SO I THINK THAT BASICALLY, THIS APPENDIX WOULD
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ILLUSTRATE THAT OUR CLAIMS AREN'T VAGUE. I THINK THAT
MAGISTRATE BURNETT'S MEMORANDUM OF JANUARY 13TH, 1987,
ILLUSTRATES THAT, IN HIS OPINION, ANYWAY, HIS WORDS, THE CASE
MUST GO TO TRIAL.
THERE WAS ONE OTHER THING. IF I MAY GET THE PAPERS
BACK THAT I HAD STRICKEN.
THE COURT: YOU WANT THEM BACK, THOSE THAT YOU HAD
STRICKEN?
MR. THOMAS: THE ONES THAT I HAD STRICKEN. FOR TWO
REASONS: ONE IS THAT I WOULD RATHER NOT GET -- THAT THE COURT
GET CONFUSED --
THE COURT: I WON'T GET CONFUSED,
MR. THOMAS: YOU CAN HAVE THEM IF YOU WANT.
THE COURT: AND EVEN IF WE ORDERED THEM STRICKEN
AND
SUBSTITUTED THE REST OF YOURS IN LIEU THEREOF, AND I'M INCLINED
CERTAINLY TO DO THAT, THE ORIGINAL FILINGS ARE DOWNSTAIRS IN
THE
CLERK'S OFFICE, OR PERHAPS IT'S IN THIS JACKET.
MR. THOMAS: OKAY.
THE COURT: IT'S GOING TO HAVE TO GO THROUGH A
MECHANICS. BUT IF YOU NEED TO USE THEM AND YOU WANT TO TAKE MY
COPY --
MR. THOMAS: I JUST NEED ONE EXHIBIT THAT I WOULD
LIKE
TO POINT OUT TO YOU THAT I DIDN'T INCLUDE IN THIS HERE, IN TODAY'S
FILING, BECAUSE I WAS JUST TOO EXHAUSTED AND I FORGOT ABOUT IT.
33
THE COURT: THESE ARE THE THREE THAT YOU HAVE
ASKED,
MR. THOMAS, TO HAVE STRICKEN. AND I WOULD ASK THAT I GET THEM
BACK AGAIN IN THE NEXT MOMENT OR TWO.
MR. THOMAS: I WOULD JUST LIKE TO TALK ABOUT EXHIBIT
4
AND SHOW YOU, IF I MAY, SOMETHING THAT --
THE COURT: EXHIBIT 4 HAS BEEN STRICKEN?
MR. THOMAS: THIS IS GOVERNMENT'S EXHIBIT 4.
THE COURT: OH, ALL RIGHT.
MR. THOMAS: IN SUPPORT OF THEIR FIRST COMPLAINT.
THE
POINT IS -- I'M NOT SURE THAT I CAN FIND IT HERE.
THE COURT: DO YOU WANT TO HELP HIM, MRS. THOMAS?
MR. THOMAS: OH. I FILED IT IN A DIFFERENT -- I FILED
IT IN THE OPPOSITION TO THE MOTION TO STRIKE EXHIBIT 4.
ATTACHED TO MAGISTRATE BURNETT'S MEMORANDUM FROM THE 17TH IS AN
APPENDIX A, AND IN HIS RESPONSE TO THE MOTION TO STRIKE EXHIBIT
4, MR. MARTINEZ REPRESENTED THAT IT WAS A CORRECTED VERSION
OF --
THE DEPUTY CLERK: EXCUSE ME. YOUR TIME IS UP.
THE COURT: JUST FINISH YOUR SENTENCE.
MR. THOMAS: OF THE MAGISTRATE'S APPENDIX, ATTACHED
TO
MY MOTION TO STRIKE EXHIBIT 4 IS A COPY OF EXHIBIT 4 WITH THE
ACTUAL CORRECTIONS MADE TO IT, AND SO IT HASN'T REALLY BEEN
CORRECTED. I THINK OUR EXHIBIT TO THAT MOTION TO STRIKE SHOWS
THAT IT WASN'T CORRECTED.
THE COURT: THANK YOU. LET THE RECORD SHOW YOU'VE
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RETURNED THE PAPERS TO THE COURT.
