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.
The Abolitionist Action CommitteeAAC is an ad-hoc group of individuals committed to
highly visible and effective
|
||
|
The 1997 Trial of the SCOTUS Demonstrators Now Online!Index: |
|
PROCEEDINGS: THE DEPUTY CLERK: Your Honor, with regard to the cases of United States vs Abraham Bonowitz, Case Number M-837-97: United States vs Arthur J. Laffin, Case Number M832-97; United States vs Sarah E. Peck, Case Number M-826-97; United States vs Kurt J. Rosenberg, Case Number M-827-97; United States vs William M. Streit, Case Number M-831-97; United States vs Joseph E. Byrne, Case Number 824-97; United States vs Lorig Charkoudian, Case Number M-822-97; United States vs Richard c. Halperin, Case Number M-838-97; United States vs. Joh R. Holsthopple, Case Number M-819-97; United States vs Marietta L. Jaeger, Case M-830-97; United States vs Thomas W. Muther, Case M-835-97; United States vs Phyllis K. Pautrat, Case M-829-97; United States vs William R. Pelke, Case M-834-97. Counsel identify themselves for the record, please. MR. GOLDSTONE: Good morning, Your Honor. My name is Mark Goldstone; I’m appearing for Joseph Byrne, Stephanie Gibson, Jon Holtshopple, Tom Muther, Bill Pelke. And on behalf of Kurt Rosenberg, who I understand Your Honor has granted a motion to be tried in absentia. To Index THE COURT: Right. I’ve signed an order. We have provided a copy of the order? MR. GOLDSTONE: I haven’t gotten it yet, Your Honor. THE COURT: Okay. There will be a written order granting that. I think we orally advised the parties yesterday. MR. GOLDSTONE: And also, I’m serving as Attorney-Advisor or perhaps a stand-by counsel for Sally Peck. THE COURT: Okay. MS. KRAUT: Your Honor, I’m Nina Kraut, K-R-A-U-T, court-appointed, representing Mr. Bonowitz. MR. MARCUS: Good morning, Your Honor. Theodore Marcus and Bill Emory for the Government. THE COURT: Good morning. Good morning, ladies and gentleman. Is anybody not here? Fine. I guess the first thing we have to address is those persons who want to go pro se. Could you identify them for the record? MR. GOLDSTONE: Yes, Your Honor. They are Richard Halperin, Lorig Charkoudian. THE COURT: Okay. Hold on one second. MR. GOLDSTONE: Marietta Jaeger, Art Laffin, Phyllis Pautrat, Jeremy Scahill. THE COURT: Let me just slow you down, just a little bit there, (Pause.) THE COURT: Okay. MR. GOLDSTONE: Bill Streit. THE COURT: And Sarah Peck. MR. GOLDSTONE: I don’t know what you want to consider her role, Your Honor. I guess pro se with Attorney-Advisor. THE COURT: I’m just saying in terms of Feretta waiver. I think I would have to do that on Ms. Peck, as well, if she’s going forward with an Attorney-Advisor. MR. GOLDSTONE: Yes. Your Honor, one other thing I’ve noticed on the Feretta waiver. I have a copy here. THE COURT: Okay. MR. GOLDSTONE: I noticed that there was nothing about mandatory payment of the fine into the Victims of Crime Compensation Fund. And I know we had discussed that with the defendants and I think maybe it should be orally added to this motion. THE COURT: That’s fine. It’s not considered a fine, which is why – it’s sort of – it’s collectible as a fine. MR. GOLDSTONE: The defendants consider it a fine. THE COURT: Right. But it’s considered “court costs” but is a mandatory $50.00. I’m going to do – have those persons signed – executed? MR. GOLDSTONE: Yes. I’ll collect the documents, Your Honor. THE COURT: Okay. Because I want to do an oral inquiry as well, with respect to each defendants. I know you have timing problems. When do you have to leave by? MS. KRAUT: 3:29. I’ll know by noon, if that’s an absolute. MR. GOLDSTONE: Your Honor, apparently Ms. peck does not – did not receive a document. THE COURT: We’ll have her execute one. MR. GOLDSTONE: Your Honor, I’m informed that Ms. Peck has already filed a motion for pro se with the court at pretrial. THE COURT: Right. I understand we have motions. We also need waivers on this. We’ll get it signed. MS. KRAUT: Your Honor, there was one other thing. I have filed a motion to withdraw from Ms. Streit’s representation, and that was pending. I think you just wanted to wait until today, I believe, to rule on that. THE COURT: Yes. What I’m going to do, once I take the Feretta waiver, then I’ll grant those motions. Okay. When I call your name, if you could just identify yourself. Arthur Laffin. Mr. Laffin? DEFENDANT: Good morning, Judge. THE COURT: Sarah Peck, Ms. Peck. DEFENDANT> Yes. THE COURT: William Streit. DEFENDANT: Yes. THE COURT: Lorig Chark – DEFENDANT: Charkoudian, Your Honor. THE COURT: Charkoudian. Richard Halperin. DEFENDANT: Good morning. THE COURT: Marietta Jaeger? DEFENDANT: Jaeger. Hi. THE COURT: Phyllis Pautrat. DEFENDANT: Pautrat, yes. THE COURT: And Jeremy Scahill. I understand that each of you wish to undertake your own representation and waive your right to be represented by a lawyer. Ladies and gentlemen, I’m going to advice you as to your rights concerning your right to be represented by a lawyer. I hate to do group activities, it’s just a little more efficient this way. After which I’m going to ask each of you if you understand your rights and whether or not you wish to proceed in the pro se fashion. And I will have to get an affirmative answer on the record with respect to each of you. I know each of you have signed a written waiver of your right to proceed by counsel. But as I indicated in the written waiver, if you cannot afford a lawyer, a lawyer, a lawyer will be appointed for you. Your lawyer would be able to make motions, make arguments and make objections on your behalf. In addition, a lawyer would be able to examine and cross-examine any witness who may testify. Your lawyer who is knowledgeable in both the law, rules of procedure and evidence, would be able to advance any argument on your behalf. You understand that each of you is subject to an incarceration of up to 60 days, a fine of $100.00, and if convinced, each would be required to pay a contribution, a mandatory contribution which I cannot waive as the Court, $50.00 to the Violent Crime Victims’ Fund. It’s a contribution that compensates persons who are victims of violent crimes through the court procedure. If you decide to represent yourself, you have to represent yourself in accordance with the rules and procedures of the Court. It would be my responsibility to rule on any objections, but it would be your responsibility to make what other objections you deem appropriate. You understand that it’s the government’s burden to prove you guilty beyond a reasonable doubt. As your own attorney, you would be able to make an opening statement, if you wish, examine any witness who you may wish to call, subpoena any witness, cross-examine any of the government’s witnesses, make a closing argument, as well as testify on your own behalf. If you decided not to testify, if wouldn’t be held against you since you are presumed to be innocent. It is the government’s burden to prove you guilty. But you will be bound to know and understand the Rules of the Court and the Rules of Evidence. And I won’t treat you differently than a lawyer would be treated differently. I’m going to ask with respect to each of you whether or not you understand the rights that I have indicated and whether or not you wish to waive your right to proceed pro se. If you answer yes to all three questions, please answer yes. If you disagree with any of those questions, please answer no. Mr. Laffin, do you wish to waive your right to an attorney? DEFENDANT LAFFIN: Yes. THE COURT; Ms. Peck, do you wish to have an Attorney-Advisor appointed? DEFENDANT PECK: Yes. THE COURT: But do you wish to waive your right to an attorney at this point and proceed pro se? DEFENDANT PECK: Yes. THE COURT: Okay. Mr. Streit? DEFENDANT STREIT: Yes. THE COURT: Mr. Charkoudian? DEFENDNT CHARKOUDIAN: Ms. Charkoudian. THE COURT: Miss, I’m sorry. Mr. Halperin? DEFENDANT HALPERIN: Yes. THE COURT: Ms. Jaeger? DEFENDANT JAEGER: Yes. THE COURT: Ms. Pautrat? DEFENDANT PAUTRAT: yes. THE COURT: And Mr. Scahill? DEFENDANT SCAHILL: THE COURT: Okay. With respect to each of you, you’ve indicated – you have a form indicating your rights to be represented by a lawyer and your desire to proceed, pro se. Did each of you read and understand the form and is that your signature on the form? Mr. Laffin? DEFENDANT LAFFIN: Yes. THE COURT: Ms. Peck? DEFENDANT PECK: Yes. THE COURT: Mr. Streit? DEFENDANT STREIT: Yes. THE COURT: Ms. Charkoudian? DEFENDANT CHARKOUDIAN: Yes. THE COURT: Mr. Halperin? DEFENDANT HALPERIN: Yes. THE COURT: Ms. Jaeger? DEFENDANT JAEGER: I send in something beforehand. THE COURT: Oh, yes. Ms. Pautrat? DEFENDANT PAURTRAT: Likewise, I mailed it in. THE COURT: Okay. And, Mr. Scahill? DEFENDANT SCAHILL: Yes. THE COURT: Okay. With respect to each of these defendants, I’m going to decide that each one has voluntarily and intentionally and knowingly waived their right to be represented by an attorney in this matter. I will allow them to proceed pro se. I will appoint Mr. Goldstone as Attorney-Advisor for Ms. Peck. MR. GOLDSTONE: Thank you, Your Honor. THE COURT: Any other matter on that? MR. GOLDSTONE: Not with respect to that, Your Honor. But I would like a Rule 44 Fitzgerald inquiry with respect to joint representation of the individuals that I’m representing. THE COURT: Okay. MR. GOLDSTONE: I could do that, Your Honor. THE COURT: That’s fine. MR. GOLDSTONE: Your Honor, I’m asking that the defendants I’m personally representing, to give a waiver under Rule 44(b) which basically states that whenever two or more defendants are joined for trial and are represented by the same attorney, that there shall be an inquiry with respect to the joint representation and that each person shall individually indicate that they are waiving their rights to individualized counsel. The reason for the rule, of course, is that there may be a conflict of either testimony or evidence, and we would ask that the Court individually ask each individual who I’m representing, whether or not they agree to waive their right to individualized counsel. THE COURT: Okay. And at this point that’s Mr. Gibson, Ms. Peck, I’ll ask, Mr. Byrne, Mr. Holtshopple, Mr. Muther, Mr. Pelke, is that correct, those are the – MR. GOLDSTONE: Ms. Peck and also Mr. Rosenberg were not listed. THE COURT: Correct. Well, I can’t ask him The persons I have just identified who are clients of Mr. Goldstone, with respect to each of you, I’m going to ask you whether you understand your right to be represented by an independent attorney other than Mr. Goldstone, which I will appoint in the event you cannot afford an attorney and whether you are waiving your right and agreeing to be represented by Mr. Goldstone. Mr. Gibson – Ms. Gibson, I’m sorry, do you agree to be represented by Mr. Goldstone, do you understand your right to be represented by another attorney? DEFENDANT GIBSON: Yes. THE COURT: Ms. Peck, as an Attorney-Advisor, do you accept Mr. Goldstone? DEFENDANT PECK: Yes. THE COURT: Mr. Rosenberg – Mr. Byrne. DEFENDANT BYRNE: Yes. THE COURT: And do you agree to be represented by Mr. Goldstone? DEFENDANT BYRNE: Yes, I do. THE COURT: Mr. Holtshopple? DEFENDANT HOLTSHOPPLE: Yes, sir. THE COURT: Do you agree to be represented by Mr. Goldstone? DEFENDANT HOLTSHOPPLE: Yes, I do. THE COURT: Mr. Muther? DEFENDANT MUTHER: Yes, Your Honor. THE COURT: Okay. Mr. Pelke? DEFENDANT PELKE: Yes, Your Honor. THE COURT: Okay. Ms. Kraut, you have one client, right? MS. KRAUT: I have one client, Your Honor, Mr. Bonowitz. THE COURT: Okay. MS. KRAUT: And I have that pending motion on Mr. Streit. THE COURT: Right. At this time I’m going to work the motion to withdraw Ms. Kraut in representing Mr. Streit. MS. KRAUT: Thank you. THE COURT: Okay. What other preliminary matters do we have from the government’s point of view? MR. MARCUS: Your Honor, there are a number of – not too many, but there are a number of preliminary matters that need to be addressed. THE COURT: Okay. MR. MARCUS: In no particular order. The issue of the stipulations as to the identification of the defendants. I believe the status of things is that seven or eight have – we have a proposed stipulation with respect to seven or eight defendants, and I would like to know what the position is with respect to the other remaining defendants. Also there would be proposed stipulations with respect to the authenticity of the videotape that we would like to show the Court of the demonstration that’s being charged in this case. If we don’t have to put on the videographers, your Honor, it’s going to streamline this case quite a bit. We will only have to have one officer testify with respect to what’s going on the video. We also have a banner, Your Honor, which we want to introduce the evidence. We just want to make sure that if there’s an issue with respect to chain of custody, we find that out right not and not have to deal with that issue as the case is going forward. There is also coming called Title 40 cards. Your Honor, there were – that the officers handed out, it will be seen on the video, handed out to the defendants. It just said what their warnings actually were that they were getting orally. We don’t have the originals, because they were given to the defendants. I did call counsel and asked if the defendants had them still, if they would bring them to Court. If they did not do so or don’t have them still, if they would