Volume II
Transcript of Non-Jury Trial
Before the Honorable Bristow Marchant
United States Magistrate Judge

Mr. Pitts:  They say at page 5 of at least this copy I have {footnote 14}, quote, ¶

It cites a case, I will omit that cite. It continues, ¶

We are dealing here with, as the court knows, 18 USC Section 1752. And the legislative history is essential to understand some of the concerns that will be the main focus of this motion for judgment of acquittal. And they come from the legislative history that was provided by Mr. Barton.

And this deals with the statutory construction of this statute. And their two primary concerns, Your Honor, were overbreadth and vagueness, which will be the main points that I will be trying to make with you.

In that legislative history we find this language, quote, “Subsection (A)(1)(ii)”, which is the provision at play here, Your Honor, “provides for the special case of a temporary presidential visit where flexibility must be maintained and there is insufficient time to publicly designate restricted areas by regulation,” meaning published in the federal register.

That’s the way they are discussing how you can counter the lack of a notice there.

And moving forward in that history we find, quote, “Moreover, uniform enforcement of a single federal statute will result in greater protection for the president without any chilling effect on lawful dissent because the limits of that dissent will be clearly drawn.” {p.2-5}

And the quote continues, “Yet absolutely full protection for the president is neither a desirable nor achievable goal. The Assassination Commission explained the limits our society and our national lifestyle places on the protective tasks, the limits.

And just a few more, that’s why I ask your patience, Your Honor.

Quote, “Although there were a number of specific problems, most fell into one or two categories,” that is for this proposed legislation, “overbreadth or vagueness, either one of which would pose serious problems of constitutionality.”

They proceed to say, quote, “As the Supreme Court observed in Zwickler versus Koota, 389 U.S. at 241, there exists, quote, ‘The constitutional principle that a government purpose to control or prevent activities constitutionally {p.2-6} subject to state or federal regulation’” — such as protecting the president, I would insert — “‘may not be achieved by means which sweep unnecessarily, broadly, and thereby invade the area of protected freedom.’

“In addition” — this is back to the legislative history, not the Supreme Court — “in addition, with some of the original language proposed, there would be no rational way of predicting whether one’s activities were actually violating the law or not. Such vagueness could well have a chilling effect on individuals seeking to demonstrate, thereby impinging upon the full, free exercise of First Amendment rights.

“The test is especially rigid for criminal statutes. The Supreme Court observed in Connally versus General Construction Company, 269 U.S. at 385, that language will be struck down if it is, quote, ‘So vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’”

And the legislative history continues. “Whereas before, the question of which buildings and grounds were actually included was subject to some question, there will now be a formal designation which will not only describe exactly which buildings and which grounds, but will also be available to everyone in the federal register.” Now, that is for provisions that are not in place here.

“Similarly, whereas before these were to be orders, {p.2-7} regulations, or proper authority governing admission, now there will only be written regulations.” Then it moves to an area, Your Honor, that is precisely dealing with the section that Mr. Bursey is alleged to have violated.

Quote, ¶

And I will — that’s all I would like to add from that legislative history.

Now, if we could talk specifically about the facts of this case. The government has provided the court and us with their elements of the offense, a one page document, which I’m sure you have looked at.

And they list three elements: essentially that the Secret Service has posted, cordoned off, or otherwise restricted buildings or grounds where the president will be temporarily visiting; two, that the defendant willfully and knowingly entered or remained in that area; and, three, that he did so in violation of regulations governing ingress and egress. So, I wanted to talk about that element, that first element.

The government has to prove to this court beyond a reasonable doubt that there was an area restricted by the Secret Service that was cordoned off, posted, or otherwise restricted. Remembering that congress has said that’s very important to provide the adequate notice.

The problem here is that the alleged restricted area is void for vagueness. First of all, we have a vagueness in even what were the types of restrictions.

As you recall yesterday, we heard from witnesses that {p.2-9} there was a restricted area, there’s a secure area, at a different point in time there was a closed area, and then I believe we heard the phrase that something was tightly closed.

But actually, it’s very critical to focus at this point. We don’t need to be concerned with that around noon when the president’s aircraft was purportedly in arrival because we — the testimony was that Mr. Bursey was arrested prior to closing down the area.

The government has even conceded that, Your Honor. And I would invite your attention before you rule on this motion to look at the government’s response in opposition to defendant’s motion for specific discovery.

At page 4, and I’m reading from that, quote, ¶

So, the target area that we need to focus on is what was this restricted area. Was it adequately and precisely defined so as to meet the requisites of notice required under due process of law?

Well, as you recall, Judge, the area was roughly a half a mile down towards Highway 302, a half a mile toward {p.2-10} Lester Bates Road or Street, some 100 yards in one direction, and yards to the other side.

My able co-counsel, Mr. Wise, has done some calculations and calculates that’s probably over 100 acres of territory that they are saying, alleging, was restricted. But if we look at how that border, that so-called border, which was itself amorphously defined, was enforced, it was not in fact a border, according to the government’s own witnesses.

If you recall, Agent Cohen said starting at 7:30 a.m. that morning of the 24th, the restricted area was in place, what they allege as a restricted area.

Judge, I found it helpful, Mr. Wise’s suggestion or comment to me that they really were thinking about an area of concern as opposed to a restricted area.

I think the facts have emerged that what was really technically restricted to meet the terms of this statute was that area beginning where the metal detectors were set up, the bicycle racks were set up, and the post standers — that term of art they used for the agents — were set up. That was right around that building of the hanger.

This other area was more an area of concern. As you will recall, and I believe it was the court’s question, vehicles were allowed to turn off of Highway 302 onto Airport Boulevard. They were not stopped, they were not checked.

The agents even said if they had some good reason, {p.2-11} total unfettered discretion in the hands of law enforcement, good reason to go down that road, such as a commercial reason, they could go and enter into this alleged restricted area.

So, there were, on that morning, there had been hundreds of vehicles, many of them carrying people going to the event, because there were some 4,000, but many others that we don’t know the count of who were conducting business and commerce, maybe going to the airport.

In fact, Mr. Bursey was one of those cars that entered into the area prior to it being closed down, without being checkpointed, stopped, without seeing any barriers, any postings, any otherwise restricted.

That is simply too vague. That’s our first argument, Your Honor, is that the restricted area, the element requiring proof beyond a reasonable doubt that there was in fact a restricted area, has not been met.

I would like to move to what is listed as the government’s third element of the offense. I think it’s more helpful schematically and analytically to look at it as the second one today. And that is that they must prove that someone acted in violation, that the defendant acted in violation of the regs governing ingress and egress into this restricted area.

Now, for purposes of Section 1752, “Ingress and egress is allowed to or from grounds or buildings, restricted {p.2-12} grounds or buildings, and is authorized only for the following purpose:

By the government’s own testimony, the people that were allowed into this area were not invitees, they had no way of determining whether they were invitees or not because they were not enforcing the border at this point. They were not enforcing the alleged area.

And if I can again, from a different government memo, this one is entitled, “Government’s Memorandum of Authorities Concerning the Elements of the Offense.” {sic: “Defendant’s Memorandum of Authorities Concerning the Elements of the 0ffense”}

At page 3 the government concedes {sic: Defendant asserts}, “The regulation that applies to this case is found at 31 Code of Federal Regulations 408.3 {2002: 3kb.txt, 24kb.pdf; current rule: 3kb.txt, 24kb.pdf} which provides, quote, ¶

end quote.

Then their {sic: Defendant’s} memorandum asserts, “Thus the government is required to prove that Mr. Bursey was in an area to which only such invitees were permitted to be. If other — if people other than such invitees were in the same area as Mr. Bursey, he has not violated the statute,” they say {sic: Defendant asserts}.

They {sic: Defendant} continue. “The reason is that if non-invitees {p.2-13} are permitted into the area, the area would not be a restricted area as defined by the regulation. If the regulation has not been violated, there is no violation of the statute,” end quote. That’s Mr. Barton’s own concession {sic: Defendant’s assertion.}

There’s been a total failure of proof. In fact, the proof has been the opposite. The proof beyond a reasonable doubt is that there was no screening with regard to determine who was an invitee or not in this large area.

Now, the area that they call closed down, I think the legitimate — because Mr. Bursey and our legal team have always acknowledged the president is entitled to legitimate protection and security — that area around the hanger, of course, has had a process of tickets, metal detectors, Secret Service agents, that was occurring. Mr. Bursey was arrested before that — he never tried to enter that area.

Now, if I could, I would like to move to the third element, which is that the government has to prove beyond a reasonable doubt that Mr. Bursey willfully and knowingly entered or remained in an area that was restricted.

Again the congress, legislature, saying this is crucial, because these areas are not going to be publicly defined in the federal register. So, we want to make sure we don’t sweep — they use that term, “sweep” — over sweep and catch up people when there is no intent to do anything wrong.

Willfully, meaning a specific intent to do something {p.2-14} the law forbids. It’s defined otherwise in federal jury instructions, pattern instruction, “With a bad purpose either to disobey or disregard the law.”

Now, I have just made the two arguments that the government has failed to establish a restricted area because of vagueness and lack of specificity. Of course, those same arguments go to, if there’s lack of specificity, how could you willfully do it? But those arguments very much relate to the failure to prove the willful and knowing statutorily required element.

Notice to the public of what buildings and grounds was clear for presidential residences, because you can read where it is. It’s been nowhere established here.

In fact, what we found in the proof, the evidence yesterday, is that Mr. Bursey contacted South Carolina Law Enforcement Division to advise that he wanted to do a peaceful protest and asked ways, who he should contact, how he could work that out. It does not sound like a person who has a specific intent to violate a law.

Secondly, he moved back to the other side of the intersection that we talked about yesterday, further away from the actually restricted area of the hanger.

And additionally, third, he was never told or advised that he was in violation of 1752, the federal statute. Now, I’m not suggesting that before a criminal defendant can be {p.2-15} charged they have to be — or whatever they do, they have to be told they are doing it.

You know, I suspect we are going to hear a strawman argument from the government that I’m asserting that if you commit an armed robbery, I have to be told, “You are committing an armed robbery,” and then somehow I can withdraw. That’s the strawman argument.

But in light of the context of this statute, the critical First Amendment issues that are at stake and must be balanced, the legislative history, the total failure to have it posted or cordoned, what they said to him is critical with regard to whether or not there is proof beyond a reasonable doubt that he engaged in this conduct willfully and knowingly.

He was told, and this was undisputed, “If you want to protest, there’s only one place you can go.” That’s what Agent Abel said, that’s what Lieutenant Baker said. “If you want to protest, there is one place to go.” A half a mile away and around the corner.

I won’t take the time to read the quote from Mahoney versus Babbitt, which is an important case out of the court of appeals in the District of Columbia, where a preacher wanted to seek a permit to protest Bill Clinton’s inaugural parade because he was protesting the Clinton veto of a law that banned partial abortion. {Mahoney v. Babbitt (31kb.html), 105 F.3d 1452 (D.C. Cir., No. 97-5005, Jan. 19 1997), rehearing denied, May 13 1997 (25kb.html)}.

And when he tried to get a permit, the secretary of {p.2-16} the department of interior went and got a permit for the secretary of the department of interior and the military that lasted for six months, and went the whole length of the sidewalk, and basically preempted that.

And the court there said, when the government tried to contend, “Well, we gave him a couple of other sidewalks he could go to,” that the government cannot pick and choose where a person wants to exercise their right if it’s otherwise appropriate.

But they can’t make that kind of decision. That’s the choice they were giving him. Not, “You are in violation of this federal statute.”

And in fact, he was never told where the alleged boundaries of the restricted area were. You heard the testimony yesterday, could he have — and nobody said you could walk 101 yards up Lexington Avenue and you would be out of what we are alleging to be a restricted zone. For some reason it seemed like they didn’t want to tell him that.

And then we got at really a crucial revelation of how these agents either have not been trained in, don’t care about — or let’s see, at least it underscores the importance of judicial review of these decisions when Lieutenant Baker told us that somehow she thought if she told Mr. Bursey the outer edge of the alleged restricted area, it might jeopardize the security of the president. {p.2-17}

He was not able to know whether he was in or out. They followed him, he moved, and they said, “Where you are is not in.”

He was further told when he was arrested by an airport police officer that he was violating the South Carolina state trespass law. He was told he was trespassing on private property. We are talking about what was his specific intent, what was his mens rea?

He knew he was not in violation of that law. He had no specific intent to do something the law forbids, whether it be the federal statutes or that trespass statute. In fact, he was not in violation because he was on public property. And in fact, the state trespass charge was dismissed.

The government has the burden of proving beyond a reasonable doubt that he acted with that kind of bad intent to do something the law forbids or disregard the law. There has been no proof of that.

Now, there has been testimony that Mr. Bursey said, “Go ahead and arrest me.” That doesn’t mean he was trying to violate a law. What he knows, what he’s thinking is, there is a law, it’s called the Constitution and the Bill of Rights and the First Amendment. And pursuant to the supremacy clause, it is the supreme law.

And the false — well, and that coupled with the fact that he was never told — you notice how Agent Abel wanted to {p.2-18} back away completely whether she was even involved in the arrest.

Yet only five months later when there is no presidential visit, when there has been no harm done to the president, that this charge has been brought. And because the government has failed to establish beyond a reasonable doubt either — any of these three elements, this case needs to end right now.

It puts to rest this problem. It serves notice that the law — that no one is above the law, that the basic foundational principle of our constitutional democracy when the executive reaches in and seizes a person and takes their liberty, that interposed in between that process we have something called due process of law and fundamental fairness.

And that includes not enforcing or not taking to conviction, and the deprivation of liberty, when the facts, when the statutes, when the enforcement is vague and it’s overbroad and is a complete lack of the requisite notice to make it comport with — not the law that I hope to create some day, but the existing law that has been in our nation’s history for decades.

And I would ask Your Honor to — as you have, I’m not suggesting otherwise — take this particular motion very seriously and recess to think and look — and I will be glad to hand up hard copy cites of this, before there is a ruling at a {p.2-19} point in the case where normally it tends to be a pro forma — “Move on, and we will cover it again at the end of all the evidence.”

This is the point where this case needs to be stopped. And by stopping it it no way undermines the legitimate protection of our president. It does stop the undermining of the concerns that Congress has had, that the judiciary has had, and in this day and time the public is having about deprivations and chilling of the core right that we have in our constitutional democracy of self government; which to have any meaning has to allow and protect and even to encourage individuals to speak out, even if it’s in dissent. And as the legislative history says, especially where the symbol of their government is located.

And that burden now rests with judiciary and funnels down to right in front of you on your desk. And I know you will take it seriously. I ask you to take your time and rule that this case — that government has failed to make its burden of proof, and issue a judgment of acquittal for Mr. Bursey.

Can I consult with counsel to see if there’s anything else I need?

The Court:  Go ahead. You are going to give me those cases, or do you just want to give the cites?

Mr. Barton:  Can I just see one briefly?

The Court:  I don’t have to have those. If at some {p.2-20} point you make those cites available to me.

Mr. Pitts:  I have got a copy of Sherrill {29kb.html}. Your Honor, may I approach with a copy of Sherrill?

The Court:  Ms. Alexander was taking notes as fast as she could, but I doubt she got all those cites down. Thank you. You are going to give me a complete list of your cites though, the cases you went over?

Mr. Pitts:  Yes, sir.

The Court:  All right, Mr. Barton.

Mr. Barton:  Your Honor, could I have one look at this case, Your Honor, for 30 seconds?

Mr. Pitts:  Thank you, Judge.

Mr. Barton:  May it please the court, Your Honor.

First, I want to eliminate any notion that the government somehow thinks that you don’t have the authority or ability to or — to determine the legality of what happened out there. That has never been our position whatsoever. And it is certainly justiciable. I mean, I’m laying it in your lap, Your Honor, I want you to determine the legality of it. But there has never been any concern otherwise.

Where Mr. Pitts and I radically disagree is how you go about doing that, what standards you apply to that. But he really didn’t address that, and unless the court cares to hear that from me, I’m simply going to go down his arguments as he’s presented them to you. But there is no question I want you to {p.2-21} determine this.

The lengthy quote from the legislative history, Your Honor, I think is interesting. I mean, it points up some of the concerns that people have raised or that were being considered at the time this statute was being enacted.

But it is pretty clear that the law — and it’s obviously the committee and individual legislators who were expressing various concerns and points, and that is all attached to my original motion on the elements when we had the dispute over the colon and the semicolon, and you certainly can see the specific cites or the specific sources of those quotes.

But it’s also very clear — and the law in this country, you know, has really never been in dispute that what individual legislators may say, think, or feel about a statute as it’s being passed really is irrelevant to the determination, certainly to the constitutionality of the statute itself. I mean, somebody may like it, somebody may dislike it. I mean, what they are saying in that regard really doesn’t enlighten Your Honor at all.

What you have to look at is the statute that is ultimately passed. And then what happens later and what legislators were thinking prior to the enactment, again, is pretty much irrelevant. And I would cite to Your Honor — or I will do this a little slower. D.G. Restaurant Corporation {p.2-22} versus City of Myrtle Beach, it’s 953 Federal 2d 140. And specifically — it was printed off West Law {also available from Lexis} and I can never find the page numbers — oh, I’m sorry, page 146 and 147.

And it’s a Fourth Circuit case from 1992 which clearly says, you know, ¶

And I believe Your Honor has ruled that this legislation is facially constitutional —

The Court:  Well, I don’t think Mr. Pitts has been arguing that the statute is unconstitutional.

Mr. Barton:  I understand. But I think the same thing applies. I mean, they point out saying — and all I’m saying is, the legislative history I don’t believe adds anything to this concern, of the three elements and whether or not the United States has proven those beyond a reasonable doubt.

And while this was a very impassioned speech, I kept thinking to myself, are we talking about the same case? And I have difficulty relating what he is saying to the facts that {p.2-23} came out before Your Honor. And I will do them in the same order he did them in.

The assertion that the restricted area is void for vagueness, that it was unknown where the restricted area is, I mean, that just flies in the face — well, two things, Your Honor, the evidence concerning what the Secret Service did to put individuals at the borders of the restricted area should the need arise to advise someone you are in a restricted area.

