRECT EXAMINATION
BY MR. HAN:

Q Officer Mott, I’m showing you Government’s Exhibit No. 2, which is a picture of the banner that says, stop executions. Do you recognize this?

A Yes, I do.

Q If this banner read, go executions, would that have affected your actions any differently?

A No.

MR. HAN: No further questions.

THE COURT: Thank you, Officer Mott, please don’t talk to any of the other witnesses about what you just said in the courtroom until the whole trial is over.

THE WITNESS Okay.

THE COURT: You may step down.

(Witness excused.)

THE COURT: You may call your next witness, Mr. Han.

MR. HAN: Your Honor, the Government calls Officer David Russ.

THE COURT: Good afternoon ,sir, if you’ll step up to the witness stand, please. Please raise your right hand.

Thereupon,
DAVID WILLIAM RUSS,
having been called as a witness for and on behalf of the Government and having been first duly sworn by the Court, was examined and testified, as follows:

THE COURT: Please have a seat, sir.

DIRECT EXAMINATION
BY MR. HAN:

Q Good afternoon, sir. Would you please state and spell your name for the record.

A David William Russ D-A-V-I-D W-I-L-L-I-A-M R-U-S-S.

Q Where do you currently work?

A United States Supreme Court.

Q How long – what do you do for the United States Supreme Court?

A I am the training sergeant.

Q Are you with the police department of the Supreme Court?

A Yes, I am.

Q How long have you been police officer of the U.S. Supreme Court?

A Almost 12 years.

Q When you said you’re a training sergeant, what are your duties as far as being a training sergeant?

A I assist new officers – excuse me – through their training and development. I schedule them to go to the academy at Glencoe, Georgia, other courses, D.C. Code courses. I schedule them for criminal law courses that pertain to the Court. Those things.

Q Officer, let me direct your attention to January 17th, 2002, at approximately 10:45 a.m. Where were you at this time?

A I was in the training office.

Q Is that in the United States Supreme Court building?

A Yes, it is.

Q How were you dressed?

A I was in full uniform.

Q Did anything unusual happen at that time?

A I heard an officer call for the assistance of a supervisor on the front plaza.

Q And what did you do after hearing this radio call?

A I ran outside.

Q How long did it take you to get from where you were to the front plaza area?

A Not more than a minute.

Q As you reached the front plaza area of the Supreme Court, what did you see?

A I saw approximately seven individuals in a line and a banner that was on the ground.

Q At this time, were the seven individuals holding the banner?

A No.

Q And what was the state of the banner at this time?

A It was just on the ground.

Q Were you informed of this situation by any officer?

A Officer Coleman, who was the officer who needed assistance, told me that basically seven people had unfurled a banner on the front plaza on the steps.

Q And which seven people were you referring to?

A The seven people seated there.

Q And, Officer, upon hearing this, what did you do next?

A I saw them in a line, and being a supervisor, I knew they were in violation of Title 40, Section 13(k). They were assembling unlawfully in a straight line in front of the front steps of the plaza.

Q Did you tell these individuals anything – the defendants?

A I warned them and told them that they were in violation of Title 40, Section 13(k), and I told them that it was unlawful for them to demonstrate where they were demonstrating.

Q Did you say anything about dispersal, whether they should disperse or not.

A I told them that they could, that their activity was unlawful, and that they could leave now.

Q Did you give a warning with regards that if they did not comply, whether or not they would be arrested?

A I walked up and down, up and down the line, and warned them and told them that they would be subject to arrest.

Q As you walked down the line, did you give this – how did you give this warning? To them as a group, to them three at a time, individually?

A I walked, I believe I walked up to them individually, as I walked up and down the line. I did it at least twice.

Q Now you said that, you told them that they could leave the area, can you kind of recall as best you can specifically what you told them in that regard?

A I cam remember specifically, I told them that they were in violation of Title 40, Section 13(k), is they did not disperse, they would be subject to arrest.

Q Did they make an attempt to leave?

A No.

Q What did they do in response to your warnings?

A Stood there.

Q Court’s indulgence, Your Honor. Did you know what the sign said, did anyone inform you of the sign?

A At that time, no.

Q Did you know what they were protesting?

A Yes, they were wearing shirts and pins, I believe pins with, stop executions. I oppose the death penalty, that sort of thing.

Q If they were wearing signs or shirts or pins that said, we support the death penalty, would that have affected your actions at all?

A No.

MR. HAN: No further questions, Your Honor.

THE COURT: Ms. Conally, would you care to cross-examine?

CROSS EXAMINATION
BY DEFENDANT CONALLY:

Q Did you ask the people standing there in a line that they could move to the sidewalk?

A Did I ask them? No.

DEFENDANT CONALLY: Okay, thank you.

THE COURT: Mr. Giffin.

DEFENDANT GIFFIN: No questions.

THE COURT: Mr. Langley. Mr. Halperin.

DEFENDANT HALPERIN: Yes, Your Honor.

THE COURT: All right.

CROSS EXAMINATION
BY DEFENDANT HALPERIN:

Q Good morning.

A Good morning.

Q Officer Russ, do you know, as the training officer, do you know if there is an official written policy with guidelines within the United States Supreme Court on how police officers on duty at the Court are to react upon hearing or seeing that banners are unfurled. Are there specific guidelines that you all are supposed to be following, to your knowledge.

A Title 40, Section 13(k). As far as the guidelines, what they’re trained to do?

Q That is correct.

