Memorandum in support of Motion to Strike


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
               v.                  |
     The United States, et. al.    |
           Defendants.             |



On dated January 20, 1995, the U.S. Attorney's Office filed an Opposition to Plaintiffs' Motion to Reconsider Denial of Plaintiffs' Application for a TRO, or, Alternatively to Dismiss the Complaint as Frivolous. Hereinafter, "Deft's Opp." In support of defendants' Opposition, the U.S. Attorney appended a letter, dated January 20, 1995, written by Randy Meyers, an Assistant Solicitor with the Department of Interior.

As illustrated below, Mr. Meyers' letter falls short of minimal requirements for admissibility under the Federal Rules of Evidence, should be recognized as antithetical to the purpose of "develop(ing) ... evidence to the end that truth may be ascertained and proceedings may be justly determined" (Fed. R. Evid. 102), and should be stricken from the record of this case.


Mr. Meyers' letter purports to be a response to Thomas' letter to Richard Robbins, dated November 10, 1994. Complaint Exhibit 1. This proves all parties, at least to a small extent, agree on the existence of a mutual reality. In this sense the letter might be seen as a positive first step. At the same time, for this letter to appear in the record of this case at this time reveals sharp differences in the respective parties' perspectives of their mutual reality.

For example, had Mr. Meyers and Mr. Robbins not been in the courtroom at the hearing on January 6th, and had Thomas not clearly indicated his intention to call Mr. Robbins as a witness,


where -- subject to cross-examination -- it would have been perfectly appropriate for Mr. Robbins (or Mr. Meyers, had defendants wished to call him) to articulate the "beliefs" and "conclusions" expressed in the letter -- perhaps the fact that counsel now seeks to foist this document on the record of this case would seem less suspicious.

A plethora of evidentiary principles, a few of which are discussed below, preclude the enshrinement of Mr. Meyers' wholly impermissible, ex post facto letter as part of the record in this case.

"The law of evidence presupposes that in judging the claims of the litigants, it
is important to discern the true state of affairs underlying the dispute." McCormick
on Evidence, 3rd Edition (4th reprint, 1991), page 540. See also Fed. R. Evid. 611
(a); see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 1068, 13 L.Ed.d 923 (1965);
Fed. R. Evid. 406 (b), Alford v. United States, 282 U.S. at 692, 51 S.Ct. at 219.

FED. R. EVID. 901(a)

First, this January 20, 1995 letter, which claims "to respond to (Thomas' November 10, 1994) letter to (Defendant) Robbins," was initially delivered to Thomas by the U.S. Attorney's Office as an appendage to a January 23, 1995 pleading in this case. [1] Declaration of William Thomas, hereto.

If there is no question that: (1) the letter first went to the U.S. Attorney, who (2) attached the letter to Defendants' Opposition to Plaintiffs' Motion to Dismiss for Frivolity, before (3) transmitting the letter to Thomas, it would seem accurate

[1 An original copy of the same letter was later delivered to Thomas via the U.S. mail.]


to say the letter, which its proponents claim "responds to Thomas," was actually intended as a tool with which the U.S. Attorney might avoid responding to the merits of Thomas, et. al., thus sparing defendants from potentially messy cross-examination. [2] Seen in this light, Mr. Meyers' letter is inadmissible as evidence:

"The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponents claim." Fed. R. Evid. 901(a).[3]


"We believe," Mr. Meyers says (letter, pg. 2, para. 2), "that your signs ... fail to conform to the regulations." Mr. Meyers' opinion might be argued to represent "evidence," but it would be

"... evidence (which) may be excluded (because) its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues ... misleading
the jury...or needless presentation of cumulative evidence." Fed. R. Evid. 403 (parentheses
added and substituting, respectively).

[2 If this seems too abstract there are more concrete examples. For instance, we notice that two pages of photocopied photographs attached to Mr. Meyers' letter contain the heading "Photographs taken on January 13, 1995." As it happens, at approximately 3:30 p.m. on January 13, 1995, a police officer, who was taking photographs of Ellen Thomas' signs, volunteered an apology to Mrs. Thomas for taking the photographs, indicating that they were intended for use in court. Second Declaration of Ellen Thomas, attached hereto. Unless defendants can show that the photographs taken by that police officer are not the photographs accompanying Mr. Meyers' letter, there must be a presumption that the photographs of the signs were not taken for the purpose of "responding to (Thomas') letter," as defendants proclaim, but rather were taken for the distinctly different purpose of using them against plaintiffs, deceptively, in court.]

[3 Since proponents haven't even explained why they believe the January 13, 1995 photographs depict the same sign which was at issue in November, 1994, there is some question whether Mr. Meyers' letter even addresses the incidents at issue here.]


Even if Mr. Meyers' expressed belief were accurate -- which plaintiffs dispute -- there is no evidence to link Mr. Meyers' belief to the issues at hand.

