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A. I WOULDN'T CALL THAT LIVING ACCMMODATION, NO, SIR.
I WAS USING THE TREE AS I USED LAFAYETTE PARK -- AS A PLACE TO MAINTAIN A VIGIL.
Q. AND THIS WAS A TWENTY-FOUR HOUR VIGIL; WAS IT NOT?
A. YES, IT WAS.
Q. WAS IT COMFORTABLE, IN THE WAY YOU THINK OF A HOME.
A. NO. IT WAS RATHER UNCOMFORTABLE, ACTUALLY. IT WAS A CHALLENGE.
(DEFENDANT'S EXHIBITS NOS. 4, 5, 6, 7 AND 8 WERE MARKED FOR IDENTIFICATION.)
BY MR. MILLIKEN:
Q. I'LL SHOW YOU WHAT HAVE BEEN MARKED AS DEFENDANT'S EXHIBITS FOUR THROUGH EIGHT, WHAT PURPORT TO BE POSTERS, WITH WRITING, AND ASK IF YOU COULD IDENTIFY THOSE FOR THE COURT.
A. YES.
WOULD YOU LIKE ME TO READ THEM?
Q. FIRST THING, WHAT ARE THEY?
A. THESE ARE POSTERS THAT I WROTE WHEN I CLIMBED THE TREE. I WASN'T SURE THAT I WAS GOING TO BE ALLOWED TO CLIMB THE TREE, SO WHEN I FIRST WENT UP THE TREE I ONLY HAD A BANNER, A BLUE BANNER, WHICH SAID, "HELP US FREE UJC. UJC IS NOT CRAZY," WHICH I CLIMBED UP AND TIED WITH A LITTLE BIT OF TWINE ONTO THE BRANCHES.
BUT IT SEEMED TO ME THAT I WASN'T COMMUNICATING VERY WELL, SO I WROTE THESE POSTERS AND THOMAS PUT THEM UP ON
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SIGNS UNDERNEATH THE TREE, SO THAT PEOPLE WHO WERE PASSING BY WOULD BE ATTRACTED BY THEM AND READ THEM AND UNDERSTAND WHY I WAS THERE.
Q. AND IS IT FAIR TO SAY THAT THOSE POSTERS SPEAK TO THE PLIGHT OF MR. URBAN AND YOUR EFFORTS TO RELIEVE HIS SUFFERING?
A YES, THEY DO.
MR. MILIIKEN: YOUR HONOR, I WOULD MOVE THOSE POSTERS INTO EVIDENCE ON THE SAME GROUND AS THE PETITION THAT WAS EARLIER SUBMITTED AS DEFENDANT'S EXHIBIT NUMBER THREE.
MR. BEHR: WE HAVE THE SAME OBJECTION, YOUR HONOR.
THE COURT: SAME RULING. THEY'RE RECEIVED.
(DEFENDANT'S EXHIBITS NOS. 4, 5, 6, 7 AND 8 WERE RECEIVED IN EVIDENCE.)
BY MR. MILLIKEN:
Q. MS. THOMAS, EARLIER YOU SPOKE OF THE CHOICES YOU PERCEIVED BETWEEN VIOLENCE AND PLAYING THE CLOWN, AND YOU SPOKE OF EFFORTS YOU HAD MAINTAINED PRIOR TO REACHING THAT CHOICE. DID YOU FEEL COMPELLED TO TAKE THE ACTION YOU TOOK?
A. YES, I DID.
MR. MILLIKEN: NOTHING FURTHERAT THIS JUNCTURE, YOUR HONOR.
THE COURT: CROSS EXAMINATION.
CROSS EXAMINATION --
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BY MR. BEHR:
Q. MS. THOMAS, DURING THE -- FROM THE TIME YOU CLIMBED THE TREE TO THE TIME THE POLICE REMOVED YOU, YOU NEVER CAME DOWN OUT OF THAT TREE; DID YOU?
A. NO, I DIDN'T.
Q. OKAY.
AND THERE WAS TIME, WAS THERE NOT, DURING THAT APPROXIMATE SEVEN-DAY PERIOD THAT YOU WERE ASLEEP IN THE TREE
A. THAT'S FAIR TO SAY, YES.
Q. AND BESIDES THE ITEMS YOU NAMED AS HAVING BEEN UP THERE, YOU HAD SOME ITEMS OF CLOTHING, CHANGES OF CLOTHING, PERHAPS?