A There is nothing specifically written, they are trained to contact their supervisor once they witness a demonstration or something on Court property within the confines of the Court.

Q Would it be fair to say then that the reaction to said banner or such banners would be discretionary or varying from banner to banner and situation to situation?

A No.

Q Why not?

A We treat every banner the same, whether it’s save the whales, or a sixth-grade elementary school class that comes onto the plaza.

Q And how about the people holding the banner?

A We treat everyone the same.

Q And is, are the people who hold the banners, to your knowledge, routinely offered opportunities to hold the banner, to get off the steps, to get off the plaza, or wherever they are and to move to where it is legal to hold the banners or to get onto the sidewalk?

A That is a routine thing, and as I said, I told the demonstrators that time that if they did not disperse, they would be subject to arrest.

Q And at the time you told them this, were they holding the banner?

A No, but they were still unlawfully assembling in a line in front of the Supreme Court building on the main steps.

Q Would it have been different – help me, I’m just trying to get a sense of this – would it have been different if the seven or however many people it was, if they had not been in a straight line? Was it the fact that they were just standing in a straight line, did that constitute a demonstration within the guidelines of the Court?

A I believe the interpretation is whether or not they are trying to draw attention to themselves for a specific reason, and I think that was satisfied by the action.

Q If the defendants in this case had not been wearing any message on their clothing, and in fact had no message visible and had just been standing there, would that still constitute a demonstration?.

MR. HAN: Objection, Your Honor, again, I believe this calls for a legal conclusion.

THE COURT: Overruled, you may answer, Sergeant.

THE WITNESS In the past, our – yes, I think it would have possibly been considered a demonstration. On numerous occasions in the past, we’ve had groups come up onto our plaza with no identifying marks or markings on t-shirt labels or anything, who stood in circles, who formed as groups in circles, and we’ve considered those demonstrations –

THE COURT: Had they been chanting or singing?

THE WITNESS No, not –

THE COURT: Shouting?

THE WITNESS Not necessarily. The circle in effect is drawing attention to a certain cause or a – it’s drawing attention to something on our plaza, and that’s considered a demonstration.

CROSS EXAMINATION CONTINUED
BY DEFENDANT HALPERIN:

Q Is there a minimum number of people needed to qualify as a demonstration, to your knowledge?

A I would say three or more.

Q Three or more. So if, for example, if two people stood in a line, stood side by side, just stood there, and they had an anti-death penalty message on their shirt as these protestors are said to have had, would they have been asked to leave?

A It depends on where they stood. If they stood in front of the door, probably so. If they entered the building like a regular tourist with, I oppose the death penalty t-shirt on, they would have just entered the building with, I oppose the death penalty t-shirt on.

Q If they stood there side by side with no message on their shirt would they have been asked to leave?

A If they stood in front of the door and barred the door, blocked the door, yeah, possibly so.

Q What if they stood on the steps, but not blocking the door and did not impede progress in or out of the Court.

A Then I would think not.

Q And one last question, if I may, you said that when you came out, the banner was already on the ground, is that correct? Are you aware, since there were other officers present before you arrived on the Court, at that time, there were other officers already present?

A Yes, I’m aware of that.

Q Were you told by any of the other officers, or did you hear any of the other officers offer any opportunity for these defendants to take themselves with the banner to the sidewalk?

A No.

Q Did any of the other officers tell you that they had allowed or offered these defendants that opportunity?

A No, and it didn’t matter, because I offered it.

Q But you said they weren’t even holding the banner when you spoke to them, is that correct?

A The defendants were still violating Title 40, Section 13(k).

Q But they were not holding the banner, were they?

A Not at that time.

DEFENDANT HALPERIN: Thank you.

THE WITNESS And, Your Honor, may I make a correction?

THE COURT: Yes.

THE WITNESS Some of the groups had been chanting, some of the groups had not been chanting. There are different –

THE COURT: Okay. Did this group chant?

THE WITNESS No, this group was silent.

THE COURT: Okay. Mr. Goldstone.

CROSS EXAMINATION
BY MR. GOLDSTONE:

Q Thank you, Your Honor. Good afternoon, Officer Russ.

A Good afternoon.

Q Now, you’ve been with the Supreme Court police for 12 years now?

A Yes.

Q How long have you been the training supervisor?

A Since November.

Q How long have you been in training itself?

A Probably since I would say 1993?

Q Now you testified on direct that you are responsible for understanding the D.C. Code and the criminal code as it relates to the Court. How is that – are you a member of the bar, are you a lawyer?

A No.

Q Who do you receive the legal training on the code application (indiscernible)?

A We have train, the trainer courses, and we also have a new program with the D.C. Code. Our training is not specifically geared to the D.C. Code, it’s geared to Title 40, which is what we generally make arrests for.

Q Now you testified you were in the training office on January 17th, 2002.

A Yes, I was.

Q Do you recall if the Court was in session on that date?

A I don’t recall.

Q Does it matter for your interpretation of Title 40, code 13, whether or not the Court is in session?

A No.

Q Now you testified that Officer Coleman called for the assistance of a supervisor. Were you the supervisor of Officer Coleman?

A No.

Q How did you come to go onto the plaza?

A When an officer calls for the assistance of a supervisor, and generally you know that that officer needs help, so regardless of whether or not I’m his direct supervisor, will respond.

Q And you testified that you got from your training office to the outside within one minute, less than one minute.

A Yeah.