If a person has to knowingly enter or remain in it, they have to somehow be told. At some point in time you are either entering it or you are now in a restricted area.

And I would imagine with — unless a police officer is going to stop a person as they approach that and say, “You are now entering a restricted area, do you have a ticket?” that person comes on through and they will — you know, at that point in time they might knowingly enter a restricted area. And if they don’t have a ticket, that could be a violation of the statute.

That’s not what we are talking about here. We are talking about knowingly remaining in a restricted area. And the statute allows prosecution for either one of those, either knowingly entering or knowingly remaining in a restricted area.

So, the person who is going to be charged with that offense has got to know you are in a restricted area — “You are not authorized, you have to leave. And if you remain in {p.2-24} the area, you are in violation of the statute.”

And the Secret Service was certainly set up to do that. In fact, other than Mr. Bursey, there is no indication, no evidence that anyone other than Mr. Bursey remained in the restricted area, knowingly remained in the restricted area, and was unauthorized to do so.

It seems to me that the Secret Service is enforcing that fairly well. There is no indication anybody else was there — anybody who was not authorized, was told that, told they are in a restricted area, and required to leave.

So, the claim that the Secret Service hasn’t done enough to notify individuals that they are going to be in violation of the statute — and as your October 20th order said, it’s got a knowledge requirement, they have got to be told. And out there that day the Secret Service was prepared to tell.

And I would submit there is evidence they were telling certain individuals, “You can’t enter,” the police officers who were checking tickets and requiring people to leave.

But the important thing is, with — and speculating about what might happen elsewhere, when the evidence is, “This is how we do it, this is how we delineate the restricted area,” really kind of begs the question. The question is, what did Mr. Bursey know that day? And how was this statute enforced as {p.2-25} to Mr. Bursey? And did he know he was in a restricted area?

And, I mean, it was just repeat — I mean, I don’t think there can be any debate or any — it really cannot be contested that he was told by a United States Secret Service agent, “I’m from the United States Secret Service, you are in a restricted area.” What more does he need to know?

Mr. Pitts in his argument wants to concentrate on the posted or cordoned off, which may be appropriate in certain circumstances. I mean, I imagine there are physical locations where that can’t be done. And when posted and cordoned off and somebody crosses it, then you might be in violation of the entering provision.

But here, I mean, it’s a matter of recognizing the reality of what is going on here. And that the — I seriously doubt the Secret Service was ever intending on that day to seek the prosecution of anyone for knowingly entering this area, because they couldn’t post it and cordon it off. Because they had to allow — they were allowing the traffic to go through, they were allowing people to walk through.

And that day out there, Mr. Bursey is in an area, and told. Again, he wants to ignore these posted — or wants to concentrate on cordoned and posted off, but the statute specifically says, “or otherwise restricted.”

I think — I don’t think, I know, the Secret Service has got to be given the flexibility to deal with a {p.2-26} particular — any given particular site.

There might very well be security reasons why they don’t want to post and let people know this is a restricted area. I mean, you can imagine when the president is going somewhere that is not a public event, and it is unknown he’s going there, you don’t want people to know that.

You are not going to go out there and close off the place and say, “This is a restricted area.” You are going to show up, put agents out there and stop people and say, “This is a restricted area, you can’t come in.”

The Secret Service has to have that flexibility. And the flexibility is built into the statute, because it does say, “either cordoned off, posted, or otherwise restricted.” And that’s clearly what was done here.

But, again, more importantly as to Mr. Bursey, he is told, “You are in a restricted area.” What’s so confusing about that? “I’m from the United States Secret Service and you are in a restricted area.” Now, where is the confusion? Where is the lack of knowledge? Where is the lack of notice from that? “You are in a restricted area.”

Mr. Pitts wants to go on down to the demonstration area and talk about that, which has a surface appeal, except for the fact that Mr. Bursey, as the testimony clearly indicated, had no intentions of leaving that area. He said, “I’m not leaving.” {p.2-27}

So, whether there was or was not a demonstration area in many ways is really irrelevant. And to criticize the agents who know — or it certainly appears to them, looking at Mr. Bursey, out there with his signs, out there with his megaphone, it is clear he intends to demonstrate.

They know the airport police has set up a demonstration area, so they do what I would hope they would do, tell him, “If you are going to do that” — and that’s all he said he was going to do — “If you are going to do that, you need to go to the demonstration area.” Otherwise he can get charged for demonstrating, in violation of the airport regulations here, or 101 yards up this road, where there is no demonstration area.

And as soon as they tell him, “Well, if you want to do that, you can do that anywhere you want outside the restricted area,” he goes up and holds up his sign and he gets arrested for demonstrating outside the demonstration area. And then he says, “Well, they told me I could do it,” and then you have got that conflict.

This is not — where he goes to demonstrate really is kind of taken out of the discretion of the SLED agents {South Carolina State Law Enforcement Division} and the Secret Service at that point. The airport police have set this up. “If you want to do it lawfully in compliance with our regulations, that’s where you go.”

And they don’t have any choice in many respects to {p.2-28} tell him, “If you are going to engage in that conduct, that’s really where you ought to go.”

I guess they could have said, “Well, you can go anywhere you want to, anywhere else, but you are going to get arrested there as well.”

So, to criticize them for sending him there or suggesting he go there, I think is really unfair. But more importantly I think it’s irrelevant to this whole consideration, because Mr. Bursey says, “I’m not leaving.”

It made no difference what he was going to do or where he wanted to do it, the testimony is clear, he never indicated a willingness to go anywhere. He was going to stay there.

He is staying there knowing he is in a restricted area, an area established by the United States Secret Service. “I’m with the Secret Service, you are in a restricted area. You know, the president is coming, this is not terribly difficult to figure this out, and you are in a restricted area.”

Yet Mr. Pitts wants to stand up here and say somehow he did not know he was in a restricted area. It simply doesn’t make sense.

And again — and I’m afraid I got out of order, I said I was going to do it in his order and I’m trying to follow my own order. But it is clear that the United States Secret {p.2-29} Service established that area as a restricted area. That’s uncontroverted.

It’s uncontroverted that Mr. Bursey was in the restricted area. He was told he was in a restricted area. He obviously refused to leave, and he acknowledged, “I don’t have a ticket. I’m not an invitee. I’m not entitled to go there.”

I mean, it’s one, two, three. Now, perhaps there is an issue about people — whether or not people entering were authorized. Again, I would suggest that there is no evidence that anyone who entered wasn’t authorized, because they apparently all got in line and went in.

Some people were turned away — there may have been people turned away when they get up to the door and they can’t find their ticket. “You can’t come in, go away.” There is no indication that any unauthorized people were in this area. There is no indication, there is no evidence whatsoever that any unauthorized individuals were in this area.

Were there people in line close to where he was standing? Surely. And apparently they were all authorized. Because they either went in, and if they weren’t, they were told to leave. And there is no indication that they didn’t all go in.

So, I mean, there’s no reason for the court to conclude that he was — that it’s being enforced differently as to everyone out there. I mean, the Secret Service made it {p.2-30} clear, “If you are in this area, you have got to be authorized.”

If you weren’t authorized or you didn’t have a ticket or weren’t military or law enforcement, if you are in this area, you are not authorized or you don’t have a ticket, you were told to leave.

Everyone said that. Every agent that was involved in the security out there said that, that that happened to every person who came up and didn’t have a ticket and was not authorized to be there.

They left. The only — including the individuals there with him, Your Honor, who were told, “You are in a restricted area. Do you have a ticket? You can’t stay here. If you want to demonstrate, that’s where you are supposed to do it.” They left. He did not.

So, I’m having difficulty understanding how given that direct context, exactly what the statute expects to happen here, you are told you are in a restricted area, you say, “I’m not authorized,” you admit that, you say you were told you must leave, and you say, “I’m not going to leave.”

Now, where is the disconnect there? I mean, that’s where I’m having considerable difficulty with what he’s — his position he is espousing. It seems clear, it is clear that he was — I mean, and he said, “Arrest me.” He — that’s an acknowledgement he’s breaking the law. {p.2-31}

You know, he wants to think or make this assertion that it’s the Constitution protecting him, Your Honor. Well, you know, maybe. But if there is a constitutional statute that prohibits the activity he’s in, I mean, he’s in violation of that statute.

So, I mean, it’s just — I think the evidence is frankly overwhelming that the elements of the statute have been met, and that Mr. Bursey knew that he was in the restricted area and refused to leave and he was unauthorized.

The critical revelation that Mr. Pitts talks about of Agent — SLED Agent Baker who said being 101 yards down there might jeopardize the security. Keep in mind she’s not there in charge of security, she’s there to assist the Secret Service with regard to security.

So, the fact that she might not know if that would be secure or not, that’s not her responsibility. That’s the Secret Service’s responsibility. And nobody from the Secret Service said that. I mean, she’s a very fine agent, don’t get me wrong, but that’s just simply not her responsibility. She’s there to assist the Secret Service with regard to that.

And I think part of the difficulty that Mr. Pitts and I have regarding the enforcement of this statute is the cases he cites, Your Honor, such as the Mahoney case deal with a separate remedy and a separate — a different proceeding. These are cases dealing with preliminary injunctions. {p.2-32}

I’m not saying they don’t have some relevance here, but our first trial, Your Honor, Mr. Pitts gave me this notebook, I think he might have given one to the court, that have seven cases copied in here.

And, Your Honor, I read them all and every one of them deals with individuals seeking preliminary injunctions, and what must be done with regard to a showing concerning a preliminary injunction.

And, again, while they may have some relevance, it’s — that type of equitable relief is far different from what Mr. Pitts is seeking for Mr. Bursey in this case.

I do have an argument I will be happy to make for the court concerning the — what I believe the appropriate constitutional standard is you should apply to this. But Mr. Pitts, he and I may slip up and agree with that, I don’t know. He did not argue what the standard was and how the court is going to analyze it.

So, I don’t know if you want me to suggest — make my argument as to how I think this ought to be done in light of no argument from Mr. Pitts, I will — I stand to be directed by the court as to how you want that done.

The Court:  Well, does it bear on the judgment of acquittal?

Mr. Barton:  Not as he has presented it, Your Honor, it certainly does not. {p.2-33}

That’s all I have, Your Honor, thank you.

The Court:  All right.

Mr. Barton:  Oh, briefly, I’m sorry.

And in the Mahoney case {31kb.html}, the very case — the only case he cited to you, I think you will find there that the court has considerable difficulty with the conduct of the government officials there.

And the court even in the opinion says that they concentrated on — or they were so stunned that the government officials acknowledged this. But in that case the government officials admitted that, “We took this action with regard to this demonstration area to exclude this guy about the partial birth abortion specifically because we didn’t want that message out there.” And that’s what the government official said.

And like I said, the court clearly expresses some amazement at that, to think that “We don’t want him out there with that message so we are excluding it.”

Now, obviously that injunction was granted, and that clearly has nothing to do with this case. Right now I don’t believe there is a word of testimony in this record as to what the message was Mr. Bursey was seeking to convey out there that day. I don’t believe there is one word of testimony in there as to what he was trying to say out there.

So, the idea that the government — that somehow the Mahoney case has any relevance here, I think it’s just far {p.2-34} outside of where it needs to be. Thank you.

Mr. Pitts:  Briefly, Your Honor. Thank you.

Yes, this argument for judgment of acquittal is not based on content or viewpoint discrimination, it’s much more black letter constitutional law that relates to objective criteria to provide adequate notice, to not tolerate and condone vagueness and overbreadth.

The main problem with just about every argument that Mr. Barton made was that it starts with the assumption that there was a restricted area, and that is the part that I’m contesting.

When every one of the government’s witnesses were asked — and that’s Cohen and Abel and Baker, who were there — they all admitted that tickets were not being checked prior to entering this so-called large restricted area. That’s uncontested. That’s what means that the area was not restricted.

Now, if within this alleged area a Secret Service agent then goes up to somebody like Mr. Bursey or somebody else and says, “Shoo, go away,” that gets at the precise issue of the unfettered discretion of law enforcement to simply say, “Move on.” And that’s the Shuttleworth versus Birmingham case, a Supreme Court decision, is {394 US 147 (1969):} you can’t have these sort of police officers just on their own saying, “Move on, move away.” That’s the problem. {p.2-35}

This thing has to be stretched back to the beginning. The statute requires that the U. S. Secret Service has posted, cordoned off, and otherwise restricted an area, and that in that area only invitees are allowed for this to be a crime. That’s where the government’s proof utterly fails to meet the standard of beyond a reasonable doubt.

I would invite the court’s attention to the piece of legislative history that I was reading from, and see if it doesn’t deserve some weight in terms of getting at what legislative — this was just not an arbitrary collection of a couple of members of congress, it was the senate judiciary committee discussing the matter.

And with regard to the unfettered discretion, I even asked some of the witnesses were there any written guidelines given to these people that they say were posted on the borders to help them determine who to let in and who not? Those guidelines could have simply been the tickets. They were not checking the tickets.

Then yesterday we asked, Your Honor, that the court reporter provide us a partial transcript of the testimony of Agent Cohen, because it was very consistent with what Lieutenant Baker from the SLED testified to, which is very revealing. And if I could approach the Government’s Exhibit 1, Your Honor.

We heard Agent Baker, Lieutenant Baker and Agent {p.2-36} Cohen describe some break in the line where they pulled people away in an area — this is much closer — and allowed to be close here. Now, the issue here is, what was it about these people?

Here is what the transcript says from Agent Cohen, because I was afraid it was going to be missed. He says at page 3 of this partial transcript yesterday:

So, he’s testified that people here, this area on Government’s 1, here is the little green island, it’s marked chain link fence, to the west of the intersection of Lexington Avenue and Airport Boulevard, but on the hanger side, wouldn’t be able to cause the president harm.

Well, of course, that walks us into, if we have to get to it, which I hope we don’t, a later motion about selectivity or viewpoint or just the expression point. But {p.2-37} that goes to the very heart of this matter of the unfettered discretion of within this area whether or not it was restricted or not begins at the borders.

They have totally failed to establish that there was any checking and requirement that only ticketed people were allowed into that site. That means there is no restricted area. That means — well, I wouldn’t say that. That means that that is not the restricted area, and they failed to establish any other area that they called a restricted area. They have failed to make the elements of proof in this case, Your Honor.

Just one moment.

I think in terms of the mens rea, the willful and knowing, I think any person is entitled to assume that he’s not in a restricted area, because restricted areas are supposed to be posted, cordoned off, or otherwise very visibly restricted. That’s the constitutional requirement.

Individual Secret Service agents, SLED agents, other police can simply not make a determination on their own of who is entitled to be in any certain area. The government failed, and I would ask Your Honor to pause and then to grant this motion. Thank you.

Mr. Barton:  Your Honor, could I have 60 seconds to respond to that?

The Court:  All right. {p.2-38}

Mr. Barton:  And you can time me. You can time me.

What Mr. Pitts did not ask Agent Cohen on cross-examination about the folks back over here was, “How many of those people did you tell to leave the restricted area? How many of these folks did you say, ‘You cannot remain in this restricted area, you have to leave’”?

And in fact, what Agent Cohen said was, “We managed to get everybody in.” So, while they had been back here, it was no indication that they were going to stay there while the president was here. That little piece of the transcript really adds nothing to this.

And the only real reason I stood was he mentioned something I wanted to respond to and missed, the unbridled discretion.

Your Honor cites in your October 20th order a Fourth Circuit case that talks about certain — the language of the statute. I would also cite to Your Honor Ward versus Rock Against Racism, it is at 491 U.S. 781. It’s a Supreme Court case — I’m sorry, from 1989 — in which there was a claim that the officials enforcing that particular statute had unbridled discretion.

And the court said {at 794}, ¶

It’s a pretty high standard, and we are not even there.

So, while there is discretion, there has to be discretion. Thank you, Your Honor.

The Court:  And I appreciate the arguments of counsel. I think both counsel have had some very good arguments this morning, and I can tell that y’all put a lot of work into it.

And as Mr. Pitts indicated, a lot of times these motions at the close of the government’s case are pretty much pro forma, and the defendant obviously believes that after the testimony yesterday that they should not be considered as a pro forma motion, and I’m not going to consider it as a pro forma motion.

And the Secret Service has got a serious responsibility, obviously, I wouldn’t want have their job. We have had two presidents assassinated in the 20th century and numerous other presidents have been the victims of attempted assassinations.

And, of course, nowadays you have got the problems of roadside bombs and the people who are even willing to kill themselves and other citizens in order to achieve their goals. So, obviously the Secret Service has a very tough job to do, and again, I wouldn’t want to have to do that job. {p.2-40}

But as Mr. Pitts indicates, that job has got to be balanced against the right of people in a free society to be able to protest and to make their views known. And not just to have their views known, but obviously the goal of the defendant here was to make his views known and to make sure that the government official that he was there to protest against could actually see what his views are.

And that is a right of protest that we have in this country. And there is an obvious tension between what the job is of — what the job is of the Secret Service, and that’s — you know, that’s not a game, that’s a very serious — that’s very serious business, and the rights of protestors like Mr. Bursey to protest and exercise their First Amendment freedoms. And, of course, that’s why we are here today.

The defendant and really both sides have cited a lot of case law, I’m going to — I’m going to want to read those cases. I am going to take the motion very seriously. He didn’t make a pro forma motion, I’m not going to issue a pro forma order on it. So, I’m going to take the motion, I’m going to reserve a decision on it under rule, and we are going to proceed with the case.

And I’m going to read the cases that y’all have cited and consider your arguments and render a decision at an appropriate time. But I don’t think it’s appropriate to stop the trial at this point for me to go back and do that, because {p.2-41} there’s really no way to know how long that would take to do that.

And we are here and we are in trial, and we need to go ahead and proceed with the defense’s case. So, I am going to take that motion under advisement at this time under Rule 29.

And is the defendant ready to proceed with your witnesses?

Mr. Pitts:  Yes, sir, we are.

The Court:  All right, you can call your first witness.

Mr. Pitts:  Call Katon Dawson.

