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.

• Day 1
  • Preliminary Matters
  • Testimony, Toni House
  • Lunch
  • Opening Statement, Defendant Peck
  • Opening Statement, Defendant Charkoudian
  • Opening statement, Defendant Halperin
  • Testimony, Richard Ragsdale
  • Testimony, Timothy Dolan
• Day 2
• Testimony, Timothy Dolan (cont.)
• Motion of Acquittal
• Testimony, Bill Pelke
• Testimony, George White
• Lunch
• Testimony, Sam Sheppard
• Testimony, Marietta Jaeger
• Testimony, Richard Halperin
• Testimony, Abraham Bonowitz
• Testimony, Phyllis Pautrat
• Day 3
  • Closing Argument, Government
  • Closing Argument, Defendant Laffin
  • Closing Argument, Defendant Streit
  • Closing Argument, Defendant Scahill
  • Closing Argument, Mr. Goldstone
  • Closing Argument, Ms. Kraut
  • Rebuttal Statement, Government
  • Lunch
  • Findings of Fact, the Court

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CRIMINAL DIVISION

UNITED STATES OF AMERICA Criminal Action M-837-97
vs
ABRAHAM et all
Defendants

The trial in the above-entitled action was resumed before the Honorable ROBERT E. MORIN, Associate Judge, in Courtroom 221, commencing at approximately 10:19 a.m. pursuant to the continuance of Thursday, June 26th, 1997.

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 Charkowdian, 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.

THE COURT: Okay. All counsel and parties are present.

Any preliminary matters?

MR. KRAUT: Yes, I do, Your Honor. Just really briefly. I think it may have to do with the lack of oxygen yesterday. There has been more than one complaint about the air quality in here. But I forgot through an oversight or lack of oxygen to ask that these exhibits – I think it’s 1 through 9, if I’m not mistaken, to be admitted for our case.

THE COURT: Any objection to the admission of Defendant Bonowitz’ 1 through 9?

MR. MARCUS: Yes, Your Honor. We object. The case is closed obviously, so we would object.

THE COURT: Okay. Do you have any substantive objections?

MR. MARCUS: The substantive objections would be with respect to the foundation on the earliest of the exhibits, I don’t remember which ones they were. But they attempted to elicit the foundation through Toni House, and we don’t think that that foundation was laid.

Got a whole bunch of people on the grounds and nobody testified who they were, what the circumstances of them being there were.

THE COURT: Right. I understand that that particular exhibit was being admitted, not for the purpose of identifying the people on the grounds, but the structure and the nature of the surrounding plaza area.

MR. MARCUS: Then our objection would be that it is more prejudicial than probative, Your Honor.

THE COURT: Okay. Defendant Bonowitz’ exhibits will be admitted over objection.

MR. KRAUT: Thank you, Your Honor.

(Photographs, Defendant’s Exhibits 1-9 entered into evidence.)

MR. GOLDSTONE: Your Honor, I did have a preliminary matter.

THE COURT: Yes.

MR. GOLDSTONE: Based upon what you stated last evening to us on the bench. It would be the defendants’ preference to wrap up all matters today. And the procedure that I would propose to the Court would be to have them – have your rule today on the motion to dismiss, and then to have, if Your Honor rules against the defendants, to proceed to immediate sentencing.

The government has already agreed to waive the presentence investigations and they do not oppose immediate sentencing.

And then for Your Honor to take His Honor’s time to write and think about the issues, to issue a written ruling supporting your conclusions. And then, if, in fact, you decide to grant our motions at a later time, all we have to do is vacate the imposition of the sentence.

THE COURT: Yes. I mean, I appreciate that. My only concern is, I’m not sure I’m prepared to rule today on the substance. I actually think some of the stuff is fairly troubling. So I’m not in a position, I don’t think. I’ll look at it. I actually thought this was a fairly clear-cut issue when I started. I’m not so sure now. And I just am not going to make a flippant decision from the bench, if I don’t think it’s appropriate.

I understand. That’s why I brought the issue up last time. I don’t want to unnecessarily inconvenience persons who want to litigate constitutional issues in courts, but I’ve just expressed my concern about doing it. I just don’t think it’s worthy of sort of sketchy remarks from the bench.

MR. KRAUT: Your Honor, we wouldn’t even ask for any substantive remarks. We would just simply ask for a ruling.

THE COURT: I’m just not sure I’m prepared to either grant or deny. I actually think the issue is worthy studying and I just have too many cases right now carrying. But I’ll contemplate what you have said.

MR. GOLDSTONE: We appreciate that. We have a request the defense would make, Your Honor. If we could present our closing arguments in the order that we have selected rather than any order that the Court may be working off of?

THE COURT: I don’t have any problem with the closing arguments. I was just trying to keep track of the testimony so that I could do inquiry.

MR. GOLDSTONE: Thank you very much.

THE COURT: Any other preliminary matters?

MR. MARCUS: No, Your Honor.

THE COURT: Okay. I’m sorry, remind me, did I do a Boyd waiver?

MR. KRAUT: A what?

THE COURT: A Boyd waiver?

A DEFENDANT: What is that?

THE COURT: Advising them of their right to testify?

MR. MARCUS: Yes, Your Honor.

THE COURT: I did. Is the government satisfied –n

MR. KRAUT: I don’t remember your doing that, Your Honor.

A DEFENDANT: Yes, he did.

THE COURT: Thank you.

MR. KRAUT: Your Honor, there was one other thing.

THE COURT: Uh-huh.

MR. KRAUT: Yesterday at the conclusion of the testimony, I think, Mr. Goldstone was going to ask his sort of litany of questions about decorum, and all that sort of thing. And we weren’t sure when Mr. Bonowitz was on the stand, if Mr. Bonowitz had been asked that.

I frankly don’t recall him doing that. But in any event, I would like to be able to simply adopt other people’s testimony with regard to that and apply that to Mr. Bonowitz’ in case the record does not reflect that.

THE COURT: Yes. It’s indicated in my notes – my notes reflect that he was cross-examined by Mr. Goldstone, yes.

MR. GOLDSTONE: Your Honor, I did make an issue of that yesterday and I apologize. In reviewing my notes, I realize that I did ask Mr. Bonowitz the question. I apologize for that.

THE COURT: Apology is not necessary. Closing argument from the government, please.

CLOSING ARGUMENT
BY MR. MARCUS: Your Honor, with respect to the trial on the merits, the government has shown the Court beyond a reasonable doubt, clear and distinct violations of the clauses of 40 United States Code Section 13(k).

The Court is well aware of the language of the statute. We have cited it in our motion – in our opposition to their motion to dismiss the relevant cases construing it.

The testimony, the evidence all demonstrates that each and every defendant was on the plaza of the United States Supreme Court. They stood and moved in assemblance on the plaza of the United States Supreme Court. At that time, they brought into public attention, brought to public attention their movement, their viewpoint, their stance against the death penalty.

Their case is not about the death penalty, Your Honor, it is about whether their conduct on the plaza was lawful. It is very, very clear that it was not lawful, so as to Cause 1, they should be found guilty, by their own admission and by the evidence the government put on before the Court.

Also with respect to Clause 2, Your Honor, they were holding an assemblage, a banner designed to bring into attention their movement, their organization, their viewpoint. And again, the nature of their issue, the death penalty is not an issue. The issue is, were they holding that banner on the plaza area of the United States Supreme Court, and they clearly were.

Other facts to consider with respect to adjucating this case on the merits will be that the Court was in session, that it was open for business, that this was a Friday and not a weekend, that there are integrity issues with respect to the Supreme Court and there are decorum issues with respect to the Supreme Court. And, in fact, you heard Lieutenant Dolan tell you that there, in fact, were Justices to his knowledge, there were Justices in the Court at that time.

The Supreme Court of the United States is a deliberative body, Your Honor. It is not – it should be reasonably free of undue influences by any point of view, by any group, by any organizations.

The Supreme Court lost its freedom that day. That’s inappropriate, and that’s what this statute was designed to stop. And that’s what both clauses do stop, and they were in violation of both clauses.

Now, with respect to the motion to dismiss, Your Honor, we’re troubled by the Court’s trouble. These are severable clauses. That’s been decided. It’s not open, I think, for any continued debate. The Court of Appeals in Pearson and Wall, and the United States Supreme Court in Grace have said that and other constitutional jurisprudence has also said, this Court should not reach constitutional questions that are unnecessary to the resolution of the trial on the merits. They are in violation of Clause 1. It has passed the constitutional muster in Pearson. It has passed the constitutional muster specifically in Wall. Whether it is a public forum, whether it is a non-public forum, it meets the necessary constitutional test. It also has passed muster on the vagueness and over breadth. There is no challenge to the first clause. And, in fact, you heard the debate on whether or not they could move to dismiss on that ground. Obviously they didn’t think this was the charge on the first clause. Well, clearly, as the information shows, it was a charge on both the first and second clauses.

THE COURT: I’m going to let counsel argue whatever they want –

MR. MARCUS: Fine.

THE COURT: - but it is your position in light of the information that’s been charged by the government that charges both 1 and 2, if I resolve the issue on Clause 1, that I don’t have to reach the issue on Clause 2?

MR. MARCUS: Not only do you not have to, Your Honor, you shouldn’t. Clause 2 is only – it’s a question that was left open by Grace, but in Wall itself, the Court said, we don’t go to that question, because we –

THE COURT: Right. But I think I understand that. I’m asking more specifically your views on the impact of the information before me that charges in the conjunctive both 1 and 2. And I’m asking whether you think that has an impact on whether I have to resolve Clause 1 and Clause 2?