Q And at that time you arrived you saw seven individuals in a line and you saw the banner lying on the ground, correct?

A Correct.

Q So at that point you had no idea what the issue was that brought the defendants, the protestors to the Supreme Court steps.

A Incorrect. I spoke with Officer Coleman prior to giving them their warnings.

Q Now, I’m confused. I thought that you said you ran off to the scene within a minute of hearing the request from Officer Coleman, and that when you arrived you saw the banner on the ground. Are you now saying that you had a conversation with Officer Coleman?

A I was facing the demonstrators as I came out. I could see the banner on the ground. I could see the demonstrators, and I spoke with Officer Coleman as I walked up towards the steps.

Q What did Officer Coleman tell you?

A Officer Coleman told me that there were seven demonstrators and they had unfurled a banner that said, stop executions.

Q And what was your response to that?

A My response was to contact his immediate supervisor, who is Sergeant Graff, have him respond, have my lieutenant respond and to immediately go up and warn the demonstrators that they were in violation of Title 40, Section 13(k), and that if they did not disperse, they would be subject to arrest.

Q All right, now I’m really confused, because you have said that by the time you came on the scene, the banner is down, the banner is not being displayed. I thought 13(k) talked about displaying a banner.

A 13(k) also mentions – if you look at 13(k), unlawful assembly, standing, parading, all those are elements of 13(k) if you read the statute.

Q Well, that’s what I’m trying to get at. I’m trying to understand what was the violation. Was it the unfurling of the banner or was it the standing in procession?

A I think it was both.

Q Do you know how long the banner had actually unfurled?

A No.

Q Does it matter?

A No.

Q Are your officers instructed to immediately grab the banner the minute it’s unfurled?

A Are they instructed to do that? No. They’re not instructed to do that; however, they are instructed – well, let me put it like this, they are within their rights to arrest individuals who unfurl banners on Court property in front of the Court.

Q But not on the sidewalk.

A Not on the sidewalk.

Q But there’s no requirements that the officers have to tell them that, hey, you can do what you did, you just can’t do it here, you’ve got to do it on the sidewalk, is that correct?

MR. HAN: Objection, Your Honor. I think that the question as phrased confuses whether it is a legal conclusion or whether it’s the fact that the Supreme Court police –

THE COURT: Please rephrase your question, Mr. Goldstone.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Is it a requirement of the Supreme Court police to offer an alternative or not?

A I believe in our practice, it has always been a requirement to offer for the people to disperse.

Q That’s exactly the question. The offer is to disperse. The offer is not, you can do what you did on the sidewalk. The offer is, disperse or you will be arrested, isn’t that correct?

A Could you please repeat the question.

Q The offer given to people who unfurl the banner is disperse or be arrested. Isn’t that correct?

A That’s not what I said. I told them to disperse or they would be subject to arrest.

Q Correct, and there is no offer to take your demonstration to the sidewalk where it’s legal and has been legal for 22 years.

A I want to ask –

Q Ask counsel if you don’t understand the question.

A I understand the question. I had privy to be involved with the defendants in the past. The defendants know the regulation. They know Title 40, Section 13(k). They were arrested in 1997 for the same offense. They know they can demonstrate on the sidewalk.

THE COURT: These seven people were arrested for the same offense in 1997?

THE WITNESS I believe one of them was, at least.

THE COURT: Do you have any understanding that that one might have communicated to the other six what the rules were. You don’t have any personal knowledge, do you, sir?

THE WITNESS I don’t believe so, no.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q At the time that you saw the unfurled banner lying on the ground, you had no knowledge at that point that an individual had earlier demonstrated on the steps on the Supreme Court did you?

A No.

Q Is there any signage on the steps of the plaza of the U.S. Supreme Court that lets people know that they’re not allowed to unfurl banners in that (indiscernible)?

A No.

Q Has there been any discussion about putting up such signage to alert people -

MR. HAN: Objection.

THE COURT: Sustained. On relevance grounds.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Now you testified that there was a, there were in effect two violations, the unfurling of the banner and standing in procession, that was your testimony on direct.

THE COURT: In assemblage

MR. GOLDSTONE: Standing in – well, he said procession, but assemblage –

THE COURT: I’m sorry, I thought he said assemblage.

THE WITNESS I didn’t say –

MR. GOLDSTONE: Did you hear assemblage?

THE COURT: I thought he said assemblage.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q: I have processions, but to me it’s the same thing. You testified that there were, in effect, the two violations, the unfurling of the banner and standing in procession. Had there been no banner, and seven people are standing on the steps of the Supreme Court, it was your testimony that they would have been in violation of Title 40, correct?

MR. HAN: Objection, Your Honor, I believe this calls for a legal conclusion as interpretation of the statute.

THE COURT: Overruled.

THE WITNESS I believe so.

CROSS EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q And it is your testimony that there – you can follow up.

A I believe so as long as they were wearing the t-shirts they were wearing. and trying to bring attention to their cause.

Q And do you know how many of those seven individuals were wearing t-shirts with a message on that day?

A I don’t recall at this time.

MR. GOLDSTONE: I have no further questions. Thank you.

THE COURT: Redirect?

REDIRECT EXAMINATION
BY MR. HAN:

Q Officer Russ, as a training officer, deputy training officer of the United States Supreme Court, is it the practice of the Supreme Court officers to give a warning before making an arrest for protesting or demonstrating at the Supreme Court?

A Yes, it is.

Q And what would that warning consist of?