Mr. Barton:  Your Honor, before Mr. Dawson takes the stand, I think there was a violation of Your Honor’s sequestration order yesterday. I believe Mr. Dawson was in the courtroom for some six to eight minutes, he told me, of testimony. I noticed him back there, brought him to Mr. Pitts’ attention, and he left the courtroom.

The Court:  He was in here for testimony yesterday?

Mr. Barton:  Yes, sir.

The Court:  Well, was he told he wasn’t supposed to be in here?

Mr. Barton:  It’s his witness, I —

Mr. Pitts:  I have never met the gentleman, he came in at 3 o’clock to my back. I didn’t know he was here until {p.2-42} Mr. Barton told me he was here. I asked him to leave. He did. His testimony has no bearing on the testimony that came in that he heard yesterday from the government’s witnesses.

I mean, he’s the chair of the Republican Party, I don’t think he —

The Court:  Well, I’m going to allow him to testify. Obviously your witnesses are supposed to be sequestered, so I hope that wouldn’t happen again.

Mr. Pitts:  Yes, sir, I apologize.

The Court:  How many witnesses do you have?

Mr. Pitts:  We have seven or eight, Your Honor. They will mostly be quick.

The Court:  Okay. All right, well, call your first witness.

Do you recognize all the rest of your witnesses?

Mr. Pitts:  Yes, sir.

The Court:  They are not in here, are they?

Mr. Pitts:  No, sir.

The Clerk:  Please place your left hand on the Bible and raise your right hand. State your full name for the record.

The Witness:  Katon Edward Dawson.

Katon Dawson, Sworn

By Mr. Pitts:

Q.  Mr. Dawson, you now know my name is Lewis Pitts, correct? {p.2-43}

A.  I do now.

Q.  And I represent Mr. Bursey, along with Mr. Wise?

A.  (Nods head in the affirmative).

Q.  And we hadn’t met until yesterday afternoon when Mr. Barton pointed out that you were in the courtroom; is that correct?

A.  Absolutely.

Q.  Would you tell the court your occupation, sir?

A.  I am the president and general manager of the Burns Auto Parts in Columbia.

Q.  And do you have a position within the South Carolina Republican Party, sir?

A.  I do.

Q.  And what is that?

A.  I’m the chairman of the South Carolina Republican Party.

Q.  And did you hold that post last October 24th, 2002?

A.  Yes, sir.

Q.  All right. And did you have some involvement in the visit of President Bush here at the Columbia Metropolitan Airport?

A.  Yes, sir.

Q.  Would you explain what that involvement was?

A.  My involvement was as a role of facilitator. And during the event, as the announcer, to announce the president, greet the president, and be a participant in the event.

Q.  So, you attended the event inside the Doolittle Hanger?

A.  Yes, sir. {p.2-44}

Q.  All right. And prior to October 24th, would you describe how notice or invitations were given to the public about who could attend, and how that process proceeded?

A.  Tickets were distributed to the public, to anyone who wanted to go to the event. The tickets were distributed through our executive committee to schools, to anyone who wanted to see the President of the United States.

Q.  And how were — how was word put out to the general public of the opportunity to attend the visit by President Bush?

A.  The word was put out through phone calls, word of mouth through our executive committee to schools. And anyone who wanted to participate in the event could obtain a ticket from the Republican Party, or other venues, as in entire schools were able to come to see the president.

Q.  And when you say entire schools were entitled to come, what do you mean by that?

A.  Well, certain schools, certain grades, Glenn Forest, which is a school for children right there by the — right there by the airport, the entire school came.

Q.  Were there tickets issued to the school or was there a different process by which an entire school attended?

A.  The tickets were taken to the school for every student and for the parents who wanted to come with the students.

Q.  So, there was no requirement that you have any affiliation with the Republican Party; is that correct? {p.2-45}

A.  No, sir.

Q.  Just one minute. Let me approach and hand you what has been marked as Defendant’s Exhibit 7. Would you describe that?

A.  Yes, sir, this is a ticket that was given to us to have distributed. It’s a very fluid environment when these things happen and this ticket —

Q.  What do you mean by “very fluid”?

A.  Things — things happen very quickly. And we had — I can’t remember the exact number of days to generate a good audience for the president. And we had these tickets, these tickets were given to me, under my care. And say, ¶

do you want this read?

Q.  Yes, sir, please.

A. 

On the back of the ticket it says, ¶

Q.  And what does the part mean you were reading about, it would void the ticket if the stub or the — what did that mean?

A.  It says, “No admittance if ticket stub has been removed.”

Q.  Well, what was going on there? What was the purpose of that?

A.  Sir, it says, “No admittance if ticket stub has been removed.”

Q.  So, how did the process work of collecting the tickets —

A.  Sir —

Q.  — on the 24th?

A.  I was admitted immediately after I got there and I was admitted with the Secret Service agent through the — through the machines, handed my tickets and went in.

Q.  Would you describe for us where that entranceway — where what you describe as a machine, where was that?

A.  The entranceway was, you drove in, you parked at the facility where they asked you to park —

Q.  Would you step down and use the pointer and point that out?

You are using Government’s Exhibit 1.

A.  Came down Airport Boulevard, parked my car, I would imagine, somewhere over here at Midlands Technical College where I was instructed to — {p.2-47}

Q.  Now, let me ask a question, did you come up Highway 302 to enter onto Airport Boulevard, do you recall?

A.  Describe Highway 302.

Q.  It’s the big highway coming out of Columbia that —

A.  Yes. Yes.

Q.  And when you turned onto Airport Boulevard, were you stopped?

A.  Was I stopped? I do not recall.

Q.  Did anybody check your driver’s license or do any kind of a screen to see if you were allowed to turn onto that highway?

A.  I do not recall. I don’t know. I do not recall. I can’t answer that yes or no.

Q.  You don’t think you would recall if you had been stopped on that day?

A.  Sir, I have done four presidential visits, and they are all different. So, I can’t tell you whether I was stopped here and checked or not. I can’t answer that.

Q.  Okay. And you turned — you turned up on Lexington Boulevard — Avenue?

A.  Right. And went to Midlands Tech, wherever Midlands Tech, the parking lot was there, which was about a five minute walk through a construction area.

Q.  Did anybody at Midlands Tech check you for an ID or security check up there?

A.  I was checked right in here somewhere where someone asked {p.2-48} me and I asked for directions. Came through right — I would say in here, my wife and I. We were early.

The Court:  Where is that? I can’t see where you are pointing.

The Witness:  Judge, right around here before the corner. Right in here, we were checked early by security officers as we were heading, it seems to be, in the wrong direction, but I can’t recall exactly why. A lot of people coming in, a lot of enthusiasm and excitement, so I can’t tell you exactly. I knew — I was late.

By Mr. Pitts:

Q.  A lot of people had already formed up?

A.  Absolutely.

Q.  And what numbers would you say?

A.  Repeat the question again?

Q.  What numbers of people would you say had arrived?

A.  When I had arrived? Oh, that would be a complete guess. I would guess 1,000, 2000 people, maybe.

Q.  And what time was it?

A.  I don’t recall.

Q.  Prior to 10 o’clock?

A.  Let me see what time the event started, sir.

I was there probably 10 o’clock.

Q.  Okay. All right, and go ahead and describe your pathway.

A.  Came in, went and parked. Came here, there was a line {p.2-49} already formed right here. I found my designated — either White House advance member and then was taken to a Secret Service agent. Was taken down in front of the line and came in to prepare my text for my speech to the assembly, and — my wife and I both.

Q.  Where did you enter? Would you point on the diagram where you entered the hangar and where you went through that metal detector?

A.  Judge, the diagram is here, and the metal detectors, to the best of my knowledge, whatever they call them, I think was sitting right here where you came in.

Q.  On this chart, what would be the eastern side of the hanger?

A.  Right, yes, sir.

Q.  Okay. Thank you.

Mr. Pitts:  Move admission of Defendant’s 7.

Mr. Barton:  No objection.

The Court:  Without objection.

By Mr. Pitts:

Q.  Mr. Dawson, did you keep a list of the individuals that received the tickets?

A.  No, sir.

Q.  Do you remember how many ticket were issued?

A.  I think we had approximately 7,000.

Q.  And did you distribute 7,000? {p.2-50}

A.  Give or take, 400 or 500. When we gave schools, we wanted to make sure everyone from the janitor to the principal was included. So, when we gave them out, we usually gave tickets in excess. They were available to any citizen who wanted to see the president, regardless of their race, creed, political affiliation, it didn’t make any difference. If they wanted to see the president, they were invited.

Q.  Okay. And was there a background check done on the people who received tickets?

A.  Not on the people who received tickets, no, sir, not to my knowledge.

Q.  And how many people were inside the building at — what was the maximum number that was in attendance?

A.  Sir, I can’t — it was a tremendous audience, so I cannot tell you that.

Q.  Okay. And do you recall in the area on the chart there that — between the hanger and Airport Boulevard, there’s a green grassy area, do you recall any signs posted there supporting various candidates?

A.  I do not recall signs.

Q.  Did you see signs there at all that day?

A.  I do not recall signs. I don’t recall specific signs —

Q.  I’m not asking about a specific sign. It’s a rally by the president, and isn’t it true that one of the purposes of President Bush’s visit was to be in support of South Carolina {p.2-51} Republican candidates?

A.  That’s correct.

Q.  And do you recall seeing any signs supporting those South Carolina Republican —

A.  Sir, you asked me the question, I told you no, I don’t recall seeing specific signs. If they were there, I didn’t pay attention to them.

Q.  How about on the inside of the hanger?

A.  Absolutely, yes, sir.

Q.  Were you ever advised anything about whether or not there was expected to be a protest in the area that day?

A.  No, sir.

Q.  And did you have any meetings with Secret Service prior to October 24th?

A.  I had meetings with the White House advance team, whether a Secret Service agent was there or not, I don’t — I don’t — I can’t clarify that. White House advance and Secret Service, we follow instructions from both of those. I can’t clarify whether — I didn’t ask for their badge.

Q.  Were you involved in setting up any of the security for the president?

A.  No, sir.

Q.  Were you advised anything about that security?

A.  No, sir.

Mr. Pitts:  Just one minute, Your Honor. {p.2-52}

The Court:  All right.

Mr. Pitts:  No other questions.

Mr. Barton:  No questions, Your Honor.

The Court:  Thank you, you may step down.

Mr. Pitts:  May Mr. Dawson be excused, Your Honor?

The Court:  Yes, sir, he may be excused.

The Witness:  Thank you, Judge.

Mr. Pitts:  Call Captain Morrow. Captain Morrow, if you would come around and be sworn.

The Clerk:  Please place your left hand on the Bible and raise your right hand. State your full name for the record.

The Witness:  Jack Arthur Morrow.

Jack Arthur Morrow, Sworn

Direct Examination

By Mr. Pitts:

Q.  Sir, would you state your name and your employment?

A.  My employment is Columbia Metropolitan Airport Police Department.

Q.  And you go by Captain Morrow; is that good?

A.  Yes, sir.

Q.  All right. And how long have you been employed by the Columbia Metropolitan Police?

A.  Approximately 19 years.

Q.  And were you involved last October 24th, 2002, when {p.2-53} President Bush visited the metropolitan airport?

A.  Yes, sir.

Q.  And what was your role that day, sir?

A.  During that visit, I was assigned to the command post and communications center at the fire department.

Q.  All right, sir. And within that post, what were your duties?

A.  My duties was to act as a go-between between other agencies so that we could communicate with one another and pass information back and forth.

Q.  And had you been involved prior to October 24th with meetings with any Secret Service agents?

A.  Yes, sir.

Q.  And what was the nature of those meetings? What was discussed in those meetings?

A.  Basically the security arrangements for that particular visit and the routes that he might take.

Q.  Okay.

Mr. Pitts:  Indulge us one moment, Your Honor.

The Court:  All right.

By Mr. Pitts:

Q.  Captain Morrow, let me hand you what has been marked as Defendant’s Exhibit 8, do you recognize what that is, what kind of form that is?

A.  Yes, sir. {p.2-54}

Q.  What is that?

A.  That’s the incident report for the Columbia Metropolitan Airport.

Q.  And does it involve the incident on October 24, 2002, where Mr. Bursey was arrested for trespass?

A.  Yes, sir.

Q.  And does it have your name typed in there somewhere?

A.  Yes, sir.

Q.  Did you prepare that report?

A.  No, sir. Sergeant Campbell prepared this report.

Q.  And can you explain how it got your name?

A.  He listed me as the complainant because I called him on the radio to dispatch him to the Airport Boulevard and Lexington Avenue.

Q.  So, he listed you as the complainant there?

A.  Yes, sir.

Q.  And so is your signature anywhere on what’s been marked for identification as Defendant’s Number 8?

A.  No, sir.

Q.  Just your typed name?

A.  Yes, sir.

Q.  And in the body of that it described an officer being called going —

Mr. Barton:  Your Honor, I’m going to object to the body of it, we are getting into the substance of it. And it’s {p.2-55} not even in evidence and can’t be put in by this witness, I don’t believe.

The Court:  Do you know anything about that document?

The Witness:  No, sir.

The Court:  You can’t ask him about it.

By Mr. Pitts:

Q.  Did you attend — did you go to the site of Mr. Bursey being arrested?

A.  No, sir.

Q.  But I believe you just testified that you called Officer Campbell and asked him to go there?

A.  Yes, sir, via the radio.

Q.  And why did you do that?

A.  I received a call in the communications center from Lexington County stating that the Secret Service was requesting an airport police officer at that location.

Q.  And did that call say why the Secret Service was requesting an officer?

A.  No, sir.

Q.  There was no mention in the radio communication that you had that there was somebody about to be arrested?

A.  No, sir, not that I recall.

Mr. Pitts:  No other questions. Please answer any questions —

Mr. Barton:  I don’t have any questions, Your Honor. {p.2-56}

The Court:  Thank you, sir, you can step down.

Mr. Pitts:  Call our next witness, Officer Campbell.

Just come around here and be sworn.

The Clerk:  If you could, put your left hand on the Bible and raise your right hand, please. And state your full name for the record.

The Witness:  James Campbell, III.

James Campbell, III, Sworn

Direct Examination

By Mr. Pitts:

Q.  If you don’t mind, officer, tell us again your name and your employment.

A.  I’m James Campbell, work at the Airport Police Department, rank of sergeant.

Q.  And Sergeant Campbell, how long have you worked at the Columbia Metropolitan Airport?

A.  13 years.

Q.  All right. And were you working there and on duty October 24th, 2002?

A.  Yes.

Q.  And did you have an occasion there to be involved in the arrest of Mr. Bursey?

A.  I did.

Q.  All right. Let me hand you what’s been marked as Defendant’s Exhibit 8 and see if you can take a look at that. {p.2-57}

If you don’t mind, tell us what that is.

A.  That’s a copy of my incident report.

Q.  Okay. Would you describe the events that led you to go to that site where Mr. Bursey was then arrested?

A.  Can you repeat that?

Q.  What caused you to go to that site where Mr. Bursey was then arrested on October 24th?

A.  My captain called me over the radio and asked me to respond down there.

Q.  And when you got that information from — and that’s Captain Morrow?

A.  Correct.

Q.  Did you know at that point that there was somebody to be arrested?

A.  No.

The Court:  Sergeant, could you speak into that microphone?

By Mr. Pitts:

Q.  Did you know who had requested your services there?

A.  Not at that time.

Q.  Okay. Describe for the judge what happened when you — where were you when you got that call?

A.  I was in the vehicle on patrol.

Q.  And where was that patrol vehicle at that time?

A.  Up near the terminal. {p.2-58}

Q.  Okay. Were you part of the security for the president’s visit, or were you on routine duty at the terminal?

A.  I was on routine patrol.

Q.  Okay. Had you been involved in any of the planning for the security for the October 24th presidential visit?

A.  No.

Q.  Had you been given any information about where any presidential secure zones were or posts for checking tickets and things like that were?

A.  No, sir.

Q.  Okay. Describe what you did when you left the terminal and responded to that call from Captain Morrow.

A.  Captain Morrow advised me to go down to the — that — where the president would come in and speak with Lexington County. And when I arrived, they showed me that Mr. Bursey was — what he was doing and they described the secured area.

The Court:  Can you show us on that map where it was, when you say you arrived, where it was you went when you got there?

The Witness:  When I pulled up, Mr. Bursey was here.

The Court:  You came down in your patrol car?

The Witness:  Yeah, I came in the patrol car.

The Court:  All right.

The Witness:  And when I arrived, he walked across the street. {p.2-59}

By Mr. Pitts:

Q.  If I could just — where you first saw him was in the grassy area near the intersection of Airport and Lexington on the hanger side —

A.  On the hanger side.

Q.  — on the hanger side of Airport Boulevard?

A.  Correct.

Q.  All right. Go ahead.

A.  And when I arrived, he then walked across the street and was over here on the airport side. And they had barricades — I mean, it was all barricaded up because of construction. And that was a secured area too, they had all this area —

Q.  Well, I’m sorry, how do you know that was a secure area?

A.  Well, Lexington County and the Secret Service advised me when I got down there and showed me — basically pointed out what was —

Q.  And had the barriers been up as part of that construction effort well prior to October 24th?

A.  Yes.

Q.  How long prior to October 24th?

A.  I’m not certain.

Q.  Months, right?

A.  Something like that, yeah.

Q.  So, those barrels had nothing to do with the events of October 24th? {p.2-60}

A.  They used those as markers also.

Q.  For the pedestrian and traffic-way, correct?

A.  For — yeah, pretty much. And that was a secured area inside of it.

Q.  Did you have any conversation with Mr. Bursey on the hanger side of Airport Boulevard?

A.  No.

Q.  Who was talking to him at that point?

A.  When I arrived, I didn’t see anybody talking to him on this side. When I arrived, he walked across.

Q.  Okay. Was anybody with him?

A.  There was a Secret Service agent and Lexington County were also over here.

Q.  When you say Lexington County, you mean Lexington County Sheriff’s Department?

A.  Sheriff’s department, yes, sir.

Q.  And Mr. Bursey was the only non-law enforcement person?

A.  Yes.

Q.  Okay. And what happened next after he walked across Airport Boulevard?

A.  Well, when they told me that — where the secured area was, and shortly after that they started blocking off the people that were supposed to go in. I don’t see the sign up here, but they stopped them up here. And there was a barricade up here by the van where — where they blocked everybody off and the {p.2-61} traffic on both sides.