MR. MARCUS: You have to – it’s the government’s position that you would have – the first hurdle of this Court is to find that they are not – however the Court would choose to do so –

THE COURT: Right.

MR. MARCUS: - that Clause 1 is not an issue in this case, that’s the only way.

THE COURT: I understand that. But I’m asking you – that’s okay, argue what you want. I may not –

MR. MARCUS: I mean, it was charged appropriately because their counsel –

THE COURT: I’m not asking you about the appropriateness. If you don’t wish to answer the question, that’s fine. I understand your position.

MR. MARCUS: Perhaps I’m not understanding the Court’s question.

THE COURT: I guess what I’m saying is, since the information is in the conjunctive, are you saying that I do not have to reach Clause II, even though it’s charged as part of the information?

MR. MARCUS: Yes, that’s correct. That is what the government’s position is.

THE COURT: Okay. And could you explain why that position is, since it’s charge as essentially one event in the information?

MR. MARCUS: Well, Your Honor – excuse me – I would just refer specifically to the language of the information.

THE COURT: Okay

MR. MARCUS: Court’s indulgence?

THE COURT: I’m not prejudging the matter, I’m just asking for your best argument on that.

MR. MARCUS: Your Honor, first of all, we would note that the Court’s obligation to construe the statute and this is – the fact that the world “and” is used here and would be an awful lot to hinge this Court’s opinion on. It’s obviously tracking the language, the clear language of the statute.

THE COURT: I understand that..

MR. MARCUS: That cover the facts of the conduct at issue in this case. To turn this entire case on the use of the world “and” in an information, Your Honor, when it is very clear that it’s being – the – and should be constructed both as a conjunctive and as a disjunctive, as is necessary under the circumstances, Your Honor.

This is not a magical word. The issue is whether or not they were aware of what they were being charged with.

THE COURT: No, I understand that. But I thought what happened was that the defendants had moved to dismiss that particular information as being multiplicitous and the government objected, indicating that both clauses were before me.

Now, if it’s not the government’s position that both clauses are before me, that’s fine. I just –

MR. MARCUS: Well, the government’s position would be, Your Honor, the government’s position is that the information simply charges them with the conduct that they committed and the violations that were committed.

THE COURT: Okay. I think I understand your argument.

MR. MARCUS: Right.

THE COURT: I don’t want to unduly complicate this. I’m just trying to get your position.

MR. MARCUS: Yes.

THE COURT: Go ahead.

MR. MARCUS: But I think that the law is very clear under Wall. I’m trying to see exactly what the language was that was charged in Wall.

(Pause.)

MR. MARCUS: Well, it’s very clear that both clauses were in issue for the Court of Appeals in Wall. I cannot refer to it and see exactly what the information stated. But the Court ruled in Wall that it didn’t even – it could not reach the second clause as to constitutionality, because of the activities clearly fit within the first clause.

THE COURT: Right.

MR. MARCUS: Which clearly had passed constitutional muster, and therefore it couldn’t even get to the second clause.

And we believe that that’s binding on this Court, Your Honor.

THE COURT: I agree Wall’s binding.

MR. MARCUS: Okay. Thank you, Your Honor.

Alternatively and again, the Court – I mean, the government cannot be more strenuous in pointing out that it should reach the second clause, Your Honor. But alternatively should reach the second clause, because it finds that the first clause – that they’re not guilty under the first clause for some reason, we would argue that the motion to dismiss should still be denied.

It has been decided that the plaza of the United States Supreme Court is simply not a public forum. We would think that in Pearson and in Wall, even though those cases did not address whether it is a public forum with respect to the second clause, the finding that it is a non-public forum should apply both with respect to the first and second clause.

THE COURT: I’m sorry. Your position in Wall and Pearson with regard to a finding of a non-public forum?

MR. MARCUS: That’s right. Well, Wall and Pearson address Clause 1.

THE COURT: Right.

MR. MARCUS: As we have noted. So, therefore, the issue was not, in the plaza of the United States Supreme Court a public forum with respect to Clause 2.

THE COURT: Oh, I see.

MR. MARCUS: But I think there’s a distinction without a difference under the First Amendment and we would think that –

THE COURT: But Judge Ferren in Wall sort of indicated that he was assuming on the record before him that it was a public forum, correct?

MR. MARCUS: Well, Ferren in –

THE COURT: A non-public forum.

MR. MARCUS: - the concurring opinion.

THE COURT: Right.

MR. MARCUS: Yes, Your Honor.

THE COURT: Okay.

MR. MARCUS: But the actual body of the majority opinion simply states that the plaza of the United States Supreme Court is not a public forum, with respect to Section 13(k).

THE COURT: I see.

MR. MARCUS: And we would submit to Your Honor that that has to cover both clauses.

THE COURT: Right. I understand that argument.

MR. MARCUS: All right. Therefore, it’s only – the only requirements are that the restrictions on speech activities would be reasonable in this non-public forum.

And we would note to the Court that the interest that the Supreme Court has in not having this be a public forum has been upheld in the Pearson and in Wall, and that is to preserve the integrity of the Supreme Court.

This is simply not a raucous body where you have the kind of give and take debates that you might see at the United States Capitol or other branches of government. This is a deliberative body. This is a body that has to maintain a certain appearance and neutrality, not just with respect to decisions before it, but with respect to the public.

It cannot be drawn into these kinds of debates by carefully orchestrated staged events such as what you have in this case.

THE COURT: But it does occur on the sidewalk in front of the Supreme Court, right?

MR. MARCUS: Sidewalks are a different matter Your Honor. They are traditional, immemorial public forums. There is no question that had they stayed on the sidewalk, and I think all the evidence shows this, had they simply stayed on the sidewalk, we would not e here. This case wouldn’t be here.

THE COURT: All right.

MR. MARCUS: They chose to make it an issue. They chose to challenge the statute. We think that they failed, because they were not able to isolate Clause 1. That’s obviously what they were attempting to do, but they failed to do so. There are ways that they could have done it, they didn’t do it. I think –

THE COURT: I’m not sure we should be arguing about people’s motivation for challenging. It’s clear that the statute was intended to be challenged.

My issue, and one issue, I just ask you to address this. At least the exhibits before me, is the only barrier that you’re aware of, between the public sidewalk in which these types of demonstrations are allowed and the plaza in steps between the sidewalk and the plaza?

MR. MARCUS: One second, Your Honor?

THE COURT: All right.

(Pause.)

MR. MARCUS: Yes, Your Honor. But we would also note that the facts of this case don’t involve steps 1 and 2. What we are talking about are people who are all the way up at the highest tier of steps just before the columns of the United States Supreme Court.

THE COURT: Right. I understand that argument.

MR. MARCUS: Okay. And in any event, as the testimony shows, they were not – these persons were already on the steps of the Supreme Court plaza, they were not accosted or bothered by the police officers. It wasn’t until they unfurled the banner that Title 40 came into play. And again, some of them actually started out on the sidewalk, and had they stayed there, they wouldn’t have been arrested. I think the testimony is very clear in that regard.

Finally, Your Honor – well, not necessarily finally, but with respect to the issue about the media, Your Honor, that’s been decided. It doesn’t need to be revisited in this Court. Wall and Pearson –

THE COURT: Pearson.

MR. MARCUS: Pearson, right. Pearson says, you know, the fact that reportorial activities may take place in the Supreme Court, even facilitates that, does not change the character of the forum into a public forum. At most it may make it a limited public forum for similar activity.

That’s not what happened in this case. There are not members of the press. These are not persons who are simply attempting to report in a neutral fashion, for example, on the goings on of the United States Supreme Court –

THE COURT: I understand that, but I mean, I think – I’d ask you to address this. The import, as I understood what the defendants were saying is not necessarily the reporting activities, but the speaking activities of the speakers communicating their message through a medium.

How is that not like unfurling a banner? Am I incorrect, as I understood Ms. House’s testimony, if someone during one of these press invitations went up to the microphone and said stop executions, that would not invoke a violation of the statute?

MR. MARCUS: Well, and this goes to the prejudice of the government’s experience in being able to put on a case because of the lateness of the filing and the Court’s ruling that that would be acceptable.

Ms. House frankly misspoke in that regard. She is not the person who establishes the rules and regulations and what would be a violation of 40 USC.

THE COURT: I’m sorry. What would you proffer as – I understand that, but I’m just saying I thought the testimony was fairly clear that the speakers who are able to speak at those press invitations do so without restrictions, without monitoring, without censoring.

MR. MARCUS: That’s correct.

THE COURT: I’m not asking you to answer my hypothetical on this –

MR. MARCUS: I can make a proffer in that regard, Your Honor, I think, fairly based on the evidence and the record as I understand it.

I think that it is became clear to the authorities and the U.S. marshal on the site that a number of individuals were actually using the appearance of a simple press involvement to actually demonstrate, I think that the officers would have made a judgment call that this is subterfuge, and we’re going to make an arrest here. I think that would be appropriate under the statute.

I think some of these are close question, Your Honor. Some more than others.

THE COURT: No, that was my only point when I opened these arguments.

MR. MARCUS: Clearly. So the government would concede that there may be such cases that would be closer, but this is not one of them. These are not our facts. Our facts –

THE COURT: But those people would not be arrested under the unfurling of the banner. It would not be the assemblage portion –

MR. MARCUS: If I understand – I’m sorry.

THE COURT: No. I’m sorry Go ahead.

MR. MARCUS: If I understand the Court’s hypothetical, if they were not holding the banner, if they were not holding a flag, if they were not displaying something –

THE COURT: Right.

MR. MARCUS: - then the only charge that could conceivably apply to them would be Clause 1.

THE COURT: Okay.