MR. THOMAS: MAY I JUST ASK WHAT I SHOULD DO WITH
THIS?
THIS WAS IN THE APPENDIX. THIS I WANT THE COURT TO LOOK AT MORE
THAN ANY -- BEFORE IT LOOKS AT ANY OF THE OTHER PLEADINGS.
THE COURT: THAT WAS IN THE APPENDIX, YOU SAY, THE
ONES
THAT YOU'RE PROFFERING TO ME NOW?
MR. THOMAS: RIGHT. THIS IS EXHIBIT 3 IN THE APPENDIX.
THE COURT: WHY DON'T YOU KEEP IT FOR JUST A MOMENT
WITH THE APPENDIX. LET ME SEE IF THERE IS ANYTHING FURTHER FOR
THE GOVERNMENT SAY. SINCE THEY HAD THEIR MOTION, THEY TOO HAVE
TWO CHANCES AT THE LECTERN. MR. MARTINEZ.
MR. MARTINEZ: JUST A COUPLE POINTS, YOUR HONOR,
BRIEFLY.
IN RESPONSE TO YOUR QUESTION ABOUT MAGISTRATE BURNETT'S
OPINIONS, AT THE CONCLUSION OF THE TEN DEPOSITIONS THAT HE
PRESIDED OVER IN 1986, WE WERE ORDERED TO -- BOTH THE D. C.
GOVERNMENT AND THE FEDERAL DEFENDANTS WERE ORDERED TO FILE
DISPOSITIVE MOTIONS IF THEY CHOSE, AND BOTH GOVERNMENTS FILED
MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT. MAGISTRATE BURNETT
ISSUED THREE OPINIONS:
ONE, HE SAID THAT IT WAS HIS RECOMMENDATION THAT
OFFICER CANFIELD OF THE DISTRICT OF COLUMBIA SHOULD BE DISMISSED
AS A DEFENDANT.
TWO, HE FOUND THAT THE ONLY INDIVIDUAL DEFENDANT
IN
THAT CASE, J, C. LINDSEY, WHO IS ALSO, I BELIEVE, AN INDIVIDUAL
35
DEFENDANT IN THIS CASE, SHOULD BE DISMISSED AS AN INDIVIDUALLY
SUED DEFENDANT.
IN THE THIRD OPINION, WHICH IS THE ONE THAT MR. THOMAS
IS TRYING TO BRING TO THE COURT'S ATTENTION TODAY, MAGISTRATE
BURNETT LOOKED THROUGH IT AND DETERMINED THAT INSOFAR AS THE
GOVERNMENT WAS SUED OFFICIALLY, THAT THE MATTER, IN HIS VIEW,
PROBABLY SHOULD PROCEED TO A TRIAL BECAUSE HE THOUGHT THAT THE
NUMBER OF ARRESTS RAISED A QUESTION OF FACT IN THE CASE. WE
FILED -- THE FEDERAL DEFENDANTS FILED OBJECTIONS TO MAGISTRATE
BURNETT'S OPINION, ON THAT OPINION, AND WE FILED A STATEMENT
SUPPORTING HIS OTHER OPINION IN WHICH HE SAID THAT MR. LINDSEY
SHOULD BE DISMISSED.
THE BOTTOM LINE WAS THAT JUDGE OBERDORFER HAD ALL
OF
THESE RECOMMENDATIONS AND OBJECTIONS AND WHAT-NOT AND THEN DID
NOT ACCEPT MAGISTRATE BURNETT'S RECOMMENDATION AND DID DISMISS
THE THOMAS CASE. SO WHILE WE CERTAINLY DON'T OBJECT TO THE
COURT LOOKING TO WHAT MAGISTRATE BURNETT SAID, THE HISTORY OF
THE CASE WAS THAT JUDGE OBERDORFER, WHEN HE LOOKED AT IT, DID
NOT ACCEPT MAGISTRATE BURNETT'S RECOMMENDATION ON THAT POINT.