A Basically to cease or, to cease or desist or you’ll be subject to arrest.

Q Now, in this case, was that warning followed?

A No.

Q Was that warning given?

A Yes.

Q If the individuals had dispersed and left the area of the Supreme Court steps, would they have been arrested?

A No.

Q Would it have been the practice of the Supreme Court police to arrest these individuals if they were not given a warning?

A No.

MR. HAN: No further questions, Your Honor.

THE COURT: Thank you. Sergeant, please don’t discuss your testimony with any of the other witnesses until the whole trial is over. You may step down, sir.

THE WITNESS Thank you.

(Witness excused.)

THE COURT: Counsel, I have a sentencing and probation revocation hearing to do at this point, and we need to take a lunch break. Let’s recess the trial to resume at 2:00 pm. How many more witnesses for the Government, Mr. Han?

MR. HAN: Just one, Your Honor.

THE COURT: Okay, all right. We’ll see you back at two o’clock.

(Recess from 12:36 to 2:15 p.m.)

DEPUTY CLERK: This Court is again in session. The Honorable Judge Edwards presiding. Good afternoon.

THE COURT: Good afternoon.

MR. HAN: Good afternoon, Your Honor.

DEPUTY CLERK: All right, we’re back on the record in the cases of United States v. Peggy Jo Conally, et al., Case Nos. M693-02 through M699-02.

THE COURT: Good afternoon, defendants. Good afternoon, counsel. Any preliminary matters?

MR. HAN: None from the Government, Your Honor.

THE COURT: Mr. Goldstone?

MR. GOLDSTONE: Your Honor just that we requested a video recorder because the Government has a videotape that they have shown us in discovery. We may like to use it in our defense case.

THE COURT: Okay, and have we put in a request?

DEPUTY CLERK: Yes, I have to go get it myself.

THE COURT: Well, it must be Friday afternoon in the summer. Okay, all right. We’ll try to get it here for you. Anything else? All right, Mr. Han, you may call your next witness.

MR. HAN: Your Honor, with the defendant’s stipulation as to identity, the Government rests.

THE COURT: That’s what happens when you take lunch break after the first couple Government witnesses. It’s a phenomenon. All right, Mr. Goldstone.

MR. GOLDSTONE: Your Honor, I move for judgment of acquittal. I don’t believe the Government has made out the elements of this case. I don’t think the Government has been able to establish either that there was any parading, standing, or moving in processions or assemblages, nor do I think the Government has established that they displayed therein any flag, banner or device designed or adapted to bring into public notice any party, organization or movement.

What I think the Government has proven to this point is perhaps, at best, an attempted, an attempted parade or an attempted assemblage or an attempt to display. They haven’t even proved the completed action. I think the officers’ testimony was relatively consistent in that the moment the banner was out, the police officers rushed up and removed the banner from the defendants’ hands. THE COURT: Not so soon as to prevent that photograph being taken.

MR. GOLDSTONE: That’s correct.

THE COURT: I mean, if all we had was the picture, it seems to me that’s probably viewing the evidence in the light most favorable to the Government, enough to withstand a motion of judgment of acquittal. There’s a banner, there are folks holding it, they’re on the steps of the Supreme Court. I’m not saying that prove the case beyond a reasonable doubt, but I do think it gets past an MJOA.

Pro se defendants, have you had a chance to talk to Mr. Goldstone about what we’re doing at this point in the trial? Let me explain it for you. At the end of all the Government’s evidence, the defense has the right to move for a judgment of acquittal on the grounds that the essential elements to prove the crime have not been made out. Not in the same way as at the end of the trial, but what you argue at this point in the trial is that no reasonable fact-finder could find beyond a reasonable doubt all the elements of the alleged crime. It’s a little different from the argument that happens at the end of the trial when the defense argues to the jury, or the judge in this case, why in this particular case, the Court or the jury should have a reasonable doubt.

What the Court has to find as to a motion for a judgment of acquittal is that no reasonable person anywhere on this planet could hear this evidence and not have a reasonable doubt about it. And, the Government gets the benefit under the rules that dictate these procedures. They get the benefit of all favorable inferences that can be drawn from the evidence. So the Court is obligated to view the evidence in the light most favorable to the Government and ask itself whether or not a reasonable fact-finder must have a reasonable doubt as to any of the required elements of proof.

At this point in the trial, I can’t say that a reasonable fact-finder must have a reasonable doubt, so at this point in the trial, the motion for judgment of acquittal is denied, but always without prejudice to its being renewed at the end of all the evidence, including the defense evidence. Okay?

MR. HAN: Your Honor, if I could just put on the record that we believe this case is on all fours with Bonowitz v. United States, which is 741 A.2d 18.

THE COURT: How coincidental that there’s another defendant named Bonowitz.

MR. HAN: And I have a copy for the Court, if you would like, I’ve provided defense counsel with a copy of this before.

THE COURT: Okay, you can hand it up, Mr. Han.

MR. HAN: In addition, there’s another case, Pearson v. United States, 581 A.2d 347, which I’d also like to bring to the Court’s attention.

THE COURT: Okay, that’s fine. Thank you. Okay. Pro se defendants and Mr. Goldstone, are you ready to proceed with putting on a defense at this point, or is it necessary that you get that videotape first?

MR. GOLDSTONE: I think we can proceed without –

THE COURT: Okay, all right.

MR. GOLDSTONE: I would just prefer at this point to waive an opening statement. I believe there may be one opening statement from –

THE COURT: Yes, I think we have a couple that might be dangling. Okay.