bring them to Court. If they did not do so or don’t have them, we would ask that the Court preliminary rule that we would not have a problem getting the duplicates, because there are standard issued cards. They’re just straight duplicates. Nothing else individually written on any cards. So we ask that – THE COURT: You’re offering the duplicates as a similar to the cards that were given them? MR. MARCUS: Yes. THE COURT: Seems to me, if you authenticate in that manner, they come in. MR. MARCUS: Thank you. Okay. THE COURT: Unless I hear a different objection. MR. MARCUS: Court’s indulgence. (Pause.) We’ve talked to Mr. Hankerson about the television and VCR. We are going to set that up. I don’t think there’s a problem with that. THE COURT: Right. MR. MARCUS: We would, at some point, discuss the subpoena issue with respect to Toni House, the Public Information Officer at the U.S. Supreme Court. And that, I think, we would be all the preliminary matters that the government would have. THE COURT: Maybe I don’t understand the last issue. What’s – I don’t – MR. MARCUS: On the 20th of June, a subpoena was issued, was faxed over to the Toni House, who is the Public Information Office Director of the United States Supreme Court. MS. KRAUT: Excuse me. Faxed? By us? THE COURT: Let’s just – okay, let me get the representation that you have. MR. MARCUS: The verb I used may be incorrect. I got a fax. Anyway, this was served or faxed, or whatever, on Toni House, who is with the U.S. Supreme Court. And it asked for ten years worth of records related to activities, demonstration-type activities on the plaza or grounds of the U.S. Court. THE COURT: Correct. MR. MARCUS: My copy, the copy I received, was June 20th. I’m not exactly sure what the date of the subpoena is. I’ll take a quick look at it. Yes, June 11th is the date of the subpoena. In any event, there was some – it caused quite a bit of furor over there, as can be imagined. This is the busiest time of the year for the United States Supreme Court. In any even, Toni House, her job is basically to be an interface between the Court and the press with respect to opinions and pending cases. So the subpoena was actually served on the wrong person. It took us a while to figure that out, because of the cross opinions going on both at their offices, as well as over here. But when counsel became aware that she was the wrong person to be served, I immediately called Nina Kraut who served the subpoena and explained to her that she, in fact, was the wrong person, and that the right party for the records would have been the U.S. Marshal. So we do have issues with respect to the subpoena outside of the fact that it wasn’t served to the proper person. And I am saying, I would like to say that Toni House is available to come into court and say, I don’t have a document responsive. We’re not trying to – THE COURT: No, I appreciate that. MR. MARCUS: So, if that’s required we can do so and we would just ask to have a little bit of time to get her in here today. But in any event, we have some issues on the merits of the subpoena. And at this time, considering the lateness of when the subpoena was filed, we would move to quash it on behalf of the United States, because it’s unduly burdensome, it’s oppressive. In compliance with it, it would just be unreasonable, Your Honor, to ask for ten years worth of records that require a good number of the U.S. Marshal – of the Supreme Court Marshal Service – THE COURT: Right. MR. MARCUS: - to go through an awful lot of records and really spend an awful lot of time. And on its face, it really does not appear to be really tied to the facts of this case and what the burden of proof of the government is going to be. And we would ask that it be quashed. If there’s an issue raised with respect to the timeliness of our motion to quash, I refer the Court to the remarks I’ve already made. And I would also state that in filing it so late, the Government’s response cannot – should not be any more than median than the circumstances that would appear to bother the defendant in filing. Under the circumstances, we feel that our response in moving to quash is prompt, and we would ask the Court to grant the motion to quash. THE COURT: Well, Ms. Kraut? MS. KRAUT: Your Honor, where to begin here. As far as the – THE COURT: It’s a motion to quash, an oral motion to quash. MS. KRAUT: The subpoena was actually served by a person who is authorized to serve the subpoena on the 11th, although it could have been served on the 10th, had the person who was authorized to accept service who was the Supreme Court Legal Counsels Office, Mary Jane Willis I think or Mary Ann Willis is her name. I have been in contact with her even several days before that. And she informed me that I could serve the subpoena on her. I called her on Monday, or whatever day it was – the 10th, I believe it was – and then she said she was not, or somebody in her office, somebody named Christine, or somebody named – her assistant Jane Pertobsible, I think she is, said she was not available to receive the subpoena Monday afternoon when my process server was available. And so we agreed that she would be served to whatever the next day was. THE COURT: All right. That’s fine. MS. KRAUT: So I don’t think there’s any problem with timeliness. I don’t recall what the rule is, but at least ten days, I think. And this was served on the 11th. And today’s the 26th, so it’s far in excess of – THE COURT: I understand your subpoena. Could I see the subpoena, please? MS. KRAUT: Yes. Your Honor, it requests a bunch of documents, and I’ll make at some point a – if I could, an ex-parte representation as to what I think Ms. House’s testimony will be and why it’s relevant. I don’t want to do that in open court, at least initially, if the court thinks I should, I will, but I’d rather not, since I – THE COURT: Is this in support of your motion to dismiss? MS. KRAUT: Yes, it is, Your Honor. THE COURT: All right. MR. MARCUS: May the government respond briefly, Your Honor. MS. KRAUT: I’m not finished. THE COURT: I’m not going back and forth. It’s not that I’m going to cut you off, but I’m not for the Court Reporter’s sake, going back and forth, it’s a lot more confusing. Okay. Well, if it’s with respect to the motion to dismiss. MR. MARCUS: Yes, Your Honor. MS. KRAUT: And she’s on call, by the way. I’m not asking her to sit in some anteroom. THE COURT: No, no. I understand. Let me just – if it’s with respect to the motion to dismiss, it does seem to me that it’s not appropriate to have an ex-parte presentation, since it’s a legal motion, goes to constitutional issues. MS. KRAUT: Okay. All right. THE COURT: So I’ll ask you to make a proffer at this point. MS. KRAUT: May I do that? THE COURT: Yes. MS. KRAUT: Mrs. House, with whom I have had much contact over the years in various relationships, various cases where activity took place on the Supreme Court steps or plaza, or wherever, sidewalks, and so on, she has been the contact person with First Amendment related activity. She has always been the contact person. These people with whom – who I have represented or with whom I have spoken on behalf of, you know, various groups, I have never been told to go talk to the police. I have never been told to go talk to some marshal. I have never been told to go to talk to anybody. It’s always been Mrs. House’s responsibility and role to discuss anything related to activity, which takes place on the Supreme Court grounds. In addition – THE COURT: Let me just ask you a question to clarify in my own mind. Is this a – was this a subpoena served on Ms. House, to personally appear, or as a custodian of records? MS. KRAUT: To personally appear. THE COURT: Okay. And she’s not a – I don’t know whether she’s a custodian or not. I assume she has records of some sort in her office, that everything isn’t don’t just by word of mouth, and that she makes some sort of notations. Okay. Let me just – MS. KRAUT: So that she’s not – THE COURT: Let me just ask you to make a proffer with respect to her personal presentation. MS. KRAUT: Okay. That’s what I’m doing. THE COURT: And then a second proffer. MS. KRAUT: That’s what I’m doing, Your Honor. THE COURT: Okay. MS. KRAUT: On the 26th of March of this year, in relation to this case, I called, among other people, I called Mrs. House an I had a conversation with her. And I had contemporaneous or nearly contemporaneous notes of that conversation, in which she stated – I asked her specifically, because I was really sort of honing in at that point on how come the press is allowed to demonstrate on that plaza or express their personal views and how come there are press conferences there where lawyers can express their views and so on, and how come people like the defendants here can’t. And Mrs. House said, well, she makes the decision about who – about when the press conferences can take place, and that sort of thing. I said, well, are there any written standards or regulations? She said, no. I said, well, who? She said, “I’m the one who decides.” So it’s a very – that was my conversation with her, and I have notes of that conversation. THE COURT: Right. That’s in your motion. Let me – can I just stop you right there? MS. KRAUT: Okay. THE COURT: Let me ask the Government, what – why isn’t that testimony relevant to the motion to dismiss as asserted by the defendants, the Supreme Court’s access of other person’s engaging in First Amendment activities as allowed by Ms. House? MR. MARCUS: Sir, the subpoena duces tekum is for the motion and not for the trial of this matter. THE COURT: That’s what I just clarified with counsel. First of all, it’s not a subpoena duces tekum, it’s a subpoena on Ms. House personally, and in addition to bringing records, it’s being offered on the motion to dismiss, and I’m asking the government why isn’t her testimony as proffered by counsel, relevant to the motion to dismiss? MR. MARCUS: Well, I think, Your Honor – I believe, if I understand their motion to dismiss, they are trying to say that this plaza area or the area in question here, is the designated public forum, or in some way is now public forum because of actions or activities created by the United States Supreme Court. THE COURT: Right. MR. MARCUS: We would argue, first of all, Your Honor, that there’s no – that they should have been able to make some kind of proffer to their motion dismiss to support that. THE COURT: They did. MR. MARCUS: They have made some bland, some sort of blanket allegations about what some court’s law is now doing. The fact of the matter is, they don’t know that. I cannot disagree with what counsel has said, what substances of the conversations she had with Toni House, because I wasn’t available. But I can tell you that in my conversation with Mary Ann Willis, who is the General Counsel of the Supreme Court, that nothing of the kind is what they are thinking of. She knows – she was in contact with Toni House. There was some discussion about – there was discussion about the subpoena between Ms. Kraut and Toni House, but I don’t think Ms. House knew what the substance of the subpoena was going to be. So she may have said, yes, go on and serve me with that. I think that that had to have happened. But then she was surprised about what it asked for, because that, in fact, isn’t what she said. THE COURT: Okay. Can I just – I have to get counsel focused on sort of step-by-step to go into it. You’re talking about the production of documents? MR. MARCUS: Sure. THE COURT: I’m talking about a subpoena to require Ms. House to testify as proffered by Ms. Kraut. Why isn’t that testimony relevant. Please, let me hear your remarks on that. MR. MARCUS: I don’t have any problem with the defendants putting on a case. And if Ms. House is germane to that case, I don’t have a problem with that. So I will separate that issue of her testimony at trial from the documents issue, as the Court has done. THE COURT: Okay. MR. MARCUS: And not contest that aspect. THE COURT: Fine. With respect to the motion to quash the subpoena on Ms. House personally to testify it will be denied. She will be required to testify on the motion as proffered by the defense. Now, can I hear your proffer on the production of the documents. MS. KRAUT: Your Honor, again, I have had, I think the Court knows, a lot of experience in representing people who have been engaged in First Amendment related activity in the grounds of the Supreme Court, such as Eichman vs. the United States. And I have had in relation to that representation, lots of contacts with Mrs. House in her capacity as the head of the Press Office up there. It has always been my understanding that she was the person to whom any application of any kind dealing with press applications, moving applications, protest applications, or clarifications about what people’s rights are, and all that sort of thing. But she was always the person who gave out that information and who allowed people to engage in this kind of activity. THE COURT: Uh-huh. MS. KRAUT: I can’t – I do not know for a fact, I have never examined her office, so I don’t know if she has 20 file cabinets or no file cabinets, or a computer, you know, filled with games or a computer filled with, you know, applications. But it’s my understanding that – and also, by the way, I spoke with two or three – I can’t remember how many members of the press also around March 26th of