A. NO, I HAD NO CHANGES OF CLOTHING. I HAD COATS TO KEEP ME WARM AT NIGHT.
Q. AND SOME ITEMS OF PERSONAL HYGIENE?
A. NOTHING THAT I DON'T NORMALLY CARRY AROUND IN MY POCKETBOOK ALL THE TIME.
Q. NOW, WHEN YOU CLIMBED THE TREE YOU KNEW IT WAS AGAINST THE DEPARTMENT OF INTERIOR REGULATIONS; DID YOU NOT?
A. I DON'T THINK ANYONE HAD EVER TOLD ME THAT, NO.
Q. DID YOU HAVE ANY FEELING AS TO WHETHER IT WAS OR WAS NOT ILLEGAL TO CLIMB THE TREE?
A. I BEG YOUR PARDON. NO. I BEG YOUR PARDON. I WITHDRAW THAT ANSWER.
YES. THOMAS HAD TOLD ME ABOUT HIS CLIMBING A TREE
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AT ONE TIME, WHICH, THE CHARGES WERE DROPPED AGAINST HIM. AND SO I ASSUMED THAT IT WOULD PROBABLY BE PRETTY SAFE.
Q. I DIDN'T ASK YOU IF YOU ASSUMED IT WOULD BE SAFE.
I ASKED YOU IF YOU KNEW IT WAS AGAINST THE REGULATICNS.
A. I HAD NEVER SEEN A REGULATION. ON. NO ONE HAD EVER TOLD ME THAT THERE WAS A REGULATION.
I KNEW THAT THOMAS HAD CLIMBED A TREE AT ONE TIME AND HAD BEEN REMOVED FROM THE TREE AND THAT HE HAD NOT BEEN PROSECUTED.
Q. DID THERE COME A TIME DURING THE SEVEN DAYS THAT YOU WERE IN THE TREE THAT THE POLICE INFORMED YOU THAT IT WAS ILLEGAL TO BE THERE?
A. YES.
Q. AND YOU DID NOT THEN COME DOWN.
A. THAT'S RIGHT.
Q. AND THAT WAS SOMETIME WITHIN, SHALL WE SAY, TWENTY-FOUR TO THIRTY-SIX HOURS OF THE TIME THAT YOU CLIMBED THE TREE? IS THAT A FAIR TIMEFRAME?
A. YES.
Q. NOW, YOU WERE AWARE WHEN YOU CLIMBED THE TREE THAT MR. URBAN HAD BEEN REPRESENTED BY AN ATTORNEY. IT WAS JUST THAT YOU DISAGREED WITH THE REPRESENTATION THAT ATTORNEY HAD GIVEN HIM; IS THAT CORRECT? OR YOU FELT IT WAS INEFFECTIVE.
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A. I FELT IT WAS CRIMINAL.
Q. YOU WERE AWARE THAT PRIOR TO CLIMBING THE TREE THERE HAD BEEN A HEARING BEFORE JUDGE JOHNSON ABOUT MR. URBAN'S CONTINUANCE -- CONTINUED STAY AT ST. ELIZABETH'S -- OR COMMITMENT AT ST. ELIZABETH'S.
A. YES, I KNEW THAT THERE HAD BEEN SUCH A HEARING.
Q. AND THAT A PSYCHIATRIST OR PHYCHOLOGIST HAD TESTIFIED AT THAT HEARING.
A. YES.
Q. AND IT WAS BASED ON THAT TESTIMONY THAT JUDGE JOHNSON HAD RULED TO CONTINUE MR. URBAN'S COMMITMENT TO THE HOSPITAL.
A. I DON'T KNOW WHY SHE RULED IT, BUT I KNOW THAT SHE RULED IT.
Q. AND SO IT WAS BASICALLY YOUR DISAGREEMENT WITH HER ACTIONS, THE ACTIONS OF THE DOCTORS AND THE ACTIONS OF THE LAWYER THAT LED YOU TO CLIMB THE TREE.
A. IT WAS MY DISAGREEMENT OF THE SYSTEM THAT COULD ALLOW SUCH A MISCARRIAGE OF JUSTICE TO OCCUR THAT LED ME TO CLIMB THE TREE.
Q. BUT THERE WAS ONLY A MISCARRIAGE OF JUSTICE IF YOU WERE TO DISAGREE WITH THE FINDINGS OF THE COURT AND THE OPINIONS OF THE PSYCHIATRIST AND THE ACTIONS OF THE ATTORNEY.
A. WELL, SINCE THE COURT CONSISTS OF INDIVIDUALS, WITH INDIVIDUAL OPINIONS, YES, I DEFINITELY DISAGREED WITH
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THEIR OPINIONS.
Q. BUT YOU'RE NOT A LAWYER; RIGHT?
A. NO, I'M NOT A LAWYER.
Q. AND YOU ARE NOT A PSYCHIATRIST OR PSYCHOLOGIST.
A. I HAVE NO CREDENTIALS THAT LABEL ME AS SUCH, NO, SIR.
Q. HAVE YOU STUDIED EITHER OF THOSE TWO FIELDS?
A. YES, I HAVE.
Q. TO WHAT LEVEL?
A. WELL, I WAS A PARALEGAL FOR A NUMBER OF YEARS AND I'VE DONE A LOT OF LEGAL RESEARCH FOR ATTORNEYS, AND I HAVE ALWAYS BEEN INTERESTED IN THE FIELD OF PSYCHOLOGY, AND HAVE READ A GREAT DEAL ABOUT IT.