WITH REGARD TO THE 12-VOLUME ADMINISTRATIVE RECORD
ON
THE LAFAYETTE PARK REGULATION, AS WE NOTE IN OUR BRIEF, THAT IS
ON FILE IN THE EARLIER THOMAS CASE. IT'S RATHER EXTENSIVE, AS
YOU MIGHT IMAGINE, AND WE WOULD REFER THE COURT TO IT IF THE
COURT IS SO INCLINED TO LOOK AT IT, RATHER THAN FILE A WHOLE NEW
COPY IN THIS CASE.
36
IT'S DISINGENUOUS FOR MR. THOMAS TO STAND HERE
AND SAY
THAT THE RECORD HAS NEVER BEEN EXAMINED. IT WAS FILED IN THE
THOMAS CASE AFTER MR. THOMAS FILED A MOTION FOR PRELIMINARY
INJUNCTION TO SEEK TO ENJOIN THE LAFAYETTE PARK REGULATION IN
APRIL OF 1986. WHEN WE FILED OUR MOTION FOR JUDGMENT ON THE
ADMINISTRATIVE RECORD AND OUR OPPOSITION TO THE MOTION FOR A
PRELIMINARY INJUNCTION, MR. THOMAS WITHDREW HIS MOTION FOR A
PRELIMINARY INJUNCTION,
HE AGAIN IN THE SECOND THOMAS CASE, THOMAS VERSUS
NEWS
WORLD COMMUNICATIONS, AGAIN MOVED FOR A PRELIMINARY INJUNCTION
TO ENJOIN THE REGULATION AFTER IT HAD BEEN IN EFFECT AT THAT
POINT FOR A YEAR AND THREE MONTHS. JUDGE OBERDORFER REJECTED
THAT, NOT EXPLICITLY, BUT AT LEAST IMPLICITLY, IN DISMISSING
BOTH CASES, AND HE DISCUSSES AT SOME LENGTH IN THE TWO
PUBLISHED OPINIONS THE CONSTITUTIONALITY OF THE LAFAYETTE PARK
REGULATION, WHY IT'S NOT VOID FOR VAGUENESS.
SO I DON'T THINK IT'S REASONABLE FOR MR. THOMAS TO
STAND HERE AND SAY THAT THE REGULATION HAS NEVER BEEN LOOKED AT
OR THE ADMINISTRATIVE RECORD HAS NEVER BEEN LOOKED AT.
AND MY THIRD POINT IS THAT THIS QUESTION ABOUT WILLIAM
HALE AND WHO IS HE, HE MANIFESTLY IS NOT A GOVERNMENT AGENT. IN
FACT, FROM MY EARLY DAYS AS AN ASSISTANT U. S. ATTORNEY IN THIS
DISTRICT, I RECALL HAVING AT LEAST TWO OR THREE CIVIL CASES IN
WHICH I DEFENDED THE GOVERNMENT AGAINST MR. HALE. THE CASES
WERE DISMISSED. I THINK THERE WERE THREE OF THEM. THEY WERE
37
ALL DISMISSED BY JUDGE JOHNSON.
IF THE COURT IS REALLY INTERESTED, WHICH I DOUBT,
I CAN
PROVIDE A COPY OF THE THREE OPINIONS. THEY ALL DEALT WITH
VARIOUS ACTIVITIES OF MR. HALE IN LAFAYETTE PARK, VARIOUS -- I
THINK HE CAUSED DAMAGE TO A TREE; I THINK HE CAUSED SOME OTHER
VIOLATIONS. MR. HALE WAS CONVICTED, OR AT LEAST THE CIVIL SUITS
WERE DISMISSED. SO MR. THOMAS, YOU KNOW, IS WRONG WHEN HE SAY'
THAT MR. HALE IS A GOVERNMENT AGENT.
UNLESS YOU HAVE ANY FURTHER QUESTIONS, YOUR HONOR,
THAT'S ALL I HAVE TO SAY.
THE COURT: ANYTHING FURTHER, MR. BURGER?
MR. BURGER: YES, YOUR HONOR. JUST VERY BRIEFLY.