MR. MARCUS: They just wouldn’t – it wouldn’t be a factual basis for a charge under Clause 2, under that.

THE COURT: What would be the violation of Clause 1?

MR. MARCUS: Well, the violation would be that they were assembling and standing – if they were on the plaza, assembling and standing and doing that, actually singing and chanting stop executions or what have you , that would be the demonstration and that is the key word that was used in Wall and that obviously the defense counsel are very much against it.

THE COURT: I guess the issue becomes – well, let me – what if it were just one person walking up to a microphone making a statement that opposed –

MR. MARCUS: Without a banner or flag, Your Honor, it wouldn’t be necessarily be violent, because –

THE COURT: Okay.

MR. MARCUS: - this clause has been called the Congregational Clause for a reason.

THE COURT: Right. I understand.

MR. MARCUS: If there’s no congregation, you don’t have that issue. And there’s good reason that congregations of that sort we have in this case would be, you know, violative if done on the facts of this case would not apply to a single individual simply –

THE COURT: Right. Okay. I don’t mean to misdirect your argument. You were going somewhere.

MR. MARCUS: Well, that’s all right. So I would simply say, Your Honor, that the media issue that they raised is, in all fairness, not an issue in this case. It’s been resolved. The fact that the Supreme Court opened up this plaza in a limited way for reportorial activity has been resolved. And it’s not before this Court.

THE COURT: Can I just ask the government if they know the status of the record in Pearson as opposed to the status of the record here in terms of –

MR. KRAUT: Cert was denied.

THE COURT: If I could inquire of one counsel at a time.

MR. MARCUS: Your Honor, I did not make a note of that.

THE COURT: I guess I’m inquiring of the government. Maybe Mr. Goldstone, if you know, whether or not Ms. House testified concerning the Supreme Court Procedure of allowing press investigations in Pearson; was that presented to the trial court in Pearson?

If the government knows, if you don’t know?

MR. MARCUS: I would like to respond to that question, if I could direct myself to where they discuss this.

MR. KRAUT: It’s not in the opinion.

THE COURT: I guess that’s why Judge Ferren made a comment, I guess in Wall.

MR. MARCUS: As far as I know, Ms. House has never testified other than in this case, Your Honor. But we would note for the record that the reportorial issues raised by the defendant –

THE COURT: And discussed by the Court.

MR. MARCUS: And thoroughly discussed, Your Honor.

So we have a non-public forum. We have a legitimate interest, and I don’t mean to use that as a buzzword, but we do have a legitimate interest and we have a restriction that’s reasonable in light of that legitimate interest. In fact, the interest is so strong that it would pass the test under a public forum analysis.

So we do not think – if this Court can reach the second clause in this case, the government would still hold that it is constitutional on these grounds.

Also, Your Honor, it is not overbroad, and this Court, of course, has the obligation to construe it in such a fashion and it would be constitutionally permissible. And there are a number of ways – even if the government can’t present a way that would be acceptable to the Court, the Court has its own obligation, if it can, to construe the statutes closely, so as not to invalidate the entire second clause.

Again, if the Court were to decide that it was overbroad, it could only invalidate the second clause, because it is severable to the first clause.

THE COURT: Could I just ask you to explain what you propose as your construction of – you would limit the application to the provision to political or quasi political parties, organizations, or movements?

MR. MARCUS: Your Honor, the goal in the footnote, and this is why I’m using the footnote, the goal in the footnote is that there is a way to construe Clause 2, such that the Cub Scouts, if they got up for a school picture and happened to be wearing their blue hats and their yellow whatevers, and it had Cub Scouts group, you know, Troop Number 518 or what have you, that that wouldn’t be violative of the statute. And people carrying a coffin in protest of abortion of the death penalty, or what have you, up on the stands in a clear demonstration of a viewpoint would be violative and all such other demonstrations.

THE COURT: Okay.

MR. MARCUS: And we would just ask the Court – you know, it is not a stretch of the intellect, and the Court is, of course, quite capable of doing so – to find such a construction and uphold the constitutionality of this statue. It is just very important to the United States Supreme Court, Your Honor. This is not, as the Court is well aware, this is not a small matter.

THE COURT: All right. It’s not – I mean, I understand the statement. I assume it’s not a small matter to the defendants, either. So, that’s not helpful and I’m not trying to – I’m just trying to explore your position.

MR. MARCUS: It is without question, Your Honor, that the ruling that comes from this Court is going to have an impact of AIDS quilts on the plaza. It’s going to have an impact on the thousand of marijuana cigarettes thrown up on the plaza –

THE COURT: I think I understand the breadth of the problem. I’m trying to explore your position concerning the construction that you’re offering on Clause 2.

MR. MARCUS: Putting aside, of course, the press issue, there’s no need to construe with respect to the press.

THE COURT: I actually don’t have an issue with that.

MR. MARCUS: Okay. I’m sorry, Your Honor. I didn’t know.

THE COURT: I guess what I’m trying to explore is the idea that in construing Clause 2, a trial court would have to be in position to determine whether is – an organization is politically neutral or quasi political.

MR. MARCUS: Then perhaps the focus should be on demonstrations. The folks walking up to take a picture for their class reunion, or what have you, would not be demonstrating by any fair interpretation of the term.

These defendants and others like them, and there are myriad examples that could be give, are demonstrating and that is important. That is what that second clause goes to, goes to that kind of demonstration. So if the Court decides to focus its construction on the demonstration clause, it will not sweep up into the statutory prescription all this other innocent activity isn’t going to influence the Supreme Court. It’s not designed to.

THE COURT: No, I think, Mr. Marcus, you’re – I think I understand my obligation to attempt to construe this in a constitutional matter to defeat an overbroad challenge. I accept that responsibility. I’m asking you whether or not it is, in fact, a wise construction or a constitutional construction to have factors that you’ve outlined in your position that attempt to have courts, in determining application of the statute, whether or not it’s a politically motivated or quasi politically motivated or politically neutral? And I’m asking you whether or not the government has considered that sort of terminology and construction in determining whether or not that construction will survive a First Amendment challenge.

MR. MARCUS: Let’s – let the government posit that it might be trouble for a court, if this Court were to adopt that exact construction.

THE COURT: Okay.

MR. MARCUS: Let the government also posit that statute is aimed at demonstrations. It’s aimed at demonstrations that might influence the Justices. It’s aimed at demonstrations that might cause the integrity of the Supreme Court to be brought into question to public light. And that a construction that meets that is not going to sweep up school girls or school boys, Cub Scouts or Boy Scouts, tourists who happen to be wearing – for that matter a Confederate flag on their shirt. It’s not going to sweep them up, Your Honor.

And it’s a wholly acceptable construction that upholds the Constitution, and I just ask this Court to find that.

THE COURT: Can I ask the government to – let me just walk you through 13(k) Clause 2, and if you could consult with whomever you have to.

MR. MARCUS: Yes, Your Honor.

THE COURT: Is it your understanding that where it says, any flag, banner, or device, designed or adapted to bring into public notice any party, the reference to party there would be a party to an action before the Supreme Court or is there a broader reading of party there?

MR. MARCUS: Well, Your Honor, I’m – I’m –

THE COURT: Or does the government have a view on that word?

MR. MARCUS: This is my concern about that, Your Honor, without consulting the legislative history. I’m not comfortable telling you what I think the word party means.

THE COURT: Well, let’s just assume – let me just – let’s just assume for the purpose of our discussion that that has been reviewed and there is no other one.

MR. MARCUS: You would have to construe it consistently with the clause that it sits in and we would think it would not go to a party before the United States Supreme Court, for example, on a matter that the Court is considering on at –

THE COURT: I guess what I’m asking you, if the purpose of the Clause is to ensure that the public not have the appearance that the Court is under an influence of public demonstration, or whatever, when I read that I thought party – I mean, wouldn’t that support the goal of the statute to not give the appearance that you’re trying to associate yourself with a party or – well, I’ll ask you to –

MR. MARCUS: It’s an interesting question of what is apparently an ambiguous term.

THE COURT: Okay.

MR. MARCUS: And we would accept that it is ambiguous. And when there is an ambiguity in the state, the goal is to construe it –

THE COURT: That’s why I was asking it.

MR. MARCUS: - consistent with what it fits in and the overall scheme of things.

THE COURT: So you would read party as apolitical party, was that –

MR. MARCUS: Well, I think that would have to be party of the definition.

THE COURT: Okay.

MR. MARCUS: Because you have it in –

THE COURT: See, I thought –

MR. MARCUS: - innovation of a movement and that wouldn’t – that would – sort of intuitively that would not suggest an appellate repetition or a respondent in front of the United States Supreme Court. It would suggest, you know, Abolitionist Action Committee, or it might suggest, you know, some slender group of the Democratic Party, or Communist party or Republican Party.

So that’s the suggestion that appears to the government from this Clause. But it’s obviously susceptible to other interpretations.

THE COURT: Could I ask you this, let’s just assume that a movement is defined as activities of a group of people to achieve a specific goal. Would you read any party or organization as reflective of a particular movement or do you see those as independent concepts?

MR. MARCUS: Well, party and a movement probably are independent, but they merge in some respects, Your Honor. If a party is so aligned in the public’s view with a particular movement –

THE COURT: That’s what I mean.

MR. MARCUS: - then you’re talking about indistinguishable things. But obviously this is a statute designed for those cases where – where it’s not quite a movement, but it’s a party or it’s not quite a party, but it is a movement. There could be a loose coalition of individuals that might consider themselves a movement, but the looseness of their confederation would not make them a party.

We would also add that, Your Honor, that the term party, as used there is apparently content neutral.