And he was advised a couple of times where the demonstration area was, he didn’t — he didn’t go. And three other people showed up, and they were told, and they left —

Q.  What were they told?

A.  The same thing. Where the demonstration was, and if they stayed, they would have to leave.

Q.  And you were pointing here on this gray area, this Tarmac area about where people had been in line when you first arrived, and Mr. Bursey was on the hanger side of Airport Boulevard in this grassy area?

A.  Uh-huh.

Q.  Did you see people here waiting to get in the hanger?

A.  Yes.

Q.  How about when Mr. Bursey crossed Airport Boulevard and was cater-corner across at the stop sign, were there people in that area?

A.  Just for a few minutes, and then they were blocked off up here.

Q.  And you are pointing to the west side of the chart?

A.  Right. And then there was nobody in that area when he — when I arrested him.

Q.  And why did you arrest him?

A.  Because that was deemed a secure area and he had to leave because the president touched down. {p.2-62}

Q.  Can I show you what has been marked as Defendant’s Exhibit 9.

Mr. Barton:  No objection.

Mr. Pitts:  You can return to your chair.

The Court:  Without objection.

By Mr. Pitts:

Q.  What is that?

A.  That’s a state summons.

Q.  It’s a what?

A.  State summons.

Q.  State summons?

A.  Uh-huh.

Q.  Does it charge Mr. Bursey with an offense?

A.  Yes, trespass after notice.

Q.  Does it say anything there about being in a secure area, secured to protect the president?

A.  No.

Q.  Is there any such municipal or state offense that you know of?

A.  No, that’s why at this time I charged him with trespass after notice.

Q.  After notice of what?

A.  To leave the area, he was trespassing.

Q.  Did the notice have anything to do with — did you tell him anything about whether or not he was on private property? {p.2-63}

A.  No.

Q.  Do you know whether or not the trespass — the state statute requires a person to be on private property without permission?

A.  At that time I did not.

Q.  Was there any consultation amongst the people that were there with you about what citation or summons to issue Mr. Bursey?

A.  No.

Q.  So, that was totally your decision?

A.  No, sir.

Q.  Whose decision —

A.  I communicated with my captain and he advised me of the charge.

Q.  And that’s Captain Morrow?

A.  Correct.

Q.  Was that while you were on the way there in your car or once you —

A.  No, sir, afterwards.

Q.  Sir?

A.  Afterwards. I advised him that he wouldn’t leave.

Q.  And you consulted with Captain Morrow?

A.  Uh-huh, yes.

Q.  And he told you to use a trespass citation —

A.  Yes, sir. {p.2-64}

Q.  — summons?

A.  (Nods head in the affirmative).

Q.  And what ultimately happened to that charge?

A.  Well, I dismissed it.

Q.  And do you remember when that was?

A.  After — after the Secret Service charged him.

Q.  After the Secret Service charged him or before?

A.  After.

Q.  Okay. And when you dismissed that charge, did you — or prior to dismissing, did you have any conferences with the federal prosecutor or the federal officials?

A.  Yes, sir, they came out and talked to me.

Q.  And who was it that came out and talked to you?

A.  Was it John?

Q.  Mr. Barton —

A.  Mr. Barton, yes.

Q.  — sitting here at the table. Okay. Anyone else?

A.  I believe Lee came out one time.

Q.  Agent Lee?

A.  Agent Lee, yes.

Q.  Okay. And did you then consult with anybody in the solicitor’s office, the state solicitor — South Carolina Solicitor’s office about the charge?

Mr. Barton:  If Your Honor please, I question the relevance of this. I mean, I think we understand it was {p.2-65} dismissed. I don’t know how far this is supposed to go. I just don’t know what the relevance of it is.

The Court:  What point are you trying to get at?

Mr. Pitts:  The pending motion concerning selective prosecution. I think it goes to clarify the details of how the charge got brought and what happened and how —

The Court:  Well, the prosecution has the option of pursuing charges in federal court versus state court. It happens all the time.

Mr. Pitts:  Sure, I just want to get those in the record.

The Court:  I can’t tell you the number of cases I have had where state prosecutions have been dismissed in favor of a federal prosecution.

Mr. Pitts:  Sure. I’m not saying these particular facts go over the bar, but I think we are entitled to put that into this record.

Mr. Barton:  Your Honor, may I be heard on that? I mean, it goes back to our same issue about the selective prosecution, that he has got to make some kind of showing of something before he’s even allowed to go into it. And he’s not — so that we don’t waste time on this. He is obviously fishing because he doesn’t know what he’s looking for.

The Court:  I will let him go ahead and ask him the question. {p.2-66}

Mr. Pitts:  When I try to make a showing, he objects to it.

Mr. Barton:  Well, he’s not entitled to make —

The Court:  I will let him go ahead. Go ahead. But let’s don’t dwell on this very long. The officer has a right to prosecute in federal court in lieu of a state prosecution if he wants to.

By Mr. Pitts:

Q.  So, once you talked to Mr. Barton and Mr. Lee, then on your own did you dismiss it, or did you consult with Captain Morrow or the chief, your chief?

A.  Well, me and my chief discussed it and, you know — you know, we couldn’t prosecute. I dropped the prosecution due to our discussions in this case here.

Q.  And is that when you learned that to be a proper state trespass charge, the person would have to be on private property?

A.  Afterwards I found out, yes, sir.

Q.  Okay. All right, just a minute.

Mr. Pitts:  I move the introduction of Defendant’s 9. I’m not sure whether —

The Court:  Without objection, if he hasn’t already done that. That’s the ticket, right?

(Off record discussion)

By Mr. Pitts: {p.2-67}

Q.  Sergeant, if you would look on that Exhibit Number 9, would you tell us the time of the arrest, sir?

A.  It says 11:45 a.m.

Q.  Okay. On October 24th, 2002?

A.  Yes.

Mr. Pitts:  All right, thank you, I don’t have any other questions.

Mr. Barton:  I have no questions, Your Honor.

The Court:  All right. Thank you, sir, you can step down.

Mr. Pitts:  May we excuse this witness, Your Honor?

The Court:  Yes, sir, you are excused.

Mr. Barton:  We were just wondering about a time out?

The Court:  Y’all want a break I take it. Okay. All right, it’s 11:15, it’s too early for lunch, isn’t it? Let’s take a break till about — can y’all come back by 11:25?

Mr. Barton:  Sure.

The Court:  And we will continue. And you have got seven or eight witnesses you said?

Mr. Wise:  Seven.

The Court:  Seven, okay. All right, we will be back in about 10 minutes.

(Short recess)

The Court:  All right, call your next witness.

Mr. Wise:  Call Michael Berg. {p.2-68}

The Court:  Mr. Wise, we get to hear your eloquence on this?

Mr. Pitts:  We are going to let Mr. Pitts rest for a while.

The Clerk:  Sir, would you place your left hand on the Bible and raise your right hand. State your full name for the record.

The Witness:  Michael Ethan Berg.

Michael Ethan Berg, Sworn

Direct Examination

By Mr. Wise:

Q.  Pull that mike close to you a little bit.

A.  All right.

Q.  Where do you live, Mr. Berg?

A.  I live in Columbia, South Carolina.

Q.  And how long have you been living here?

A.  I have been living in Columbia, South Carolina for a little more than three years.

Q.  And where are you from originally?

A.  Originally from St. Louis, Missouri.

Q.  All right. And what are you doing in Columbia?

A.  Right now I teach computer skills at the Alvin S. Glenn Detention Center, the only jail in Richland County.

Q.  All right. And are you doing anything else?

A.  Yes, I’m running the Dennis Kucinich for president campaign {p.2-69} for South Carolina. And I am the Mideast issues coordinator for the Carolina Peace Resource Center, and on the executive committee of the Progressive Network, South Carolina.

Q.  What is your educational background?

A.  I have a degree in economics and political science from Oberlin University, a bachelor’s degree, and a master’s in economics from the University of South Carolina.

Q.  Just as a matter of interest, after you got your degree from Oberlin University, what did you do for a year or so?

A.  Okay. I went to China and I worked as an English teacher in China. And saved up from the work in China and traveled back to the United States, going west, so traveled around the world for a year and-a-half.

Q.  How did you travel from China to — westward?

A.  Trains, busses, boats, walking.

Q.  And after got back to the United States, what did you do for a while?

A.  I worked as a substitute teacher for a few months, and then went to Bolivia and worked in the San Sebastian Women’s Jail in Cochabamba, with the income generating project through a non-governmental organization of Bolivia.

Q.  And then you came back to the United States?

A.  Right. Then I came to Columbia to attend the University of South Carolina.

Q.  Did you do some work in my hometown? Greenwood? {p.2-70}

A.  For Greenwood, yes, that’s true. When I came back to the United States I was the co-director — the co-director of the New Haven Community Center in the New Haven neighborhood of Greenwood, predominantly a Latino neighborhood, next to a pork processing plant. And we had a lot of projects to help people out there.

Q.  All right. Going back to October 24th of last year, did you go out to the Lexington Airport?

A.  Yes, I did.

Q.  How did you go out there?

A.  With a car, with Amanda Martin.

Q.  All right.

A.  She was driving the car.

Q.  All right. And what was your purpose in going out there?

A.  The purpose was to let the world know and let the president know, if possible, that we were very much opposed to the, at that time, proposed invasion and occupation of Iraq. And let people know that not everybody in South Carolina supports this man who is president.

Q.  Okay. And about what time did y’all go out there?

A.  Got roughly about 11:40 to the Doolittle Hanger.

Q.  All right. And what route did you take to go out there?

A.  We went from Columbia down the Charleston Highway and out Knox Abbott Drive. Well, Blossom, Knox Abbott, the Charleston Highway, and then take a right onto Airport Road. {p.2-71}

Q.  And when you took the right on Airport Road, was anybody stopping traffic at that point?

A.  No, at that point nobody was stopping traffic.

Q.  Did anyone ever stop you when you went — did anyone stop you from the entrance onto Airport Boulevard down to Lexington Boulevard?

A.  No, nobody stopped us.

Q.  What happened when you got to Lexington Boulevard?

A.  Well, when we got to Lexington Boulevard, we turned right to park, and we saw our colleagues Brett Bursey, Virginia Sanders, Jerry Rudolph, and Harry Rogers.

Q.  All right. Get down and point to the — all right, if you would, using this map, where was it that you parked and saw Brett and the rest of the people? And you may have to move to this side a little bit so the judge can see.

A.  Okay.

Q.  There we go.

A.  Well, it was roughly, I would say, probably around here, from my recollection, it was around here. We turned and we stopped to talk and we talked a bit, and they were in this — more or less in this grassy area here.

Q.  And how long — you can get back on the stand.

A.  Okay.

Q.  How long did y’all stay stopped there?

A.  I would say it’s roughly five minutes maybe, maybe 10 {p.2-72} minutes we were stopped there.

Q.  All right. Now, when you stopped there, what happened?

A.  Well, when we stopped there, we — we started talking to Brett and Jerry and Harry and Virginia. And they were having a discussion, a pretty intense discussion with the — some security officers. I don’t know which one of them were police or Secret Service.

And we — we were told that we would — would not be able to park in the lot. But we were allowed to stay there for a good bit of time. People were going — while we were figuring out what to do, we took — Brett was worried about the signs, losing the signs, so we took his signs and put them into our vehicle.

Q.  All right. Did anything — did you display any signs at that point?

A.  Well, when we first stopped, we displayed no signs and nobody had any trouble with us staying there. As soon as we put a sign out the window that said, “Bubbling crude, no blood for oil,” and it had a picture of George Bush spurting oil out of his mouth —

Q.  Okay.

A.  — as soon as that sign was displayed, that was when the officer said, “You have to leave immediately.” But we were allowed to sit there until the sign appeared.

Q.  All right. How long after the officer told you to leave {p.2-73} did you leave?

A.  We left very quickly after the officer told us to leave because it did not seem like he was messing around.

Q.  Okay. What route did you take to get back — or where did you go after that?

A.  We kind of did a U-ee, and we went down —

Q.  Kind of did a what?

A.  A U-turn.

Q.  All right.

A.  Okay. Went back out the same route, down Airport Road, Airport Boulevard, nobody was stopping us.

Q.  And where was your intent to go at that point?

A.  Our intent — well, we were going to go to where they said there was the designated free speech zone, because we were told by the officers on the scene —

Mr. Barton:  If Your Honor please, again, I’m going to interpose a hearsay objection, what he’s being told by the officers —

Mr. Wise:  It’s not being admitted for the truth of the matter asserted, I assure you, as the rest of the testimony will show.

A.  Okay, we were told by officers on the scene —

Mr. Barton:  Are you allowing his testimony?

The Court:  Oh, I will allow the testimony.

Mr. Wise:  Thank you, Judge. {p.2-74}

A.  We were told by the officers —

The Court:  We don’t have a jury here to be prejudiced.

A.  We were told by the officers on the scene where Brett and Harry and Jerry and Virginia were that there was a designated free speech zone exactly where Charleston Highway meets Airport Boulevard.

By Mr. Wise:

Q.  All right. When you were going back out Aviation Boulevard, was there any traffic stopped on that road?

A.  No, not that I recall.

Q.  Did you run across anybody else you knew as you were traveling down that road?

A.  Yes. Gina Humble, who was also in her vehicle. She was going — Gina Humble, H-u-m-b-l-e. Okay, Gina Humble, who was also in her vehicle was heading toward the place where the aforementioned people were gathered.

Q.  Okay.

A.  And she was in the traffic going there. And she saw us and she asked us — we opened a window — what was going on. So, she turned around and followed us to go where supposedly there was a free speech zone.

We also ran into Rod McCue, Melanie Knight, Steve Lawrence and one other person who was walking along the road, and we told them what was going — what was going on. {p.2-75}

Q.  So, they were walking on Aviation Boulevard?

A.  No, they were walking on — yeah, Airport Boulevard, Aviation Boulevard, that’s correct.

Q.  Okay. Did you ever find the free speech zone?

A.  I still don’t know if there was a free speech zone. Because we got to the exact spot where they told us. They told us it was going to be exactly where it is, where Airport Boulevard meets Charleston Highway.

And as soon as we parked — there was a good area to park right there, sort of dirt, grassy area. As soon as we got there, three officers from the Springfield Police Department said, “You cannot be here. We are going to arrest you immediately unless you leave.”

Q.  So, you left there too?

A.  They — so, we asked them — we told them, “We were told this was a free speech zone, where should we go?” They told us to drive to the UPS hanger, which was on Charleston Highway on the way to South Congaree, about — I would guess about a half a mile away. And we went there, but that apparently was not a free speech either.

Q.  So, you never found it?

A.  No, because when we got to the UPS hangar —

The Court:  Let’s don’t have any outbursts in here, please.

A.  When we got to the UPS hanger, we were informed by the {p.2-76} people there, I understand they said it was private property and that that could not possibly be the zone we were supposed to be in because it was their private property.

So, they were — they told us that we had to leave. So, we left there and we talked to some officers out there, we asked them where we should be. They did not know.

Q.  Okay. When you were leaving down Aviation Boulevard, did you see any police cars blocking traffic coming up Aviation Boulevard?

A.  No.

Mr. Pitts:  Rauch, Airport.

By Mr. Wise:

Q.  Airport, excuse me. Airport Boulevard?

A.  Right, Airport Boulevard. No, there were no — there were a lot of police around, but no police were blocking traffic.

Mr. Wise:  All right, thank you. Answer any questions Mr. Barton may have.

Cross Examination

By Mr. Barton:

Q.  You, I believe, said you are on the executive committee of the South Carolina Progressive Network?

A.  Yes, I am.

Q.  What is that?

A.  That is you might call the board that makes the executive decisions about the Progressive Network. {p.2-77}

Q.  What is the Progressive Network?

A.  The Progressive Network is a coalition of I think roughly — I think there’s about 56 organizations, progressive organizations, that work together on issues affecting South Carolina.

Q.  50 —

A.  About 56.

Q.  56 what type of organizations?

A.  Progressive organizations. Organizations working for social justice and equality.

Q.  Okay. And what do you do?

A.  What do we do? Make decisions about the future of what the network does. Like a board.

Q.  No, no, what does the network do?

A.  Oh, the network. The network gets people together to come to events, to work on projects such as the — for example, lobbying for clean elections so that we don’t have the big money interests running our elections, and that all candidates get a fair shake at elections. That’s one of the projects.

Q.  Okay. So, you have got these 56 different organizations out there —

A.  Right.

Q.  — and some do different — they all have different interests?

A.  Right. {p.2-78}

Q.  Some have similar interests, but there are different interests?

A.  It’s a coalition.

Q.  You bring them all together to do certain things?

A.  Right, to work together on common interests.

Q.  And how did you get on the executive committee?

A.  Well, I had been working with the Carolina Peace Resource Center for at that time for a couple of years. And I was invited on by other members of the executive committee.

Q.  And Mr. Bursey is the executive director of the South Carolina Progressive Network?

A.  Correct.

Q.  Okay. When did — and who was in the car with you, I’m sorry?

A.  Amanda Martin.

Q.  Was going to the airport on October 24th one of the things the Progressive Network was encouraging and having people —

A.  I don’t know, I don’t think it was specifically called together as a Progressive Network event. There wasn’t a lot of lead time for it. But a lot of the people who were part of the Progressive Network, because we have similar interests and similar opposition to the policies of the Bush administration, were there. But I would not call it a Progressive Network event.

Q.  When did you start planning — when did you learn of the {p.2-79} president’s visit and — let me finish my question — when did you learn of the president’s visit and decide to go out there?

A.  I would guess it was probably a day or two before.

Q.  Okay. And who did you discuss going out there with?

A.  With Amanda Martin, who has been my girlfriend for the last six years.

Q.  Anybody else?

A.  I might have talked to a lot of people, but as far as the doing, I probably talked to Gina Humble, let her know what was going on. You know, let people I know —

Q.  Did you talk to Mr. Bursey about it?

A.  I may or may not have. I don’t recall whether I talked to him about going out. But I would — it certainly would not have — it did not surprise me that I saw him there.