this year in relation to this case – that applications are made to Toni House for press activity. THE COURT: Uh-huh. MS. KRAUT: And given that, I have to assume being a businessperson myself, that you keep some kind of records in the office about applications and/or granting it or something along that line. And that’s why I made a subpoena duces tekum. THE COURT: No, I understand your reasoning. Okay. This is how I think I will handle the issue at this point, Mr. Marcus. I do see a distinction at this point between the personal testimony of Ms. House as a witness to events and sort of the broad range and request for documents. I’ll take the motion to quash the subpoena duces taken under advisement until I hear from Ms. House or additional witnesses about whether or not any documents exist, the extent to which they do exist, and sort of the nature of those documents, to determine whether it’s going to be relevant to the motion to dismiss. So it will be a two-step. It may, in fact, be that based on your examination of Ms. House or other witnesses, we can identify regulations, applications, constructions, or something which – MS. KRAUT: Will satisfy my request. THE COURT: Right. In general, a general production to the, you know, just sort of to Rule 34 production of documents, I don’t think is appropriate at this time, but I’ll take it under advisement. MS. KRAUT: Your Honor, I have also prepared and have another subpoena here. And Mr. Marcus called me yesterday to tell me he was going to object to, you know, Ms. House and so on, coming in. He mentioned that he wanted to call me beforehand because he was acting in good faith. And I would like you to exercise that good faith by informing me or just simply letting us know, or asking the person who is in charge of some of those documents, if we do need them, to be on call and prepared to come in. THE COURT: Right. At this – MS. KRAUT: It’s playing games to avoid subpoenas and all this. THE COURT: Right. I don’t think we’re going to have a problem. What I would like to do is hear the testimony. It may be specific portions of the duces tekum will become readily apparent to b relevant to both the defense and the prosecution. It may be that you may wish to introduce documents, I have no idea, on the motion to dismiss. So I’m assuming the details of this can be worked out. MR. MARCUS: I would like to add, Your Honor, one small logistical problem for Ms. House, this I saw the busiest time of the year for the Supreme Court, as this Court I’m sure is well aware. THE COURT: I understand. MR. MARCUS: And I have placed a call in, and she is going to come. I just ask that some leeway be given – THE COURT: I understand the realities, but I do have a criminal trial and it’s important to the people on trial. MR. MARCUS: All right. But she’s been called in for the defense case-in-chief, is that correct? MS. KRAUT: No. She’s been called in – THE COURT: No. As I understand – the way – we’ve got to be clear for the Court Reporter here. The way I plan on proceeding is litigating the motion to dismiss first and resolving the matter, unless I hear something differently from the parties. MS. KRAUT: Your Honor, I know that these defendants want to get going and testify, and all that sort of thing. And I know that some of them want to actually opt out of this motion to dismiss. I don’t mind doing the motion to dismiss, you know, five months from now. I mean, I don’t really care when I do it, to tell you the truth – THE COURT: What’s the government’s position? MS. KRAUT: And then, you know, if the Court wants to sort of refer back to it and grant it and then, you know, vacate their guilty pleas, whatever. I mean, I don’t know how they want to proceed or how the other defendants want to proceed. But I know they are very anxious to get through trial now. THE COURT: Uh-huh. How does the Government wish to proceed? MR. MARCUS: Well, Your Honor, I know it’s a dicey situation. It was the government’s understanding actually that the ruling in the hearing – with the hearing would be combined with the trial, and that the Court would ultimately rule on it. Maybe the government misunderstood when we had all that. THE COURT: No, that is – that was not an inappropriate misunderstanding. As long as the government understands that – well, I guess you could appeal my decision under Walls, if I grant the motion to dismiss, but it would certainly terminate the prosecution, but – MR. MARCUS: It would, indeed. THE COURT: As long as the government is willing to accept that, that’s fine. We’ll combine it and we’ll litigate it all into one. MR. MARCUS: Actually, Your Honor, it’s in the government’s – I think it’s in the government’s best interest to go ahead and have a ruling on the motion, because it would save an awful lot of time for an awful lot of people. THE COURT: If I deny the motions, we’re just going to go forward. MS. KRAUT: Right. MR. MARCUS: That’s been set up. THE COURT: We’re going to combine the motion and the trial, unless I hear objection from either side. MS. KRAUT: Al right. Your Honor, there is also a second motion pending. THE COURT: Right. I understand that. I’m hearing no objection from either side? MR. MARCUS: One moment, Your Honor, please. THE COURT: Uh-huh. MS. KRAUT: The pro se defendants should get up – THE COURT: Hold on one second. I’m just dealing with the attorneys, then I’m going to go through each pro se defendant and allow you to speak your piece. I know it seems sort of – I’m trying to get the clutter out of the way here. MR. MARCUS: Your Honor, I think it’s in the government’s best interest to have the motion actually litigated and ruled on before proceeding to trial, so that we would not want them combined. THE COURT: Okay. Let me, with respect to – MS. KRAUT: Well, Your Honor, it’s our motion, not theirs. So if there’s a consensus among the defendants to have it all combined, it would seem to me that, since it’s our motion, we should be able to – THE COURT: The problem is, if I grant the motion in the course of the trial, then the government does not get to appeal the motion. It seems to me, if I grant the motion, the government, the government has an interest in having my decision reviewed, as opposed to – First of all, with respect to the pro se defendants, does everybody understand what we’re talking about? A DEFENDANT: Not completely. THE COURT: You have to identify yourself. DEFENDANT STREIT: Streit. THE COURT: Mr. Streit, essentially, the way a criminal trial operates is that motions to dismiss if filed by the defendants are litigated prior to trial. A ruling is made on the motion to dismiss. If it’s granted, the case is dismissed. If it’s not granted, the case goes forward and we go to trial. That’s the way I would normally take a criminal trial. A motion to dismiss has been filed on behalf of Mr. Bonowitz. And my inclination would be to go forward with that motion and hear testimony on that motion and make a decision on that motion. First of all, with respect to your clients, Mr. Goldstone, are you joining in the motion of Mr. Bonowitz? MR. GOLDSTONE: Yes. Mark Goldstone for several of the defendants will be joining in the motion. THE COURT: So, Ms. Gibson – MR. GOLDSTONE: I can give you the list, Your Honor. THE COURT: Yes. MR. GOLDSTONE: Ms. Gibson, Mr. Byrne, Mr. Holtshopple, Mr. Muther, Ms. Peck, Mr. Pelke, Mr. Rosenberg. THE COURT: Who all will be joining in the motion to dismiss? MR. GOLDSTONE: Joining in the motion to dismiss. THE COURT: Okay, with respect to Mr. Laffin, do you wish to join in the motion to dismiss? DEFENDANT LAFFIN: No. THE COURT: Okay. With respect to Ms. Peck, do you wish to join in the motion to dismiss: DEFENDANT PECK: Yes, sir. THE COURT: With respect to Mr. Streit? DEFENDANT STREIT: No. THE COURT: With respect to Ms. Charkoudian? DEFENDANT CHARKOUDIAN: No. THE COURT: With respect to Mr. Halperin? DEFENDANT HALPERIN: No, I do not. THE COURT: With respect o Ms. Jaeger? DEFENDANT JAERGER: No, I’m opting out. THE COURT: And with respect to Ms. Pautrat? DEFENDANT PAUTRAT: No. THE COURT: Okay, so what’s the government’s position – Yes, sir, I’m sorry? DEFENDANT SCAHILL: I don’t want to – THE COURT: : What’s your name, sir? DEFENDANT SCAHILL: Jeremy Scahill. THE COURT: I’m sorry. Mr. Scahill, you’re on the second page here. In light of that, I’m going to give you two options. You can decide on which options you wish to pursue, and then I will hear you on it. My inclination at this point would be to sever those persons who do not wish to join in the motion to dismiss, have the trial on those cases, after which we would litigate the motion to dismiss on the remaining defendants. MR. MARCUS: And what’s the head count on the defendants who are pursuing the motion to dismiss? THE COURT: We have seven defendants who are not pursuing the motion to dismiss. MR. MARCUS: All right. THE COURT: It seems to me, they have the right to have their trial adjudicated in a prompt manner. Then we will litigate the motion to dismiss. DEFENDANT PECK: Your Honor? THE COURT: What’s your name, ma’am? DEFENDANT PECK: Sarah Peck. I would like to opt out of the motion. THE COURT: Yes, ma’am. That would make eight. So, if you wish to – I’m not saying it’s always the government’s call, but I would like the government’s position of whether you want a unified proceeding, or do you want to litigate the case three times? MR. MARCUS: Under the circumstances, we will unify – we would recommend the proceedings be unified, Your Honor. THE COURT: All right. We will have a unified proceeding at this point. We will litigate the motion to dismiss and the trial at the same time. Ladies and gentlemen, with respect to the pro se defendants, this is now a unified proceeding. With respect to those defendants who wish not to join in the motion to dismiss, since it’s unified, at this point does any defendant wish to change his mind and join in the motion to dismiss? Hearing no response. Okay. Could I hear the government’s position with respect to the defendant’s motion, DEFENDANT BONOWITZ’ motion to dismiss on duplicitous grounds? MR. MARCUS: Your Honor, first of all, the government got this morning, was unaware of it, completely unaware of it up until this point. I don’t know if messages were left for me, but I tried to check and I don’t recall if we were even advised of this. But on its face, if I have to respond to it right now, Your Honor? THE COURT: Let’s assume you do. MR. MARCUS: Of course, the government would like to have the opportunity to – THE COURT: It’s a fairly straightforward issue. You’re joining both clauses. As I understand it, if you made it in the disjunctive it would not be a motion to dismiss on duplicitous grounds. Is that correct, Ms. Kraut? MS. KRAUT: Actually, Your Honor, there are a bunch of cases that state that if it’s conjunctive, then a motion to dismiss on duplicitous grounds would not be granted. However, there are some situations, such as the Bradford case, where, because there are two separate offenses charged within the same count, within the same count – THE COURT: I actually listened – MS. KRAUT: Yes, I know – THE COURT: No, no. I actually listened to you. MS. KRAUT: All right. Because there are two separate offenses, such as in the Bradford case, when there are two separate offenses in the same count, then even though it may be conjunctive in the same count, in other words charges are conjunctive and in the same count a duplicitous motion under those circumstances would be granted. It’s kind of a mixed bag there. THE COURT: Yes. MS. KRAUT: I think the “or” would mean that it would almost automatically be granted. If it were “or”, a disjunctive used. THE COURT: Okay. MS. KRAUT: But it’s my argument that because there are two offenses charged within 13(k) as recognized under Grayson – THE COURT: Right. MS. KRAUT: And a bunch of other cases, that therefore, it must be granted. THE COURT: Okay. So the alternative for the government would be to amend the information charging two counts, Count A and Count B. MS. KRAUT: They could do that. And I would bring to the Court’s attention to the fact in the government’s motion – response to our First Amendment motion, they suddenly for the first time, got a little more definite about what the defendants in this case are being charged with. And they claim now that they are being charged with the first clause, rather than the second. And even so, that Mr. Marcus’ untimely argument does not exactly, you know, just say ingenuous. But – so I – so, my – my argument basically is that the government is now – claims in their motion, in their response to the motion, that it’s only the first clause they are being charged with. But that’s not an information, Your Honor. And, therefore, that doesn’t count, it’s not a charging document. THE COURT: I just say in general, I think questions about multiplicity or duplicity are actually much more important in jury trials, where you get sort of questions of unanimity. But when you have a judge trial – MS. KRAUT: Except for the issue of double jeopardy, Your Honor. THE COURT: Right. I understand that. MS. KRAUT: And preparation. THE COURT: Well, what is the government’s theory of prosecution with regard to Mr. Bonowitz on motion to dismiss. Is it – MR. MARCUS: The theory of the prosecution, Your Honor, is the – THE COURT: Parading and assemblage or flags and banners. MR. MARCUS: Well, it’s both, Your