"The trial court properly excluded expert testimony which was proffered to prove
the (well-established) state of the law and to support their claim of absence of
willfulness. The expert's testimony had little probative value on the issue of defendants'
states of mind at the time they acted because these was no evidence that they had
relied on his opinion at the time they acted. As against this slight probative value
there was the great possibility of confusing the jury with more than one statement
of law. United States v. Daily 756 F.d2 1076, 1083-84; cert denied, 106 S. Ct. 574.
(1985)." Moores Rules of Evidence Pamphlet, pg. 94 (1990), (parentheses
substituting for "confusion on the").

Moreover, the beliefs expressed in Mr. Meyers' letter had already been expressed in, but HAVE NO GREATER EVIDENTIARY VALUE THAN, counsel's written pleadings. E.g., Defendants' Motion to Dismiss (January 11, 1995), pg. 8. Thus, even if they could possibly be "evidence," the beliefs expressed in Mr. Meyers' letter would only be unnecessarily "cumulative." Rule 403.

RULE 104(a)(b)

Mr. Meyers is free to believe as he likes, but without subjecting his beliefs to objective scrutiny there is no means by which to determine whether Mr. Meyers' belief is, in fact, correct, sincerely mistaken, or, intentionally misleading.

"If preliminary questions of conditional relevancy were determined solely by the
judge ... the functioning of the jury as a trier of fact would be greatly restricted
and in some cases virtually destroyed.... (A)fter all the evidence on the issue is in,
pro and con, the jury could reasonably conclude that fulfillment of the condition
is not established." Moores Rules of Evidence, pg. 28 (1990), citing Morgan, Problems
of Evidence, pgs. 45-46 (1962).

Here is a case where, plaintiffs allege, some defendants violated well-established constitutional provisions under color of certain valid regulations. In an attempt


both to halt the violation of their well-established rights, and avoid litigation, plaintiffs sought mediation from other defendants in supervisory capacities. Complaint, Exhibit 1. The supervisory defendants ignored plaintiffs' pleas for mediation.

Next, one of their agents allegedly abused his authority until it provoked an incident which resulted in the ultimate deprivation of human rights, the killing of a human being. Complaint, paras. 22-24, Count 6, and Declaration of Wade Varner.

Finally, but far too late to have averted plaintiffs' worst fears or even litigation, Mr. Meyers comes up with a letter which, BEFORE his subordinates had shot someone to death, perhaps, could have been a relatively appropriate "response to (Thomas') letter." [4] But, coming as it does raises the reasonable inference that it was truly produced as a wholly impermissible, ex post facto excuse for the tragic, ultimately lethal attitudes of the author's subordinates.

As a direct and proximate result of defendants' alleged ultimate abuse of force, plaintiffs reluctantly turned to the Court. The Court offered defendants every opportunity to present exculpatory testimony and evidence (January 6, 1995 hearing).

Defendants declined the opportunity.

[4 In fact Mr. Meyers' letter doesn't even attempt to address plaintiffs' claims with respect to enforcement of the "camping" regulation, e.g.:


Plaintiffs would agree that the letter of Mr. Meyers, who was acting on behalf of Mr. Robbins, might qualify as evidence that Mr. Robbins is vested with the very responsibility which plaintiffs have alleged (Amended Complaint, pg. 2 & COUNT 6), but which counsel appears to deny (Deft's Motion to Dismiss, pg. 4).

It seems: The low man on the administrative totem pole ["the tail"] acts far in excess of his official authority ["wagging"], which moves the agency ["the dog"] to manufacture an explanation designed to excuse the low man's disrespect for life and law.


Perhaps it's our fault. Maybe defendants felt forced, probably against their will, to manufacture this piece of "evidence" just because we claimed "plaintiffs aren't defendants."

But, as things stand, until Mr. Meyers is subject to cross- examination, and defendants have shown that the letter is what they say it is, except as noted above (footnote 1), Mr. Meyers' letter should be seen as nothing more than a transparent attempt to fabricate "facts" for the purpose of avoiding the actual merits of this case, or as prima facie evidence of nothing more than a tail wagging the dog.


Upon the foregoing discussion, plaintiffs move that Mr. Meyers' letter of January 20, 1995 be stricken from the record of this case as an affront to "develop(ing) ... evidence to the end that truth may be ascertained and proceedings ... justly determined." Fed. R. Evid. 102.


Respectfully submitted this 6th day of February, 1995,

Ellen Thomas, Plaintiff pro se
2817 11th Street N.W.
Washington, D.C. 20001
(202) 462-0757


I hereby state that, on February 6, 1995, I served a copy of the foregoing Motion to Strike Randy Meyers' Letter of January 20, 1995 From the Record of this Case upon the office of Assistant United States Attorney Sally Rider at 555 4th Street NW, Washington, D.C.