INDEED, ON THIS SELECTIVE INVENTORY THAT WAS MADE,
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THERE DOES NOT APPEAR ONE ITEM THAT WAS KNOWN TO BE PRESENT
IN AMONG ALL THOSE ITEMS TAKEN. AND THAT WAS A CAMERA, A CAMERA
THAT WAS USED AT THE SCENE BY ONE OR TWO OF THE DEFENDANTS,
AS THE TESTIMONY WOULD BE, WHILE AN INTERACTION WAS OCCURRING
BETWEEN THE ARRESTING OFFICER AND SOME OF THE DEFENDANTS.
THAT CAMERA, THE OFFICER TESTIFIED, HE TOOK FOR SAFEKEEPING
BECAUSE HE CONSTRUED IT AS A VALUABLE. HE PLACED IT AROUND
HIS NECK, AND LATER ON IT WAS BROUGHT BACK TO THE SCENE OF
THE ARREST, AFTER THE ARREST, BUT, INTERESTINGLY ENOUGH, NOT
MADE EVEN PART OF THE SELECTIVE INVENTORY THAT WAS MADE.
SUBSEQUENTLY, AS ALL CONCEDE, THE TESTIMONY HAS REFLECTED
AND THE STIPULATION IS IN EVIDENCE, THAT CAMERA WAS STOLEN
AND THE FILM THAT WAS IN IT WAS THROWN AWAY.
OFFICER HAYNES TESTIFIED, QUOTE: "I DID NOT LIST
HUNDREDS OF THE OTHER ITEMS, SINCE TIME WAS OF THE ESSENCE."
A FURTHER QUOTE: "WE WERE TOO BUSY."
LET US TALK ABOUT OFFICER SIMONS. OFFICER SIMONS,
ACCORDING TO HIS TESTIMONY, CAME UPON THE SCENE APPROXIMATELY FOUR
MINUTES AFTER OFFICER HAYNES' TOUR OF DUTY BEGAN; THAT
IS, AROUND FOUR MINUTES AFTER 6:00. WE WILL RECALL THAT THE
ARREST TOOK PLACE, ACCORDING TO OFFICER HAYNES' TESTIMONY,
AT EITHER ONE MINUTE LATER, 6:05, OR 6:15 A.M. OFFICER SIMONS,
WHILE FIRST CHARACTERIZING ALL THE DEFENDANTS WHOM HE OBSERVED
AS SLEEPING, SUBSEQUENTLY SAID HE SAW ONE DEFENDANT, MS.
PICCIOTTO, STANDING UP WITH HER EYES OPEN AT THE TIME THAT HE
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CAME UPON THE SCENE, AND AS TO THE OTHERS, HE SAID: "ALL
I CAN SAY IS THAT THEIR EYES WERE CLOSED." HE ADMITTED UPON
SPECIFIC EXAMINATION THAT HE COULD NOT SAY THAT THEY WERE
SLEEPING, ALTHOUGH HE CONTINUED TO ALLUDE TO THE DEFENDANTS
AS BEING IN THAT CONDITION THROUGHOUT THE REST OF HIS TESTIMONY
NOW, THOSE ARE THE SPECIFIC PERSONS WHO TESTIFIED
AS TO WHAT WAS GOING ON IN THE PARK AT THE TIME AND IMMEDIATELY
PRIOR TO THE TIME AND AFTER TIE TIME THAT THE ARRESTS WERE
MADE.
I SHOULD HAVE NOTED THAT AMONG THE OTHER ARTICLES
THAT WERE SEIZED WAS, FOR EXAMPLE, AN EXTRAORDINARILY HEAVY
FILING CABINET, WELCH CONTAINED SOME KIND OF MATERIAL THAT
MADE IT MOST DIFFICULT FOR REMOVAL. THAT FILING CABINET WAS
NOT ATTRIBUTED TO ANY SPECIFIC DEFENDANT, BUT WAS SWEPT UP
AS COMMUNITY PROPERTY. ON ONE OCCASION, OFFICER HAYNES TESTI-
FIED FOR THE RECORD THAT IT CONTAINED DOCUMENTS MARKED AS
"TOP SECRET", "CONFIDENTIAL", AND SUBSEQUENTLY HE DENIED THAT
HE MADE THIS TESTIMONY A FEW HOURS EARLIER IN THIS COURTROOM,
BUT CLAIMED THAT THOSE PAPERS WERE "CONFIDENTIAL", NOT "TOP
SECRET." WHEN HE LAST SAW THE FILING CABINET, IT WAS IN
A POSITION TO BE REMOVED BY TRUCKS, AND WE KNOW SUBSEQUENTLY
IT WAS REMOVED. HE SAYS LATER ON HE SAW IT WHEN IT WAS EMPTY.