Honor, because their conduct fits both, and that’s what the information actually says. THE COURT: I see. Okay. MR. MARCUS: And if I may expound a little on my remarks. THE COURT: No. I think I understand. The motion to dismiss will be denied. MR. MARCUS: Thank you, Your Honor. THE COURT: Mr. Goldstone, are you joining in the motion to dismiss on behalf of your clients on duplicity grounds? MR. GOLDSTONE: Yes, Your Honor. THE COURT: Okay. With respect to all pro se defendants, I’m going to ask if you – I have denied the motion to dismiss on duplicity grounds – I’m going to ask if you join in that motion. Mr. Laffin, do you join in that motion? DEFENDANT LAFFIN: I’m not clear on what – which – THE COURT: It’s a legal motion that’s been filed by Mr. Bonowitz, Ms. Kraut filed, having to do with the tactical nature of the charges which I’ve just denied. I’m just asking if you’re joining in that motion? DEFENDANT LAFFIN: I opted out of the original motions. THE COURT: So you’re not joining in this motion? DEFENDANT LAFFIN: No. THE COURT: Ms. Peck? DEFENDANT PECK: No. THE COURT: Mr. Streit? DEFENDANT STREIT: No, I don’t want anything to do with this. THE COURT: Ms. Charkoudian? DEFENDANT CHARKOUDIAN: No. THE COURT: Mr. Halperin? DEFENDANT HALPERIN: No. THE COURT: : Ms. Jaeger – Ms. Jaeger? DEFENDANT JAEGER? No. THE COURT: Ms. Pautrat? DEFENDANT PAUTRAT: No. THE COURT: And Mr. Scahill? DEFENDANT SCAHILL: No. THE COURT: At some point we actually start litigating, okay? Anything else we have to deal with? MS. KRAUT: No, Your Honor. MR. MARCUS: On your list the government – THE COURT: Right. I’m going to go over that. Authenticity of the video, Mr. Goldstone? MS. KRAUT: Can we have some assurance that this is not edited, that this is the only tape that – I mean, and it hasn’t been edited in any way. THE COURT: Okay. I’m going to tell you what I’m going to do. I’m going to take a five-minute break now. I’m going to ask the government to meet with Mr. Goldstone, Ms. Kraut and the pro se defendants to explain your requests or stipulations, your request for authenticity and any other requests you have, and see if you can resolve it among yourself. The pro se defendants, I’m just going to ask you – you’re not required - to meet with the government, discuss with them certain evidentiary matters which the government is seeking in terms of stipulation, to shorten the proceeding and streamline the proceeding, to allow the government to proceed with physical evidence without requiring certain witnesses to testify with regard to the authenticity of those items, in the event the authenticity is not disputed. So with respect to all the pro se defendants, I’m going to ask you to meet with Mr. Goldstone, Ms. Kraut and the government to discuss those evidentiary matters, see if we can streamline the case. If you have an objection, I’ll hear your objection. Okay. Anything else we can discuss before I give you a break? MR. MARCUS: Where do you want us to meet, Your Honor, meet right here or will you be handling other matters? THE COURT: I’m going to have one other matter to call and then I’ll take a break and you can physically set up anywhere. Any other matters, Mr. Marcus? MR. MARCUS: No, we said everything we want to say. THE COURT: Okay. MR. MARCUS: Thank you, Your Honor. (Recess at 11:15 a.m.) (Resumed at 11:25 a.m.) THE DEPUTY CLERK: With regards to cases M-822-97 through M-839-97 minus M-825, 828 and 833-97. THE COURT: Where are we? MR. GOLDSTONE: Your Honor we have entered into some pretrial stipulations. THE COURT: Okay. MR. GOLDSTONE: We have a stipulation as to identification only, that the government and we have agreed to – MS. KRAUT: For only some of the defendants, but not all of them. Mr. Bonowitz does not stipulate to the identification. THE COURT: Okay. Hold on. With respect to all defendants, other than Mr. Bonowitz are you proffering that there’s a stipulation with regard to the identification, that being the identification of those persons identified on the video or arrested, what’s the identification? MR. GOLDSTONE: We actually drafted some language, Your Honor. THE COURT: Okay. Could you read that into the record? MR. MARCUS: Your Honor, the proposed stipulation is that on January 17th, 1997, at approximately 10:00 o’clock a.m., defendant – add the name – was arrested by Supreme Court Police Officer – add the name – for holding the banner on the grounds of the Supreme Court. The banner stated, “Stop executions.” And the government would simply add, it is not conceding the issue with respect to the motion that was raised earlier today. Because the language says, Holding of a banner and we just don’t want it read as a concession of the government that the charging issue is now waived by the government. THE COURT: Right. I understand. Mr. Goldstone, on behalf of your clients, you’re entering into that stipulation with respect to each individual defendant? MR. GOLDSTONE: Yes, Your Honor THE COURT: Ladies and gentlemen, I’m going to ask all the pro se defendants whether they agree to this stipulation to your being one of the persons contained within the stipulation. Mr. Laffin, do you agree with the stipulation? DEFENDANT LAFFIN: Yes. THE COURT: Ms. Peck? DEFENDANT PECK: Yes. THE COURT: : Mr. Streit? DEFENDANT STREIT: Yes. THE COURT: Ms. Charkoudian? DEFENDANT CHARKOUDIAN: Yes. THE COURT: : Mr. Halperin? DEFENDANT HALPERIN: Your Honor, I have a point – question of clarification, if I may? Is this in relevance to the tape in question? THE COURT: This would be a stipulation of fact. If you agree to this, you will be agreeing to the facts contained in the stipulation. MS. KRAUT: And the facts, if I can read it to you again: On January 17th, 1997, at approximately 10:0 a.m., you were arrested by Supreme Court Officer, whatever the person’s name is, for holding a banner on the grounds of the Supreme Court. The banner stated, “Stop executions.” Each fact in there is something you need to decide whether you were there, holding the banner at approximately 10:00 a.m. on the grounds of the Supreme Court on January 17th, and the banner said, “Stop executions.” That is as far as identity is concerned. DEFENDANT HALPERIN: I want to be very precise in my understanding of this. If this is apart from the tap, then, yes, I will stipulate to that. I want to be clear that I have not seen any of the videotape in its entirety, and if it is germane that I have seen it, I can’t stipulate to it. THE COURT: Right. As I understand the stipulation as proffered to me, as a finder of fact, it makes no mention of the videotape. It’s a stipulation with respect to the facts contained in the stipulation. DEFENDANT HALPERIN: Then I will stipulate to it, under those circumstances. THE COURT: Thank you. Ms. Jaeger? DEFENDANT JAEGER: Yes, I do. THE COURT: Ms. Pautrat? DEFENDANT PAUTRAT: Yes. THE COURT: And Mr. Scahill? DEFENDANT SCAHILL: Yes. THE COURT: And on behalf of Mr. Bonowitz, there is no stipulation, correct? MS. KRAUT: Correct. Although, Your Honor, can I confer with him for just one second? THE COURT: Okay. (Pause.) Okay. Any other matters? MR. GOLDSTONE: Your Honor, with respect to the authenticity of the video tape, on behalf of my client, we stipulate to the authenticity of the video tape. MS. KRAUT: Your Honor, on behalf of Mr. Bonowitz, we are not stipulating. THE COURT: Okay. So you will need an authenticating witness. MR. MARCUS: And we have that person available. THE COURT: That’s fine. That’s no problem. MS. KRAUT: On the issue of the banner, as to the chain of custody, I believe everyone is amenable to stipulating to and not challenging the chain of custody. THE COURT: What I will do then is, I will just wait and when it’s moved into evidence, if there’s no objection, it will be admitted. MS. KRAUT: As to Title 40 cards, there is no stipulation as to whatever it was that we were supposed to do, stipulate or – we don’t – THE COURT: He’s not requesting a stipulation. MR. MARCUS: There was no request. MS. KRAUT: Okay. All right. THE COURT: Okay. At this point, what I’ll do, I’ll proceed with opening statements. I’ll hear from the government. Mr. Goldstone, Ms. Kraut, I’m just going to assume that you all can work out what order you want to go among yourselves. MR. GOLDSTONE: Yes, Your Honor. MS. KRAUT: Your Honor, I’m going to waive opening. THE COURT: That’s fine. Ladies and gentlemen, with respect of the pro se defendants, that way we’ll proceed is, I will accept an opening statement from Mr. Marcus. If Mr. Goldstone on behalf of his client wishes to make one, if Ms. Kraut wishes to make one, I’ll hear that. Then with respect to each pro se defendant, if you wish to make an opening statement, I’ll hear it at this time. An opening statement is an indication, it’s not testimony, just an indication of what you will expect the testimony to be. You’re not required to make an opening statement. If you do not wish to make an opening statement now and wish to make it at the beginning of the defense case, you may make an opening statement at that point, or you may waive an opening statement altogether. MS. KRAUT: Your Honor, if I might, one other thing? Mrs. House is back here. She’s here. I wonder if the Court would – THE COURT: Well, that’s – MS. KRAUT: I don’t know if we could do it now or you want to wait until after the arguments, or – THE COURT: Any objections to taking Mrs. House’s testimony out of order? MR. MARCUS: No. THE COURT: Any objection from anyone? DEFENDANT BONOWITZ? I just want to say that I have a hearing deficiency and I would ask people to use the microphones, so that there’s an amplification system. THE COURT: Sure. MS. KRAUT: Can I – THE COURT: That’s not amplification, that’s a recording. So let’s keep our voices up. MS. KRAUT: If I could get Mrs. House? THE COURT: Okay. At this time I’m going to invoke the rule on witnesses. Any and all witnesses in this matter please step out of the courtroom. (Pause.) To Index Thereupon,
DIRECT EXAMINATION
Q Would you please state your name? A My name is Toni, T-O-N-I House, H-O-U-S-E. Q And what do you do, Mrs. House, at work? A I am the Public Information Officer for the Supreme Court of the United States. Q And what does that mean – are you Director of than office? A That’s the same difference, yes. Q All right. How long have you been there at work? A Almost 15 years. Q In that position? A Yes. Q How big is your office, in terms of the number of people who work under you? A I have four people who work for me. Q Are they solely administrative staff, or are they other – in other words, are they secretaries or receptionists or do they do other things? A I have two professionals who are Assistant Public Information officers and two secretaries. Q And what are you – A And a summer intern at the moment. Q What are the names of your two Assistant Public Information Officers? A Kathleen L. Arberg, A-R-B-E-R-G, and Edward L. Turner. Q And how long have they been there? A Almost 15 years. Q All right. One big happy family. Do you keep records at all of any kind in relation to your job? A Can you be more specific? Q Well, let me do this first. What is the nature of your job? What do you actually do on a day-to-day basis or week-to-week? A We serve primarily as the liaison with the press corps. The court has what we might describe as a residential press corps. We have a pressroom next door adjacent to our office that we administer. We administer access to the courtroom, for the press section of the courtroom. We also assist the public with questions about the Supreme Court. We prove copies of the Court’s opinions and other information, lists of justices, various bits of history about the Court, various publications. Q Uh-huh. Let’s hone in here on the press, on your relationship with the press. When a member of the press wants to gain access, let’s say, to the inside of the courtroom of the Supreme Court – A Uh-huh. Q How does that member go about doing that? A A reporter would come to our office and present his or her credentials. As I’m sure you’re aware, in Washington there are any number of official credentialing organizations, Capitol Hill, the White House, the Metropolitan Police Department. The Supreme Court does actually – we have some few credentialed reporters on our own, but most people have, say, Capitol Hill credentials. They come, they show these credentials to us and we write them a pass to go into the press section of the courtroom. Q If somebody, let’s say from the Washington Post, wanted to gain access, let’s say a new reporter from the Washington Post wanted to gain access to the courtroom, how would they go about doing that? A As I said, they would present their credentials. Now, those instances – Q Let me interrupt you. When you say credentials, what do you mean by those credentials? They are not police, they are not Capitol Hill, they are Washington Post – A Oh. So you’re talking about someone who does not otherwise hold credentials? Q Well, I’m talking about a reporter – A Who does not otherwise hold credentials from the Metropolitan Police or Capitol Hill or the White House? Q Well, I don’t know what that means, so explain to us – A Are you talking a new – are you asking that a new reporter in Washington who otherwise does not have credentials from some other government organization and wants to come? Q Right. If somebody comes in – THE COURT: I think that is what she is saying. THE WITNESS: Okay.