I ALSO HAVE FRIENDS WHO ARE PSYCHOLOGISTS.
Q. HAD ANY OF YOUR FRIENDS EXAMINED MR. URBAN?
A. UNFORTUNATELY, MY FRIENDS THAT ARE PSYCHOLOGISTS LIVE IN MINNESOTA.
MR. BEHR: NO FURTHER QUESTIONS.
THE COURT: ANY REDIRECT?
MR. MILLIKEN: NO, YOUR HONOR.
THE COURT: YOU MAY STEP DOWN. DO YOU HAVE ANOTHER WITNESS?
MR. MILLIKEN: NO, YOUR HONOR.
THE COURT: DO YOU REST?
MR. MILLIKEN: YES, YOUR HONOR.
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THE COURT: DOES THE GOVERNMENT HAVE CLOSING ARGUMENT?
MR. BEHR: YOUR HONOR, JUST TO POINT OUT THAT WE BELIEVE THAT THE ELEMENTS OF THE OFFENSES HAVE BEEN PROVEN AND WHILE MS. THOMAS MAY HAVE HAD IN HER OWN MIND SOME JUSTIFICATION, I DON'T BELIEVE THAT HER RATIONALE FOR DOING THESE ACTIONS ARE SUFFICIENT TO OVERCOME THE ELEMENTS, AS SHOWN, AND CERTAINLY I DON'T BELIEVE THEY'RE SUFFICIENT TO RAISE THE DEFENSE OF NECESSITY, WHICH MAY BE IN THE AREA IN WHICH SHE WAS HEADING.
I THINK THE PROOF IS THERE BEYOND A REASONABLE DOUBT, AND THE VERDICT SHOULD BE GUILTY.
THANK YOU.
THE COURT: DOES THE DEFENSE HAVE A CLOSING ARGUMENT?
MR. MILLIKEN: YES, YOUR HONOR.
I WOULD SUBMIT TO THE COURT THAT THIS IS A RATHER EXTRAORDINARY CASE, THAT INVOLVES ONE WOMEN'S ATTEMPT TO SPEAK OUT AGAINST THE INSTITUTIONALIZATION OF A PERSON CHARGED WITH A MINOR OFFENSE.
IT CERTAINLY IS THE LAW THAT A PERSON WHO IS INCOMPETENT IS ABLE TO BE INSTITUTIONALIZED FOR PURPOSES OF EXAMINATION.
I THINK THE COURT CAN UNDERSTAND WHY IT IS QUESTIONABLE PRACTICE FOR A DEFENSE ATTORNEY TO STAND UP AT
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AND IT IS BECAUSE OF THE CIRCUMSTANCES IN THIS CASE THAT MS. THOMAS WAS JUSTIFIED ON THE COMMON LAW OF NECESSITY TO TAKE THE ACTION SHE TOOK.
I BELIEVE HER TESTIMONY WAS VERY TELLING IN REGARD TO THE EXTRAORDINARY LENGTHS SHE WENT AND THE EFFORT SHE MADE TO REVERSE THE PLIGHT OF MR. URBAN. AND IT
WAS ONLY AFTER REACHING OUT TO MEMBERS OF THE LEGAL COMMUNITY, INCLUDING THE JUDGE IN MR. URBAN'S CASE, REACHING OUT TO MEMBERS OF THE PRESS, THAT SHE WAS CONFRONTED WITH THE CHOICE OF DOING SOMETHING WHICH SHE CHARACTERIZED AS
"CLOWNISH," AS "BIZARRE," AS "SPECTACULAR," TO TRY AND GET ATTENTION TO A SITUATION THAT SHE PERCEIVED, AS YOUR HONOR WILL READ IN THE PETITION SHE DRAFTED, AS BEING A SITUATION WHERE THIS GOVERNMENT, THE UNITED STATES, WAS ACTING VERY SIMILARLY TO
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THE GOVERNMENT'S CONDUCT IN THE SOVIET UNION IN REGARD TO THE SAKHAROVS -- GOVERNMENT'S CONDUCT THAT IS SO ROUNDLY CONDEMNED WHENEVER IT APPEARS IN PUBLIC IN THIS COUNTRY.
AND ON THE FACTS OF THIS CASE I WOULD SUBMIT TO THE COURT THAT THERE IS EVERY REASON TO BELIEVE THAT SHE HELD HER BELIEF AS TO THE PLIGHT OF MR. URBAN IN EVERY BONE IN HER BODY.