THE SECURING OFFICER SAYS IT HAD MANY PAPERS IN IT. NO ONE
SEEMS TO KNOW WHAT HAS HAPPENED TO THOSE PAPERS SINCE.
IN ESSENCE, IT CANNOT BE DOUBTED THAT SOME OF THE
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DEFENDANTS IN THIS CASE WERE LYING ON BLANKETS OR HAD THEMSELVES COVERED WITH PONCHOS OR SLEEPING BAGS, THAT BAGS OF
PERSONAL POSSESSIONS WERE FOUND IN THE VICINITY OR NEARBY
OR IN THE AREA OF SOME OF THESE DEFENDANTS, BUT CERTAINLY
NOT UNDER THEIR SPECIFIC OR IMMEDIATE CONTROL. SOME OF THE
DEFENDANTS WERE CLOSE TOGETHER; OTHERS WERE REASONABLY CLOSE
TO THEM. BUT THE SPECIFIC ATTRIBUTION COULD NOT BE MADE.
EVEN IN AN ACCUMULATION OF CONSIDERATION, THERE IS INSUFFICIENT
TESTIMONY AS TO THAT.
THE GOVERNMENT HAS SIMPLY FAILED, THROUGH ITS LACK
OF MAKING A COMPLETE AND THOROUGH INVENTORY OF THE ITEMS
SEIZED AND A DIRECT ATTRIBUTION TO THE PARTIES, TO INDICATE,
WHETHER OR NOT SOME OF THESE ITEMS WERE MOVED FROM WITHIN
PARCELS WHERE THEY WERE INITIALLY FOUND, TO WHOM IT COULD
BELONG. IT IS CERTAINLY NOT POSSIBLE FOR THE COURT TO DRAW
ANY REASONABLE CONCLUSION IN THAT REGARD.
AS OFFICER HAYNES SAID HIMSELF, THE PROBLEM THAT
HE FOUND THAT ENCOUNTERED HIM THAT DAY, QUOTE, WAS NEVER REALLY
RESOLVED.
NOW, LET'S TALK ABOUT THE USE OF THE PARK AS A LIVING
ACCOMMODATION. THERE HAS BEEN NO EVIDENCE TO DEMONSTRATE
THAT THE PERSONAL EFFECTS, OTHER THAN THE CLOTHING WORN BY
THE DEFENDANTS ACTUALLY AT THE TIME OF THEIR ARREST, WERE
EVER USED BY ANY OF THESE DEFENDANTS TO CREATE OR CONSTRUCT
A LIVING ACCOMMODATION AS THE REGULATION SAYS -- EVEN THOSE
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THAT WERE DEEMED TO HAVE BEEN SEEN ON OTHER OCCASIONS BY THE
OFFICER ON SOME OR MORE OF THESE DEFENDANTS.
TOILET ARTICLES WHICH WERE FOUND IN THE BAGS NEAR
THE DEFENDANTS AND ADMITTED INTO EVIDENCE WERE THERE, BUT
THERE IS NO WITNESS WHO TESTIFIED AS TO THE USE OF ANY OF
THOSE TOILET ARTICLES. AS TO TOOTHBRUSHES, HAIRBRUSHES, SOAP,
DIRTY OR OTHERWISE, THERE WAS SIMPLY NOTHING TO ESTABLISH
THAT ANY OF THESE DEFENDANTS HAD USED ANY OF THOSE ARTICLES
IN THE PARK 50 AS TO CONSTITUTE THE MAKING OF LIVING ACCOMMODATIONS.
THERE WERE SOME LETTERS THAT WERE ADDRESSED TO ONE
OR MORE, SEVERAL OF OUR DEFENDANTS IN THIS CASE, BUT CERTAINLY
NOTHING POSSIBLE TO CONCLUDE FROM THE MERE FACT THAT THERE
WAS A MEDICAID CARD OF ONE DEFENDANT OR A PRESCRIPTION TO
ANOTHER DEFENDANT OR A VETERANS ADMINISTRATION LETTER ADDRESSED
TO ANOTHER DEFENDANT, THAT WOULD INDICATE THAT THE PARK WAS
BEING USED AS A LIVING ACCOMMODATION WITHIN THE REGULATION
PRESCRIBED BY "CAMPING."
THERE IS NOTHING TO SHOW THAT THE USE OF THE BLANKET
AND/OR THE PONCHO UPON WHICH SOME OF THE DEFENDANTS WERE EITHER
RESTING OR RECLINING OR MEDITATING OR SLEEPING AT THE TIME
OF THE ARREST ESTABLISHED-THE USE OF THE PARK AS A LIVING
ACCOMMODATION. A MERE PRESENCE ON A BLANKET CANNOT ESTABLISH
AS A LIVING ACCOMMODATION WITHOUT MORE.