DIRECT EXAMINATION CONTINUED
Q If somebody comes in from newspaper X which is located in Kansas City, Missouri – A Okay Q And he or she wants to come into the courthouse and is a legitimate reporter – A Uh-huh. Q - with that newspaper, how – what do they do in terms of – do they walk into your office and say, hello, Mrs. House, here is my press pass or my press identification card – A Uh-huh. f Q - I am now asking you to allow me to come into the Court; is that what happens? A As a rule, Ms. Kraut, people who are coming from a distance call me beforehand and so what we ask is that that person’s editor fax us a letter on the letterhead of the publication or the news organization requesting credentials. As a practical matter, if someone from the Kansas City Star was dispatched to cover the Court and there was no advance notice and that person could demonstrate that he or she was a reporter for the Kansas City Star, we would write the pass. Q What would it take for them to demonstrate that they – what is sufficient demonstration to you that would allow you or would trigger you allowing them to come into the courthouse? What would be sufficient? A We would want to see some sort of ID that indicated that person was an employee of the Kansas City Star or that that person was credentialed by the Kansas City Police, or something. Most reporters have some form of ID that identifies them as a member of the press and we would want to see that kind of identification. Q So, would just an identification card that says Mary Smith is a member – is a reporter with the Kansas City Star, would that identification alone be sufficient to satisfy your standards for allowing somebody to get in? A I’m sorry. You mean a press card that said, Reporter Kansas City Star? Q Right. With a picture on it, let’s say? A Probably. I can recall under circumstances what we have done is that we have actually asked that person to give us a phone number of the editor, and we place the call to Kansas City and ask if that person has been requested to cover the Court. Q All right. A If we have a doubt. Q All right. And do you have any written regulations or standards that control that aspect? A No. Q So, how – who determines who gets into the courtroom? A In the press section? Q In the press. That’s your job? A Yes. Q Okay Now, if they want to hold – if the press wants to hold a press conference outside on the plaza area of the Supreme Court and I don’t know whether we need to discuss what the plaza area consists of, but on that big flat area above the first few steps coming out the sidewalk on First Street, if the press wants to – well, first of all, are press conferences held on the plaza of the Supreme Court? A I think we are getting into some terminology here, Ms. Kraut. I think we would probably refer to it perhaps as an availability or perhaps even a stakeout, but, yes, the members of the press corps do talk to people in whom they are interested on the plaza under certain circumstances. Q What are those circumstances? A We require that those people be – Q Those people being? A The people who are subjects of the press inquiry be directly related to a case involving the Supreme Court, or under certain circumstances, it would be someone who is knowledgeable. For instance, Professor A. E. Dick Howard from the University of Virginia, if someone wanted to interview him in front of the Court on the Court’s Jurisprudence in the Second Amendment, we would permit that. Q So, the person being interviewed in the press conference on the plaza – A Uh-huh. Q - would have to be either directly like a – like the litigant? A The litigant or an arguing attorney or perhaps someone who is a friend of the Court, could file the amicus brief, that sort of thing. Q So, they would have to either be in that category or they would have to be under your – these standards are not also written down? A No. Q Okay. So, in your determination, if Professor Dick Howard – is it Mr. Dick – A It’s – It’s – Dick Howard’s fine, yes. Q Okay. If Professor Howard from the University of Virginia wanted to hold a press conference on the steps of the plaza, you would agree to agree to something – A I would seriously doubt that Professor Howard would want to hold a press conference. I’m afraid we’re getting into some terminology here, Ms. Kraut. Let me just say that if we’re talking about members of the press, as I said, talking to individuals in front of the – on the steps of the plaza of the Supreme court, it would have to be cleared through public information and it would have to have something specifically to do with the Supreme Court. Q All right. How would they clear it? Do they make application? A No, it’s all done – it’s done verbally. Q So, in other words, if I argued a case in the Supreme Court – A Uh-huh. Q - And I wanted to hold a press conference – A Well, actually – Q - how would – A - if you argued a case before the Supreme Court, the press would be waiting for you at the bottom of the stairs when you came out. Q I have no doubt about that, but finally they were, if I did it. But if they weren’t waiting, I could then before the argument, for example, I could go into your office and say, Mrs. House, I want to hold a press conference here – A Uh-huh. Q - with, you know, newspapers from around the country. A Uh-huh. Q And is that okay? A We would tell you that, no, you can’t hold a press conference, but if you want to make yourself available to the press after the argument, you may do so. THE COURT: Can you tell me the difference in – THE WITNESS: It’s nit-picky, Your Honor. I want to articulate this intelligently for you. THE COURT: Is it a term of art in your – THE WITNESS: For us, it’s a term of art. THE COURT: Making yourself available to the press, let’s say? THE WITNESS: Right. But as opposed to a press conference, because – basically we think that the Supreme Court – I mean – I’m sorry. THE COURT: That’s okay. Take your time. (Pause.) THE COURT: Define what you mean, first of all, by available, making yourself available to the press. THE WITNESS: That would mean that you say – you would say, Ms. Kraut, would say, following my presentation this morning, I will be available on the plaza, if you wish to talk to me. THE COURT: And you would not object to that? THE WITNESS: And we would not object to that. We would – we – it’s a nit-picky within our office – it’s – it’s a concern about the Court being used as a backdrop, as a forum. And it’s not, as I said, it’s a nit-picky kind of thing that one gets – THE COURT: So a press conference would be more affirmative in action? THE WITNESS: That’s correct. THE COURT: As opposed to, from your point of view, a passive – THE WITNESS: Uh-huh. THE COURT: - making a spot available on the plaza? THE WITNESS: Thank you. THE COURT: For the purpose of the press questioning a person. THE WITNESS: That’s correct. THE COURT: And when you – when you make the plaza available, are you – do you restrict where they can hold the interview by the press, can they be interviewed anywhere on the plaza on the steps? THE WITNESS: Generally, yes. I mean, it obviously would depend on things like crowd control and visitors and things like that. But generally – THE COURT: When this – are batteries or mikes set up, is that general? THE WITNESS: On occasion, yes. THE COURT: Okay. And who has access to those mikes? THE WITNESS: The mikes belong to the news media. THE COURT: Right. I know who it belongs to. My question is who has access to come up and make a statement at the mikes? THE WITNESS: Who the press invites. THE COURT: Okay. So in other words, the Court is passive in terms of, you make available say – THE WITNESS: Yes – now – I – some other things – yes, basically. Now, there are those press – those press availabilities are supervised, they’re monitored by our police officers. THE COURT: Monitored in what respect? THE WITNESS: Well, just throughout, in a number of ways, including making sure that everyone is well and nobody is trampled on, and that otherwise that regulations concerning the Court are followed. THE COURT: Okay. MS. KRAUT: Thank you, Your Honor. THE COURT: Well, I have to decide the facts, might as well as my own questions. MS. KRAUT: No, no, I understand. That’s fine. I’m not being facetious.
DIRECT EXAMINATION CONTINUED
Q When the press and the media, mass media, and we’re talking about newspaper people, we’re talking about microphones, is that correct? A Television, yes. Q Television cameras? A Still cameras, uh-huh. Q Wires. A Uh-huh. Q All over the place. When the people who have that material want to come up on the plaza to interview me or, you know, some other persons – A Uh-huh Q - who have access to the press on the plaza, do they make application or can any – anybody who purports to be a member of the press be there? A They need clearance from the public information to film or videotape, bring their cameras onto the plaza. Q All right. And how do they make that – let’s say somebody from CNN – again from CNN – A They call us. Q They call you? A Yes. Q On the phone? A Uh-huh. Q And somebody, Joe Schmo from CNN calls you on the phone and says – A We want to do – A - I want to d a press interview on Nina Kraut on the plaza, you know, okay? And he talks to you? A Or one of my deputies, yes. Q Or one of your deputies, and that person says yes or no, as the case may be, correct? A Or, why is it that you want to interview Ms. Kraut on the plaza. Q And they say, because she just – you know, she’s good copy and you know, we can sell a lot of newspapers that way. A The answer would be no. Q Okay. THE COURT: Can I interrupt you just one second? (Pause.) THE COURT: Okay.
DIRECT EXAMINATION CONINUED
Q And you would say no under those circumstances? A Uh-huh. Q If CNN – the CNN person says, I want to interview Nina Kraut because she just argues and it is a very incredibly interesting First Amendment case about demonstrating and protesting on the steps of the Supreme Court, what would you say to that? A Fine. Q If the CNN said, I want to interview Mr. Bonowitz because he is Executive Director of an anti-death penalty organization and we’re writing a story on the death penalty in the United States, what would you say to that? A Probably. Q Probably? A Uh-huh. Q Do you have – well, how do you – why would – how do you know probably you would – A Well, because – Q - or yes or how do you know – A Well, in part, because regards to the – in regards to the death penalty. For instance, this is an issue which is constantly before the Court. And so to our way of thinking, we would probably say, exactly what is it that you want to talk to Mr. Bonowitz about in front of the Court. Has he filed a case here, is he an amicus – then we would be inclined to say yes. If he’s talking about a bill pending in front of Congress, we would say, we suggest that you interview him then in front of the Capitol. Q Are any of these standards – do you make decisions when people, you know, most of the time it sounds like they call you or they make – A Uh-huh. That’s correct. Q - but do you have any kind of written standards or written rules – A No. Q - as to how he could go about applying – A No. Q - or how people or who you can grant access to these press conferences, do you have any – THE COURT: Plus availability.
DIRECT EXAMINATION CONTINUED
Q Yes. A Well, we won’t worry about that. Q Do you have any – A No, there’s nothing in writing. Q Okay. THE COURT: Let me ask you, has it been recent for not making the plaza available for press and – THE WITNESS: No, Your Honor. It’s been going on ever since I’ve been there. THE COURT: Okay. So, at least for 15 years? THE WITNESS: Yes. THE COURT: And I can I just ask you, do you have sort of a general – does the person who is being made available to the press, have to be associated with an issue or a case in Court? THE WITNESS: Yes. THE COURT: And absent that, you make a judgment about whether or not you want the Court to be a backdrop to this particular interview, or are there some other factors you’re including? THE WITNESS: Well, I think what I was trying to say was that certainly if someone is speaking about the Supreme Court – THE COURT: Right THE WITNESS: - maybe discussing, as I said the Court’s Jurisprudence and the Second Amendment, we would be very much inclined to want to say yes to something like that, because it does involve us and work that the Court does or has done or may do again. So that it doesn’t necessarily – I guess what I’m getting at – somebody who wrote a law review or someone who teaches a course, or someone who is just a particular student of it. Those kinds of things we would permit.