SHE SAID THAT SHE FELT THAT THE ACTION IN INCARCERATING HIM AND FORCING HIM TO TAKE PSYCHOTROPIC MEDICATION WAS CRIMINAL, EXTRAORDINARY, IT WAS UNJUST.
SHE WENT TO, WHAT WE ACKNOWLEDGE -- AND I THINK THE COURT SHOULD RECOGNIZE IN THE AGREEMENT BY MS. THOMAS TO STIPULATE TO A SET OF FACTS -- WERE RATHER EXTRAORDINARY LENGTHS.
BUT IN THOSE LENGTHS, I WOULD ASK THE COURT TO TAKE NOTE OF HER TESTIMONY REGARDING HER FEELINGS ABOUT VIOLENCE, THAT IT'S ANATHEMA TO HER, THAT THERE IS NO JUSTIFICATION FOR VIOLENCE.
AND SHE IS CHARGED WITH COMMITTING VIOLATION OF REGULATIONS WHICH ARE ESSENTIALLY PROMULGATED TO PROTECT AGAINST VIOLENCE TO THE PARKS, WHICH ARE HELD IN TRUST FOR ALL CITIZENS OF THE UNITED STATES, AND MOST PARTICULARLY, THE VIOLATION OF SECTION 5010(A) AND 5010(C), WHICH ARE ALLEGED IN THIS CASE.
THE FIRST, 5010(A), GENERAL INJURY. AND IT SAYS YOU CAN'T CLIMB A TREE, A SHRUB, A PLANT, A BLADE OF GRASS,
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OR ANY OTHER VEGETATION.
I WOULD SUBMIT THAT QUITE LITERALLY A PERSON WHO CLIMBS A BLADE OF GRASS BY SETTING HIS FOOT UPON IT MIGHT LITERALLY BE GUILTY OF VIOLATING THIS REGULATION IN ITS FORM, AND THAT THE MERE CLIMBING OF A TREE WITHOUT THE EVIDENCE -- AND THIS DOESN'T EVEN REACH THE NECESSITY DEFENSE, BUT AS A FACTUAL MATTER, THE MERE CLIMBING OF A TREE WITHOUT EVIDENCE OF INJURY IS NOT SUFFICIENT TO MAKE OUT ACTIONABLE CRIMINAL CONDUCT UNDER THIS SECTION.
AS TO THE ATTACHMENTS FOLLOWING SECTION 5010(A), THE GENERAL INJURY SECTION, THERE ARE A LISTING OF OTHER SPECIFIC PROVISIONS TO GUARD AGAINST INJURY TO TREES.
FOR EXAMPLE, YOU CAN'T TETHER AN ANIMAL WITHIN REACH OF SOMETHING THE ANIMAL WOULD EAT -- MAKES SENSE. EXCAVATIONS, GAS LINES, OTHER SPECIFIC FORMS OF POTENTIAL DANGER TO THE LIVING MATTER IN THE PARK ARE GIVEN PROTECTION.
MS. THOMAS IS ABOUT THE PROTECTION OF LIVING FORMS BY HER WHOLE VIGIL AGAINST NUCLEAR PROLIFERATION AND WHAT SHE BELIEVES TO BE ULTIMATE HOLOCAUST.
A MAN CAME TO LAFAYETTE PARK AND PROTESTED THE RESTRICTION OF INDIVIDUALS -- AND YOUR HONOR IS AMPLY FAMILIAR WITH THE HISTORY OF LITIGATION, AS THERE ARE MORE AND MORE RESTRICTIONS UPON EXPRESSIVE CONDUCT IN FRONT OF THE WHITE HOUSE, BE IT ON THE SIDEWALK OR IN LAFAYETTE PARK.
YOUR HONOR IS PERHAPS FAMILIAR ENOUGH TO TAKE
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NOTICE OF THE RESEEDING EFFORTS, THE EXCAVATION OF THE SIDEWALK -- I MEAN, IT'S PRACTICALLY A POSTAGE STAMP SIZE AREA FOR DISSENT IN FRONT OF THE WHITE HOUSE.
NOW, THIS MAN CAME AND PROTESTED, SAYING IT'S A CRIME TO SLEEP, AND HE LAID DOWN IN FRONT OF A SIGN THAT SAID IT WAS A CRIME TO SLEEP, AND HE WAS ARRESTED.
AND YOUR HONOR HAS BY THE DOCKET ENTRIES THE RECORD OF HIS ACQUITTAL, AND I THINK PERHAPS IT'S FOR THAT REASON, ON TOP OF THE MANY OTHERS, THAT HIS PSYCHIATRIC COMMITMENT, FORCED TAKING OF DRUGS, IS MORE HORRIFIC, SUFFICIENTLY HORRIFIC, TO HIS FRIEND ELLEN THOMAS AS TO ENCOURAGE HER TO COMMIT HERSELF TO SEEKING HIS RELEASE.