THE COURT: Oh, I agree. That’s why –

MR. MARCUS: And it’s been so decided.

THE COURT: I understand that. That’s why I’m trying to understand the proffered construction getting into political neutrality or quasi political in defining those terms.

MR. MARCUS: Well, I –

THE COURT: Because I do think it’s content neutral on its face.

MR. MARCUS: Okay. When we use the term political in the opposition, Your Honor, we’re not trying to narrow in on a political – on a specific party, on a specific agenda, because that would raise some question.

What we’re trying to do, just in terms of the great debates of society –

THE COURT: Right.

MR. MARCUS: The coalitions and coalescents of people getting into a particular side or part of that debate. So if the word political is loosely used in opposition, maybe that’s not the correct word. But we’re not trying to focus in on a particular party and a particular viewpoint because of conflict. The statute already passes muster. We don’t want a construction that would then defeat that.

If the Court has any additional questions on the motion to dismiss, we’d like to hear them and will answer then; otherwise –

THE COURT: No, no. I think – I mean, I’m just trying to verbalize to you, at least some of the issues that I’m looking at. And I just was – I really wanted to sort of –

MR. MARCUS: Your Honor, may I just ask, just as you review the government’s opposition, exactly what part, what clause you’re referring to? I want to make sure I’m responding to the question.

THE COURT: Well, if I look at Paragraph 13 of your opposition –

MR. MARCUS: Right.

THE COURT: It limits the application of the provision to political, quasi political parties, organizations or movements, aimed –

MR. MARCUS: Right.

THE COURT: And then when you look at the footnotes, you would have to get into decisions about whether or not it was traditionally not associated by the public with any political issue, baseball pennants.

I mean, it’s – that construction, I’m willing to look at that construction. It just is – I was a little surprised.

MR. MARCUS: It may be that the term is too ladened with implications.

THE COURT: That’s the only thing I was exploring.

MR. MARCUS: But the intent there is just to focus the Court on what the statute actually goes to. It’s not innocuous, benign gatherings of people for pictures.

THE COURT: But, see, what I’m suggesting, if party and organization is read in conjunction with a movement, and a movement is defined as activities of a group of people to achieve a specific goal or can be reasonably be viewed by the public that they’re seeking to achieve a goal, that would seem to me to be more content neutral than consistent with sort of courts not viewing whether something is quasi political or political in nature.

MR. MARCUS: And that would be the government’s position, Your Honor.

THE COURT: You would adopt that position?

MR. MARCUS: We would certainly adopt that position, Your Honor.

THE COURT: I’d ask you, Mr. Marcus, if I do take it under advisement, I’m raising these issues with you because I want the government to think about it and it may be that if you have different thoughts about the possible construction of Clause 2 and its limited application, I would receive those thoughts.

MR. MARCUS: Court’s indulgence, Your Honor?

THE COURT: Uh-huh.

(Pause.)

MR. MARCUS: Your Honor, just to take the Court up on what seems to be an implied offer, we would like to have the opportunity to submit such a post trial memorandum.

If I may ask the Court, I realize the Court doesn’t have to answer, but if I may ask the Court what the Court’s concerns would continue to be with respect to the sever ability issue and the chargins Clauses 1 and 2 in this case?

THE COURT: I think I raised that. I mean, I raised the issue. I’m not sure you wanted to address it. It just seems to me that the charging decision of the government and conjoining these in one count, the defendants moving to dismiss that count as multiplicitous, the government electing not to break to break it out into separate counts, but to include it as one count, activity in one count, I’m just not prepared to say that has no impact.

I can say, well – I’m sorry. Go ahead.

MR. MARCUS: I’m really not sure that that’s what we did. I think that the government simply argued that they were being charged with respect to both clauses. That’s the only argument that the government made here.

THE COURT: Yeah, I understand –

MR. MARCUS: We never said that we’ve got to find them guilty on everything or it all falls. We were always saying you can find – and that’s what our opposition says, you can find them guilty on Number 1 and not find them guilty on Number 2 and they’re still guilty.

So I don’t – I’m very troubled then and I don’t think that that’s been the government’s position and we wouldn’t have taken that position.

THE COURT: All right. I understand.

MR. MARCUS: It’s far from the government’s standpoint.

THE COURT: And it may be in the end you’re right. I asked you for what you thought the impact. You stated that there was no impact. It may be that you’re right.

MR. MARCUS: Or maybe it means it’s turning on – All right, Your Honor. We, of course, reserve our rebuttal.

THE COURT: Thank you.

MR. GOLDSTONE: Your Honor, we would request a five minute recess for the defendants to begin their closing.

THE COURT: That’s fine, Mr. Goldstone. I do think that the likelihood of me being able to rule on this matter, in light of some of the inquiries I’ve had of the government, it’s unlikely, much as I hate to say otherwise, but –

MR. GOLDSTONE: I understand.

THE COURT: I think you understand some of the issues I have.

MR. KRAUT: What time is the Court going to be recessing for lunch?

THE COURT: I generally recess at – I try to fine a natural break around 1:00. Now, if it comes earlier or later depends.

MR. KRAUT: Okay.

(Recess at 12:15 p.m.)

(Resumed at 12:21 p.m.)

THE DEPUTY CLERK: Returning to the trial matter, parties please identify yourselves for the record.

MR. KRAUT: Nina Kraut on behalf of Mr. Bonowitz.

MR. GOLDSTONE: Mark Goldstone representing six awful big case on a word.

THE COURT: Excuse me?

MR. KRAUT: That’s what this comes down to, the use of the word “and” in the information –

THE COURT: You know, Mr. Marcus, I understand your comment in that regard. It would turn the case on the charging decision of the government to include this language in one count in the information.

Now, you know – I’ll just leave it at that.

MR. MARCUS: Well, we would just submit, Your Honor, that the law is very clear that they’re talking about two distinct clauses.

THE COURT: I understand that.

MR. MARCUS: The position is very clear on that.

THE COURT: All right.

MR. MARCUS: And that is the point that the government has made consistently throughout this case.

THE COURT: And repeatedly.

MR. MARCUS: I apologize, Your Honor.

THE COURT: No, no, I –

MR. MARCUS: I want to be as clear as I possibly can on that point.

THE COURT: You know, and maybe this goes to other counsel as well. The fact that I raise issues doesn’t mean that I don’t understand your position. I understand your position and that of the defendants.

Okay. All defendants and counsel in all other matters are present.

Anything further from the government?

MR. MARCUS: Yes, Your Honor. We would simply direct the Court’s attention – not simply. This is actually very important. We would direct the Court’s attention to the analogy to Section 22-504, the assault statute, which as written says: Whoever unlawfully assaults or threatens another in a menacing manner should be fined, et cetera.

THE COURT: I see your position. I understand.

MR. MARCUS: And it has, it says, in the case law of Allison vs. United States, the D.C. Court of Appeals in 1993 said: One who challenges an assault, i.e. the government, under this section must prove either an attempt to cause physical harm or –

THE COURT: I thin I understand your argument.

MR. MARCUS: This is very analogous to what happened here, Your Honor, and they were put on notice, and that is the point of the charging argument.

THE COURT: Right. No, I think I understand your argument.

MR. MARCUS: Thank you, Your Honor.

THE COURT: All right. Mr. Goldstone, Ms. Kraut?

MR. GOLDSTONE: Your Honor, is it possible the pro se defendants to speak first?

THE COURT: Yes. Do you have an order or do you want me to go down in order?

MR. GOLDSTONE: Mr. Laffin will be speaking first?

THE COURT: Okay. Mr. Laffin.

CLOSING ARGUMENT
BY DEFENDANT LAFFIN: Good afternoon, Judge Morin.

I stand here today in the spirit of love and compassion for you and for the U.S. Attorneys and for everybody who is present in this courtroom today.

I and my co-defendants stand in a long, noble, and non-violent tradition of people in faith and conscience who in the name of life and love have resisted state-sanctioned violence, idolatry, and killing.

I think of the prophets, Jesus, the early Christians, Francis St. Clair of Assisi, Thoreau, Harriet Tubman, the White Rose in Germany, Martin Luther King Jr., and Cesar Chavez, just to name a few.

We stand in this tradition coming here to this Court today and I am very honored and humbled to have done this non-violent action with these sisters and brothers, my co-defendants.

This is not any ordinary case, contrary to what the government contends. This is a case about life and death. It’s a case that calls into question everything the government stands for.

The government has focused strictly on legal technicalities and whether or not we violated a U.S. code. But what was our intent? To break the law and commit a crime? Or to protect a life?

You can’t separate intent from the crime that we’ve been charged with, as much as the government would like to do so. Our evidence has shown that we went to the Supreme Court not to commit a crime but to prevent a crime: the crime of state-sanctioned murder.

We should never have been arrested and charged. This case is not of our calling attention to ourselves or seeking publicity or raising money for our own ends. But we are here to intercede on behalf of the victims.

It’s worth knowing that every time I’m in Court, and I’ve been coming into Courts for 20 years now, I hear God’s name used when people take an oath. Yet the Courts of our land consistently violate God’s command as it imprisons and dehumanizes the poor.

I want to invoke God’s name today, because the U.S. Government has and continues to blatantly transgress God’s law, the law which commands us not to kill. Not only can’t we kill, but we must non-violently actively resist killing. God’s law supercedes the laws of this Court and is the only law that I can give allegiance to.

When human law conflicts with God’s law, we must uphold God’s law regardless of the consequences. As a person of faith, it is my duty to non-violently resist the government that legalizes nuclear war preparations that threaten all life, that kills innocent civilians and acts with military intervention from Hiroshima to Vietnam to Iraq, that kills the unborn and kills people on death row.