MR. GOLDSTONE: - one defendant.

THE COURT: Okay. You reserved, but you’re waiving.

MR. GOLDSTONE: I’m waiving.

THE COURT: And I believe that Ms. Conally, Mr. Halperin and Mr. Giffin declined to make an opening statement right after the Government’s, but you three folks now have the opportunity to make an opening statement now if you wish to. Ms Conally – or you can waive it.

DEFENDANT CONALLY: Do we get another chance later?

THE COURT: You can have a closing argument chance later. The purpose of the opening statement would be to tell me what you think your evidence is going to show. And you certainly can make it now, or as Mr. Goldstone has done, you can waive your right to make an opening statement. It’s completely up to you.

DEFENDANT CONALLY: I’ll make an opening statement.

THE COURT: Okay, you may step up to the microphone there. Now let me just remind you, because you’re not a lawyer, Ms. Conally. This is – this I is not closing argument. At the end of the trial, you get to argue everything you think I should conclude from what the evidence is. In an opening statement, the purpose is to simply tell me what you think the defense evidence is going to show, or your evidence in particular. Okay?

OPENING STATEMENT
FROM DEFENDANT CONALLY:

DEFENDANT CONALLY: I believe the evidence is going to show that the defendant were not given the same latitude within this rule that other groups were given, and therefore they did not get a chance to move to the sidewalk and that the police basically were out of bounds on their actions.

THE COURT: Okay. Thank you. Mr. Halperin, would you like to make an opening statement.

DEFENDANT HALPERIN: May my statement be in concurrence with what was just before the Court.

THE COURT: Perfectly fine. Mr. Giffin.

DEFENDANT GIFFIN: (Indiscernible)

THE COURT: All right, that’s fine. And you made your opening statement, Mr. Langley. All right. Mr. Goldstone, what do you want to do in terms of presenting your evidence.

MR. GOLDSTONE: Your Honor, I’d like to call Mr. Halperin to the stand.

THE COURT: Okay. If you’ll step up, sir.

Thereupon,
RICK HALPERIN,
having been called as a witness for and on behalf of the Defendants and having been first duly sworn by the Court, was examined and testified, as follows:

THE COURT: Please have a seat.

DIRECT EXAMINATION
BY MR. GOLDSTONE:

Q First of all, do you prefer to be called Professor Halperin, Dr. Halperin or Mr. Halperin, or Rick?

A Rick is quite sufficient.

MR. GOLDSTONE: If that’s okay with the Court, Your Honor, I’ll inquire on direct.

THE COURT: Perfectly fine with me.

DIRECT EXAMINATION
BY MR. GOLDSTONE:

Q Thank you. Rick, please state your full name and spell your last name for us.

A Rick Halperin, R-I-C-K H-A-L-P-E-R-I-N.

Q And where do you live?

A Currently in Dallas, Texas.

Q What do you do there?

A I teach human rights within the History Department at Southern Methodist University.

Q And how long have you been employed?

A Since 1985.

Q Without going into inordinate detail, could you please briefly describe your extracurricular activities as it were?

A The overwhelming bulk of my activity is spend as a human rights educator and a human rights activist. I have worked with numerous organizations, such as, but not limited to, Amnesty International. I’m the current president of the Texas Coalition to Abolish the Death Penalty. I work with the Abolitionist Action Committee. I work on behalf of Survivors of Torture, on behalf of refugees seeking asylum, people whose human rights have been violated. That’s pretty much all I do, in or out of the classroom.

Q How did you become aware of a demonstration that was scheduled to take place on the steps of the U.S. Supreme Court on January 17th, 2002?

A Did I become – yes.

Q And how did you become aware of that?

A It’s an anniversary date which marked the 25th anniversary of the resumption of executions in the United States, the death of Gary Gilmore in the Utah State Penitentiary, a date which, as an abolitionist, I do not miss any year.

Q Did you make any plans to come to Washington on January 17th?

A I did.

Q And what did those plans include?

A To demonstrate my deeply, deeply held beliefs against the death penalty on site at the United States Supreme Court.

Q How was that going to manifest itself on that date?

A I was quite prepared to participate, to display that sign, that sentiment that I know is correct, which is advocating the stoppage of executions in this country at the seat of the Court, which is ultimately responsible for the continuance of executions in this country.

Q Why was the Supreme Court chosen as the vehicle for this expression?

A Because they are the final arbiter where this law is allowed to occur. There is – this is the seat of power in the United States. This, meaning the United States Supreme Court, is where decisions which ultimately send people to the death chambers are made or affirmed, and as such, there is no more important site, in my opinion, for myself as an abolitionist, than to express my disgust and disagreement with those ideas and laws than at the seat of where these laws are made.

Q Now that disgust and disagreement with the policy of the Supreme Court, were you going to demonstrate that disgust in a non-violent fashion?

A Absolutely.

Q And is there a document that I could show you that would indicate that you signed a pledge indicating that you were actually going out there, were going to be non-violent?

A I’m sorry?

Q Is there a document I could show you that would indicate that you signed a pledge of non-violence for that particular date?

MR. HAN: Objection, Your Honor. I believe the violent or non-violent nature is not relevant to the facts at issue and are dispositive to whether he violate (indiscernible).

THE COURT: I’m going to sustain the objection, perhaps not precisely on those grounds, but the witness has stated his intention to be non-violent in his demonstration. I’m not sure that a signed pledge adds anything to what he has already said under oath, Mr. Goldstone.