AND SHE DID SO BY ULTIMATELY REACHING A LAW STUDENT, WHO WENT TO HER PROFESSOR, WHO WENT TO MR. URBAN.
AND YOUR HONOR WILL NOTE THE ENTRY OF APPEARANCE AFTER THIS CLIMBING OF A TREE, BUT NOT BEFORE IT, OF SUBSTITUTE COUNSEL FOR MR. URBAN, JOHN COPACINO, ON NOVEMBER 4TH, 1984. THE VERY NEXT DAY, NOVEMBER 5TH, 1984, MR. URBAN BEING REPRESENTED BY MR. COPACINO, THE DEFENDANT WAS FOUND COMPETENT TO PROCEED.
THE JACKET ENTRIES DO NOT REFLECT -- AND I DON'T KNOW THAT THE GOVERNMENT WOULDDENY -- BUT THERE WAS A DISPUTE ABOUT WHETHER THE DEFENDANT WOULD BE RELEASED AT THAT TIME OR COMMITTED.
IT WAS A REFUSAL BY MR. URBAN TO TAKE MEDICATION.
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HE DIDN'T FEEL HE NEEDED IT, HE DIDN'T FEEL IT SHOULD BE ORDERED IN THIS CIVILIZED COUNTRY, OR COUNTRY THAT PURPORTS TO BE CIVILIZED -- AND IN THAT CONTEXT HE WENT TO THE JAIL WITH AN ORDER OF MEDICATION.
THERE IS MORE IN THE RECORD WHICH THE COURT COULD EXPLORE, AND I WOULD ENCOURAGE THE COURT TO EXPLORE, IF THERE'S NO OBJECTION BY COUNSEL, AS TO QUESTIONS ABOUT WHETHER MEDICATION WAS EVER OFFERED OR ORDERED OR PROPERLY ARRANGED FOR THIS INDIVIDUAL IN THIS PLACE OF TREATMENT.
THAT ALL SPEAKS TO THE QUESTION OF WHETHER IT WAS EVER NECESSARY, SINCE DURING THAT TIME HE WAS FOUND COMPETENT. IN ANY EVENT, HE WAS FOUND COMPETENT, HE WAS ACQUITTED, AND HE IS A FREE MAN. NO EVIDENCE IN THIS CASE THAT HE'S HAD OTHER DIFFICULTY TO FUNCTION IN THE WORLD OR A PROBLEM WITH CRIMINAL AUTHORITIES.
I WOULD SUBMIT AS TO THE CAMPING CHARGE THAT ALL THE LAW THAT HAS BEEN ISSUED UPON THIS REGULATION SUGGESTS -- I KNOW THE COURT IS AMPLY FAMILIAR WITH IT -- THAT IT IS ESSENTIALLY THE USING OF THE PARK AS A LIVING ACCOMMODATION. AND I WOULD SUBMIT IN THIS CASE THAT THE CONDUCT OF MS. THOMAS WAS CLEARLY EXPRESSIVE CONDUCT IN ITS ENTIRETY, THAT EVERYTHING ABOUT WHAT SHE WAS DOING WAS SOLELY FOR THE PURPOSE OF FURTHERING HER EFFORTS TO COMMUNICATE THE PLIGHT OF CASIMIR URBAN, JUNION, AND THAT UNDER THE FACTS OF THIS CASE IT IS NOT THE SITUATION OF A PERSON WHO CHOOSES TO MAKE
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A HOME IN A PUBLIC SPACE, TO TAKE ADVANTAGE OF THE OPPORTUNITY TO LIVE FREE OR LIVE IN A PLEASANT PLACE. THERE'S NOTHING PLEASANT ABOUT LIVING IN A TREE.
AS A MATTER OF LAW I WOULD RENEW MY ARGUMENT THAT THE EXECUTIVE HAS NO POWER TO TRADUCE THE FIRST AMENDMENT RIGHTS OF THE CITIZENS OF THE UNITED STATES.
THE COURT: ARE YOU MAKING A POINT THAT THIS WAS ACCOMPLISHED BY REGULATION RATHER THAN STATUTE? IS THAT YOUR POINT?
MR. MILLIKEN: THAT'S CORRECT.
IT IS -- THE BICAMERAL CLAUSE ARGUMENT WITH WHICH THE COURT IS FAMILIAR. I CAN BRIEF IT FOR THE BENEFIT OF THE COURT, ALTHOUGH I KNOW THE COURT IS FAMILIAR WITH THE ARGUMENT. I DON'T KNOW THAT IT NEEDS ANY AMPLIFICATION.