DIRECT EXAMINATION CONTINUED
Q Let me, if I could interrupt here. There have been movies filmed up on the Supreme Court grounds, haven’t there. The one that comes to mind immediately is First Monday in October, for instance? A Yes, there have been, Ms. Kraut, from time to time. Q And that is permitted, too. Do they come to you and, you know, you either film at night, or however you do it, but they – but they – and they make look like day, but – A It’s the same – it’s same standards that we were talking about before. The film has to do with the Supreme Court of the United States. Q So, something like the First Monday in October? A First Monday in October, the Pelican Brief. Most recently, the People versus Larry Flint, all had something specifically do with the Court. Q So you permitted – your office was contacted by – A Those – those, particularly commercial filming, they come in various ways. Q How do they come in? A They – the Chief Justice may be approached. My office may be approached. The Administrative Assistant may be approached. The Curator may be approached. They are filtered to my office, and I must add that under those specific set of circumstance where we’re talking about commercial film or Hollywood, if you will, I always consult with the Chief Justice on those before we authorize them. Q If a documentary was being made, for example – A Uh-huh. Q - it’s not commercial in the traditional sense, would you allow that kind of – if it’s about the Supreme Court – A Yes. Certainly. Q - so that filming can take place actually on the grounds. A Uh-huh. Q Or maybe even in the buildings? A It depends. We don’t allow commercial filming in the building. We do allow documentary filming in the building. Q Inside the building? A Uh-huh. Q Uh-huh. And – A In certain places under certain circumstances. Q All right. Within – all right. When it comes to, let’s say, people holding up an American flag, if 14 people came up onto the plaza of the Supreme Court and held in their hands a large 30’ X 4’, let’s say, American flag and just stood in a line. A Uh-huh. Q Would that be permissible under your standards. A That’s not my department. Q Oh, I’m sorry. If they were – if they wanted to film that, 14 people wanted to have a commercial film about the American flag and - A I think that’s tenuous, Ms. Kraut. Q That’s tenuous. A Yeah. I mean, I wouldn’t – Q From your point of view? A No, from yours. It – that – it’s getting – I think you’re getting more fanciful than I can manage. Q Uh-huh. A If you could kind of reframe it, I certainly will try to be responsive. Q If Mr. Bonowitz approached your office and said, “I want to film for documentary purposes, a film about the history of the American flag as it relates to symbolic speech, and I would like the backdrop of the Supreme Court in the film. Would he be permitted to that? A I would not make that decision myself. Q Okay. Who would? A I would consult with others at the Court. Q Who? A Probably the Marshal. Q Uh-huh. And why? A Well, because – because I’m not sure I’m entirely certain what Mr. Bonowitz is doing. I mean, if he – if he could – if we could be quite certain that this was a legitimate documentary, that this was not home video, but that this was a legitimate documentary with an expectation that it would be shown – Q Let’s say in schools – A - somewhere. Q - around the country? A That it was underwritten and there was – and then – in other words that it was a legitimate project, I would then take it under consideration. I would want to know exactly what was planned, and probably, as I said, I would consult with some of my colleagues to determine whether they thought if we were going to be doing banners, or whatever, I would certainly make sure to talk to them to see what their view of it was. In other words, if we’re talking about anything other than a talking head, I would – I would probably be inclined to touch some bases. Q Well, let me ask – A - and be guided by their guidance. Q - if when the Pelican Brief people came to approach your office – A Uh-huh. Q - what did they actually film up there, do you recall? A Uh-huh. Q I don’t recall, so I don’t know if you saw them, but was that a talking head? A No. Q What was – A No. the Pelican Brief filmed a demonstration on the sidewalk. Q All right. And where were their cameras set up? A On the sidewalk. Q All right. What about the other one that you mentioned besides First Monday in October, you mentioned another one? A The Larry Flint film. Q Yes. Where was that actually filmed? A On the plaza, as well as on the sidewalk. Q Okay. And so their camera equipment, and so on, was set up on the plaza? A Actually on the sidewalk. Q And their actors? A There were actors – there were actors – actors were on the plaza, correct. Q And they were not talking heads or were they? A They basically were the – yes, they were talking heads. Q They were talking heads? A Uh-huh. Q And so they didn’t show anything else except just talking heads and Larry Flint? A Uh-huh. Q What about – THE COURT: Ma’am, could I just ask you to answer, yes, or no, so the Court Reporter can – THE WITNESS: Oh, I beg your pardon. Yes. THE COURT: Okay.
DIRECT EXAMINATION CONTINUED
Q What about the First Monday in October? A I was not – I was not there. Q All right. Well, what do you know of it, if you – A I saw the film once. Q When these film people come, do they have to put anything in writing, for example, did the Larry Flint producer have to put in writing that – A Yes. Q - exactly what it was they wanted to do, and so on? A Yes. Q Do you keep records of that and something on file in your office, those kinds of applications? A It would depend on whether it was written to me or not. Q Okay. A And it would depend on what my secretary did with it. Q Do you keep records about applications of that nature in your office? Are they in your office somewhere, are their either in writing in file cabinets, on discs, on the computer somewhere? Do you – you do have an office? A I have an office. I have a computer. I have files. Q And you have files. What are contained – what’s contained in those files? A I sometimes wish I knew. If I had – if I had received a letter from the producer of the Larry Flint film, outlining what he wanted to do, I would have a reasonable expectation that I would find it in my files. Q All right. You do have files? A I do have files. Q Of applications of – from people who want to engage in some sort of activity on the – A No. I mean – Q - what they wanted to do? A Again you’re being very – Q Well, let’s – A and I’m being very – Q - narrow it down for me – THE COURT: Okay. I’ve got to have you talk one at a time for the Court Reporter. THE WITNESS: I’m sorry. THE COURT: You can’t talk over one another. THE WITNESS: Ms. Kraut, as I said, if an inquiry having to do with filming a commercial film or perhaps a documentary was sent to me, I would have a reasonable expectation that it would be in my files. I couldn’t guarantee it, but that’s a record keeping problem on my part.
DIRECT EXAMINATION CONTINUED
Q All right. A I would say it was very limited to that. Q What about other applications, such as either for press passes or – A Again that’s – no, those are – no. Q You do not? A We don’t keep those. Q You don’t – do you keep any kind of records in regards to who is being issued press passes, you don’t have a list? A I have a list of people who carry Supreme Court credentials. Q So you have those records in the files? A I have a list of people who have Supreme Court credentials. Q All right. You don’t have any, if Mary Smith from, you know, some unknown reporter from Kansas City, the Kansas City Star made application in writing from, let’s say, from her editor or from herself, she wrote and said, I’m going to be in Washington, I want to come to the Supreme Court. A We would retain it long enough to verify it for the days she wanted to cover it, and then we would throw it away. Q You would throw it away. Okay. So you do have – all right – some applications on file there? A Well, I – it – it’s – Q Let me ask you this, if a group of students from – from Kansas City came here on their school trip and they wanted to have their picture taken on the plaza of the Supreme Court, would they have to apply to you to do that? And they all T-shirts that said, you know, Kansas City Elementary School? A If they asked to have such a photograph taken, we would probably suggest that they really wanted to have their photograph taken at the Capitol. Q But, how – so have applications of that nature been filed? A Not that I can recall. Q If a – A But that would be – my response would be, gee, kids, why don’t you take it across the street. Q Why is that? A Because it doesn’t have anything to do – it’s a standard setting exercise, because we do get calls, particularly for some reason for basketball teams, something to do with courts and basketball teams. And we always say no to these, because they don’t have anything to do with the Court. Likewise, if the students asked we would likewise say, unless you have something to do with the Court, the answer would be no. Q Well, let’s say that then they – their response is, we’re studying about the Court and we want this for our scrapbooks or our yearbook, and as a matter of fact, one of the student’s father or mother is a judge in the court in Missouri and wants to bring it back because it’s a nice memento. It has nothing to do with the Court, and she argued there some years ago, okay? A Why don’t we just say, kids, are you coming to visit the Supreme Court? The answer is yes. Well, if you go outside when you’re finished and someone snaps your photograph, then we think that would be fine. Q Okay. If a bunch of – THE COURT: There’s got to be some sort of relevance. THE WITNESS: Thank you. MS. KRAUT: Well, Your Honor, my motion is pretty extensive and – THE COURT: I understand. MS. KRAUT: - ten page motion and I have – and as the government said, it’s listed as a parade of comparables. I want to talk about – THE COURT: I mean, if you talk about actual cases, that’s one thing. You can’t just sit here and ask hypothetical all day. MS. KRAUT: Well, I want to ask some – some different ways, Your Honor – if I could approach the bench so I don’t – THE COURT: No. No. I’m just asking – MS. KRAUT: All right. I’ll just keep on asking – THE COURT: Ms. House, I would say this, with respect to any question concerning what you would to, I would first ask you to answer whether, in fact, the hypothetical has ever occurred. THE WITNESS: Thank you. I shall, sir. THE COURT: All right.
DIRECT EXAMINATION CONTINUED
Q Have, to your knowledge, and this may not be within your domain, have students or organizations approached or come up onto the plaza of the Supreme Court and stood shoulder to shoulder with a message that they – that they, let’s say – A I have no knowledge. Q That is not within your domain? A I have no knowledge of that. Q Under what circumstances have you denied press applications, if you ever have? THE COURT: You mean press credentials or press applications?
DIRECT EXAMINATION CONTINUED
Q Press credential applications, have you ever? A I simply don’t recall. Q So it’s possible that you have? A Uh-hum. Yes. Q All right. MS. KRAUT: I thin I’ll have to stop right here for the prosecutor and do some redirect. THE COURT: Mr. Goldstone? MS. KRAUT: Thank you, Your Honor. MS. KRAUT: Could we just have a minute, please? (Pause.) THE COURT: We have to go down the pro se defendants and see if they have any questions. Mr. Laffin, any questions? DEFENDANT LAFFIN: No, thank you. THE COURT: Ms. Peck, any questions? DEFENDANT PECK: No. THE COURT: Mr. Streit, any questions? DEFENDANT STREIT: Questions of the witness or questions about what’s happening here? THE COURT: Questions of this witness, concerning her testimony. DEFENDANT STREIT: No, I don’t have any. THE COURT: . Thank you. Ms. Charkoudian? DEFENDANT CHARDOWDIAN: No, I don’t. THE COURT: Mr. Halperin? DEFENDANT HALPERIN: Your Honor, if I do, is this the only time I would be allowed to ask? THE COURT: That’s correct. Do you have any questions. DEFENDANT HALPERIN: No, thank you. THE COURT: Ms. Jaeger, any questions? DEFENDANT JAEGER: No, thank you. THE COURT: Ms. Pautrat? DEFENDANT PAUTRAT: One very quick one? THE COURT: Surely.