Q.  And you said you were going out there, I think I got it, “To let the world know you were in opposition to the invasion of Iraq and not everyone in South Carolina supported President Bush”?

A.  All right, it hadn’t happened — supported the proposed invasion of Iraq, yes.

Q.  And how were you going to go about letting everybody know that?

A.  Well, for one, the people who were going in, fund raising, let them know that all South Carolina wasn’t — you know, so we would have a sign. {p.2-80}

Q.  So, you were going to use signs?

A.  We used signs. Yes, we had our signs — as I told you, the sign that we put out the car in which — the point we were told to leave.

Q.  You were going to demonstrate and picket and hold your signs up and let people know what your beliefs were?

A.  We were going to be there with our signs, let them know what our beliefs are. And, if we could, let the president know that we were in opposition to him, and if the media was there, let them know we were in opposition.

Q.  And would you agree with me that this is commonly referred to as demonstrating, protesting, picketing, however you want to characterize it?

A.  I mean, you will have to determine how you term — I told you what I was there for, to let my opposition be known, correct.

Q.  And Mr. Berg, when did you apply for your demonstration permit from the Columbia Metropolitan Airport?

A.  I personally did not apply for any demonstration permit.

Q.  Are you aware of anyone who applied for a permit to demonstrate at the Columbia Metropolitan Airport?

A.  I don’t know about —

Q.  Were you — I’m sorry.

A.  I do not know about the permit situation.

Q.  Were you aware there is a requirement for a permit to {p.2-81} demonstrate at the Columbia Metropolitan Airport?

A.  No.

Q.  And that if you demonstrate without a permit, you stand a chance of breaking the law?

A.  No.

Q.  You were not aware of any of that?

A.  No. I thought as an American I have a right to hold a sign wherever I want to hold a sign, when other people have signs on the opposing side that were — are allowed to be there.

Q.  So, do you think people have a right to express whatever they want wherever other people are expressing it?

A.  In a public place?

Q.  Yes.

A.  I think people should, yes.

Q.  And so you pull up at this location and you are told to leave, and you leave?

A.  When we are told to leave, we leave, yes.

Q.  And you go back out to Airport Boulevard and you can’t find the demonstration area?

A.  We went specifically to where we were told the demonstration area was, and we were threatened with immediate arrest when we arrived, yes.

Q.  And when you arrived, you parked on the side of the road; is that right?

A.  We parked in a sort of grassy, dirty parking area that’s on {p.2-82} the side of the road. The only feasible place, the only place you could possibly park there that wasn’t either a median where you couldn’t park, or that wasn’t blocked off by police cars. That was the only conceivable parking area, yes.

The Court:  Why, don’t you have him step down and show us where he is talking about.

The Witness:  Okay, it’s not on this map.

The Court:  Well, there’s another map you can look at.

Mr. Barton:  Yes, sir.

The Court:  Take just a second and orient yourself with where —

The Witness:  Okay —

The Court:  Got it?

The Witness:  — and it would have to be around right here.

By Mr. Barton:

Q.  So you are talking — you would turn left onto 302, assuming this is 302, from Airport Boulevard, turn left and park on the right-hand side?

A.  It basically would make it straight.

Q.  Went straight across?

A.  Straight across. That’s from — yeah, that’s where it was. That was the only place you could park.

The Court:  You went straight across and parked on {p.2-83} the side of the road across —

The Witness:  On the side of the road. You can see there’s this little area right here, this is where I believe it was, right here.

The Court:  It was on the other side of 302?

The Witness:  On this other side.

The Court:  Okay. All right.

The Witness:  You know, you could not park on this side because there were — there’s a no parking area and there were police cars everywhere.

By Mr. Barton:

Q.  So, you were told, “You can’t park here, you have got to move on”?

A.  Yes, we were told that. And then we asked, “Where is it?” And nobody knew where we were supposed to go to — they told us to go to the UPS hanger, which I believe is either here or here, and we went there.

Q.  Okay. But you never got out of the car. And you pulled up and the police officers were there and said, “Move on”?

A.  He said he would arrest us if we got out of the car without moving it.

Q.  Okay. But you never got out of the vehicle?

A.  We did not get out of the vehicle because we were threatened with arrest if we would have gotten out of the vehicle. {p.2-84}

Q.  So, they were on you pretty quickly when you pulled up?

A.  Very quickly. They said, “You can’t be here,” yes.

Q.  Okay. And you didn’t contact the executive director of the Columbia Metropolitan Airport to determine where a demonstration area had been designated, did you?

A.  We did not know the number of the — but we — I would have assumed that the people who are in charge of security would have known that, because we had assumed there would be an area.

Q.  You didn’t even know you were required to have a permit out there, did you, Mr. Berg?

Mr. Pitts:  Your Honor, I object to the conclusion of law in the question.

The Court:  I sustain the objection. We don’t have any evidence in the record about a requirement.

Mr. Barton:  From the chief of police, Your Honor.

The Court:  Oh, I’m sorry, that’s right, he did testify to that. Okay.

A.  I did not know the details of the requirements.

By Mr. Barton:

Q.  You didn’t know the details, you didn’t know the general idea about the requirements for a demonstration permit? You didn’t know anything about the demonstration permit, did you?

A.  About this — a permit for this particular event, no.

Q.  All right. Okay. And have you applied for permits at other events? {p.2-85}

A.  We — in the last year, our organization, The Carolina Peace Resource Center has applied, and has a good working relationship with the Columbia Police Department.

The Court:  Are y’all through with the map?

Mr. Barton:  Sure.

By Mr. Barton:

Q.  Why don’t you have a seat back.

A.  Yes.

Q.  So, you know sometimes at least when you demonstrate there’s a requirement to have a permit? You know that on some occasions there are requirements for a permit?

A.  Yes.

Q.  And you didn’t inquire about this occasion, did you?

A.  I did not inquire about this occasion.

Q.  And when you were up there at the intersection where you said that you had stopped and you saw Mr. Bursey and the police officers in that intersection, that’s Airport Boulevard and Lexington Avenue — do you recall when you were stopped there?

A.  Right.

Q.  There were police officers there, and Mr. Bursey and the other individuals that you talked about, correct?

A.  Yes.

Q.  And the police officers allowed you to take all the signs that were there, they didn’t try and confiscate the signs or destroy them? You put them in your car and you took them, {p.2-86} right?

A.  We put the signs in the car, yes.

Mr. Barton:  Thank you, that’s all I have.

The Court:  Redirect.

Mr. Wise:  Nothing further on redirect.

The Court:  Thank you, sir, you can step down.

Mr. Wise:  We call Melanie Knight.

Your Honor, we ask that he be excused.

The Court:  He’s excused.

The Clerk:  Would you please place your left hand on the Bible and raise your right hand? State your full name for the record.

The Witness:  Melanie K. Knight.

Melanie K. Knight, Sworn

Direct Examination

By Mr. Wise:

Q.  All right, Ms. Knight, where do you live?

A.  In Columbia.

Q.  And how long have you been living in Columbia?

A.  Most of my life.

Q.  Where are you from originally?

A.  From Columbia.

Q.  Okay. Moved out for any brief period of time?

A.  My father lived in North Carolina. I lived there some time. {p.2-87}

Q.  Where are you employed?

A.  The South Carolina Department of Archives and History.

Q.  And how long have you been employed there?

A.  20 years.

Q.  And give us, if you would, some educational background?

A.  I went to USC, I majored in history and minored in art history.

Q.  And when did you start work with the South Carolina Archives and History?

A.  September of ’83.

Q.  Is that when got out of college?

A.  A few months afterwards.

Q.  All right. Did you have occasion to be out at the Airport on the 24th of October of this year?

A.  Yes, I did.

Q.  And tell us, if you would, how you got out there and what you were out there for?

A.  I went with — to protest the appearance of Bush and his policies. I drove out there, and the Progressive Network was going to meet out there and we were going to protest.

Q.  All right. And how did you drive out there?

A.  Out the airport — out the highway, the main highway going to the airport.

Q.  All right. And did you turn onto Airport Boulevard?

A.  Yes. {p.2-88}

Q.  And when you turned onto Airport Boulevard, did anyone stop your car?

A.  No.

Q.  Did anyone check your identification?

A.  No.

Q.  Anyone ask if you had a ticket at that point?

A.  No.

Q.  All right. Where did you go after you turned onto Airport Boulevard?

A.  I turned down the side roads, and there were other cars, and they were sort of guiding people into different parking areas farther and farther away.

Q.  All right. And where did you finally park?

A.  It’s near Tech.

Q.  Midlands Tech?

A.  Yes.

Q.  Did you get out of your car?

A.  Yes.

Q.  And where were you walking when you got out of your car?

A.  I walked down the road that I had come — driven there on.

Q.  Okay.

A.  And started walking towards the airport.

Q.  All right. And what were you looking for at that point?

A.  Other members of the network and where the designated protest area that I — {p.2-89}

Q.  And how did you know about a designated protest area?

A.  When we had a protest at North Charleston, the guard there asked if I was looking for the designated protest area, so I assumed there would be another one at this.

Q.  As you were walking down the road, did you run across anybody else you knew?

A.  Harry Rogers and Jerry Rudolph passed me in their car.

Q.  All right. And they picked you up or what?

A.  Yes, they gave me a ride.

Q.  And how far did they carry you?

A.  Not very far. It’s from there to where they had a holding area for people who were going to the hanger.

Q.  Now, what do you mean, “a holding area”?

A.  They were holding people in — down the side road —

Q.  Okay.

A.  — about a block or so, if it were laid out in blocks.

The Court:  Ma’am, is this side road, the top road right there, Lexington —

The Witness:  It was —

By Mr. Wise:

Q.  Lexington Boulevard?

A.  Yes.

Q.  All right. So, you parked up —

A.  I was way over here.

Q.  You parked in the parking lot at the college? {p.2-90}

A.  Yes.

Q.  And you were walking down this road?

A.  The road is off the map.

Q.  All right. If you — come down here and look at this one, if you would. Can you see it on this one? This is Airport Boulevard here.

A.  Be up that way.

Q.  Up this — why don’t you come on down, see if you can look at it a little closer.

The Court:  You have to speak up.

A.  Okay, I started coming down — this is the hanger here and came down this way.

By Mr. Wise:

Q.  All right, started walking.

The Court:  She’s was walking towards Airport Boulevard.

By Mr. Wise:

Q.  So, you were walking towards Airport Boulevard after parking your car?

A.  Right.

Q.  All right. And you ran across where a bunch of people were congregating?

A.  Yes.

Q.  All right. Did you stop there?

A.  Yes. {p.2-91}

Q.  What happened when you stopped there?

A.  I asked the policeman who was holding the people there if he knew where the designated protest area was.

Q.  And what did he say?

A.  He didn’t know.

Q.  All right. What did — did he tell you to do anything else?

A.  He told me to go to the back of the line.

Q.  All right. And did you go to the back of the line?

A.  I went there for awhile, but I knew that the people weren’t going where I was going.

Q.  Okay.

A.  So, I kept looking for other people who might know, to ask.

Q.  Were you ever checked for a ticket or anything?

A.  No.

Q.  Were you ever asked about a ticket?

A.  No.

Q.  Was everyone standing there at that area?

A.  Everyone —

Q.  Did everyone who came down Lexington Boulevard stop at that area?

A.  A few people went on past on the side road.

The Court:  Is this the intersection of Airport Boulevard and —

Mr. Wise:  No, this is on up. {p.2-92}

The Court:  This was up?

By Mr. Wise:

Q.  You were up — how far above the intersection of Airport Boulevard and Lexington were you, just roughly?

The Court:  She’s talking about the intersection of that other road and Airport Boulevard, not —

Mr. Wise:  Right.

The Court:  I mean, Lexington Boulevard, not the intersection of Airport and Lexington.

Mr. Wise:  That’s correct.

Mr. Barton:  She said at one point she was coming down Lexington.

By Mr. Wise:

Q.  She was coming down — how far down Lexington did you get before you saw this group of people?

A.  There’s another road that runs — the road that people were on is the one that deadends into Airport Boulevard.

The Court:  Okay, you parked — here’s the parking lot, and you were coming down this way towards Airport Boulevard? I mean, I’m sorry, towards Lexington?

The Witness:  I was sort of going parallel to Airport Boulevard.

The Court:  Okay.

The Witness:  And then —

The Court:  Walking towards Lexington? {p.2-93}

The Witness:  Yes.

The Court:  All right. Now, the area that you are talking about where all these people were congregated, was that at that intersection or was it down at the intersection of Airport —

The Witness:  It was maybe like a city block or so from Airport Boulevard.

The Court:  All right. So, this is the —

Mr. Wise:  Right.

The Court:  Okay. All right.

By Mr. Wise:

Q.  Was anybody walking past there without stopping?

A.  Yes.

Q.  Did you know anybody that did that?

A.  Yes, I saw some people go by.

Q.  And who was that?

A.  Someone I had been — who had worked at the archives, Alexia Helsley, she, and I believe it was her husband, passed, and they went on that curved side road.

Q.  Did they have any connection with law enforcement?

A.  Not that I know of.

Q.  All right. How long did you stand there?

A.  I must have waited there maybe 15, 20 minutes.

Q.  Then where did you go?

A.  It looked like some more security people had come, so I {p.2-94} thought maybe they would know, you know, where the — I was supposed to go. Because I knew that the people in line weren’t going where I was going. And so, I asked them and they didn’t know either. But they called, I believe, and talked to some more people and they finally gave us directions.

Q.  And what directions did they give you?

A.  They told us to take that little circling side road, which if Lexington is here, it curved off to the side.

Q.  Did that curvey side road lead — what road did that eventually lead back into?

A.  Airport Boulevard.

Q.  Did you take that road?

A.  Yes.

Q.  And did you get to Airport Boulevard?

A.  Yes.

Q.  How far down Airport Boulevard did you walk?

A.  All the way to the end. We kept — when we got to the corner, the police there said, “Keep going to the end of Airport Boulevard.”

Q.  All right. Did anybody ask you for a ticket or anything in that area?

A.  No.

Q.  Did you see anybody that you knew on Airport Boulevard?

A.  As I — as we were walking down Airport Boulevard, Amanda and Michael came by in their car, Amanda Martin and Michael {p.2-95} Berg.

Q.  Okay. Did you walk to the end or did you get a ride part of the way?

A.  Amanda said that Gina Humble was calling her.

Mr. Barton:  Is there any need to object to hearsay in this, or do you want to hear it? Because I think that is clearly hearsay.

The Court:  Well, she’s saying —

Mr. Wise:  But the — well, anyway —

Mr. Barton:  Yes, but —

The Court:  I know, why don’t you move — don’t —

By Mr. Wise:

Q.  Did you get a ride?

A.  I got a ride.

The Court:  Don’t tell me what other people told you, just tell us what you did.

The Witness:  Okay.

By Mr. Wise:

Q.  Did you get a ride?

A.  Yes.

Q.  Okay. And did you ever find the free speech area?

A.  Well, when we got to the Airport Boulevard — into the Airport Boulevard where the previous group of policemen had told us the free speech area was, they said that wasn’t it either. {p.2-96}

Q.  All right. Did you ever find it?

A.  Not really. Sort of. When we got to the end of Airport Boulevard, they told us to go on up the road a couple of miles, and we ended up at the UPS, and that wasn’t it either.

And they called some people and told us to go back down Airport Boulevard the other way. And someone said it was in the median in the middle of the road. But when we stopped there to let people out, they told us we couldn’t stop there to let people out.

Mr. Wise:  All right. Thank you. Answer any questions Mr. Barton may have.

The Court:  Mr. Barton.

Cross Examination

By Mr. Barton:

Q.  I’m going to see if I can understand a little better where you parked and where you went, because I’m sorry, I didn’t — stop me and correct me if I do anything wrong here.

You are coming in Airport Boulevard?

A.  Right.

Q.  And you turned right here?

A.  On — yes.

Q.  On Lexington Avenue?

A.  Yeah, where they were holding everybody right across from the hanger.

Q.  Okay. And you went down Lexington Avenue? {p.2-97}

A.  Yes.

Q.  To the Midlands Tech area?

A.  Yes.

Q.  Is this road the — it looks like the second left-hand turn on Government’s — or Defense Exhibit Number 1, the second left-hand turn off of Lexington Boulevard, you turned there?

Mr. Wise:  Excuse me, Your Honor, if Mr. Barton doesn’t mind, I think we have another one that may show it even better. If you don’t mind.

The Court:  All right.

Mr. Wise:  I think this will help.

The Court:  That’s a blowup of a blowup?

Mr. Wise:  No, it’s a blowup of a smaller area.

A.  All right, I took a left.

By Mr. Barton:

Q.  Okay, you are just not sure which one of these —

Mr. Wise:  That will help.

A.  No.

The Court:  Is that Defendant’s 2?

Mr. Wise:  No, 11.

The Court:  11 without objection.

Mr. Wise:  No, it’s Defendant’s 10 he wrote on there.

The Court:  10. Defendant’s 10 without objection.

A.  I went down Airport Boulevard, took a right onto I guess you are calling it Lexington where that holding area was, that {p.2-98} road that deadends right by the hanger. And then I took another left and ended up at Tech.

By Mr. Barton:

Q.  This is the hanger?

A.  Yes.

Q.  Here is Airport Boulevard?

A.  Right.

Q.  And you turned right here?

A.  Yes.

Q.  Did you turn left there or — the first left or did you go on down?

A.  I can’t recall.

Q.  Okay. Whichever left you took, you came walking back out of that towards Lexington Avenue?

A.  Right.

Q.  And I guess you turned right to head toward the hanger?

A.  I think they had picked me up by then.

Q.  Oh, okay. Harry and Jerry?

A.  Yes.

Q.  Harry Rogers and —

A.  And Jerry Rudolph.

Q.  Now, what direction were they traveling in?

A.  I think they were initially headed towards Tech, and they saw me and turned around.

Q.  Okay. So, when they came in — they came down towards {p.2-99} Tech, turned around, picked you up, and you all came back out this way?