The true meaning of the law is to protect and enhance life, as I understand it. We had no other alternative on January 17th, other than to take the kind of action that we did. Nearly 400 people have been killed by the State since 1977.

And as we gathered here today, this morning, last night a person was executed in Kentucky. And tonight another person, Gregory Hunt, is scheduled to be executed in Maryland.

When will the killing stop? When will the killing stop? 3000 more on death row. We acted out of necessity to prevent imminent harm to our sisters and brothers on death row. We might add that to 40 percent of whom are people of color.

And so I stand here today very sad about what’s happened in our country concerning the death penalty. I stand here in solidarity with all victims on death row, and I want to call into this courtroom their spirit and presence. I want to call into this courtroom all victims of murder and their families.

And you have heard very powerful testimony from those who were allowed to tell their story, as much as you would allow them about the loss they’ve experienced and their incredible journey from violence to healing.

If we had the opportunity to prevent the execution of Jesus, even if it meant breaking human law, would we have done it? I know my friends here and I would and those here in the courtroom today, and those who are fasting and vigiling at the Supreme Court and countless others around the country. Sure we would have acted to prevent the execution of Jesus, founder of our faith and Gospel.

We must see each person on death row as if they were Jesus. They are a member of God’s global family. They deserve compassion and the opportunity to make restitution to society, not to be murdered.

And so, Judge Morin, you have a difficult role here. And I and we are appearing to your heart to perhaps step aside as your role as a judge and to really reflect on what your responsibility is, to uphold God’s law and to join with us in trying to end state-sanctioned murder. I would like to close with a prayer from Sister Helen Prejean: God of compassion, You let Your rain fall on the just and the unjust. Expand and deepen our hearts so that we may love as You love, even those among us who have caused the greatest pain by taking life. For there is in our land a great cry for vengeance as we fill up death rows and kill the killers in the name of justice, in the name of peace. Jesus, our Brother, You suffered execution at the hands of the state, but you did not let hatred overcome You. Help us to reach out to the victims of violence so that our enduring love may help them to heal. Holy Spirit of God, You strengthen us in the struggle for justice. Help us to work tirelessly for the abolition of state-sanctioned death and to renew our society in its very heart so that violence will be no more.

Thank you.

THE COURT: Thank you. Mr. Goldstone?

MR. GOLDSTONE: Your Honor, I think Mr. Streit would like to speak.

THE COURT: Mr. Streit?

CLOSING ARGUMENT
BY DEFENDANT STREIT: I will be brief. I think this trial has gone on longer than any of us expected. And I would just like to say I am really conscious that the real drama happening and this I really emphatically state that this trial, this case is about the death penalty.

I am confident, Judge, that when you weight all the evidence, the oral testimony given by many of my co-defendants here, together with considering the latest of all the defendants, I think you will find us not guilty.

I’m the father of two small children. You may have seen them yesterday running in and out of the courtroom. And I teach them, not only not to hit one another, you know, but certainly I’m going to raise them not to kill.

How can you raise a child and teach them not to kill when our highest authorities teach that it is okay to kill? And not only is it okay to kill, but be demonstrated regularly in war and in executions. How do you do that?

And I don’t have to tell anybody in this courtroom that this society has a blood lust, that our whole society and our culture is just filled with violence. From womb to tomb life is threatened and there’s so many cases that killing is actually legal. That’s the rub of it. And that’s frightening.

And when you hear a story like the testimony of Mr. White, no one is safe. When the law plays God, nobody is safe. I fear for my children growing up. What if they get involved in something that the law again finds them on death row, completely innocent? And you know that story happens over and over again. It’s not just an exception. Death is irreparable. You can’t bring them back. So when the law of the land is made that killing is legal, then that law must be resisted. What we did on January 17th may very well have been illegal, but it was the right and just thing to do. We’re not here just to be against. I think the testimony has shown that we bring an alternative. We’re offering you, government, our society, anyone with eyes to see and ears to hear, an alternative, a non-violent alternative in the face of a system of law that simply is not working.

I hear story after story of adding wings onto death row. We will more people, execute more people, more people, I mean, it’s just a cycle of violence, a spiral of violence that’s going down, down, down.

I’ve been in courts many times also. I live at the Dorothy Day Catholic Worker House and not only do we share hospitality of homeless families, but many of the victims of our society, the poor. But we also take these stands for justice and peace.

I’m usually very vocal and forefront in a trial, but because of the – some of my friends here who have tremendously powerful stories, those stories needed to be heard. Even in this courtroom we have a father and mother of a young man on death row in Texas who is mentally ill, couldn’t get help because he is poor, couldn’t get help until he was violent. That’s what the law does.

So instead of the law, we offer reconciliation, forgiveness, love. And that’s what we bring here today, that’s the testimony we give. And that love ultimately changed our life and our society. Not the law. The law hasn’t done it and can’t do it, and I think the Bible ahs said that, you know, that the law cannot save us. We need more love-abiding citizens, rather than law-abiding citizens, in my opinion, when the law spells death.

So I ask you, Judge, to find us not guilty, to begin turning this law and order society, which is really a tremendous disorder, into a community of people living compassionately, living in forgiveness, living lives like these people have offered us here .

That’s the hope we want to give the people who are in this courtroom and the people who will hear about this trial.

Now, if this were a jury trial, Judge Morin, I’d be arguing for swaying the jury, to embrace jury nullification to follow their hearts and their conscience. What we did, as I said before, may be illegal, but as the testimony of Marietta and Mr. Laffin mentioned just before me, is that nothing has ever really changed in this country unless it was done through civil disobedience.

And I ask you again, in an unjust society, were should the just person be? Hopefully on the steps of these places where death is legal.

So, Judge Morin, I implore you to follow your heart and your conscience to find us not guilty, not on the merits of the law, but on the merits of conscience, decency and genuine justice.

Thank you for your time.

THE COURT: Thank you very much.

MR. GOLDSTONE: Mr. Scahill would like to speak, Your Honor.

THE COURT: Thank you.

CLOSING ARGUMENT
BY DEFENDANT SCAHILL: Good afternoon, Judge Morin, Mr. Marcus, and I’m sorry, I didn’t – I don’t think I caught your name.

THE COURT: Mr. Emory.

CLOSING ARGUMENT CONTINUED
BY DEFENDANT SCAHILL: Mr. Emory.

Well, I guess I’ll just – I’ll start by saying that several things that Mr. Marcus stated during the course of this trial concerned. Me.

One of them was an attempt to characterize at least one of the defendants, and I believe collectively, the defendant as disorderly. Now, I would assert that murder is disorderly. I would assert that murder sanctioned by the government is disorderly. I would not assert that persons attempting to stop such action are disorderly. I would assert that those are the most orderly people you could find around.

If state-sanctioned murder is orderly, then let us all be disorderly.

This case has been presented as a clear-cut open-and-shut bookcase, about were we there, did be unfurl the banner, did we chant, did we sing. That’s how the case has been presented by the prosecution, by the government. Speaking for myself, I did, and you can fill in the blanks with the works, I’m not interested in criminalizing myself. I don’t have any doubt that I violated Code such-and-such or so-and-so. I did congregate. I did assemble. I held the banner, I sang, I chanted. I did all these things and it was probably in violation of Code so-and-so and such-and-such.

But I saw all of this and I admit to all of this, not only because I did it and I’m proud of the fact that I did it, but in the hopes that we can get beyond those questions that I think are really sort of irrelevant to why we’re here. Get beyond the bureaucracy, the relationship of Judge Morin and Defendant Scahill or Defendant X, Y and Z and Prosecutor and so-and-so and Defense Attorney and so-and-so, but let’s get beyond – that’s all superfluous to me. Let’s get beyond that.

I’m looking at you, Judge Morin, not as Judge Morin, I don’t even know your first name, but if I did, I would probably call you by it. Not out of disrespect but out of the utmost respect. Respect for you as a person. I understand that you have a history of defending capital cases, that you yourself have argued against the death penalty.

And I guess when I think about that and I think about you sitting up there, I don’t think you’re in a very pleasant position right now. I think through that you have an opportunity as a jurist in this country, as a judge in this country to make a very real statement about your opposition to the death penalty.

To make that statement though would inevitably come at a sacrifice. You probably wouldn’t elevate much higher than the position, the position you are right now. It would come as a personal sacrifice. You know, this country has been engulfed in a fury of vengeance about Timothy McVey and it’s unpopular to say that you oppose the death penalty for Timothy McVey. I do. I do oppose the death penalty for Timothy McVey, because I don’t think we’re asking the real questions about his case. If Timothy McVey did, in fact, explode 168 people including children, why aren’t we asking where he learned it? Where did Timothy McVey learn how to make the explosives that he allegedly used in Oklahoma City? Where did he learn that?

He learned that in the armed forces of the United States of America, appraised for making those sorts of bombs. He was a decorated soldier. He was honored by his country for serving his country well, by incinerating Iraqi children. So his sides changed and he comes back. He says, Not I’m not for the government, but I’m going to use what I learned from that government and I’m going to turn it around.

When are we going to learn to ask the kinds of questions like that? Where did he learn it? Because those are the important questions, and it relates directly to the case before you today, because when are we going to ask the questions of where do people who are murdering on the streets learn how to do it? What’s the highest example in the land? When George Bush says, I’m going to kill Saddam Hussein, we want to kill Saddam Hussein, what does that say to the children of the United States of America?

It’s a blank check, a blank check for children in the United States of America to use force, violence if necessary, murder to resolve their differences. Those are the sorts of blank checks that the Supreme Court hands out to every child on the streets of America. Those are the sorts of blank checks that we sign to the rest of the world. Those are the sorts of blank checks that end up with death warrants, that end up with the thing we call the death penalty, and that’s not an accurate enough term.