THE DECEMBER 15TH, 1986, REPORT AND RECOMMENDATION
AND
OPINION BY MAGISTRATE BURNETT IS THE ONLY OPINION BY MAGISTRATE
BURNETT WHICH RELATES TO THE DISTRICT OF COLUMBIA AT ALL. HAD
THERE BEEN A SUBSEQUENT OPINION BY MAGISTRATE BURNETT, WE WOULD
HAVE BROUGHT THAT TO THE COURT'S ATTENTION. BUT THE JANUARY
OPINION OF MAGISTRATE BURNETT DOES NOT REFER TO THE DISTRICT OF
COLUMBIA.
SECONDLY, YOUR HONOR, WITH RESPECT TO THE DISTRICT
OF
COLUMBIA'S STATUTE OF LIMITATIONS ARGUMENT, THE PLAINTIFFS IN
THE PAPERS THAT THEY SUBMITTED TO ME ON FRIDAY EVENING AT 5:00
O'CLOCK MADE NO REFERENCE TO STATUTE OF LIMITATIONS. MR. THOMAS
SAYS THERE IS A CONSPIRACY ALLEGATION AGAINST THE GOVERNMENT.
I
DON'T KNOW WHICH GOVERNMENT HE'S REFERRING TO WHEN HE SAYS THAT.
38
BUT THERE HAS BEEN NO ALLEGATION IN ANY OF THE PAPERS FILED
BY THE PLAINTIFFS AS TO ANY ALLEGATION BY ANY D.C. DEFENDANT AFTER
MARCH OF 1983, NOR AM I AWARE OF ANY AFTER THAT DATE.
MR. HANSON: FRIEND OF THE COURT.
THE COURT: SIR? ARE YOU CONNECTED WITH THIS CASE WHAT
IS YOUR NAME, PLEASE?
MR. HANSON: PERMISSION TO SPEAK AS A FRIEND OF THE COURT.
THE COURT: WHAT IS YOUR NAME, PLEASE?
MR. HANSON: CHRISTOPHER WAYNE HANSON.
THE COURT: ARE YOU A PARTY TO THIS CASE? HAVE YOU
SIGNED ANY OF THE PLEADINGS?
MR. THOMAS, IS THE GENTLEMAN A PARTY TO THE CASE?
MR. THOMAS: NO.
THE COURT: ALL RIGHT. SIR, IF YOU WILL HAVE A SEAT,
THEN, PLEASE. ALL RIGHT? YOU MAY HAVE A SEAT, SIR.
MR. HANSON: THE CASE HAS ALREADY BEEN ADJUDGED BY
GOD. THE FAITHFUL WATCHMEN HAVE BEEN WATCHING FAITHFULLY, AND
RONALD REAGAN GAVE UP HIS NUCLEAR ARMS SEVEN YEARS LATER, PRAISE
GOD.
THE COURT: MR. THOMAS, I WILL ACCEPT THE PLEADINGS THAT
YOU HAVE FILED AND TENDERED TODAY IN LIEU OF THE THREE THAT
WERE FILED WITH THE GUARD'S DESK ON THE 6TH OF JANUARY.
MR. LEVIN, CAN YOU HAVE A SEAT, PLEASE, OR LEAVE
THE
COURTROOM. EITHER WAY, SIR. YOU CAN LEAVE THE COURTROOM IF YOU
CHOOSE TO DO SO.
39
AND I WILL SUBSTITUTE THE THREE THAT YOU HAVE
FILED
WITH THE COURT TODAY IN LIEU THEREOF.
INSOFAR AS THE APPENDIX IS CONCERNED, AS I SAID EARLIER
ON, AT THE INITIATION OF THIS HEARING, I WILL DEFER AS TO THE
APPENDIX. I WILL LET YOU FILE THE APPENDIX PROVIDED THAT BY THE
17TH OF THIS MONTH, BY THE 17TH, YOU FILE THAT APPENDIX,
RELATING IT SPECIFICALLY TO YOUR CLARIFICATION OF THE COMPLAINT,
SECTION BY SECTION, PAGE BY PAGE.
MR. THOMAS: IT ALREADY IS YOUR HONOR.
THE COURT: SO THAT IT HAS SOME SENSE TO THE COURT.
MR. THOMAS: IT ALREADY IS.