A.  I’m not sure where they were coming from, I just know that they came — I was walking one way and they came the other.

Q.  Okay. And you were walking this way?

A.  Towards Lexington.

Q.  So, I guess they were going that way, away from you?

A.  Away from the air —

Q.  Toward Airport Boulevard?

A.  Yes. They were looking for parking and they were driving down the road.

Q.  So, you are walking this way south — I’m calling the bottom of this picture south.

A.  Okay.

Q.  South on Lexington Boulevard, Harry and Jerry were driving north?

A.  I think they picked me up on the side road.

Q.  Oh. So, they traveled so far north that they turned — whatever left-hand turn you made, they made the same one?

A.  Yes.

Q.  They turned around and picked you up, and y’all come back out?

A.  Right.

Q.  So, you were never walking on Lexington Avenue?

A.  They let me out on Lexington. {p.2-100}

Q.  Where did they go?

A.  They were going to try to find parking.

Q.  Where?

A.  Well, they hadn’t been able to find any, and they were thinking of leaving, but I suggested they try the long-term lot.

Q.  Okay. So, did they drive on down Lexington — did you see where that car went?

A.  I think they went down Lexington, but I’m not positive.

Q.  Okay. So, now you are walking on Lexington, drove you a little ways, and now you are walking?

A.  Yes.

Q.  And about a block or so up Lexington Avenue from Airport Boulevard, a crowd of people stopped?

A.  Yeah, about right there or so.

Q.  About right where my pen is?

A.  Or a little bit farther back. It was just — it was a very long line.

Q.  Okay. That looks like on Defense Exhibit Number 10 about six inches up Lexington Avenue from Airport Boulevard. Do you agree with me that’s where people were stopped?

A.  In that — between — it was before the cutoff road. It was —

Q.  Before here?

A.  The other cutoff, on the other side. {p.2-101}

Q.  Before here?

A.  Either that road or that road.

Q.  Somewhere in that general —

A.  Yes.

Q.  And you say you saw some people, and how many people were stopped there?

A.  A lot. I mean, it must have been maybe 100 people.

Q.  Okay. And how were they stopped? Who was stopping them, what was making them stop?

A.  There were policemen and I think there was maybe a service vehicle there.

Q.  And you never came on down Lexington Avenue to Airport Boulevard, did you?

A.  We took the side road.

Q.  This side road, almost about six inches up —

A.  Or else that other side road.

Q.  The side road as you were facing Airport Boulevard to your left?

A.  Right. Correct.

Q.  And walked out here to Airport Boulevard?

A.  Right.

Q.  And walked on out to the street?

A.  Right.

Q.  And couldn’t find the demonstration area?

A.  Right. {p.2-102}

Q.  And there were a number of people here telling you where it was supposed to be?

A.  Yes. Every time we got to the place the previous group had told us it was, the group that was there told us it was somewhere else.

Q.  And I believe you said as you walked down Airport Boulevard there was a policeman who stopped you or you talked to?

A.  No. They didn’t stop us, we stopped and talked to them, asked where we were supposed to go.

Q.  Help me with this. About how far down Airport Boulevard would that police officer have been?

A.  Every so often there was —

Q.  There were police officers all the way down Airport Boulevard?

A.  Yes.

Q.  And you were walking away from the airport?

A.  Right.

Q.  And they didn’t stop you, they were letting you leave the airport?

A.  Right.

Q.  Okay. And how many of them did you ask about the demonstration area? Just as best —

A.  I can recall at least asking three different groups.

Mr. Barton:  Take a moment to — just —

By Mr. Barton: {p.2-103}

Q.  Now I think I’ve got your route okay.

How long before the president’s visit, the best you can recall, did you learn about it, or decide you were going to go out there?

A.  Might have been a week, because I can’t remember when the e-mail came out.

Q.  So, there was an e-mail?

A.  It was one of our activities.

Q.  Okay. And you say “our activities,” whose activities?

A.  Progressive Network.

Q.  Okay. So, this — are you on the executive committee of the —

A.  Yes.

Q.  — Progressive Network?

A.  Yes.

Q.  And so this was an organized event for the Progressive Network?

A.  Yes.

Q.  To bring people out there to protest against the war, President Bush, or make your feelings known out there —

A.  Yes.

Q.  — about those things? And who would have sent out this e-mail?

A.  Brett Bursey.

Q.  Okay. Do you recall what it said? {p.2-104}

A.  It said that Bush was going to be there, and I think the time to meet was 11 o’clock.

Q.  Time to meet where?

A.  At the airport.

Q.  Where at the airport? That’s a big place, where at the airport?

A.  It didn’t say.

Q.  Okay, just meet at the airport at 11 o’clock?

A.  Uh-huh.

Q.  Did you have any conversations with Mr. Bursey about this event?

A.  Before —

Q.  Before you went there?

A.  No.

Q.  Okay. And who all gets this e-mail?

A.  Everybody whose on the list, I suppose.

Q.  Who gets to get on the list, I guess is what I’m asking?

A.  Anybody who signs our register for e-mails.

Q.  Anybody who wants to be on that list?

A.  Yes.

Q.  Okay. And do all 56 organizations that are part of the Progressive Network get those e-mails as well?

A.  If they —

Q.  Somebody from —

A.  If they have e-mail, they would probably get them. {p.2-105}

Q.  And who from the Progressive Network did you see out there?

A.  While I was at the holding area, there was Anna Caughman, I believe she’s with the — she was — at the time she was with the Christian Action Counsel, I believe, and Rod McCue and Steve Lawrence.

Q.  Okay. And you went out there looking for the demonstration area —

A.  Yes.

Q.  — is that correct?

A.  Yes.

Q.  Because you had had experience with them previously? And in those previous experiences had a permit been applied for by you, Progressive Network, or anybody to go to those designated demonstration areas?

A.  Not by me. I’m not aware of what —

Q.  Okay. And did you apply for a permit to demonstrate at the airport on October 24th, 2002?

A.  No.

Q.  Did the Progressive Network apply?

A.  I don’t know.

Q.  Was it discussed among executive committee members of the Progressive Network to apply for a permit to demonstrate at the airport?

A.  I’m not aware if others discussed it.

Q.  Did anyone contact the airport police to ask — before {p.2-106} going out there to ask where the demonstration area was?

A.  I don’t know.

Q.  Did anyone contact the — to your knowledge, did you or to your knowledge did anyone associated with the Progressive Network contact the executive director of the airport to find out where the demonstration area was?

A.  I don’t know.

Q.  Did you or to your knowledge did anybody on the Progressive Network make any inquiry about whether or not a permit was needed to demonstrate at the airport on October 24th, or at any other time?

A.  I don’t know.

Q.  Have you ever demonstrated at the airport previously?

A.  No. Not me personally.

Mr. Barton:  That’s all I have.

The Court:  Redirect.

Mr. Wise:  No redirect. You can come down.

The Court:  Thank you, ma’am.

Mr. Wise:  Call Amanda Martin.

The Court:  She’s excused.

Mr. Wise:  She’s excused? I think she wanted — you can stay.

The Court:  She’s free to do that too.

The Clerk:  Please place your left hand on the Bible and raise your right hand. Please state your full name for the {p.2-107} record.

The Witness:  Amanda Gail Martin.

Amanda Gail Martin, Sworn

Direct Examination

By Mr. Wise:

Q.  Ms. Martin, where do you live?

A.  In Columbia, South Carolina.

Q.  And how long have you been living in Columbia?

A.  Three years and three months.

Q.  And where are you from originally?

A.  Connecticut.

Q.  Where did you go to undergrad?

A.  Penn State University.

Q.  And what year did you graduate from there?

A.  ’93.

Q.  And with a degree in?

A.  Communication.

Q.  And where did you go after Penn State?

A.  Guatemala.

Q.  And how did you go to Guatemala?

A.  I was a Peace Corps volunteer for the U.S. Government for four years.

Q.  All right. And what did you do in Guatemala?

A.  I was a village veterinarian in 12 Mayan villages, working with women’s co-ops. {p.2-108}

Q.  How do you get to be a veterinarian in Guatemala with a communications degree from Penn State?

A.  I grew up on a sheep farm.

Q.  All right. And how long did you stay in Guatemala?

A.  Four years.

Q.  All right. After you came back from Guatemala, where did you go?

A.  I spent some time in South America and then I moved to China.

Q.  And what did you do in China?

A.  I taught English.

Q.  And where did you teach English?

A.  In a private boarding school in Guangdong Province.

Q.  And exactly where is that?

A.  It’s about two hours north of Hong Kong.

Q.  All right. And how long did you spend teaching English there?

A.  One year.

Q.  And after you got through teaching English in China, what did you do?

A.  I spent a year and-a-half traveling by land from China to — back to London with a friend of mine, and by foot and bus and train and camel.

Q.  All right. That was Michael Berg?

A.  Yeah. {p.2-109}

Q.  After you got back to London, did you go back to the states?

A.  Yes.

Q.  And what did you do when you got back to the states?

A.  I was in the states for three months, and then I moved to Bolivia.

Q.  And what did you do in Bolivia?

A.  I worked as a human rights observer, and I worked with economic development programs in a women’s prison.

Q.  And how long did you do that?

A.  One year.

Q.  And then what did you do?

A.  I moved to Columbia, South Carolina.

Q.  Why Columbia?

A.  Attend graduate school at USC.

Q.  All right. And why did you select graduate school at USC?

A.  I wanted to go to a dual degree masters’ program where I could purchase a page in a Spanish speaking project that I would get paid for to compensate me for my tuition expenses.

Q.  And they had such a program?

A.  Yes.

Q.  And what two masters’ degrees did you get at the University of South Carolina?

A.  Social work and public health.

Q.  Okay. And since you have gotten your two masters’ at the {p.2-110} University of South Carolina, what have you done?

A.  Upon graduation I became the director of the Carolina Peace Resource Center, which is a non-profit organization established in 1981.

Q.  All right. And what are you doing now?

A.  I’m the director of the Carolina Peace Resource Center, and I’m also a bilingual counselor for Hispanic men who have been convicted of domestic abuse.

Q.  And did you have occasion also to do some work in my hometown, Greenwood?

A.  Yes. I was the director of a community center in Greenwood and New Haven for two years.

Q.  All right. Did you have occasion to be out at the airport on the 24th of October of last year?

A.  Yes.

Q.  All right. Tell us how you got out there and what route you took.

A.  I was informed that there was a rally that was going to be held at the airport because Bush was coming. And I felt very strongly that I wanted to be there to exercize my First Amendment rights as an American citizen.

And I got in the car with Michael Berg, and we drove out to the airport, I believe it was about 10:30 in the morning. And we drove the car out to the airport, and we saw Virginia and Harry and Jerry and Brett. {p.2-111}

Q.  And where did you see them?

A.  Well, there was a whole bunch of cars and lots of people —

Q.  Let me back up one second. You came in On Airport Boulevard?

A.  Yeah.

Q.  All right. Did anyone stop you as you came up Airport Boulevard?

A.  No.

Q.  Did anyone ask you for an identification ticket or ask you what was the purpose you were going up there?

A.  Nothing.

Q.  All right. How was the traffic on Airport Boulevard?

A.  There was a big line of cars of people who were waiting to go to the event to welcome the president. They had bumper stickers for Bush and Cheney and Sandford.

Q.  About how many cars were lined up there on Airport Boulevard?

A.  It was pretty backed up.

Q.  And what did you do?

A.  Hundreds. I cut the line, because —

Q.  Where did you cut the line?

A.  Probably at the — maybe the third bush.

Q.  At the what?

A.  Shrub — in from the right-hand side there (indicating).

Q.  Okay. {p.2-112}

A.  And I cut the line and I went up because I was trying to find them.

The Court:  Y’all were still in the car or were you on foot at that time?

The Witness:  Oh, no, we were in the car.

By Mr. Wise:

Q.  In the car?

A.  Yeah.

Q.  So, you pulled out into the left lane?

A.  Uh-huh.

Q.  And passed everybody?

A.  Uh-huh.

Q.  All right. Where did you stop next?

A.  I saw Virginia and Harry and Jerry and Brett on the corner, and so we pulled the car up and I turned right into that road there. And I saw them and I rolled down the window —

Q.  And the road there is the road that is heading up to the top of the State’s Exhibit 1?

A.  That’s right.

Q.  All right.

A.  I rolled down the window, and I was a little flustered because I knew we were late. And I said, “What’s going on?” And they were there holding signs. And I had signs in my car, and I was trying to figure out where I could park so that I could join them. {p.2-113}

Q.  Okay.

A.  And then there were, I believe —

Q.  Was anybody talking to Brett Bursey at that time in law enforcement?

A.  Yeah, there were one or two — two people I think who were speaking to Brett and Virginia and Harry and Jerry, and they were having a conversation. I was maybe about 10 feet away and I couldn’t tell what they were saying.

So, I kind of sat there confused in the car with the engine running trying to figure out where I was going to park, how I was going to get out of the car, where — you know, getting my signs out, where I was going to stand.

And so, then I thought, “Well, while I’m waiting, I will just put my sign outside the car.” And I had made my own sign that I really liked.

Q.  Okay.

A.  So, I took it out and I kind of held it on the — at the window there. And the second that I took my sign out, the woman made a beeline right over to the car and she said, “You have got to get out of here, you have got to move your car right now or you will be arrested.”

Q.  And what did you do?

A.  I said, “Well, where should I move my car to?” And she said, “Well, I don’t care, you just have to get out of here.”

And I said, “Well, I’m here to join them, and that’s {p.2-114} why I came, and so I need to park my car so I can join them.” And they said, “Well, they are going to be arrested too —”

Mr. Barton:  Your Honor, the same objection.

The Court:  Sustained.

By Mr. Wise:

Q.  All right. Don’t go into the conversation you had with the woman. What ultimately happened there, the situation, as far as what you — did you receive anything from Brett?

A.  Yeah. Well, I was concerned because we had all gone to so much trouble to make these signs, and some of them are expensive. So, I said, “Well, do you want me to take the signs,” because apparently the signs were a problem.

So, at that point Virginia gathered most of the signs and walked across the street. And we were still being bothered by this woman. And my window was down so the signs were thrown into the back seat of the car.

And I decided that rather than stay with this mess, that I needed to move the car. And so I continued up the road and was thinking about parking somewhere. And she said, “You need to get out of here right now. You need to leave or you are going to get arrested.”

So, then I was trying to pull into a parking lot. And she said, “No, you can’t go in there.” So, I had to do a U-turn and come back down, and then go back out Airport Boulevard. {p.2-115}

Q.  You went down Airport Boulevard, did you meet any traffic coming toward you?

A.  Yeah. There was a whole line of cars waiting to come in.

Q.  Still lined up there?

A.  Right.

Q.  Did you run across anybody else you knew going down Airport Boulevard?

A.  I went by my friend Gina Humble’s car. And she was there for the same reason we were, to protest. And so, I rolled down the window, I had the window down, and I said, “Gina, you know, we can’t go down there, apparently we can’t be there. We have been told we have to go down the road to the highway to the free speech zone.” So, she pulled out of that line and made a U-turn and came behind us.

Q.  Did you see anybody walking on the side of the road that you knew?

A.  As we walked down Airport Boulevard, I ran into Melanie Knight and Steve Lawrence and a group of maybe five other people who were there to protest, and they were walking.

And so we informed them that they could jump in Gina’s car, because my car was full of signs, and go down to the highway where we would find a free speech zone where we could hold our signs.

Q.  From the time you entered on Airport Boulevard and the time you got off Airport Boulevard looking for the free speech zone, {p.2-116} did anybody ever ask you for a ticket?

A.  Never.

Q.  Did anybody ever ask you why you were there?

A.  No.

Q.  Did anybody ever stop you and ask you for any identification of any type?

A.  No.

Q.  All right. Did you ever find the free speech zone?

A.  No.

Q.  Did you look?

A.  Yes.

Q.  How many places did you look?

A.  We spent all morning trying to find where we were supposed to be. We went down to the highway, and I pulled the car across the highway and there was a dirt driveway. So, I pulled the car in there thinking, “Okay, well, we will just stop the car here, come out and hold the signs.”

And at that point these two cop cars came right up on us and the guys jumped out. And I was still in the car and Gina and Steve and Melanie were getting out of the other car. And they came over and they said, “You can’t be here, this is private property.” And I said, “Well, this is the free speech zone.” And they said, “No, this is not the free speech zone. You need to leave.”

Q.  All right. {p.2-117}

A.  I said, “Well, we are just trying to find the free speech zone.” And they told us —

Mr. Barton:  Objection, Your Honor.

By Mr. Wise:

Q.  Don’t go into what they said. Did you go somewhere else looking for it?

A.  After I was told to get my pretty little ass out of there, we drove down to where they told us to go at the UPS hanger.

Q.  And did you ever find it?

A.  Well, we went down to the UPS hanger and pulled into their driveway, thinking that was the free speech zone. But it was out in the middle of nowhere, and we were surrounded by the UPS security, who told us to get out of there.

So, then we drove out to the median in the middle of the highway and stopped the car on the side of the road, at which point another cop told us that we needed to move because we couldn’t park there.

Q.  Did anybody get out of the car in the median and demonstrate?

A.  Yeah. Steve Lawrence got out and he walked up and down that median. And then Michael did and three other people. But because we had the cars and it was a highway, and we were told we couldn’t park there, Gina and Melanie and I had to drive the cars up and down the highway waiting until we thought that we had had enough time to actually display our signs. {p.2-118}

Mr. Wise:  All right. Thank you, answer any questions Mr. Barton may have for you.