DIRECT EXAMINATION
Q If a person who came from a particular professional discipline who has been or might be tracking denial of cert petitioning in capitol cases over, let’s say the first six months of 1997 and had results directly relating to denial of cert petitions by the U.S. Supreme Court and wanted to present their findings and be available to the press, would you allow that? A Let me make sure I understand your question. THE COURT: As I understand it, if someone, a researcher or something like that, had gone through the Court’s docket, compiled the Court’s decisions concerning cert petitions on a particular subject and wanted to make themselves available to the press or to report the findings, is that correct, would that be allowed on the Court plaza? THE WITNESS: We would take it – we would certainly consider it. THE COURT: Have you ever had such a – THE WITNESS: That’s a hypothetical, so far as I know, that I can recall. THE COURT: Any additional questions, ma’am? DEFENDANT PAUTRAT: No. THE COURT: Mr. Scahill? DEFENDANT SCAHILL: Just to clarify. This is someone testifying to a preliminary motion? THE COURT: No. This is testimony that’s taken out of order for the purposes of both the trial and the motion, to accommodate Mrs. House’s schedule. DEFENDANT SCAHILL: So this is a defense witness? THE COURT: That’s correct. Called by Ms. Kraut. DEFENDANT SCAHILL: No, I don’t have any questions. THE COURT: Thank you very much. DEFENDANT JAEGER: Oh, I do. I have one question. THE COURT: Your name? DEFENDANT JAEGER: Marietta Jaeger. THE COURT: Okay. Ms. Jaeger? DEFENDANT JAEGER: I have been present at the Supreme Court – THE COURT: It’s question. You can’t testify. You have to ask her a question. DEFENDANT JAEGER: Oh. I’m trying to pt it in context. There have been people, press seen on the plaza setting up microphones and everything, waiting to interview people as they come out, usually in the last – after the last day of the session when decisions have been made. Do each and every one of those people have to apply, all those press people setting up mikes and everything outside, do they all have to apply to you, have they all applied to you? MR. MARCUS: I would just object to the foundation of the question – THE COURT: Do you understand, the people who make themselves available to the press persons on the plaza who interview these people, are they screened in any way by you or is it that your – THE WITNESS: Is that – that isn’t what I understood the question. DEFENDANT JAEGER: That wasn’t the question. THE COURT: Well, maybe I didn’t understand the question. DEFENDANT JAEGER: The question, are the press people – THE COURT: That’s what I understood. THE WITNESS: Either the press or the – Ms. Jaeger are you asking me, are the reporters you see on the plaza, particularly television reporters setting up TV’s, microphones or cameras and microphones, screened and approved by my office, then the answer is yes. DEFENDANT JAEGER: yes. THE WITNESS: Yes. DEFENDANT Okay. Thank you. THE COURT: Mr. Goldstone? MR. GOLDSTONE: I have no questions, Your Honor. THE COURT: No questions. MS. KRAUT: Your Honor, if I could, I just wanted to ask her a couple more questions on my direct, just to get some photographs in. THE COURT: Okay.
DIRECT EXAMINATION CONTINUED
Q This has been marked Bonowitz Exhibit 2.
A It looks like a group of television and other reporters standing in front of, although I can’t tell how near to what certainly looks like the Supreme Court of the United States Building. Q All right. And I would also show you Bonowitz Exhibit Number 4. Mrs. House, if you would tell the Court what that appears to be. A Exactly the same situation as the previous photograph. Q Well, would you be a little more specific, if you could? A Yes. It looks like a group of reporters, including TV cameras that are standing, as I said, somewhere in the vicinity of the front of the building, although from the perspective, I’m not entirely sure where. Q All right. You can’t tell – A But certainly looking – well, I can be a bit more descriptive about it and say they’re looking towards the north wing. Q All right. Are they on the plaza or not of the Supreme Court? A I can’t tell. Q Uh-huh Let’s try with this one then. This is Bonowitz Number 5 and Number 6 and Number 7 – oh, I’m sorry. Bonowitz Number 5, Number 6 and Number 3. So let me show them to you. A Uh-huh. Okay. Q If you would look at the backs first, before you testify about them. A Okay. Certainly. Q This is number what? A This is number 5. Q Uh-huh. What is that? A This, most assuredly, is on the plaza. It is a setup of cameras. I don’t see any camera operators. I do see a group of people apparently in the line, lined up along the south side of the stairs. Not literally on the stairs, but along the balustrade next to the stairs. Q All right. And what kind – when you say cameras, what kind of cameras are those? A Those – those appear to be television cameras. Q So there are tripods and cameras? A That is correct. Q Would you look at the back and tell us what number that is? A Certainly. This is Number 3. This is also on the Supreme Court’s plaza. This also is television camera – what appear to be television cameras on tripods. Q All right. A This is on the southwestern corner near a fountain. Q Okay. And? A This is number 6. Q And what does that appear to be? A This appears to be also on our plaza and what appear to be television cameras on tripods. And there are two individuals in the foreground who are sitting on a bench. This also appears to be in what I believe is the southwestern portion of the plaza. Q All right. Thank you. To your knowledge, Mrs. House, has any newspaper person or any other media person ever been arrested for having a camera or microphone, or any other similar device on the plaza area? A Not to my knowledge. MS. KRAUT: Your Honor, I think I’ll reserve admission of this until our case-in-chief. MR. MARCUS: Just for the record, we will have an objection if they’re sought to be admitted. THE COURT: Right. I’ll hear that objection.
CROSS-EXAMINATION
Q Mrs. House, with respect to demonstrations on the grounds – MS. KRAUT: Objection. I didn’t ask about demonstrations, Your Honor. THE COURT: Overruled.
CROSS-EXAMINATION CONTINED
Q With respect to demonstrations on or about the grounds of the Supreme Court, including the plaza, does your office – is your office responsible for issuing any permits with respect to those? A No, sir. THE COURT: Has any permit, to your knowledge, ever been issued. MR. MARCUS: My next question, Your Honor. MS. KRAUT: I’m sorry, what was the question, Your Honor? THE COURT: Has any permit for demonstrations ever been issued, to your knowledge? THE WITNESS: I’m going to have to qualify that, because I don’t – I simply do not recall. If I may provide a little background. U.S vs – or Grace vs. the U.S. came down, I believe in 1983. Up until that time I had not seen any kind of demonstration activity, although I hadn’t been there very long, anywhere around the Supreme Court. When that case was decided, the police, the Marshals Office, the Legal Office and my office began to talk about how we might handle when people decided that they wished to demonstrate.
CROSS-EXAMINATION CONTINED
Q What was the upshot of this conversation? A Well, that’s what I don’t recall specifically, because things have evolved over time. So it is possible that at one time, we may have possibly used an application form. Because I recall it was under discussion. I do not recall that it was ever used, and I do not believe, although it’s not my department, that anything like that is used now. Q Okay. In your 15 years of experience, do you recall specific instances under which demonstrations were allowed on the plaza area – THE COURT: Exclusive of the sidewalk. MR. MARCUS: pardon me? THE COURT: Exclusive of the sidewalk.
CROSS-EXAMINATION CONTINED
Q Yes. Exclusive of the sidewalk, do you recall whether or not the office, the Supreme Court, or your office permitted demonstrations on the plaza? A My office would not be in a position to admit, to permit, or not to permit demonstrations on the plaza. Q Do you know whether or not any other office did permit such demonstrations on the plaza? A I do not recall such a demonstration. Q And what is your understanding of what the plaza is now? A My understanding of the plaza is – or let me – if I may rephrase the question. My understanding of what Grace permits is demonstrating on the public sidewalk that goes around the property and on the public sidewalk only. Q And does your office, since Grace, does your office adopt this position? A Well, again, it’s not my position to adopt. Q All right. All right. A That’s my understanding. Q And has your office acted consistently with that understanding since Grace came out? A That’s our – that’s our understanding. It would be up to the marshal and the police, as I understand it – Q All right. A To be and perhaps, certain in consultation with others to be doing the determining. Q Okay. So with respect to demonstration activity on the – MS. KRAUT: Objection, Your Honor, I never know what anybody means by demonstration activity. Maybe Mr. Marcus could be specific about that – THE COURT: Overruled. MS. KRAUT: What does he mean by that. THE COURT: Overruled. If you do not have an understanding, Mrs. House, of the terminology used, please ask the lawyer to rephrase it.
CROSS-EXAMINATION CONTINED
Q With respect to demonstration activities, is it your understanding – I’m sorry. Is it your knowledge that there have been none permitted by the marshals, that you have just described in the 15 years that you have been there? A I’m sorry, Mr. Marcus – Q Let me rephrase? A Yes, please. Q Are you aware of any occasion under which the Marshals Office, the Supreme Court Marshal Office you just described, are you aware of any occasions where they issued permits for demonstration activity on the plaza area of the us Supreme Court? A Not to my knowledge. Q Okay. Does your office keep records – I’m sorry, strike that question. If demonstrators on the plaza, or anywhere in the grounds of the us Supreme Court, are arrested for their activities, would your office keep those records? A No. Q Do you even know whether or not such records are generated with respect to those arrests? A I do not personally know. Q Okay. And with respect to the photographs that you were shown, do you have any idea of the date on which those photographs were taken? A None, whatsoever. Q Do you have any idea of the time those pictures were taken? A No. Q Do you have any idea of the events that those pictures portray? A No. Q Do you have any idea of the persons who are in those pictures? A No. Q Do you have any idea of why – strike that. MR. MARCUS: Court’s indulgence, Your Honor? (Pause.)
CROSS-EXAMINATION CONTINED
Q With respect to your role as a liaison between the press and the Supreme Court as you have described it, do you similarly have a role with respect to demonstration type activity? MS. KRAUT: Your Honor, honestly, this – the term demonstration activity is so vague that it could encompass virtually anything. And that’s what this case to a large degree is about. And I can’t just sit here any more and allow such a vague term to be used and bandied about without having some understanding of what Mr. Marcus is talking about. I don’t have a clue what he’s talking about. THE COURT: Okay. I do. MS. KRAUT: If the Court does, I would like to know what it is – THE COURT: You can know – MS. KRAUT: - so I can – THE COURT: You can know, you will have to redirect. MS. KRAUT: But I don’t have redirect with Mr. Marcus. THE COURT: Yes, you do. MS. KRAUT: I can put him on the stand and ask him what he means by this? THE COURT: You can ask this witness what she understood. Ask your question, please.
CROSS-EXAMINATION CONTINED
Q What is your office’s role with respect to taking information or inquiries for demonstration type activity on the Supreme Court plaza area or grounds? A My office after Grace vs. U.S. – my office and I, in particular, began to act as liaison with individuals or groups who wished to demonstrate at the Court. What my role was in that was to advise callers that we did permit demonstrations on the sidewalks, that we did not permit demonstrations on the plaza or elsewhere on the property, that persons would be subject to arrest – that if they wanted to be arrested, it would be, you know, let us know, and then I usually would take that information and forward it to the police. Q What police? A I’m sorry. To the Supreme – the Supreme Court of the United States has its own police department. Q All right. A And I would forward that information to the police. As practice has evolved and all of us have gotten more accustomed to it, I find that our office – that the police are at this point also handling their own liaison issues frequently, although we do try to keep one another informed. Q And with respect to any records, does your office keep any records of those interfaces you just described? A No. Q You talked about the role of the press. What – can you describe what your office’s mission is with respect to the press and the Supreme Court? A Yes, sir. The mission of our Public Information Office is to assist members of the press to cover the Supreme Court and its decisions in an intelligent and an informed manner. Q What is the point of that? A The point of that is that we would like the American public to, if they’re going to learn about our activities from the news media, that the news media get it, as I said, both correctly and intelligently. Q Are the decisions made in your office with respect to issuing press credentials and setting up interviews or availabilities as you’ve described it consistent with what you just described as the mission of the office? A yes. MR. MARCUS: Court’s indulgence, Your Honor. THE COURT: Very well. (Pause.)