THERE IS NO EVIDENCE, OF COURSE -- AND THIS EVERYONE
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WILL CONCEDE -- THAT ANY OF OUR DEFENDANTS MADE FIRES IN THE
PARK OR ERECTED ANY TENTS OR OTHER SHELTERS SPECIFICALLY FOR
THE USE OF EITHER LIVING ACCOMMODATIONS AND/OR SLEEPING OR
HAD ENGAGED IN DIGGING OR COOKING ACTIVITIES.
THE STANDARD FOR DECIDING A MOTION FOR JUDGMENT
OF ACQUITTAL IS WHETHER, VIEWING THE EVIDENCE MOST FAVORABLY
TO THE GOVERNMENT, A REASONABLE JUROR MIGHT FAIRLY CONCLUDE
GUILT BEYOND A REASONABLE DOUBT. AND IF THERE IS NO EVIDENCE
UPON WHICH A REASONABLE MIND MIGHT SO FAIRLY CONCLUDE THAT
BEYOND A REASONABLE DOUBT, THE MOTION MUST BE GRANTED.
IN THIS CASE, THE GOVERNMENT HAS NOT BORNE ITS BURDEN
TO ALLOW A REASONABLE MIND TO CONCLUDE THAT ANY OF THESE
DEFENDANTS WERE GUILTY BEYOND A REASONABLE DOUBT. THERE ARE
NO GROUNDS ON WHICH TO CONCLUDE BEYOND A REASONABLE DOUBT
THAT THE DEFENDANTS WERE SLEEPING, PREPARING TO SLEEP, AT THE
TIME OF THEIR ARREST, THAT THEY WERE USING THE PARK AS A LIVING
ACCOMMODATION, OR THAT THEY WERE STORING PERSONAL BELONGINGS IN THE
PARK. MERE POSSESSION, EVEN IF IT COULD BE ATTRIBUTED TO ANY OF THESE
DEFENDANTS, IS NOT EQUIVALENT TO STORING.
OFFICER HAYNES, THE GOVERNMENT'S LEAD WITNESS, IF
I CAN USE THAT TERM, ALTHOUGH HE WAS NOT THE FIRST WITNESS --
PRIMARY WITNESS, PERHAPS, WOULD BE A BETTER TERM -- WHILE
HE SPOKE WITH PRECISION AND EXACTITUDE AND PAINSTAKING CARE,
HAD SELECTIVE MEMORY, AS EARLIER RECITED, AND UNABLE TO REMEM-
BER EVEN TESTIMONY THAT HE HAD CLEARLY SPECIFICALLY GIVEN IN
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THE COURT HOURS EARLIER, FAILED TO REMEMBER MAKING, ON SOME
OCCASIONS, EARLIER ARRESTS OF THE DEFENDANTS, CONTRADICTED
REPRESENTATIONS OF THE MANNER IN WHICH HE INVENTORIED THE
PROPERTY. AND ALTHOUGH ONE HAS TO BE SYMPATHETIC TO A SITUA-
TION WHICH CLEARLY COMMANDED THE NEED FOR MORE PERSONNEL,
EVEN HE CONFESSES AS TO HIS INABILITY TO MAKE THE REQUISITE
EVIDENCE NECESSARY FOR THE GOVERNMENT TO HAVE ESTABLISHED
ITS CASE.
NOW, THE COURT'S RULING TODAY DOES NOT MEAN THAT THE
GOVERNMENT DOES NOT HAVE A COMPELLING INTEREST IN ENFORCING ITS
REGULATIONS CONCERNING THE USE OF THE CORE MEMORIAL PARKS.
IT HAS, HOWEVER, BECOME UNNECESSARY, IN LIGHT OF THIS RULING,
TO REACH THE SEVERAL MOST SIGNIFICANT CONSTITUTIONAL QUESTIONS
THAT SOME DAY, SOME WAY, WITH PERHAPS OTHER DEFENDANTS, PERHAPS
THE SAME, WILL BE ADDRESSED.
WHAT IS NECESSARY TO ACKNOWLEDGE IN THIS CASE IS
THAT THE INSUBSTANTIAL EVIDENCE THAT HAS EXISTED IN THIS CASE
AND THE FAILURE OF THE IDENTIFICATION AND THE PRESERVATION
AND THE MARSHALING OF THE EVIDENCE AS IT EXISTED HAS MADE
THE GOVERNMENT UNABLE TO BEAR ITS BURDEN OF PROOF NECESSARY.
IN THIS CASE.
TO CONTINUE WITH THIS TRIAL WOULD TRANSFORM THE
TRIAL FROM A PROSECUTION INTO A PERSECUTION, AND, ACCORDINGLY, THE
RESPECTIVE MOTIONS FOR JUDGMENT OF ACQUITTAL ARE, AS TO EACH OF THE
DEFENDANTS, GRANTED.