I could stand before you today and I could make numerous arguments about my innocence. I could say that politicians have manipulated the death penalty system for political purposes, therefore you should find me not guilty. Michael Dekakus said the question, will he get elected? I could say that, but that would be an argument against the degradation of our public lives. It’s not really an argument against the death penalty.

I could make the argument that the inhabitants of death row are disproportionately people of color. We have judges like Judge Sabo in Pennsylvania, 32 people sentenced to death, 29 of them people of color. I could make that argument, but that’s not really an argument against the death penalty. It’s an argument against discrimination. It’s an argument against racism.

I could make the argument that there’s no moral distinction between a murderer and the government. But you know what. I don’t agree with that argument. I don’t agree with it. I would argue that there is, in fact, a moral difference between a murderer and the government. This government is the greatest mass murderer in the history of the world. This government is responsible for the deaths of 576,000 Iraqi children since 1990. That’s not my statistic; it’s not some flaming leftist statistic. It’s the statistic of the United Nations: 576,000 children since 1990.

Pencils are declared weapons. Children can’t have pencils in Iraq. This is the only nation on earth to use the atomic bomb. And they’re going to decide who lives and who dies? My allegiance to the United States government is non-existent. It’s not solely because of the use of that bomb. Because of everything else that’s followed it. Because of the course that it set us on.

So why do I say all of this? Do I have – do I have a proposal, do I have some sort of solution? What should we do with people who murder?

The question is, what is the sane policy? What is the sane policy? Well, what’s the policy of Marietta Jaeger, 7-year-old daughter murdered, what’s her policy? Does she have blood on her lips, was she – is she running around thirsting for revenge? At one point she probably was. But what’s her policy? Is her policy revenge? Is her policy, I want to get even? I want to show that man that he was wrong and I want him to hang for it?

No. Her policy is one of reconciliation. One of forgiveness and ultimately one of personal and public healing. That’s the sane policy. We have two friends in the courtroom today who have a son on death row. I would like you or the prosecutor to sit down and talk with them about the pain of knowing that their son is on death row in Texas.

Where’s the forgiveness for them? Where’s the healing for them? Where’s the reconciliation? Until we listen to the Marietta Jaegers and the Bill Pelkes and Sally Pecks and the Ken and Louis Robinson, until we listen to those people, we aren’t even thinking about a sane policy. Unless we’re talking to the people who are directly affected by it, we aren’t sane. We aren’t sane.

So my plea to you, Judge Morin, is not to be Judge Morin. It’s to be Mr. Morin, and if I knew your first name, I’d say it, and to think of this not as a judge, because I’m not viewing you as a judge. I’m viewing you as a person who probably has a very difficult decision to make. But I ask you to please in your heart think of those people that I named before. Think of the people that are on death row. Think of Mr. Hunt, who may be spending his last day on earth.

Thank you.

THE COURT: Thank you, Mr. Scahill.

Are there going to be other statements?

MR. GOLDSTONE: I don’t believe there are other pro sees who are going to speak.

THE COURT: All right. Let me just go down the list to make sure.

Ms. Peck, do you wish to make a closing argument?

DEFENDANT PECK: No, thank you.

THE COURT: Ms. Charkoudian?

DEFENDANT CHARKOUDIAN: No, thank you.

THE COURT: Mr. Halperin?

DEFENDANT HALPERIN: No, Your Honor.

THE COURT: Ms. Jaeger?

DEFENDANT JAEGER: No, thank you.

THE COURT: Ms. Pautrat?

DEFENDANT PAUTRAT: No.

THE COURT: Did I miss anyone?

Okay, Mr. Goldstone, please?

CLOSING ARGUMENT
BY MR. GOLDSTONE: Thank you, Your Honor.

Judge Morin, Mr. Marcus, Mr. Emory, pro se defendants and defendants.

Ladies and gentlemen, this case – I want to start this case with some basic principles and some fundamentals about this case that I think apply.

On behalf of the defendants, we have a very simply thesis. And that thesis is that people have rights. People have rights. And these rights are guaranteed to them by the Constitution, specifically the First Amendment of the Constitution.

Now, what is the text of the First Amendment? Very instructive. All we’ve heard throughout this entire trial is the reading of the statute 40 USC 13(k), unlawful to parade, stand or move in processions.

I would like to read the text of the First Amendment if I may: “Congress shall make no law abridging the freedom of speech or the right of the people peaceably to assemble, and to petition the government for redress of grievances.”

So right away we have a clash between the text of the statute and the text of the First Amendment. The First Amendment rights are fundamental to us as a free people and a free society, a society of laws and not of men or women. In fact, it’s the lifeblood of our democracy, a health informed debate about the important issues of the day.

As Justice Marshall stated in Grace, and I would like to read from the Grace opinion. Justice Marshall said: “I see no reason why the premises of this court, Supreme Court, should be exempt from the basic principles of the First Amendment. It would be ironic, indeed, if an exception to the Constitution were to be recognized for the very institution that has the responsibility for protecting constitutional rights.”

And he goes on to add: “I would apply to the premises of this Court the same principles the Court has applied to other public places.”

We would submit, Your Honor, that this right that individuals have cannot be taken from an individual, whether they are an ordinary citizen like the defendants or powerful politicians or public figures. This right cannot be taken by the Supreme Court Police, cannot be taken by Supreme Court Public Information Directors. It cannot be taken by prosecutors or by an act of Congress, such as this statute.

We believe, of course, Your Honor, that the statute is both unconstitutional facially and as applied. We believe the people’s constitutional rights do not stop at the White House sidewalk, that people have a right to protest. They have a right to assemble. They have a right to petition their government for redress of grievances.

That clause does not exempt the third branch of the government, the Judicial Branch, it includes the third branch of government. All the arguments that somehow the Judicial branch is exempt, simply have no basis in law or in fact.

People have a right to speak. We submit they have the right to unfurl a banner at the Court. Indeed, in this country, people have a right to burn a United States Flagon the steps of the United States Capitol. And, yet, the government contents that they cannot unfurl a banner at the Supreme Court.

In the words of Lieutenant Dolan, the government’s main witness, there was a disruption on the steps of the Supreme Court because there was a demonstration. Lieutenant Dolan made no distinction between a demonstration that is a disruptive one and a demonstration that is not a disruptive one. His words cannot be squared with the First Amendment.

It’s very similar to the words used during the Vietnam protest by the then Chief of the Capitol Police, Chief Powell. Chief Powell used the words, “Grounds that are controversial or political are not allowed to assemble on the Capitol grounds.”

Now, let’s look at what the Court said with respect to Chief Powell’s determination. “If they come as tourists or visitors,” it is said by Chief Powell, “they are permitted to gather. If they come to engage in persuasion by speech or sign or assembly, their presence is prohibited.”

This, the prosecution argues, is a perfectly proper and constitutionally unobjectionable practice.

THE COURT: Oh, I’m sorry. That’s from Grace?

MR. GOLDSTONE: That’s from Dellams, Your Honor.

THE COURT: Dellams.

MR. GOLDSTONE: But a restatement of the policy as now read by Judge Green in the Dellams case, says, “There is another way of saying the Capitol grounds are open to all those – or all except those who seek to use them for the First Amendment Rights.” And then Chief Judge Green said, “That, however, is an impermissible unconstitutional standard under the First Amendment.” And the Court, obviously, struck down that statute.

We would submit that the government’s ability to limit free speech and to suppress free speech is extremely limited and the government bears and extremely heavy burden when they attempt to suppress speech, in an area where the public has access, free access 24 hours a day, 7 days a week, as this court has recently learned, and certain groups such as journalists, litigants and the University of Virginia law professors are apparently allowed to express themselves.

And we believe that the government cannot and has not met this heavy burden.

Now, let’s turn to what brought these brave 17 individuals from all walks of life and all across the country to the Court n January 17th. We have a steel worker in our presence, we have college professors, we have activists, all sorts of different types of people from a number of different states, from Maryland, from D.C., California. One defendant from the former East Germany, Michigan, Kansas, Indiana, New York, New Jersey and Texas.

What brought them to the Court was two fundamental realities. One: their belief that the death penalty is wrong, immoral, unjust, prejudicially applied, and innocent persons might be executed by the State, and they oppose that.

Your Honor learned that January 17th was the 20th anniversary of the State execution by firing squad of Gary Gilmore. And that’s why they unfurled this banner with a very simple message, Stop Executions. Since that black day, as Mr. Laffin explained, there are nearly 400 persons who have been executed by the State and more than 3000 people who currently sit on death row.

In addition to delivering a message regarding the death penalty, they also went there to challenge the statute, to challenge the statute that we believe is unconstitutional. And we urge you, Judge, to find that they acted in a proper manner, at a proper location, and in unfurling the banner they did so in a prayerful, reverential, peaceful, non-violent and respectful way.

You heard some of the defendants talk about their religious underpinnings and the reason they went to the Court. I think it’s important to listen to their testimony and their closing arguments to decide whether or not they had a criminal intent, a criminal intent now, to break that statute.

The reason they went to the Court on that particular day was not because the Court was open or in session. They chose that day because that was the 20th anniversary of the execution of Gilmore. I think it’s very clear from the testimony that it can be inferred that had the anniversary occurred on a weekend, they would have chosen a weekend. So they were not there specifically for the purpose of disrupting the Court.