MR. GOLDSTONE: Yes, Your Honor.

DIRECT EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q With respect to your philosophy of non-violence, what did you take that to mean, vis-à-vis your participation in the unfurling of the banner?

Q Well, I would stand, not bother anybody. I did not want to obstruct anybody coming in our out of the Court, if in fact the Court was to be open. I wanted to express my sentiment, deeply felt to the core of my being, without chanting, without singing, without imparting my view to anybody. I wanted to just make a statement that I am a thousand percent opposed to the policies of this Government and that Court regarding the extermination of human beings in this country.

Q Now if your demonstration was designed to influence the Supreme Court, why was it that the banner was being displayed outward? Why wasn’t the banner being displayed inward toward the Supreme Court?

A My intent was – I did not go to the Court to influence the Court. I went to the Court to hold this sign, to express how I feel.

Q Were you able to express how you feel on that date?

A My holding of the banner, as is evidenced in that photo, was up, but it was very quickly. As soon as it was up, it was yanked out of our hands.

Q After the banner was yanked out of your hands, what did you do next?

A I stood there and said nothing.

Q What were you wearing?

A I had on a down jacket with no words on it, no markings. I did not have any abolitionist sentiments visible. It was cold, it was winter. I’m extremely sensitive to cold weather. I was bundled up, and I had no visible advocacy on me at all, nothing.

Q Yet, despite that, you were placed under arrest?

A I was.

Q How soon after the banner was snatched out of your hands, did you – were you placed under arrest?

A I would say within five minutes, maybe less.

Q During that five minutes, did you express our opposition to the death penalty or the policy of the Supreme Court in any way or any fashion during that period of time?

A I said nothing, I stood there with my hands clasped behind my back, virtually in silence. Nobody asked my opinion, nobody asked me why I was there. I said virtually not a word.

Q Now why was it that you remained there after the banner, your communicative message, was snatched out of your hands?

A Because I went to express my conscience with that sign, as part of that sign holder, and the fact that that sign was ripped away from me, that day is a very sacred day, it is the day when this country resumed exterminating people. And merely because the physical banner, of which I had a small part, was yanked out of my hand, was not, that was not the action, or the end of the action for me. It was an act of conscience on that day to be at that Court in opposition to those Court’s policies. And it didn’t matter to me if the banner was out of my hand.

Q Were you given any warnings to stop doing what you were doing?

A Absolutely none. Any insofar as holding the banner?

Q Correct.

A Absolutely none.

Q So it’s your testimony that the banner was snatched out of your hands without any verbal warning.

A That is quite correct.

Q No bullhorn?

A No officer ever approached me and said, drop the banner or you’ll be arrested. No officer ever approached me and said, get off the steps, you can hold this banner on the sidewalk.

Q Were you offered the alternative of demonstrating on the sidewalk?

A No.

Q Were you offered the alternative of demonstrating in the street?

A No.

Q Were you offered any alternatives?

A No. As best as I recollect, I stood there, and immediately the banner was forcibly yanked away from us, and that was it. There was no verbal warning at all.

Q You’ve been to the Supreme Court before, haven’t you?

A I have.

Q And in fact you were there in 1997 on the 20th anniversary of the resumption of state killing, isn’t that correct?

A That is quite correct.

Q And isn’t it a fact that you were arrested at the U.S. Supreme Court back in 1997?

A I was.

Q So you knew that you weren’t allowed to be on the plaza or the steps of the U.S. Supreme Court –

MR. HAN: Objection, Your Honor, leading.

THE COURT: Overruled.

THE WITNESS I’m sorry.

THE COURT: Finish your question, Mr. Goldstone.

DIRECT EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q So you knew that you were not allowed to be on the steps or the plaza of the U.S. Supreme Court.

A Yes.

Q What was your reason for choosing that location as opposed to a location such as the sidewalk where you are entitled to be?

A I would repeat that that is the site where laws of extermination in this country are promulgated or affirmed. And to me, as a historian, as a human rights activist, I want to say on record that the death penalty for me personally represents the most insidious Nazi-like ideology which allows the law to exterminate people, and it is offensive to me. And that Court is where those laws are allowed to continue to exist, the highest Court in the land. If the Court were somewhere else, I’d go somewhere else, but it isn’t, it’s here.

Q Did your unfurling of the banner affect the ingress or egress of persons attempting to get into the Court?

A No.

Q Did your unfurling, participation in the unfurling of the banner affect the ability of the Court to carry out the business of the Court?

A No.

Q Did your demonstration affect the ability of the Court to be seen as an institution that is not subject to public opinion?

MR. HAN: Objection, Your Honor.

THE COURT: Yes, I will sustain that objection. All right, you may cross – I guess I should inquire whether any other defendants would like to put any questions to Mr. Halperin. Any of you? You may cross-examine, Mr. Han.

CROSS EXAMINATION
BY MR. HAN:

Q Good afternoon, Mr. Halperin.

A Hi there.

Q Now, on January 17th, 2002, you said this is a momentous time for abolitionists, for people who oppose the death penalty, isn’t that right?

A I would say that’s a very significant date for me personally.

Q And because of this date and because of what happened on that date, you decided to go to the Supreme Court and unfurl this banner, isn’t that right?

A Yes.

Q And you did so with other people, isn’t that correct?

A I knew other people would probably be there.