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THE CASE IS OVER.
AS TO MR. NELSON, MR. NELSON IS INCARCERATED ON
AN ORDER OF ANOTHER COURT, AND I DO NOT KNOW THE DURATION
OF THAT INCARCERATION OR HOW IT IS IMPACTED, IF IT IS, MR.
VENUTI, BY THE COURT'S RULING TODAY. I WISH YOU WOULD ADVISE
ME ABOUT THAT BEFORE ANYONE ELSE LEAVES.
MR. VENUTI: YOUR HONOR, YOUR RULING TODAY WILL
NOT AFFECT HIS INCARCERATION STATE, BUT I THINK YOU DID ALSO
IMPOSE A BONO THAT SHOULD BE LIFTED SHOULD HE -- HE MAY BE
RELEASED RATHER SOON, NOW.
THE COURT: ANY BOND THAT, OF COURSE, THE COURT
IMPOSED UPON MR. NELSON IS CONCERNED WITH THE INSTANT CASE,
WHICH IS NOW OVER, CLEARLY IS LIFTED AS OF THIS MOMENT. ANY
OTHER OBLIGATION THAT MR. NELSON HAS TO THE CRIMINAL JUSTICE
SYSTEM CLEARLY HAS TO BE MAINTAINED AND TAKEN CARE OF, AND
SO THAT THE MARSHALS WILL BE ABLE TO TAKE MR. NELSON BACK.
I WOULD SUGGEST PERHAPS HE WAIT DOWNSTAIRS SO THAT HIS COUNSEL,
MR. VENUTI, MIGHT HAVE A CHANCE TO TALK TO HIM AFTER WE LEAVE
THIS COURTROOM TODAY.
MR. VENUTI: YOUR HONOR, THIS IS KIND OF AN UNUSUAL
REQUEST, BUT I'M THINKING OF THE MATTER OF THE ABSENT WILLIAM
THOMAS.
THE COURT: WAYNE THOMAS? WELL, THAT WILL BE UP
TO THE GOVERNMENT, AS TO WHAT IT WISHES TO DO. WE HAVE A
FUGITIVE STATUS AS TO THE ABSENT WAYNE THOMAS. I RECOGNIZE
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YOU REPRESENT HIM, ALSO. BUT WAYNE THOMAS, ALTHOUGH ORDERED
TO DO SO, DID NOT SEE FIT TO RETURN TO THIS JURISDICTION FOR
THE PURPOSE OF THIS TRIAL, ALTHOUGH WELL AWARE, AS EVERYONE
ELSE WAS, OF THE SPECIFIC TIME AND DATE.
I WOULD SUGGEST THAT UNLESS MS. STUART KNOWS AT
THIS MOMENT, THAT THE GOVERNMENT GIVE IT ITS CONSIDERATION
AS TO HOW IT WISHES TO PROCEED WITH MR. WAYNE THOMAS AND THEN
ADVISE YOU AND THEN ADVISE THE COURT.
MS. STUART: I KNOW THAT OUR INTENTION WOULD BE
TO PROCEED WITH THE CHARGE OF A BAIL REFORM ACT VIOLATION,
MOST DEFINITELY.
MR. VENUTI: IT IS JUST OBVIOUSLY APPARENT, YOUR
HONOR, THAT MR. THOMAS WOULD NOT HAVE BEEN CONVICTED EITHER,
AND TO BRING HIM BACK HERE WHEN HE DIDN'T DO ANYTHING THAT
WAS UNLAWFUL, AT LEAST COULD NOT BE PROVEN THE FIRST TIME,
SEEMS A GREAT WASTE OF TIME -- FROM A PRACTICAL POINT OF
VIEW, ANYWAY.
THE COURT: MR. VENUTI, I WOULD SUGGEST THAT YOU
AND THE GOVERNMENT GET TOGETHER ABOUT THAT MATTER AND SEE
WHAT, IF ANYTHING, CAN BE RESOLVED.
ALL RIGHT. GOOD DAY, GOOD LUCK,
(WHEREUPON, AT 11:50 P.M., THE ABOVE-ENTITLED
MATTER WAS CONCLUDED.)
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CERTIFICATE OF REPORTER
I HEREBY CERTIFY THAT THE FOREGOING IS AN EXCERPT
OF THE OFFICIAL TRANSCRIPT OF THE PROCEEDINGS IN THE ABOVE-
ENTITLED MATTER, AND THAT IT IS COMPLETE AND ACCURATE, TO
THE BEST OF MY KNOWLEDGE AND ABILITY.
GORDON A. SLODYSKO
OFFICIAL COURT REPORTER
FILED SEP 27 1984
Case Listing --- Proposition One ---- Peace Park