And furthermore, we believe that they unfurled this banner in such a way that it did not compromise the protection of the Supreme Court building or grounds. And it did not compromise the security of any persons or any property therein. And it did not disturb the good order and decorum of the Court. And certainly did not compromise the appearance of the Supreme Court as a body unswayed by external influence.

We need to look, Your Honor, at the effects of the unfurling of the banner, rather than the acts of the unfurling of the banner.

I would urge Your Honor not to focus on the chanting, for several reasons. First of all, it was clearly irrelevant to Lieutenant Dolan’s determination that a violation had occurred immediately upon the unfurling of the banner. It was incidental, nearly incidental to the unfurling of the banner in addition. Further, it was not louder than the amplified voices that were taking place on the sidewalk in the so-called legal demonstration.

Also, Your Honor, if Your Honor would care to view the videotape, it is clear from the tape that the chanting was joined by those persons that were on the sidewalk. Additionally, Your Honor, we would urge you to look at the videotape in a particular time frame. And that is that from the moment that the decision to arrest had been made, any future conduct, any post-arrest conduct not be used to criminalize their conduct.

For example, if any post arrest chanting took place, it clearly didn’t go to Lieutenant Dolan's determination that a violation had occurred. And we would urge you not to look beyond the warnings and the first of arrests.

If we can look to the effect of the unfurling of the banner, rather than the act of unfurling the banner, we can truly see that their actions are no different from the actions of camera persons and the actions of the journalists and the actions of tourists, litigants or law professors, those who gather and assemble on the Supreme Court steps during press availabilities, or even a group of school children who choose to position themselves behind a banner to take a photograph.

It’s clear that there were no barriers that were crossed, no barricades that were climbed over. There were no police lines that were crossed. It is further clear, Your Honor, we would submit, that nobody disrupted, nobody was disturbed, no ingress or egress, further testimony of Lieutenant Dolan was interrupted.

We would also urge you not to focus on the fact that the plaza was so-called closed, for a number of reasons. First of all, in the government’s paperwork, similar to the fact that they did not –

THE COURT: You say the plaza was closed?

MR. GOLDSTONE: Yes.

THE COURT: You mean after the arrest or before the arrest?

MR. GOLDSTONE: It sounded like he was saying that he made a determination to close the plaza as soon as the banner was unfurled.

THE COURT: Right. Once he had decided to arrest.

MR. GOLDSTONE: Once he had decided to arrest, correct.

THE COURT: Okay. And I’m saying, I don’t mean to interrupt your flow, but you’re saying I shouldn’t take that into consideration because it wasn’t closed when they went up there, right?

MR. GOLDSTONE: Right.

THE COURT: Right.

MR. GOLDSTONE: But also that the plaza closure was not relied upon, not relied upon in any of the government paperwork, any of the police reports as a reason for them being arrested.

THE COURT: Well, it wasn’t relied upon by the police who made the arrest, either.

MR. GOLDSTONE: Correct.

THE COURT: Right. I understand.

MR. GOLDSTONE: And there were no charge of unlawful entry or violation of the police lines or closure orders.

Your Honor, these individuals did absolutely nothing wrong on January 17th. And as Mr. Laffin said, they acted in a great and proud tradition. They went to raise attention to the death penalty, which they clearly had done, in a proper and lawful manner. And they wanted to also challenge a statute whose unconstitutionality we now recommend to the Court.

And we believe the evidence has shown they did not commit a crime on January 17th.

I thank you.

THE COURT: Can I just keep you at the podium for a couple of minutes.

MR. GOLDSTONE: Your Honor, I was – yes, I would.

THE COURT: I just want to ask you, is it your position that the inquiry left by Judge Ferren in Wall about whether it’s a public forum or a non-public forum is open, or do you have a position on that?

MR. GOLDSTONE: I believe it is open, Your Honor. I believe it’s open because this is the only situation that the government has charged both clauses of the statute, include that reason and that reason alone, we are writing on a blank slate.

THE COURT: Can I just ask you what you view as the import of Wall and Pearson? It seems to be binding. Do you have a different view?

MR. GOLDSTONE: I don’t believe it’s binding.

THE COURT: And just tell me why you don’t believe – oh, because of the double charge?

MR. GOLDSTONE: Yes.

THE COURT: Okay. Let’s assume under whatever theory the – okay, I think I understand your position.

Absent that, do you see any distinction between Wall and Pearson?

MR. GOLDSTONE: I see more distinction between Wall and Pearson in this case.

THE COURT: Absent the charging –

MR. GOLDSTONE: Well, there’s a clear factual different between those cases and this case.

THE COURT: That’s what I want you to address. What do you see is the factual distinction?

MR. GOLDSTONE: Well, the difference is that the security concerns that were talked about by the Court – by the officer –

THE COURT: Oh, I see.

MR. GOLDSTONE: - are real when you’ve got 50,000 people gathering on a March for Life and a clear intention by the protestors to go over barricades and go over policemen. In this situation we have a day similar to any other day in front of the Supreme Court, where the public is invited and people can gather and people can assemble. So factually, there’s a tremendous difference.

THE COURT: Okay. I see the import of your barricade argument now. Thank you.

MR. GOLDSTONE: I have nothing further. Thank you.

THE COURT: I’m about to take a lunch break.

MR. KRAUT: Oh, Your Honor, I will be really brief.

THE COURT: That would be astounding to me, Ms. Kraut.

(Laughter.)

MR. KRAUT: No, no. I have no – I accept to adopt some of the other statements that have been made. The only thing I just want to bring to the Court’s attention to a couple of case that –

THE COURT: Please.

MR. KRAUT: All right. I have, Your Honor, a copy of the Communications Decency Action that was just decided last week.

THE COURT: Right. How do you think that impacts?

MR. KRAUT: Oh, the issue of over breadth and vagueness-

THE COURT: Oh. Right.

MR. KRAUT: - discussed in that in quite great detail in Section 6 and 7. And I urge the Court to take a look at the language there.

THE COURT: Thank you.

MR. KRAUT: It’s very relevant for over breadth arguments.

THE COURT: Thank you.

MR. KRAUT: And, in addition, it – I happen to think that the issue of barricades is not particularly important. It doesn’t matter whether it’s barricades or it’s marble steps that where the police say you can’t go beyond the marble steps, or whether they’re barricades.

The issue of 50,000 people, I think makes a big difference between Wall and Pearson. And also the issue of bringing a coffin – I don’t know whether it was a real coffin or a wooden coffin that looked like a coffin, in one or both of those cases – but I think that also raises security issues that were not present in this case.

I think it’s clear that the defendants in this case have been charged with, as to the first clause, that they were standing, that they were standing in an assemblage, that the other language in that first clause is not applicable under the facts that came in this case. Parading, for example, wasn’t an issue, and so on.

And I think I would like to add to my motion, I think that those terms, standing in assemblage, without – there’s nothing else that goes on in that particular clause. In other words, it’s not to bring into public display or anything.

THE COURT: Right.

MR. KRAUT: Those also are vague and overbroad because the tourist groups that come along in standing in an assemblage. And, you know, press conferences are, you know, as the press conferences are going on, they are standing in assemblage.

So I think our argument as to over breadth and vagueness is also applicable to the first clause of 13(k).

I will submit arguments on the banner, second clause of it. And I believe – if I could just take a quick look at my notes here – the point that the government brought up about 22-504 the assault thing and duplicity and multiplicity and the words of “and” or “or”, the word “and” is very important and I know the Court knows that.

But I think that the Allison case that the government cited, the Court again ought to take a look again at the – I think it’s Bradford that I cited in my motion, because where a case is complex and where issues that arise are complex, then conjunctive ness, and so on, and the word and so on, that really does become an issue. And the simplicity of the Allison case simply is just not applicable to a case of this nature, where the Court is recognizing that there is a lot of complicity.

And finally, I hope, is that in terms of the integrity of the Court, the issue of whether or not the defendants’ actions somehow impacted the integrity of the Court or the Court process in making decisions, and so on, there is a statute which deals with that issue. And that is 40 USC Section 1507.

THE COURT: Right.

MR. KRAUT: And that is not what the defendants were charged with. And so that shouldn’t, frankly, be an issue in this case at all.

And I think that’s about all I have to say, except one last thing. And that is that 18 years ago, when I was starting out as a lawyer, I had the pleasure, I suppose, and the honor of working with Ramsey Clark, trying to save John Spenkelink’s life. We were the last ones to be actually in the building. They actually closed the building to protestors who somehow got in there. And they closed the building except for Clark and myself.

And I mean, I was sort of nothing, I was sort of tailing along with him. I was with the ACLU, and I – and afterwards, we actually had a press conference on the plaza. So that was 1979, May 25th. So at the very least, press conference dealing with the death penalty have been going on on the plaza of the Supreme Court for at least that time.

The Court, perhaps, could take judicial notice to that.

THE COURT: Thank you. Ladies and gentlemen, I anticipate rebuttal argument, then I’m going to take a luncheon recess. The staff here hasn’t had anything to eat all morning.

DEFENDANT HALPERIN: Your Honor?

THE COURT: Yes.

DEFENDANT HALPERIN: Rick Halperin, pro se defendant.

THE COURT: Uh-huh.

DEFENDANT HALPERIN: I would request the opportunity – I would request the opportunity after the noon recess sometime in the afternoon to ask that the Court adjudicate my case scenario, at which time I’d be allowed to make a statement, if possible.

THE COURT: Right. For any defendant who has not joined in the motion to dismiss, I will be able to adjudicate their cases today.

DEFENDANT HALPERIN: Thank you, Your Honor.

MR. GOLDSTONE: Thank you.

THE COURT: Mr. Marcus.