Cross Examination

By Mr. Barton:

Q.  Ms. Martin, how long before the president’s visit on October 24th did you find out that he was coming there?

A.  I heard about the protest maybe a couple of days. Not very long.

Q.  Okay. And you were with — it’s Michael Berg, right?

A.  Yes.

Q.  And he’s your boy friend?

A.  He’s my partner.

Q.  Your partner. Y’all have been partners for about six years?

A.  Six years.

Q.  And did you talk with him when he left the courtroom?

A.  He gave me a kiss on the cheek goodbye.

Q.  Did he talk anything about his testimony in here? Did he tell you anything that he was asked or testified about?

A.  No.

Q.  Okay. But a couple of days before the president’s visit, you heard about the protest I think you said?

A.  Uh-huh.

Q.  Who told you about the protest?

A.  I think I read it in an e-mail from the Progressive {p.2-119} Network.

Q.  Okay. And was this a Progressive Network — and the Carolina Peace Resource Center is one of the 56 organizations that is part of the South Carolina Progressive Network; is that correct?

A.  We are a member.

Q.  You are a member. And did — was this protest out there an organized event for the South Carolina Progressive Network?

A.  It was an event that I heard about that I was coming to attend, not as a member of Pro Net, but as a U.S. citizen who opposes Bush.

Q.  Okay. And was it at that point in time, a couple of days before his visit, you started making these signs?

A.  I made the sign perhaps — yeah, a couple of days before, I can’t recall.

Q.  You made the sign for this event?

A.  Yes.

Q.  Okay. And you say that’s a lot of trouble, I mean, it took you some time to do it, to do the art work and drawings?

A.  I made a really great caricature.

Q.  And that was a lot of trouble for you?

A.  I enjoyed doing it.

Q.  Okay. I mean, that was your term, they are a lot of trouble to make these signs, so —

A.  It takes time. {p.2-120}

Q.  Okay. So, you get out to the airport with Mr. Berg in your car?

A.  Uh-huh.

Q.  And you are driving down Airport and — you pull off 302 and you enter the main road outside the airport, and enter on Airport Boulevard?

A.  (Nods head in the affirmative).

Q.  I believe you said there were cars, there was a line of cars that you got in?

A.  Uh-huh.

Q.  Just a guess of how many cars were ahead of you?

A.  It was backed up. It was bumper to bumper cars along Airport Boulevard.

Q.  When you pulled off 302, the main road to turn onto the road into the airport, how far did you get before you got stopped in traffic?

A.  A ways.

Q.  Halfway?

A.  Maybe, maybe halfway.

Q.  Okay. And you stayed in that line as you — as it inched forward, I guess?

A.  Yes, I stayed in it for a while.

Q.  Okay. And where were those cars going? I mean, you could see they were going somewhere ahead of you?

A.  Well, the people in front of me were just progressing {p.2-121} straight ahead.

Q.  Okay.

A.  Then as I got closer and saw some cars were — I think some of them were going off into a parking lot and they were being directed, there were people directing traffic. Then I realized that it was getting later and later and I needed to find the people that I had come to be with that morning.

Q.  How about the people in front of you, might they not have been looking for the people they had come to meet with?

A.  The people in front of me were there for the event.

Q.  How do you know that?

A.  Well, they all had Bush and Cheney signs and bumper stickers.

Q.  So, you are making that conclusion based on what you saw there?

A.  Since Bush was coming —

Q.  Yes.

A.  — and they had Bush bumper stickers, I figured they were in support of him and that’s why they were there.

Q.  So, as you got up here — where was it, again? You are coming along Airport Boulevard toward Lexington Avenue?

A.  Yeah.

Q.  And where were you when you broke out of line and went in front of everyone else?

A.  At least 10 cars before the actual turning point. Because {p.2-122} at that point I had seen them on the corner and needed to get to them, talk to them, figure out where I was supposed to be.

Q.  So you pull out past 10 cars —

A.  More or less.

Q.  Or more?

A.  More or less.

Q.  Okay, so about 10?

A.  Yeah.

Q.  And turned into Lexington Avenue and stopped?

A.  Yes.

Q.  Had you seen that there were cars coming down Airport Boulevard and turning onto Lexington Avenue?

A.  I can’t recall where the cars were turning, because I passed them before I got to the point where I knew where they were going.

Q.  So, as you pulled up here, you didn’t see any other cars on Lexington Avenue?

A.  There may have been other cars there, there were other people there.

Q.  Okay. So, you pulled in and stopped?

A.  Yes.

Q.  And cars coming down Airport Boulevard, if they are turning on Lexington Avenue — were you stopped on the pavement or on the side of the road?

A.  I was stopped on the pavement. {p.2-123}

Q.  So, you are blocking traffic, is what you are doing?

A.  No. Because the cars are on Airport Boulevard and I had turned to the right, and I was directly across from where the group was.

Q.  But cars turning down Lexington Avenue, you were blocking traffic?

A.  I don’t recall that there were — there were no cars behind me honking. I don’t recall that I was blocking.

Q.  Could it be they were a little more polite than you, and they weren’t blowing their horns and didn’t break in front of other people?

A.  No.

Q.  Okay. How do you know that?

A.  I don’t think so.

Q.  Why do you not think that?

A.  I — I got the feeling that I wasn’t blocking traffic.

Q.  How did you get that feeling?

A.  I don’t — maybe people weren’t honking.

Q.  All right. But you are stopped there on Lexington Avenue in the road?

A.  I was stopped across from where the group was.

Q.  In the road?

A.  Honestly I can’t recall exactly where the car was stopped, but I was across from the group.

Q.  Didn’t you honestly recall just a moment ago that you sort {p.2-124} of stopped in the middle of the road, or in the road when you turned right?

A.  I — I’m trying to recall whether I was on grass, dirt, or gravel. And all I know is I was about as far away from the group as I am from Zara.

Q.  25 feet?

A.  Because I was able to shout out the window —

Q.  Right.

A.  — and trying to figure out what was going on, and I could hear them.

Q.  Were any other cars stopped or parked there with you?

A.  There were other people around. Whether there were other cars parked in front of me or not, I can’t recall, because I was focusing on communicating with the group.

Q.  Did any cars pass by you?

A.  I don’t remember.

Q.  If they had passed between you and the group — the group was across from you, right?

A.  Yeah.

Q.  And if cars were going to turn down Lexington Avenue, they would have had to pass between you and the group; is that right?

A.  Probably.

Q.  Well, how else could they have gone down Lexington Avenue?

A.  Okay. {p.2-125}

Q.  Okay, what?

A.  So, if a car passed, it would have passed between me and the group —

Q.  And you are focusing on the group — I’m sorry.

A.  Yeah, that may have happened. I was focused on the group and I was focused on thinking where do I need to be, what am I going to do with the car, and do they want me to take their signs? And why are these other people interrogating them right now and what am I going to do about it? I wasn’t focused on the number of cars behind me, in front of me, to the side of me.

Q.  And you held your sign out the window at some point?

A.  I was fine until I took the sign out, then someone came over and told me I needed to leave.

Q.  Why do you say you were fine parked there blocking traffic on Airport Boulevard — or Lexington Avenue?

A.  Because no one was bothering me.

Q.  And you believe once you put your sign out, that’s what made the officer come tell you to move?

A.  The second I took it out, that’s when she came up to me.

Q.  The officer didn’t say, “Get that sign out of here,” did she?

A.  She said, “You need to leave or you will be arrested.”

Q.  Listen to my question. The officer did not say, “Get that sign out of here. Go”? {p.2-126}

A.  She might have made a reference to my sign, but I’m not sure. All I know is I heard the words, “You need to leave,” and I remember the word “arrest.”

Q.  Did she or did she not — take a moment and think about it — make a reference to your sign?

A.  I was holding my sign out the window, and it was right when I had the sign out that I was told I needed to leave.

Q.  Or be arrested?

A.  Yeah.

Q.  All right. You said apparently the signs were a problem, and that’s why the group put their signs in your car?

A.  Well, I had asked if they would like me to take the signs away.

Q.  And they said yes?

A.  They were thinking about it and they were hesitant. And then some of the signs were put in the back of my car, Virginia put them in the back of my car.

Q.  Okay. You said, “Apparently” — I believe your testimony was and I tried to write it down right when you said it — “Apparently the signs were a problem.” Why do you say that?

A.  Well, the fuss about me was when my sign went out. And then the four had signs and there was a big to-do about whether they should be there or not. And —

Q.  Did you hear — go ahead, I’m sorry.

A.  Well, there was a fuss going on, and I was trying to figure {p.2-127} out how I could be useful, since I was there and I had a car. And I knew that there were other people who wanted to come to protest and maybe the signs could be used in the free speech zone.

So, since we — someone was saying we weren’t supposed to be there, then the signs could be taken and used in the free speech zone. Because there’s not much point in being there to protest if you don’t have a sign, because no one will know what you are trying to say.

Q.  But you weren’t involved in that conversation, the big to-do going on over there with the law enforcement officers and the other individuals?

A.  I was far enough away that I couldn’t quite figure out what was going on. And there was enough people having enough conversations that it wasn’t obvious to me. I just knew that there was a problem.

Q.  And so, a law enforcement officer comes up to you and says, “You have got to get that car out of here or you will be arrested,” and you left?

A.  I left.

Q.  And where did you go? I didn’t follow that part of your testimony, I’m sorry.

A.  I was trying to turn again, make a right, and then come back out on Airport Boulevard, but was told that I couldn’t do that and I needed to make a U-turn. So, I made a U-turn and {p.2-128} then came back down Airport Boulevard.

Q.  Do you need some water?

A.  Thank you.

Q.  So, you went down Lexington Avenue and you were going to try and turn right?

A.  Uh-huh.

Q.  Was there at least a road there when you were going to try and turn right?

A.  I think there was a parking lot there.

Q.  And how far down Lexington Avenue was it?

A.  Just a couple of feet.

Q.  There’s a parking lot here?

A.  There was a place that I could turn around if I made a right. But I wasn’t allowed to do that, I had to make a U-turn.

Q.  And how long would you estimate that you were stopped there, concentrating on the group?

A.  Maybe two minutes, three minutes.

Q.  And an officer came up to you and told you to leave, and you went just a little ways down to turn around?

A.  Yes.

Q.  Did you go a little ways down to turn — I’m sorry, I thought you said you went down to turn right and cut back out to Airport Boulevard?

A.  I think I remember trying to make a right, realizing that {p.2-129} you are not supposed to make U-turns. So, then when I couldn’t do that, I made a U-turn and I came back onto Airport Boulevard and went down to the highway.

Q.  Did you see any cars passing by there? Were they going down Lexington Avenue?

A.  I don’t recall.

Q.  What were the cars doing?

A.  The cars — I was concentrating on trying to get out of there to find the people who were protesting. There were still quite a few cars on — lots of cars on Airport Boulevard that were trying to come into the event.

Q.  And where was the event parking, do you know?

A.  I don’t know, I wasn’t parking for the event.

Q.  You have demonstrated before, have you not?

A.  Yes.

Q.  Okay. And has the Carolina Peace Resources Center sponsored demonstrations before?

A.  We have organized demonstrations.

Q.  Organized demonstrations. And at any of those demonstrations, have you or anyone on behalf of Carolina Peace Resources Center applied for a permit with any government body in order to be allowed to demonstrate?

A.  We make an effort not to ask permission to demonstrate, but to inform the local law officers that we will be demonstrating, because we know that it’s our First Amendment right. {p.2-130}

Q.  Okay. I will go a little further, have you or anyone on behalf of the Carolina Peace Resources Center applied for a permit to demonstrate?

A.  My treasurer has applied for a permit to demonstrate. We have also organized rallies where we did not apply for a permit to demonstrate. And in Greenville on Monday we did not have a permit.

Q.  Do you know if a permit had been issued for a particular area for people to demonstrate in Greenville?

A.  Not that I’m aware of. We were allowed to be on the grass about 10 feet in front of the main door of the Greenville Palmetto Expo Center.

Q.  To your knowledge did anyone for the Carolina Peace Resources Center apply for a permit to demonstrate at the airport on October 24th, 2002?

A.  Not to my knowledge.

Q.  Were you aware that there is a regulation, an airport regulation requiring a permit to demonstrate on airport property?

A.  No.

Q.  Were you aware that by demonstrating without a permit you run the risk of violating the law?

A.  No. My understanding is that with taxpayers’ money that builds public institutions that our First Amendment rights guarantee us the right to be demonstrating as long as we are {p.2-131} not doing anything illegal.

Q.  Such as demonstrating without a permit?

A.  A permit is needed for a private area. If it’s a public space that’s paid for by taxpayers’ money, then a permit is not needed as long as you keep moving.

Q.  According to what?

A.  According to law. If you are on a sidewalk and you are demonstrating, as long as you keep moving, it’s okay. If you are on private property, then you need a permit. And it’s not a private airport.

Q.  How do you know that?

A.  Because I have taken planes out of the airport and it’s not private property. I mean, you can drive in there without having a permit.

Q.  Okay.

A.  You can walk around without having a permit.

Q.  Did you, prior to the visit on October the 24th, 2002, the visit of George Bush, contact anyone before going out there to ask where is the — is there a designated demonstration area?

A.  No.

Q.  And you are aware that on some events there is a designated demonstration area? Whether you want to go there or not, you understand that areas are often designated for demonstrators?

A.  I — I may have been aware of that, but I had assumed that we would be allowed to demonstrate to exercise our First {p.2-132} Amendment right.

Q.  And you wanted — where did you think you would be allowed to do that?

A.  Anywhere I wanted that wasn’t in — considered to be in harm’s way of the president. But since there were so many people much closer to where he was than we were, it certainly didn’t seem like there was any kind of a threat.

Q.  In your opinion?

A.  In anybody’s opinion. All we had was pieces of paper, that’s not a threat.

Q.  Who gets to determine who is a threat or not? Who do you believe should make that determination?

A.  The people of the United States.

Q.  As to who and what is a threat to the President of the United States?

A.  It’s a democracy.

Q.  But you did not contact anyone at the airport about asking, inquiring where a place would be out of harm’s way that you could demonstrate before you went out there; is that right?

A.  No, I assumed, because I have my Constitution, and I carry it with me, that I’m allowed to voice my opinions where I want and when I want as long as I’m not threatening anyone.

Q.  Okay. Does that say that in the Constitution?

A.  The First Amendment says freedom of speech.

Q.  All right. And does it reference demonstrations? Do you {p.2-133} want to check it?

A.  If I’m demonstrating my freedom of speech rights, that’s demonstrating.

Q.  And — well, never mind.

Mr. Barton:  That’s all the questions I have.

The Court:  Redirect.

Mr. Wise:  Just one question on redirect.

Redirect Examination

By Mr. Wise:

Q.  Ms. Martin, you were in Greenville — when were you in Greenville?

A.  Monday.

Q.  How close did you — did you see President Bush on Monday?

A.  I did — well, I saw him in his limousine.

Q.  And how far away were you?

A.  About where the exit sign is.

Q.  Okay. So, right basically the distance of this courtroom?

A.  Yeah.

Mr. Wise:  Okay, thank you.

By Mr. Wise:

Q.  Excuse me, which is what, 40, feet?

Mr. Barton:  Closer to 50.

By Mr. Wise:

Q.  50. 40 to 50 feet? That would be correct?

A.  Perhaps. I was on one side of the road on the curb and he {p.2-134} was on the other side of the road passing by.

Q.  Four lane or two lane road?

A.  It was a big highway, Pleasantburg Drive.

Q.  Excuse me?

A.  Pleasantburg Drive.

Q.  All right.

Mr. Barton:  Are you through?

Mr. Wise:  Yes.

Recross Examination

By Mr. Barton:

Q.  About how fast was the limousine going?

A.  Perhaps 30 miles an hour, maybe.

Mr. Barton:  That’s all I have.

Examination by the Court

Q.  Ms. Martin, I think you testified that when you — you know, I think you finally got back on Airport Boulevard and you went back down to 302, and that’s when you were looking for the demonstration area?

A.  Yes.

Q.  And you asked several — you were still in your car, but you stopped at several spots and you asked police officers where is the demonstration area. And one of them told you here and one of them told you there, and you kind of moved around?

A.  Yes. And we were treated in a threatening way by the {p.2-135} police officers. And we have pictures of those various places that we were trying to find the free speech zone.

Q.  Okay. Now, I also understood your testimony to be that at some point you stopped and some people got out of your car?

A.  No one got out of my car because my car was full of signs. But when we did finally get down to the median of the highway, after going to one, two, three — or four different places —

Q.  Right.

A.  — Michael got out of the car and took the signs out of the car.

Q.  And were there other people there?

A.  The other car, Gina Humble, had a whole bunch of people in her car, and they all got out of that car too.

Q.  All right. Now, where did they get out of the car?

A.  On the side of the highway.

Q.  Beside 302?

A.  Yes.

Q.  Was that across from the entrance to Airport Boulevard?

A.  Oh, no, no, no. We were out in the middle of nowhere, coming back from the UPS parking lot.

Q.  Further down towards the UPS?

A.  Much farther down.

Q.  So, they were on the side of the road?

A.  A mile and-a-half.

Q.  They were on the side of the road? {p.2-136}

A.  They went to the middle of the highway in the median.

Q.  They were in the middle of the highway?

A.  Uh-huh.

Q.  Okay. About a mile down the road from Airport Boulevard?

A.  I would say at least.

Q.  Okay. All right. And then you, since you couldn’t find anywhere to park, you just kept driving around?

A.  We drove around and we ended up at a Lizards’ Thicket. And there were swarms of police officers inside drinking coffee. And there were Green Berets and everybody was there.

The Court:  Okay. All right. You can step down.

The Witness:  Thank you.

Mr. Wise:  Call Harry Rogers.

The Court:  It’s almost 1 o’clock, do you want to break for lunch?

Mr. Wise:  That’s fine.

The Court:  Is that all right? It’s ten minutes till, if we try and be back maybe five or ten minutes after 2 —

Mr. Wise:  That’s fine.

The Court:  That be all right? Okay, we will break for that.

(Lunch recess)

The Court:  All right, call your next witness.

Mr. Wise:  Gone to get him. {p.2-137}

The Witness:  I will affirm.

Mr. Wise:  He affirms.

The Clerk:  That’s fine.

The Clerk:  Just raise your right hand then, you don’t have to — just state your full name for the record.

The Witness:  I’m Harry F. Rogers, Jr.