CROSS-EXAMINATION CONTINED
Q You mentioned that you were concerned about the Court being used as a forum or a backdrop. Could you expand on that a little bit, what did you mean by that? A The Supreme Court and particularly the façade of the Supreme Court, which is highly recognizable, we think is the symbol of the third branch of government. And so for that reason, we are – it – just as the Capitol is the symbol of Congress, the White House is the symbol of the Executive, and so we are very careful how that symbol is used. We are concerned that it would not be used in a commercial, for instance, fashion, to – Q Money profits made? A - promote one set of legal textbooks versus another one, you know, legal research firms versus another, Lexus cars, mink coats – Q All right. A - all that sort of thing. Q Okay. Can you tell me whether or not the decisions that that have been made with respect to issuing press credentials or allowing the press on the premises anywhere to cover the news, are made consistent with that view of the Supreme Court and its façade? A Yes. Q What role does your office play in reviewing, if at all, the scripts of the movies that have been testified about today? A We have no role. Q Do you have – strike that. Do you have any role of determining whom the press wishes to interview with respect to the issues that you have described are acceptable issues to cover in front of the Court? A I think I articulated that before, Mr. Marcus. Q All right. A A reporter covering the Supreme Court may speak to anyone here she chooses, of course, insofar as video taping that person on our plaza, then the standards I discussed earlier today would apply. Q Does your office approve the subject matter of the questions that the interviewer or the press would be giving? A I don’t think so, if I’m understanding you. Q Right. A No, we have – we have no – no interest, let alone of course, any authorization to dictate to reporters how they pursue their stories. Q Okay. Now, with respect to movies, you said something has to be of legitimate documentary. What do you mean by legitimate? THE COURT: She’s explained that. I think that’s in the record. MR. MARCUS: Okay Court’s indulgence? (Pause.)
CROSS-EXAMINATION CONTINED
Q Does your office have any role with respect to the enforcement of 40 United States Code, Section 13(k), at all? A No. MR. MARCUS: No further questions, Your Honor. Thank you.
REDIRECT EXAMINATION
Q Ms. House, there are 17 people who come up onto the plaza and they have T-shirts and they say Stop Executions. A Uh-huh. Q And they have been bandying around, I mean, I don’t mean to – I mean, you know, a nasty kind of way, but the word demonstration activity has been bandied around here. Would those people with 17 T-shirts standing shoulder to shoulder on the Supreme Court Plaza be demonstrating? In your – in your – your understanding of that term, is that a demonstration? A I’m – I’m not certain, Ms. Kraut, the way you describe it, that it would be up to me to make that determination. Q But I’m asking. You have been questioned today by Mr. Marcus about demonstration activity and you, in fact, have used the term about demonstration activity and you, in fact, have used the term demonstration activity as though that is something that you understand what it is. A Uh-huh. Q I’m asking you for clarification purposes what your definition is. And I’m asking you now, if you have 17 people standing on the plaza shoulder to shoulder with T-shirts that say Stop Executions, in your mind, in your opinion now, is that a demonstration activity? A Yes. Q Would that be – well, okay. A Yes. Q Would, if the 17 people happened to be 6 year olds standing shoulder to shoulder with T-shirts on that say Stop Executions, is that a demonstration activity? A Yes. Q If 6 year old kids have – 17 kids have T-shirts on that say – with the American flag on it, would that be a demonstration activity? A If – then we’re getting into intent, I think. Q Well, if they’re standing shoulder to shoulder – A With the American flag? Q With the American flag, yeah, what’s the difference with the kids with American flags – A It would depend on Q - on their T-shirts – A - whether they were – I’m sorry – whether they were standing shoulder to shoulder for a class picture and they all happened to be wearing T-shirts with American flags on them, because that’s – that is the identity that they all have for their trip to Washington, then it would probably not be a demonstration. Q All right. Well, let’s assume that they are not having a picture taken and let’s assume that they’re simply standing there shoulder to shoulder with American – just like the kids with the Stop Execution signs on their chests, shoulder to shoulder, standing their shoulder to shoulder with their American flag emblazoned on their T-shirts, are they demonstrating there, standing shoulder to shoulder? A I would have to know more. Q That’s it. So – and you wouldn’t – but you’re – you are certain now that the kids that have demonstrated – that they’re engaging in demonstration activity, if they have words that say Stop Execution, is that a demonstration? A We’re talking about my personal – Q Yeah. A Okay. In my personal - Q Yeah. A Okay. My – THE COURT: One at a time, please. THE WITNESS: I’m sorry.
DIRECT EXAMINATION CONTINUED
Q Your understanding of the term demonstration? A We’re now talking about the 6 year olds, is that correct? Q The 6 year olds with the words Stop Executions on their T-shirts? A Yes. Q They are – they are demonstrating – A I – I would – Q - and there is no question in your mind about that, is that correct? MR. MARCUS: Objection. THE COURT: Sustained. MS. KRAUT: Just so – THE COURT: It’s sustained.
DIRECT EXAMINATION CONTINUED
Q What if the T-shirts didn’t have an words on them, but let’s say they had a picture of a man’s head going through a hangman’s, you know, noose with the sort of flash in red, is that – MR. MARCUS: I’m going to object, Your Honor.
DIRECT EXAMINATION CONTINUED
Q Is that, in your estimation, is that demonstration activity? THE COURT: Sustained. MS. KRAUT: Your Honor, I’m trying to understand what activity is in her estimation. And I think I – THE COURT: Not in her estimation. If you want to ask her what she meant in response to the question demonstrating, you can ask her that. MS. KRAUT: All right. THE COURT: You can’t go on stringing hypotheticals from now until forever.
DIRECT EXAMINATION CONTINUED
Q Let me ask you this, how about buttons, what about if people had buttons on – MR. MARCUS: I’m going to object, Your Honor. THE COURT: Sustained. You have to ask her, if this is redirect, on her questions and answers. MS. KRAUT: Well, I’m asking here about – THE COURT: Not hypotheticals. You can ask her about her – what her understanding of the terminology used during this questioning.
DIRECT EXAMINATION CONTINUED
Q Is it your understanding of the word demonstration activity, does that include the wearing of buttons? MR. MARCUS: I’m going to object again, Your Honor. THE COURT: That’s a fair question, did it include wearing, you can answer that question, the wearing of buttons, or could it include? THE WITNESS: It would depend on what went with it, Ms. Kraut.
DIRECT EXAMINATION CONTINUED
Q If people stood – if people stood with buttons the size of a dinner plate on their chest, would that – is that included in your definition of the word – A Probably, yes. Q And even if it’s blank? THE COURT: Okay. Well, see, this is what I’m saying, you can’t keep going on. MS. KRAUT: Well, that’s what I mean by the vagueness of the term, Your Honor. THE WITNESS: All right. If it were blank – THE COURT: I’m sorry, Ms. House, I’m sustaining the objection to the question. THE WITNESS: Oh. Thank you. THE COURT: Next question, please?
DIRECT EXAMINATION CONTINUED
Q Let me ask you this, Mrs. House. Is it your definition and your personal understanding of the word demonstration – THE COURT: It’s not her personal understanding, it’s what she understood the question to be.
DIRECT EXAMINATION CONTINUED
Q Okay. Did you understand the word demonstration activity to include the raising of the American flag on the grounds of the United States Capitol? THE COURT: When you asked that previous question – MS. KRAUT: I’m sorry, of the Supreme Court? THE COURT: When Mr. Marcus asked you about demonstration activities on the plaza, did you understand that to mean the raising of the American flag on the plaza? THE WITNESS: I think I would have to – again, we raise the American flag on the plaza every day. THE COURT: You mean – MS. KRAUT: The American flag. THE COURT: She said THE WITNESS: No. And if you mean there are police officers raising the flags on the two flag poles in front of the building, my answer would be no.
DIRECT EXAMINATION CONTINUED
Q No. You d understand that that’s – that the American flag is a symbol, do you not? A I believe – THE COURT: This is not a – THE WITNESS: The Supreme Court articulated that. THE COURT: This is not an argument. THE WITNESS: Thank you. THE COURT: Next question.
DIRECT EXAMINATION CONTINUED
Q Now, you say that you have no records at all of people making applications, except for a very limited few, is that correct? MR. MARCUS: Objection, Your Honor. THE COURT: Making application.
DIRECT EXAMINATION CONTINUED
Q Making applications to use the Supreme Court grounds for their purposes? MR. MARCUS: Objection to form. THE COURT: I think that’s an allowable question. Do you understand the question, Mrs. House? THE WITNESS: If I might –
DIRECT EXAMINATION CONTINUED
Q You can ask me anything. A All right. If you are asking if I might have in my files, letters under certain circumstances requesting access to the plaza to film, the answer to that would be yes. There is no – when you say application, in my mind that means there’s a specific form that would be filled out, and the answer to that is no. Q You made some references that you are very careful as to how the backdrop of the Supreme Court is used. Do you remember Mr. Marcus asking you about that? A Yes. Q And that you said that it should not be used – you’re very careful to make sure that it’s not used for commercial purposes, is that correct? A Yes. Q Is that what you said? A Yes. Q Now, you understand that newspapers are sold, correct? A I believe – yes, ma’am, I do. Q And that movies are sol, correct? A Uh-huh. Q People make money off of movies, is that correct? A Uh-huh. Q That professors are paid by virtue – A I understand that. Q - law review articles that get published. THE COURT: Is there a question? Is there a question?
DIRECT EXAMINATION CONTINUED
Q Is that correct? You understand all that. A I do. THE COURT: Do you mean by commercial purposes, advertisements? THE WITNESS: Yes, sir, I did. THE COURT: Okay. Thank you.
DIRECT EXAMINATION CONTINUED
Q Have you ever seen – do you ask – did you ask the producers of the people who planned the Larry Flint film, whether they were going to have advertisements for their movie? A No, I didn’t. Q And you didn’t view those advertisements or even see any kind of mock-up for those advertisements prior to granting them permission to film on the Supreme Court grounds, right? A That’s correct. Q Now, you say you have no role in reviewing scripts? A That’s correct. Q Or questions that are posited by the reporters to – by reporters who are affiliated with some of the TV people who come? A Correct. Q But you do, my understanding is then, that you do want to know who is going to use the grounds if they’re from – let’s say, Mr. Bonowitz in the case I gave you before, where he came and said he wanted to give some kind of a press conference on the steps, and you needed to find out whether that was legitimate, do you remember? MR. MARCUS: Objection to the form of this question, Your Honor, it’s compound. THE COURT: Sustained.
DIRECT EXAMINATION CONTINUED
Q Do you recall my asking you – THE COURT: It’s not what you asked, it’s what Mr. Marcus asked, this is redirect.
DIRECT EXAMINATION CONTINUED
Q Do you recall MR. MARCUS: asking you that you don’t review scripts of movies or questions posited by reporters? A Yes, I do. Q Why is it then, that you review rationales for people like Mr. Bonowitz who want to – who wanted to have a press conference about the death penalty vis-à-vis the Supreme Court? MR. MARCUS: Objection, Your Honor, may we approach? THE COURT: Let’s just finish up with the examination. There were some facts not in evidence. That was a hypothetical you asked about Mr. Bonowitz. So you can’t ask about the facts not in evidence.
DIRECT EXAMINATION CONTINUED
Q Well, let’s ask in relation to demonstration activity. Does your – does your understanding – you responded and talked about demonstration activity. Did you have in mind in your response, in your use of that term, activity which involved – um – having a person discuss death penalty decisions by the Supreme Court in a – in a press conference on the Supreme Court grounds? A I think – MR. MARCUS: I’m going to object to the form again, Your Honor. THE COURT: No, I think that’s a fair question. THE WITNESS: I think, Ms. Kraut, under those circumstances we would suggest that that press availability or press conference simply be conducted on the sidewalk.
DIRECT EXAMINATION CONTINUED
Q You would suggest that? A Yes. In fact, they probably – it would – again, there is more than I would need to know. Q What would you need to know? A I would need to know whether we were looking at someone who was a neutral expert or whether we were looking at an advocate. And if it involved advocacy, then I would say it needed to be done on the sidewalk. Q So, in other – so, if Mr. Bonowitz was the – A Unless Mr. Bonowitz was an attorney who was representing, for instance, someone in front of the Court, who had a petition in front of the Court, and then I would have to relook at it, although I’m n |