I RELY ON CHILDER VERSUS INS, I RELY ON THE FIRST AMENDMENT OF THE CONSTITUTION AND THE BICAMERAL CLAUSE.
AS TO THE MATTER OF THE DOCTRINE OF NECESSITY, IF I MIGHT QUOTE CRIMINAL LAW, THE MATTER IS OFTEN EXPRESSED IN TERMS OF A CHOICE OF EVILS. WHEN THE PRESSURE OF CIRCUMSTANCES PRESENTS ONE WITH A CHOICE OF EVILS, THE LAW PREFERS THAT SHE OR HE AVOID THE GREATER EVIL BY BRINGING ABOUT THE LESSER EVIL.
NOW, THE REPORTERS IN THIS CASE -- I RELY ON WILLIAMS, THE CRIMINAL LAW, SECTION 229, SECOND EDITION (1970) SUGGEST THAT THE DEFENDANT ACTOR CONTENDS THAT HIS OR HER
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CONDUCT PROMOTES SOME HIGHER VALUE THAN THE VALUE OF LITERAL COMPLIANCE OF THE LAW.
I SUBMIT TO THE COURT THAT NECESSITY IS A RECOGNIZED DEFENSE UNDER THE COMMON LAW, THAT IT IS A COUSIN OF JUSTIFICATION, THAT IT'S RECOGNIZED IN THE DISTRICT OF COLUMBIA.
AND I WOULD SUGGEST TO THE COURT THAT THE COURT MUST ENGAGE IN A BALANCING BETWEEN THE EVILS, AND THAT THE EVIL THAT WAS BEING BROUGHT TO BEAR ON CASIMIR URBAN, JUNIOR, WAS SUFFICIENT TO FIX IN THE MIND OF THIS WOMAN A LEGITIMATE BELIEF THAT SHE NEEDED TO TAKE STEPS TO HELP HIM.
AND IN THAT REGARD, YOUR HONOR, THE QUESTION COMES RIGHT BACK TO THE SUBJECT OF MENS REA, BECAUSE A DEFENSE OF NECESSITY AND A DEFENSE OF JUSTIFICATION INVOLVE EXAMINING THE BRAIN OF THE ACTOR. AND IN THIS CASE, YOUR HONOR, I SUBMIT THAT IT WAS WITH ABSOLUTE BELIEF THAT MS. THOMAS TOOK STEPS TO COMMUNICATE AND THAT THERE WAS NOT ANY CRIMINAL INTENT SUFFICIENT TO JUSTIFY CONVICTION IN THIS CASE.
FINALLY, I WOULD SAY, YOUR HONOR, THAT MS. THOMAS AS IT'S QUOTED IN THE NEWSPAPER THIS MORNING -
THE COURT: I DIDN'T READ THE NEWSPAPER.
MR. MILLIKEN: IN THAT CASE, YOUR HONOR, I WON'T ADDRESS THAT SUBJECT FURTHER.
I WOULD RELY ON MY ARGUMENTS TO SAY THAT THIS
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WOMAN IS NOT A CRIMINAL, SHE SHOULD NOT BE PROSECUTED, AND UNDER NO CIRCUMSTANCES SHOULD SHE BE CONVICTED.
THANK YOU, YOUR HONOR.
THE COURT: GOVERNMENT WISH TO CLOSE?
MR. BEHR: YOUR HONOR, THERE ARE A FEW POINTS I WOULD LIKE TO MAKE TO THE COURT.
I BELIEVE, FIRST OF ALL, WHAT WE REALLY HAVE HERE IS AN ACT OF CIVIL DISOBEDIENCE AND KNOWLEDGEABLE VIOLATING OF THE LAW, AS AN ATTEMPT BY MS. THOMAS TO GAIN PUBLIC RECOGNITION OF HER CAUSE.
I DON'T MEAN TO BELITTLE THAT CAUSE, BUT I DO FEEL THAT TO TRY TO ANALOGIZE IT TO THE CONDUCT OF THE SOVIET UNION MAY BE HER OPINION, BUT I DON'T THINK IS ACCURATE ON THE FACTS.
THE COURT IS AWARE THERE WAS REPRESENTATION OF MR. URBAN, THERE WAS JUDICIAL FINDING OF INCOMPETENCE ON ONE OCCASION; THERE WAS SUFFICIENT JUDICIAL INTERVENTION ON THE PART OF MAGISTRATE DWYER TO ORDER HIM TO ST. ELIZABETH'S IN THE FIRST PLACE.
I'M SURE THE COURT IS SUFFICIENTLY FAMILIAR WITH MAGISTRATE DWYER AND HER GENERAL FEELINGS TOWARDS THE RIGHTS OF DEFENDANTS TO KNOW THAT SHE WOULD NOT HAVE COMMITTED MR. URBAN TO ST. ELIZABETH'S HOSPITAL ON AN OFFENSE OF RATHER MINOR NATURE UNLESS SHE REALLY FELT IT WAS IN HIS BEST INTEREST.