Q But you didn’t just show up and people are there, you actually had meetings to plan for this demonstration, isn’t that right?

A Meetings? No.

Q So you’re saying, Mr. Halperin, that you just showed up at this location, not knowing whether other people would be there?

A No, I’m not saying that. You asked me if I attended meetings, and I have no recollection of attending meetings prior to coming with that in mind. Not meetings.

Q Did you meet with Mr., any of these defendants here, before you arrived at the Supreme Court that day?

A Prior to going to the Court earlier that morning.

Q Early that morning.

A Yes.

Q And who was present there? All seven of these –

A Maybe, most, if not all. I don’t know for a fact that all were there.

Q And at – and that was a meeting, or how would you characterize it?

A It was a gathering place.

Q And not just gathering, it was discussed that people, including yourself, would go to the steps of the Supreme Court and unfurl this banner, isn’t that right?

A When I left that place, that’s what I knew would happen.

Q That’s not my question. When you were there, there were discussions, weren’t there, of you and other people unfurling this banner on the steps of the Supreme Court?

A I can’t honestly say I have a recollection of that prior to going to the Court.

Q Did you participate in the making of this banner?

A I participated in, I believe, I’m trying to see the banner – in getting some, punching some of the holes in the banner. That, I believe, was my –

THE COURT: I do recall there were holes in the banner.

THE WITNESS yeah, so the wind would blow through, right?

UNIDENTIFIED: Right.

THE WITNESS I believe that was my extent of the participation in the making of the banner, as I recollect.

CROSS EXAMINATION
BY MR. HAN:

Q At this gathering – I can’t recall your testimony – isn’t it true that you discussed with other people the unfurling of the banner?

A It probably was discussed, but I can’t tell you with certainly that I remember having a specific conversation about it.

Q And you said on direct examination that that was your purpose to express your personal belief as to the death penalty, is that right?

A Quite.

Q But you’re also a member of the Abolitionist Action Committee, is that right?

A It’s an ad hoc group, yes.

Q But you’re associated with it.

A I am.

Q And the purpose of the Abolitionist Action Committee is to be highly visible, isn’t that right?

A Yes.

Q To try to change public opinion and to try to do whatever it takes to change the mood or to be anti-death penalty, isn’t that right?

A I would not agree with that, to do whatever it takes, because that encompasses violent activity, and we don’t do that.

Q All right, non-violent. But you want to be highly visible?

A Yes.

Q And you went out there to unfurl this banner, it was arranged that some photographers from your group would be there, isn’t that right?

A Perhaps.

Q You don’t know for a fact?

A I know that people I think were there to take photos, but I had nothing, I didn’t have any conversation arranging for photos to be taken or not taken.

Q At this gathering, as you call it, it was discussed what could possibly happen as you unfurled the banner, that you could be arrested, isn’t that right?

A Probably.

Q Was it discussed or not?

A I’m saying probably, because I really don’t remember, but I would imagine it probably was.

Q You’re an educated man, aren’t you?

A I would like to believe so.

Q You have a Ph.D., isn’t that right?

A Well, yes, that is correct.

Q Many years of school.

A Too many, but yes.

Q And your testimony is you cannot recall whether there was a discussion of whether you would be arrested or not at the meeting?

A That is correct, it probably was, but I don’t recollect that we sat around with that specific conversation.

Q Now the Abolitionist Action Committee which you’re associated with, it disseminates information, isn’t that right?

A Yes.

Q Because it wants to be highly visible.

A Yes.

Q And they have a website, don’t they?

A I think that’s right.

Q And at this website, in fact, have you visited, ever seen this website?

A If I – I really have no recollection of that.

Q But in addition to the website, they distribute some type of literature or some type of information, isn’t that right?

A Probably information, I’m not aware of specific literature.

Q And isn’t it true that this website or websites posted pictures of you displaying the banner?

A I couldn’t speak to it, because I know I have never seen myself on that website with those, with any pictures.

Q But you contributed to the Abolitionist Action Committee by providing your reflections in writing of what happened?

A I do write about my experiences of what, what that day was for me, yes.

Q And you’ve submitted it to them because you anticipated that it would be disseminated to other members, if not the public?

A I did not submit anything to anybody else here for publication or dissemination about what I wrote on behalf of the AAC. I did not do that.

Q But it’s true at the time, after the banner was taken away, police officers came to you and gave each protestor or each of the defendants here a warning to disperse. That’s correct, isn’t it?

A That is correct.

Q And you refused to disperse.

A That is correct.

Q Court’s indulgence. No further questions, Your Honor.

THE COURT: Redirect, Mr. Goldstone?

MR. GOLDSTONE: No, thank you.

THE COURT: In your capacity as your own lawyer, Mr. Halperin, is there anything else you would like to state while you’re under oath on the witness stand here.

THE WITNESS I would say this. Having done this action five years ago at the Court, and having done it in January of this year, this is the site on that day. I don’t come to this city, I don’t come to the Court on any other day to do any other kind of activity. That’s the day, January 17th, that’s the day of conscience, that’s the day, to me, when this country’s heart and soul must be more exposed to remind ourselves as to what this country is engaging in, and I come to the city to be at that site as the most intensely personal amount of free, non-violent, non-threatening expression that anybody I believe is allowed to have.