REBUTTAL STATEMENT
BY MR. MARCUS:

Well, Your Honor, to hear the defense counsel tell the story, there really isn’t much to the government’s case, but we know that that’s not so. Basically, Mr. Goldstone didn’t address the analogous argument that the government made, although Ms. Kraut did. It was a short shrift, almost a harrumph argument. But, the point of the matter is, Your Honor, we charge simple assaults in this Court thousands of times a month.

THE COURT: Yes. I said I understood that argument.

MR. MARCUS: But, I’m troubled by the quickness with which the Court is sort of passing it along. I’m not sure if the Court is concerned about it or the Court finds it at least mildly persuasive or –

THE COURT: I’m not making an announcement as to the persuasiveness of any point made by counsel on the motion to dismiss until I study the matter.

MR. MARCUS: Well, we would just say, Your Honor, that despite counsel’s protestations to the contrary they are very close in this regard on this issue that’s before the Court. We don’t think that it is simply more complex than that. There are 16 co-defendants, but we think that the issue is very, very close.

Secondly, Your Honor, the government is not going to be able to make an effective rebuttal to the Communication Decency Act case, because counsel didn’t even say what she was citing it for, other than an over breadth issue. So we would like to have an opportunity to respond to that in some kind of memoranda and also proffer from the government – from defense counsel as to what she was really citing for and why it has an impact on this case, to have an effective rebuttal to it.

And also with respect to the graphic case, I did not quickly look at their motion, so I think that case was cited with a motion that was not admitted – that was not accepted by the Court. We would think that an argument with respect to it would be improper.

THE COURT: That wasn’t accepted, it was denied.

MR. MARCUS: Right. I’m sorry. The motion was denied. Then the argument with respect to what’s in that motion would be improper.

Mr. Goldstone noted that the people have constitutional rights. That’s how he opened up his argument. Of course people have constitutional rights. The government doesn’t disagree with that.

He says there’s a clash between 40 USC 13(k), and the people’s constitutional rights. But that clash has been resolved in favor of the prosecution. When we’re talking about the plaza, we’re not talking about a sidewalk. As they said, it would be a different case if they were on the sidewalk.

It’s very clear that the people’s constitutional rights have some limitations. And with respect to the First Amendment, the government has certain rights with respect to its property that may defeat or may overtake the people’s First Amendment Constitutional rights.

We know that that is so and it has been upheld in a number of cases involving a number of contexts.

With respect to Mr. Goldstone’s eloquent citation of Marshall’s dissent. Marshall was in dissent. He lost. And the point is that his dissent has not changed today. It has not controlled today. It is still not he way this Supreme Court views this issue, Your Honor.

With respect to case cites to the Capitol grounds cases, Your Honor, we’re talking about two entirely different institutions in the constitutional framework as it relates to the First Amendment. The us Capitol is about debates. It is about discussion. It is about petitioning the government for the redress of grievances. And often that is going to be in the form of those kinds of expressive activities.

The Supreme Court isn’t about that. It has never been about that. What the Supreme Court is about is getting cases, controversies decided on briefs, legal memorandum and oral arguments, and nothing more. And it should be – that should be maintained.

Finally, Your Honor, with respect to the very passionate and moving testimonials really of the defendants, you know, I would just like to say after three days of trial, I’m glad that this case isn’t about the death penalty, quite frankly. It’s troubling to us all.

I served on the Capital Punishment Clinic at the University of Texas. I’m glad this isn’t about the death penalty, quite frankly. But the point of the matter is, Your Honor, it isn’t. It’s about the United States Supreme Court maintaining an appearance of decorum, an appearance of integrity and having reasonable restrictions geared to that very legitimate, very significant interest.

They could have been on the sidewalk. They chose not to be. So this case turns on that, Your Honor, and not on the death penalty.

The government believes that all defendants should be found guilty and that motions should be denied.

Thank you.

THE COURT: Thank you. Ladies and gentlemen, I’m going to recess now for lunch. I have some matters coming back at 2:15. 2:45, ladies and gentlemen. 2:45. I have an evidentiary hearing and two other matters I have to deal with. So 2:45.

(Resumed at 3:10 p.m.)

THE DEPUTY CLERK: Recalling the trial matter, Bonowitz, et al.

THE COURT: Recalling Abraham Bonowitz, et al. All parties are present with their counsel.

THE DEPUTY CLERK: Parties please identify yourselves for the record.

MR. MARCUS: Theodore Marcus and William Emory for the United States, Your Honor.

Good afternoon.

MR. GOLDSTONE: Good afternoon. Mark Goldstone appearing for six defendants, Your Honor. All of them are present.

MR. KRAUT: Nina Kraut for Mr. Bonowitz.

THE COURT: Okay.

MR. MARCUS: We have a very brief preliminary matter, Your Honor.

THE COURT: Yes. I’m going to hear you, Mr. Marcus.

MR. MARCUS: Okay. Your Honor, first with respect o our and/or argument?

THE COURT: Uh-huh.

MR. MARCUS: The case cites for that would be Griffin 112 Supreme Court 466 at 470. Martin 435 A.2d 395 at 397. For the approval of the practice of conjunctive pleading, Kelly 349 A.2d 472 at 475.

And, secondly, Your Honor, if need b, it’s not what we truly desire, but if need be, we would move to amend the information to strike all of the second clause, starting with the conjunctive “and” right through to the end of the charge.

THE COURT: I’m not going to dictate whether it need be. You either make a motion to amend or you don’t.

MR. MARCUS: Okay. Well, the law permits it, so we will make that motion.

THE COURT: So you’re moving to amend each information to delete what portion of information?

MR. MARCUS: To delete the second clause, and the word “and.”

THE COURT: So there’s a motion to delete “and” displayed therein, flags, banners, and devices designed and adapted to bring into public notice any party, organization and movement.

MR. MARCUS: That’s correct.

THE COURT: You’re moving to delete that?

MR. MARCUS: Yes, Your Honor.

THE COURT: Mr. Goldstone?

MR. GOLDSTONE: I’m not sure I understand what Mr. Marcus is deleting?

THE COURT: He’s moving to amend the information to remove that language.

MR. KRAUT: I’m not – to establish that one count. I mean, that’s what the government is saying, that there is now one count –

MR. MARCUS: No, that is not what we’re saying.

THE COURT: That is not what they’re saying. They are moving to amend the one count information.

MR. KRAUT: So that it only reads the first clause of 13(k)?

THE COURT: That’s the government’s motion at this point.

MR. KRAUT: So there is one count remaining which consists of the first clause.

THE COURT: Parade, stood, moved in procession, assemblages.

MR. KRAUT: I think I’m going to object.

THE COURT: If you need to consult with your clients, Mr. Goldstone.

MR. GOLDSTONE: I don’t believe so.

MR. KRAUT: I think they are nodding yes, so I think we better – oh, no? No. Okay.

THE COURT: Mr. Goldstone?

MR. GOLDSTONE: I’d object. It’s untimely. I made my major argument. The defense has placed on notice to defend both statues. It might have been a far different result had they been charged properly in the first place.

THE COURT: Ms. Kraut?

MR. KRAUT: I’ll just join in that.

THE COURT: Thank you.

With respect to each pro se defendant, the government has moved to amend your information. I’m sure you’ve all heard it, to delete certain portions of the language.

With respect to each defendant, I’m going to ask you if you oppose or do not oppose the amendment.

Mr. Laffin?

DEFENDANT LAFFIN: I oppose.

THE COURT: Thank you. Ms. Peck?

DEFENDANT PECK: Oppose it.

THE COURT: Mr. Streit?

DEFENDANT STREIT: I oppose that.

THE COURT: Thank you. Ms. Charkoudian?

DEFENDANT CHARKOUDIAN: I oppose it.

THE COURT: Thank you. Mr. Halperin?

DEFENDANT HALPERIN: I oppose it, Your Honor.

THE COURT: Thank you. Ms. Jaeger?

DEFENDANT JAEGER: I oppose it, Your Honor.

THE COURT: Ms. Pautrat?

DEFENDANT PAUTRAT: I oppose.

THE COURT: And Mr. Scahill?

DEFENDANT SCAHILL: I oppose.

THE COURT: Thank you.

And I take it the government is moving to amend the information to conform with the evidence or what’s the reason other than to avoid a constitutional issue?

MR. MARCUS: Well, Your Honor, we would conform, of course, to the evidence. And that would be the basis.

THE COURT: Okay. Other than untimely, Mr. Goldstone, can you identify any prejudice suffered by any of your clients or Ms. Kraut?

MR. GOLDSTONE: Not beyond the reasons I’ve already stated.

MR. KRAUT: Your Honor, the bulk of the case from our point of view revolved around the unfurling of the banner. And if we had been informed that the first clause only was going to be at issue, I believe that the nature of the evidence that was put on, witnesses who testified, and so on, would have been significantly different.

THE COURT: Thank you. Any other prejudices articulated?

Okay. With respect to the defendants Laffin, William Streit, Ms. Charkoudian, Mr. Halperin, Ms. Jaeger, Ms. Pautrat, and Mr. Scahill, I would grant the motion to amend, since they have not joined in the motion to dismiss.

So with respect to these defendants, I’ll grant the motion to amend. The government will amend the information by interdelineation those matters which they wish to delete.

Any additional matters?

I’ll reserve on the other defendants.

MR. GOLDSTONE: Oh, I’m sorry, Your Honor. No.

THE COURT: Okay. On behalf of the defendants?

MR. KRAUT: No, Your Honor, except that I have to leave at 3:25. I apologize.

THE COURT: I know people have personal situations. I’m trying a case right now with a young man incarcerated who wants the case heard. So we all have our issues.

(Proceedings concluded.)

 
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