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THE NECESSITY DEFENSE, WE FEEL, DOESN'T APPLY.NECESSITY IS NOT CLEARLY ILLUSTRATED BY THE LAW, BASED ON WHAT RESEARCH I'VE DONE.
IT USUALLY GETS CAUGHT UP IN THE DEFINITIONS OF THE DEFENSE OF DURESS AND THE DEFENSE OF COERCION.
MY UNDERSTANDING OF IT RELATES TO THE -- MY UNDERSTANDING OF IT IS, THE DEFINITION OF NECESSITY IS THE DOING OF AN ACT THAT IS ILLEGAL IN ORDER TO IMMEDIATELY AVOID ANOTHER ACT OF GREATER MAGNITUDE. AND I THINK THE EXAMPLE THAT'S USUALLY GIVEN IS THAT WHEN SAILORS ON A SHIP THROW THE CARGO OFF THE SHIP IN ORDER TO KEEP THE SHIP FROM SINKING, AND THAT THEY MAY BE DESTROYING THE GOODS OF OTHER PEOPLE, BUT THE NECESSITY OF SAVING THEIR LIVES, IMMEDIATELY IN THE FACE OF THE SINKING OF THE SHIP, IS SUFFICIENT TO REMOVE THE CRIMINALITY OF THEIR ACTS.
I DON'T BELIEVE WE HAVE THAT HERE.
IF THE COURT WERE TO ACCEPT THE NECESSITY IN THIS CASE I THINK WE WOULD BE FACED WITH THE ARGUMENT THAT ANY INDIVIDUAL WHO FEELS THAT A FRIEND OR LOVED ONE OR ASSOCIATE IS BEING UNLAWFULLY INCARCERATED WOULD HAVE THE RIGHT TO ATTEMPT TO FREE THAT INDIVIDUAL FROM THAT INCARCERATION BECAUSE OF THE NECESSITY OF REMOVING THEM FROM THE COERCION OF THE STATE.
I DON'T BELIEVE THAT THE LAW IS IN SUCH A CASE THAT ANYBODY WHO THINKS THEIR FRIEND HAS BEEN UNLAWFULLY
CONVICTED AND SENTENCED BY A COURT, THAT THEY CAN THEN ATTEMPT TO HAVE THEM RELEASED THROUGH SOME CRIMINAL ACT ON THEIR PART AND BE FOUND NOT GUILTY BECAUSE OF NECESSITY.
IN TERMS OF THE CAMPING, I THINK IF THE CAMPING REGULATION HAS ANY VIABILITY, SOMEONE WHO STAYS IN THE PARK FOR SEVEN DAYS, AND SLEEPS IN THE PARK, AND KEEPS SOME PERSONAL EFFECTS THERE, HAS TO BE CAMPING. THAT HAS TO BE WITHIN THE DEFINITION OF THAT STATUTE.
I DON'T BELIEVE IT REQUIRES SOMEBODY TO BUILD A LITTLE HOME AND MAKE IT AS COMFORTABLE AS THEY MIGHT IF IT WERE WHAT THEY WOULD ULTIMATELY WANT.
AND FINALLY, I THINK THERE IS SUFFICIENT PROOF OF THE GENERAL INTENT TO DO THE ACT THAT THE REGULATIONS FORBID, THAT THERE IS A CRIMINAL INTENT IN THIS CASE, AND IT WOULD SUPPORT A FINDING OF GUILTY.
THE COURT: WHAT IS THE AUTHORITY OF BICAMERAL LEGISLATION?
MR. BEHR: I GUESS I HAVE TO RELY ON WHAT HAS BEEN PROVIDED TO THE COURT IN THE PAST. I WASN'T AWARE SPECIFICALLY THAT MR. MILLIKEN WAS GOING TO RAISE THAT ISSUE.
IF HE'S GOING TO REFER TO OTHER LITIGATION BEFORE THE COURT, I WILL RELY ON WHATEVERHAS BEEN PROVIDED BY THE GOVERNMENT IN THE PAST.
MR. MILLIKEN: IF I MIGHT, ONE SENTENCE, YOUR HONOR.