THE COURT: AND IF THERE IS ANY REFERENCE IN YOUR
SECOND AMENDED COMPLAINT, WHICH IS THE ONLY ONE THAT I DEAL WITH
IN THIS CASE, THEN I WOULD ASK THAT IT SPECIFICALLY REFERENCE
THE SECOND AMENDED COMPLAINT PARAGRAPH BY PARAGRAPH, SO THAT I
CAN MAKE SOME SENSE OUT OF THAT ROUGHLY FOOT-HIGH PACKAGE OF
MATERIAL. IF THAT IS SO AND YOU CAN DO THAT, WE'LL HAVE IT IN
BY THE 17TH OF JANUARY. THERE WILL BE NO EXTENSIONS.
MR. THOMAS: OKAY.
THE COURT, ALL RIGHT?
MR. THOMAS: RIGHT.
THE COURT: AND, OF COURSE, THE FEDERAL AND THE
DISTRICT OF COLUMBIA GOVERNMENTS ARE TO HAVE THEIR COPIES ON
THAT DATE, BY WHATEVER MEANS YOU TAKE.
MR. THOMAS: RIGHT.
40
THE COURT: THE FEDERAL GOVERNMENT AND THE DISTRICT
OF
COLUMBIA GOVERNMENT ARE TO REPLY TO THAT APPENDIX AND ANY OF
THESE THREE PLEADINGS THAT WERE FILED TODAY, SINCE YOU LOST YOUR
OPPORTUNITY TO REPLY WHEN THIS WAS FILED LATE -- YOU'RE TO REPLY
TO ALL OF THESE ADDITIONAL PAPERS BY THE 27TH OF JANUARY. AND
THERE WILL BE NO EXTENSIONS OF THAT.
I WILL ASK THAT THERE BE NO FURTHER PLEADINGS FILED
BY
ANY PARTY IN THIS CASE EXCEPT FOR EXTRAORDINARY CAUSE. THAT
MEANS NO FURTHER TO CLARIFY, NO FURTHER TO RESPOND TO, NO
FURTHER TO AMEND, NO FURTHER TO ADD, NO FURTHER TO SUBTRACT,
UNTIL THE COURT HAS AN OPPORTUNITY TO READ THESE PAPERS AND TRY
AND RENDER AN OPINION.
THE MORE THAT IS FILED, THE LONGER EVERYTHING ELSE
TAKES. I KNOW YOU ALL APPRECIATE THAT THE COURT, JUST LIKE SOME
OF THE REST OF US, HAVE MANY OTHER CASES TO DEAL WITH, ONE OF
WHICH IS ALREADY TEN MINUTES LATE IN BEGINNING BECAUSE WE WANTED
TO GIVE THE FULL HEARING TO MR. THOMAS AND TO THE GOVERNMENT --
AND WHEN I SAY THE GOVERNMENT, THAT REFERS TO BOTH DISTRICT OF
COLUMBIA AND FEDERAL GOVERNMENT -- FOR THIS PARTICULAR HEARING.
I APPRECIATE YOUR EFFORTS TO STAY CONTAINED WITHIN THE TIME THAT
WE HAD SET AND THE OTHER REFERENCES THAT WE HAVE MADE AS FAR AS
PROCEDURE IS CONCERNED. AND I WISH YOU ALL A GOOD DAY.
MR. THOMAS: THANK YOU.
MR. MARTINEZ: THANK YOU, YOUR HONOR.
THE COURT: YOU'RE WELCOME.
41
WE WILL TAKE ABOUT A THREE-MINUTE RECESS. I WILL
ASK
THAT THE MARSHALS SEE THAT EVERYBODY IS CLEARED QUIETLY OUT OF
THE COURTROOM, AND THEN WE WILL BEGIN UPON THE NEXT MATTER, THE
SINGLETARY CASE.
OH, MR. THOMAS, WILL YOU BE SURE TO FILE DOWNSTAIRS
--
MR. THOMAS: YES, I WILL.
THE COURT: -- YOUR THREE THAT WERE FILED TODAY.
MR. THOMAS: YES, I WILL.
THE COURT: ALL RIGHT.
(PROCEEDINGS CONCLUDED AT 10:10 A.M.)
CERTIFICATE OF REPORTER
I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT
FROM THE
RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.
(signed) GORDON A. SLODYSKO
9-16-1991
42