My views did not change in 1997 to 2002, and they’re not going to change in 2003 and beyond. That’s the day to remind this country what’s wrong on this issue. And I would always, if I am to come back in the future, if this country is to continue exterminating people, if I am to come back and be at that site, I would never, ever participate in an action knowingly which would interfere with anybody, I’m not there to bother anybody, I’m there to make a statement for me as a citizen that I am opposed to my country exterminating people. That’s why I went, that’s why I was there five years ago, and if need be, I will come back next year and every year thereafter. And I if I have to keep coming to this Court to explain that what is happening on this issue is so egregiously outrageous and offensive and wrong, I shall. I have done nothing wrong, nothing.

Standing up in front of the highest court of this country and expressing your conscience without bothering anybody, without threatening anybody, without literally saying a word.

MR. HAN: Your Honor, I’m going to lodge an objection at this time.

THE COURT: Well, I did feel that in his capacity as his own counsel, he ought to have the opportunity to say something else about why he was there –

THE WITNESS That’s why I was there.

THE COURT: - and I think you’ve expressed yourself, Mr. Halperin, thank you.

THE WITNESS Okay.

(Witness excused.)

THE COURT: All right, Mr. Goldstone.

MfR. GOLDSTONE: Your Honor, I think we’re getting to the point where we do need the videotape.

THE COURT: Okay. Did we get the equipment? Do you want to take a couple of minutes to set things up or do you need to watch it again?

MR. GOLDSTONE: Well –

THE COURT: I take it this is probably a pretty short videotape.

MR. GOLDSTONE: It’s a very short videotape.

THE COURT: Okay.

MR. GOLDSTONE: What I’d like to do is to start my direct examination of Mr. Bonowitz, and then at the end of my direct examination, then I’d like to do the videotape.

THE COURT: Thank you, Don, for bringing in the equipment.

MR. GOLDSTONE: Mr. Bonowitz.

Thereupon,
Abraham Jacob Bonowitz,
having been called as a witness for and on behalf of the Defendants and having been first duly sworn by the Court, was examined and testified, as follows:

THE WITNESS Without God’s witness, I affirm.

THE COURT: All right, that’s why we give the affirming option. You may be seated.

DIRECT EXAMINATION
BY MR. GOLDSTONE:

Q Could please state your full name and spell your last name.

A My name is Abraham Jacob Bonowitz, B-O-N-O-W-I-T-Z.

Q And where do you reside?

A I live in Jupiter, Florida.

Q And what do you do there?

A I run a national organization called Citizens United for Alternatives to the Death Penalty.

Q And what is that organization about. Again, very briefly, just by way of background, we want to understand a little bit about the organization.

A Citizens United for Alternatives to the Death Penalty is a national, grass-roots organization with the mission to enhance the ability of activists to be effective in educating the public for alternatives to the death penalty.

Q And what is your role with Citizens United for Alternatives to the Death Penalty?

A I’m the director of the organization.

Q And where do you obtain funding for such an organization?

A Individuals make contributions.

Q And how long have you been active on the anti-death penalty front?

A I became opposed to the death penalty I believe in 1988, and since that time I’ve been active as an abolitionist.

Q Have you ever had cause to be arrested for your anti-death penalty activity?

A Yes.

Q Have you ever been arrested before at the United States Supreme Court?

A Yes.

Q Tell us about that arrest.

A In 1997 –

MR. HAN: Objection, Your Honor, relevance.

THE COURT: Mr. Goldstone.

MR.GOLDSTONE: I wouldn’t expect an objection from the Government on that. It’s a shocker. I think it’s relevant – I’ll try to tie it into what he thinks he is entitled do and not entitled to do at the Supreme Court based upon his understanding of what the law is.

THE COURT: Mr. Han is going to tell you that’s not relevant.

MR. GOLDSTONE: Well, is Your Honor going to tell me?

THE COURT: I’m going to give you a little latitude here.

DIRECT EXAMINATION CONTINUED
BY MR. GOLDSTONE:

Q Mr. Bonowitz, you were the Bonowitz arrested at the Supreme Court in 1997?

A Yes, I was.

Q And you’re aware of a printed opinion that talks about what people can do and can’t do on the Supreme Court steps.

A Would that be the Bonowitz case?

Q The Bonowitz case.

A Yes, I’ve never actually seen the document, but I’m aware of it.

Q And what does that document, and what does that case sort of, you know, mean to you?

A Well, I think it’s a little bit troublesome to me that a law restricting freedom of speech on the grounds of this nation’s highest Court that has my name on it, that’s disturbing. I think it’s disturbing just the principle that, you know, where the marble starts free speech ends. It just does not make any sense to me. You know, the Constitution guarantees my right to address grievances to this country’s Government. The Government has three branches. The Supreme Court is the top level of one of those branches and is the implementer in many cases of a policy that I object to.

Q So how did you get to the Supreme Court on January 17th, 2002?

A I walked.

Q Well, you had come from Jupiter, Florida. How did you get from Jupiter, Florida to Washington, D.C.?

A I flew in a plane.

Q And what brought you to Washington, D.C. on January 17th?

A Actually, I arrived several days earlier, and I came to Washington, D.C. to help engineer this demonstration.

Q And was your role in helping engineer this demonstration?

A I was basically the main coordinator, I helped ensure that those who may be interested knew where to gather, I made sure that the banner was created and arrived on time. I secured facilities for us to gather in and to stay in, as, you know, those who wanted to be together in advance of the action could do that Pretty much anything that had to do with making this action take place, I had some level of responsibility for.

Q Was there any intention to design a demonstration that would block the ingress or egress of th