I CONCUR THAT -- AND I BEST REACH FOR SOME
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CONJUNCTION -- I CONCUR WITH THE GOVERNMENT THAT THE LAW OF NECESSITY AROSE IN THE CONTEXT OF MARITIME EMERGENCIES, AND WOULD SUBMIT TO THE COURT THAT THAT BALANCING TEST, IN A SMALLER WAY, PERHAPS, BUT IN NO LESS SIGNIFICANT WAY, SHOULD BE APPLIED HERE BECAUSE WHERE AN INDIVIDUAL LIBERTY IS TRADUCED UNFAIRLY, A CITIZEN MAY BE FOUND TO HAVE THE OBLIGATION, AT LEAST WITHIN THEIR OWN SOUL, TO ACT TO SAVE A SHIP OF STATE THEY PERCEIVE TO BE LEAKING, IF NOT ALTOGETHER SINKING.
THANK YOU, YOUR HONOR.
THE COURT: THAT WAS A LEGAL ARGUMENT?
MR. MILLIKEN: THANK YOU, YOUR HONOR.
THE COURT: I WILL TAKE THIS UNDER ADVISEMENT.
(WHEREUPON, AT 3:56, P. M., THE MATTER WAS TAKEN UNDER ADVISEMENT, THE COURT WAS RECESSED, AND OTHER MATTERS WERE HEARD BY THE COURT.)
(4:39, P. M.)
THE COURT: MS. THOMAS AND MR. MILLIKEN, COME TO THE BAR, PLEASE.
MR. MILLIKEN: YES, YOUR HONOR.
THE COURT: MS. THOMAS, I'M FILING A MEMORANDUM THERE ARE COPIES HERE FOR YOU ALL. I HAVE CONSIDERED THE EVIDENCE AND THE ARGUMENT, AND AS EXPLAINED IN THIS MEMORANDUM ON COUNT ONE I FIND YOU GUILTY, ON COUNT TWO I FOUND YOU GUILTY, ON COUNT THREE I FIND YOU NOT GUILTY.
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THE DEFENDANT: COUNT THREE BEING CAMPING, YOUR HONOR?
THE COURT: I BEG YOUR PARDON?
THE DEFENDANT: COUNT THREE BEING CAMPING.
THE COURT: YES. AND WE'LL SET A SENTENCING DATE. I DO MAKE IT A PRACTICE OF GETTING A PRESENTENCE REPORT, AND I'LL DO THAT IN THIS CASE.
MR. MILLIKEN: THANK YOU, YOUR HONOR.
THE COURT: IT WOULD BE IN THE NEW YEAR. HOW ABOUT JANUARY?
MR. MILLIKEN: IF I COULD GET MY CALENDAR, YOUR HONOR.
MR. BEHR: YOUR HONOR, COUNSEL SUGGESTED THE 24TH OF JANUARY. THAT WOULD BE IN ABOUT FIVE WEEKS.
THE COURT: FINE. IS THAT CONVENIENT FORMR. MILLIKEN?
MR. MILLIKEN: YES, YOUR HONOR.
THE DEPUTY CLERK: IS THAT AT 9:30, YOUR HONOR?
THE COURT: 9:30.
MS. THOMAS, JUST AS A MATTER OF ROTE, I MUST ADVISE YOU THAT YOU HAVE A DUTY TO BE HERE AT 9:30 ON THE 24TH AND THAT YOUR FAILURE TO APPEAR COULD EXPOSE YOU TO A
SEPARATE FEDERAL CHARGE OF BAIL JUMPING, WHICH CARRIES FIVE YEARS AND FIVE THOUSAND DOLLARS.
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MS. LYMAN, WOULD YOU FURNISH MS. THOMAS AND COUNSEL WITH COPIES OF THIS VERDICT?
THE DEPUTY CLERK: YES, YOUR HONOR.
MR. BEHR: MAY WE BE EXCUSED, YOUR HONOR?
THE COURT: YOU'RE EXCUSED.
MR. BEHR: THANK YOU, YOUR HONOR.
MR. MILLIKEN: THANK YOU VERY MUCH, YOUR HONOR.
(WHEREUPON, AT 4:42, P. M., THE FOREGOING PROCEEDINGS WERE CONCLUDED.)
CERTIFICATE OF REPORTER
I, CATHERINE MARY REBARICK, BEING A STENOTYPE REPORTER, DO HEREBY CERTIFY THAT I WAS AUTHORIZED TO AND DID REPORT IN STENOTYPY THE FOREGOING PROCEEDINGS, AND THAT THEREAFTER MY STENOTYPE NOTES WERE REDUCED TO TYPEWRITING UNDER MY SUPERVISION, AND I FURTHER CERTIFY THAT THE PAGES NUMBERED THREE THROUGH FORTY-THREE, INCLUSIVE, CONTAIN A TRUE AND CORRECT TRANSCRIPTION OF MY STENOTYPE NOTES TAKEN THEREIN, TO THE BEST OF MY KNOWLEDGE AND BELIEF.
SIGNED THIS 13TH DAY OF MARCH, 1985.
/s/Catherine Mary Rebarick
CATHERINE MARY REBARICK
COURT REPORTER