Harry F. Rogers, Jr., Affirmed

Direct Examination

By Mr. Wise:

Q.  Mr. Rogers, where do you live?

A.  I live at 305 South Saluda Avenue.

Q.  In Columbia?

A.  That’s correct.

Q.  And how long have you been living there?

A.  Approximately 10 years.

Q.  And where are you employed?

A.  I’m employed at V.C. Summer nuclear generating station in Jenkinsville, South Carolina for South Carolina Electric and Gas.

Q.  And how long have you been employed there?

A.  15 years.

Q.  All right. And do you have any military service?

A.  I do. I was in the Air Force 1966 to 1970, and I served in Vietnam a year and-a-half of those years.

Q.  And do you remember what year that was? {p.2-138}

A.  I was in Viet Nam in 1968 and 1969.

Q.  Okay. Did you have occasion — where did you go to school?

A.  Went to Eau Claire, and I have gone to the University of South Carolina.

Q.  Did you graduate from there?

A.  I did not, I did revolving majors. A lot of hours, no degree.

Q.  Did you have occasion to be at the airport on the 24th of October of 2002?

A.  I did.

Q.  Tell me, if you would, how you went out there and who you were with.

A.  I was with Jerry Rudolph, and we went in Jerry Rudolph’s car.

Q.  All right. And how did y’all enter the airport premises?

A.  We entered off 302 onto Airport Boulevard.

Q.  All right. As you entered onto Airport Boulevard, did anyone stop you to check for a ticket or identification?

A.  No, sir, they did not.

Q.  What kind of traffic was on the road when you came in?

A.  It was heavy, but moving.

Q.  Where did y’all go when got there?

A.  We went and turned right, and I don’t know the name of the road, but right by the hanger toward Midlands Tech, the Midlands Tech campus. {p.2-139}

Q.  All right. And about what time do you recall that y’all got there?

A.  Gee, I don’t recall times. It was before the president landed and probably a half an hour before the —

Q.  Okay.

A.  I’m just guessing, a half hour before. Some time before the president landed.

Q.  So, y’all went up toward Midlands Tech?

A.  That’s correct.

Q.  Were you able to find a parking space?

A.  We were not. We tried to pull into the Midlands Tech parking, and there was someone there that said that the Midlands Tech parking was reserved for the ticket holders.

Q.  Where did you go then?

A.  We went and parked in long-term parking at the — at the airport — excuse me, short-term parking.

Q.  Did you see anybody on the way to get to the long-term parking?

A.  We did, we saw Brett pulling in, actually.

Q.  All right. Did you see anybody walking that you knew?

A.  Yes, we met Melanie and gave her a ride, part of the way back.

Q.  And do you know about where you let her out?

A.  To the best of my recollection it was where — we did not turn right, you know, back — you know, back onto Airport {p.2-140} Boulevard. But we may have, I don’t recall.

Q.  All right. Where is the long-term parking?

A.  Actually it was short-term parking. And it’s in front of the — in front of the airport.

Q.  About how far away — do you know where Lexington Boulevard is on the map?

A.  I do not. I don’t know — I’m sure I know it, I just don’t know the names.

Q.  All right. This is Lexington Boulevard here and Airport Boulevard and Doolittle Hanger.

A.  All right.

Q.  About how far away from there did y’all park?

A.  I would expect a quarter of a mile to a mile — to a half a mile, excuse me.

Q.  How did you get back down the road, Airport Boulevard?

A.  We walked.

Q.  And did you see Mr. Bursey?

A.  We did when we got to the corner that you have identified as Lexington, right on that corner —

The Court:  Northwest corner?

The Witness:  Northwest corner.

By Mr. Wise:

Q.  And that’s looking at Government’s Exhibit 1?

A.  Sir?

Q.  That’s looking at Government’s Exhibit 1, the chart in {p.2-141} front of you?

A.  Right. Yes. If you point northwest, I will tell you, I just —

The Court:  Assume the top of the photograph is north, that would be —

The Witness:  Assume the top — okay, then it would be the northwest corner, that is correct.

By Mr. Wise:

Q.  Was Mr. Bursey there when you arrived there?

A.  He was.

Q.  Okay. What happened after you — was Jerry still with you?

A.  Yeah, Jerry was.

Q.  All right. What happened after y’all arrived?

A.  I approached the first one of the officers asking where the — where the protestors were supposed to go.

Q.  Okay.

A.  And she pointed to the — and I don’t know who she was, she had blond hair and was in — and the other officers were deferring to her. And I attempted to find out where the — where the protestors were supposed to go from that officer.

I also asked who she was and what agency she represented. And she refused on a couple of occasions to identify herself or who she worked with.

Q.  Did you get any instructions on where to go?

A.  I did not. {p.2-142}

Q.  What — did you continue — what did you do after that?

A.  Well, I will need to back up. Because after not getting an answer from her, I kept on asking her the question, and told her that I have a cell phone with me.

I said, “I would like to call — you know, I’m going to call my attorney and find out, you know, what — you know, what am I supposed to be doing here and can I stay here or can I not stay here.” And that officer told me, “You will make that phone call from a jail cell.”

Q.  So, you didn’t make that phone call?

A.  From a jail cell is what she told me.

Q.  Did you make your telephone call?

A.  I made a phone call — after I went across the street, I made the phone call to my wife —

Q.  We’ll get to that in a minute.

A.  I did not.

Q.  All right. At that point you did not?

A.  That’s correct.

Q.  What continued to happen after you were told that?

A.  I went across the street and there was —

Q.  Did anything happen before you crossed the street?

A.  I caught the continuing conversation between Mr. Bursey and Mr. Rudolph and the officers.

Q.  Describe, if you would, Mr. Bursey’s attitude toward the officers? {p.2-143}

A.  I thought it was polite and respectful.

Q.  All right. Was he firm?

A.  That would be accurate.

Q.  All right. How long did that conversation go on, while you were there?

A.  Yeah, I didn’t — this conversation takes place before — as soon as she told me that she was going to put me in a jail cell, I left.

Q.  All right.

A.  So, it was probably two or three minutes —

Q.  What was your —

A.  I was there for probably two or three minutes.

Q.  What was your concern when she said something about arresting you or putting you in jail?

A.  I have a clearance where I work.

Q.  Yes.

A.  And I don’t think that my company would fire me, but it certainly places them in a position where they would have to — very probably would not let me go into the plant. Because, you know, this is still post 9-11 and security is a grave concern at any nuclear plant.

Q.  So you left?

A.  I did.

Q.  Where did you go?

A.  I went across the street and — {p.2-144}

Q.  Now, looking at Government’s Exhibit 1 again, when you say across the street, what area did you go to? If you can, describe it by directions.

A.  It would be now the northeast corner, actually past the grass and onto that road that is going this way.

Q.  You’ve got to come down —

A.  Sure.

Q.  Where is our pointer?

A.  I crossed from here —

Q.  There you go.

A.  The conversation was here.

Q.  Yes.

A.  And I crossed over into — into this area right here.

Q.  So, that would be the southwest corner of that intersection?

A.  That’s right.

Q.  All right. And how long did you stand there — you can get back down there.

How long did you stand there?

A.  Long enough to have a conversation with a SLED — the SLED agents that were congregated on that roadway.

Q.  Did you know them?

A.  I did not, but I know SLED.

Q.  Okay. What was happening across the street where Mr. Bursey was during this period of time? {p.2-145}

A.  There were a number of — a number of people over there, and I guess they were waiting to go into the — there was a crowd on that side of the roadway.

Q.  What about the side of the road where you were, was there a crowd down there?

A.  After I crossed?

Q.  Right.

A.  There was.

Q.  All right. How long did you stay there talking to the SLED agents across the road?

A.  Less than five minutes, more than two.

Q.  Did you see Mr. Bursey be arrested?

A.  I did from across the street.

Q.  Excuse me?

A.  I did. Yeah, from across — across the street.

Q.  Did you see him placed in a van or a wagon of some sort?

A.  That’s correct.

Q.  All right. Where were you when he was placed in the van?

A.  Probably in the grass. I had left the — I had left the officers, the SLED officers, and I was standing in that grassy area.

Q.  All right. And that’s the grassy area again on the southwest corner of that intersection?

A.  That’s correct.

Q.  After he was arrested, what did you do? {p.2-146}

A.  I went to Jerry Rudolph’s car.

Q.  Yes.

A.  And I drove — drove home.

Q.  All right. Did you get the keys from Mr. Rudolph?

A.  I did.

Q.  And what route did you take driving home?

A.  I — and again, I don’t know the road. I did not come down Airport Boulevard, I went around the back way, around on the other side of the Midlands Tech campus and came out on 302 off of Boston Avenue.

Q.  Now, the whole time that you were there talking to Mr. Bursey and going back across the road and talking to the SLED agents, did anyone ever ask you for a ticket?

A.  They did not.

Q.  Did anyone ever ask you for identification?

A.  They did not.

Q.  Did anyone ever ask you what you were doing there?

A.  They did not.

Mr. Wise:  Thank you. Answer any questions that Mr. Barton may have.

The Court:  Mr. Barton.

Mr. Barton:  Just a moment, Your Honor.

I don’t have any questions, Your Honor.

The Court:  Thank you, sir, you may step down.

Mr. Wise:  Call Ms. Sanders. {p.2-147}

Mr. Pitts:  May he be excused, Your Honor?

The Court:  You may be excused.

The Witness:  Thank you.

Mr. Wise:  Go on up.

The Clerk:  If you could place your left hand on the Bible and raise your right hand. State your full name for the record.

The Witness:  Virginia Singleton Sanders.

Virginia Singleton Sanders, Sworn

Direct Examination

By Mr. Wise:

Q.  Ms. Sanders, where do you live?

A.  I live at 7049 Glenn Dairy Drive, Columbia, South Carolina.

Q.  And how long have you been living in Columbia?

A.  I have been living in Columbia 19 years.

Q.  And what do you do for a living?

A.  I work as a conservation organizer for the Sierra Club.

Q.  And how long have you been doing that?

A.  I have been doing that for four years.

Q.  All right. And before that?

A.  Prior to that I worked as a management analyst in the manpower division of the Resource Management Directorate at Ft. Jackson.

Q.  And what’s your educational background?

A.  My educational background, I graduated from Lincoln High {p.2-148} School in Sumter, I attended St. Augustin’s College in Raleigh, North Carolina, and completed three years at the University of Maryland.

All over the world, my husband is a — was a career military man and I completed the Department of the Army Resource Management Intern Institute.

Q.  All right. And what branch of the service was your husband in?

A.  My husband was in the U. S. Army, 22 years.

Q.  22 years. All right. And you traveled around with him?

A.  I lived 13 years in Europe and six years in various states within the United States.

Q.  All right. Did you have occasion to be at the airport on the 24th of October of last year?

A.  Yes, I did.

Q.  Well, tell us how you came to be there.

A.  The Sierra Club is an environmental organization, and we wanted to make the president aware of some of the legislature that we thought — reference like the Clean Air Act and the energy bill that we wanted him to maintain or make the restrictions higher on — on industry, as it came — when it came to legislature on air and — clean air and clean water.

Q.  Did — while you were — how did you get to the airport that day?

A.  I drove my vehicle. {p.2-149}

Q.  And what route did you take?

A.  I came in — I came the city way and took the — I’m sorry, I’m very bad when it comes to highway numbers. But I took the route that comes directly into the airport through I think it’s Cayce.

Q.  Okay. You came in more or less the back way?

A.  Is that considered the back way?

Q.  I don’t know. Did you come in the main entrance or —

A.  I came in the main entrance.

Q.  Okay. Was that Aviation Boulevard?

A.  Yes.

Q.  Okay. When you came in Aviation Boulevard, did anyone stop you?

A.  No.

Q.  Did anyone ask you for a ticket or anything?

A.  No.

Q.  Where did you park?

A.  I had to — I had to go around — I came onto the airport on Airport Boulevard, and I came around to the — in front of the Doolittle terminal.

Q.  Okay.

A.  And right in front of the Doolittle terminal is another street that turns to the right. I turned to the right and made a complete circle around the block. I did that several times.

Q.  All right. And looking at Government’s Exhibit Number 1, {p.2-150} which is in front of you, you see Doolittle Hanger over here on the right?

A.  Yes.

Q.  And that’s the road that you turned up?

A.  That’s the road I turned down.

Q.  Where did you eventually find a parking space?

A.  Eventually I found a parking space — oh, my gosh, I turned down the road that is in front of the terminal and it was back and to the right. I mean, it was a long ways from the Doolittle terminal.

Q.  Did you see Mr. Bursey while you were riding around looking?

A.  On my — on my third circle around, I saw Mr. Bursey.

Q.  Where was he standing when you first saw him?

A.  He was standing here.

Q.  All right. So, then you went and parked?

A.  No. I came up — this was my third circle, I came up Airport Boulevard and I stopped here. And the reason I stopped, after I saw Mr. Bursey, I stopped here, is because I was the person — I was driving a mini van, and I was the person that had a lot of the signs for the protests. So, I stopped here and unloaded the signs and gave them to Mr. Bursey.

Q.  Did you get out of the van?

A.  Let me think. I know — I know I got out of the van, but I {p.2-151} think by the time I got around to the back of the van — I was out of the van, but by the time I got around to the side of the van on my side door, Brett had the signs out of the van.

Q.  Did anybody say anything to you while you were stopped there?

A.  No.

Q.  Did you get back in the van?

A.  I got back in the van and proceeded to drive in this direction, and parked around over in this area somewhere.

Q.  Then you walked back?

A.  Then I walked back to the van along Airport Boulevard.

Q.  Did anyone stop you while you were walking along Airport Boulevard?

A.  No.

Q.  Well, what happened when you got back to where Mr. Bursey was? You can sit back down there.

A.  Okay. As I approached the intersection where I left Mr. Bursey, I saw that he was no longer alone, there were other people standing there with him. And as I got closer, I saw that they were law enforcement people.

Q.  Was anyone else there with Mr. Bursey that you knew at that time?

A.  No, not at that time.

Q.  All right. What were they saying to Mr. Bursey?

A.  Well, as I got up — {p.2-152}

Mr. Barton:  Objection, Your Honor. Again, I’m going to object.

By Mr. Wise:

Q.  Never mind, don’t go into that.

Did you stand there with Mr. Bursey?

A.  I stood there with Mr. Bursey.

Q.  All right. Did anyone else come up after that?

A.  Anyone —

Q.  That you knew?

A.  Yes. Jerry and Harry.

Q.  All right. And how long was it before they arrived?

A.  I had been standing there I would imagine about, oh, seven or eight minutes before they arrived.

Q.  All right. During the time that Mr. Bursey was standing there, did you hear him make any reference to where he could protest?

Mr. Barton:  If Your Honor please, that’s got to be hearsay. This is a discussion coming from a party opponent.

Mr. Wise:  We are looking at the issue of willful and intentional violation of the law, and I think his comments go to show his state of mind at that time, and the intent.

Mr. Barton:  That doesn’t make it not hearsay, Your Honor.

Mr. Wise:  It’s difficult to —

The Court:  I will allow it. {p.2-153}

Mr. Wise:  Thank you.

By Mr. Wise:

Q.  Did you hear Mr. Bursey make any statements about where could he protest?

A.  Did I hear Mr. Bursey?

Q.  Yes, ma’am.

A.  Mr. Bursey asked, and I too asked, where we could — if we couldn’t protest there, where could we protest.

Q.  And what were you told —

A.  We were told to go to the —

Mr. Barton:  Your Honor, please, again —

Mr. Wise:  Okay.

By Mr. Wise:

Q.  Never mind what you were told, we won’t go into that.

Were any comments made about any demonstrating in the immediate area where you were standing?

A.  We were told that —

Q.  Not what you were told, did you ask any questions or did Mr. Bursey ask any questions about where in close to where you were standing could you demonstrate?

A.  Yes.

Q.  What was that comment?

A.  If I remember correctly, we were asked — there was another section —

Q.  That’s all right, don’t worry about it. {p.2-154}

A.  There was another section and we asked could we go over there and demonstrate.

Q.  Another section, meaning over where?

A.  It was a green — it was a green parcel of land that was a little closer to the airport — I mean, to the terminal.

Q.  All right. And where are you pointing to?

A.  This green parcel of land — I think we asked about here.

Q.  Right.

A.  And we were told, no, we couldn’t.

Q.  All right. Were you ever told where you could go?

A.  No.

Q.  Other than the free speech zone?

A.  Other than the free speech zone, I was never given direct information. I even asked, “Could you give me an intersection? Could you give me a building number? Could you give me a landmark where the free speech zone is?” And I was just told to go to the free speech zone.

Q.  Now, during the time you were there, was Mr. Bursey having a conversation with the law enforcement officers?

A.  We were all talking to the law enforcement officers.

Q.  How would you describe Mr. Bursey’s demeanor toward the officers, or attitude, however you want to phrase it?

A.  Are you asking me was he impertinent or —

Q.  Right.

A.  No, we were just talking. {p.2-155}

Q.  All right. Did he ever raise his voice?

A.  No.

Q.  How long did y’all stand there talking to him — to the officers?

A.  Well, we stayed there I know a good — had to be a good 15 minutes. Because the dilemma that I had was whether or not I — they told us that either we put the signs down and move on or we would be arrested.

Q.  All right.

A.  And I didn’t know whether or not I wanted — could be arrested. I was there not on my behalf, but it was on behalf of the — as an individual, but for the Sierra Club.

So, they allowed me about anywhere from 10 to 12 minutes to use my cell phone to call first my office here in Columbia, then my office in Virginia, and finally my two calls to San Francisco, my headquarters, to find out the Sierra Club’s policy on arrests.

Q.  Were you able to get an answer?

A.  I was not able to get anyone.

Q.  Well, during the time you were making these telephone conversations, did they arrest you?

A.  No.

Q.  All right. What did you do after you couldn’t reach anyone?

A.  After I couldn’t reach anyone, I told the officers that {p.2-156} because I couldn’t reach anyone in my headquarters to give me any directions, I guess I would have to leave and I couldn’t be arrested.

Q.  And where did you go?

A.  Well, I didn’t leave immediately. I stayed around a while to see what was going to happen. But when I eventually left, I walked back to my car.

Q.  Well, how long did you stay around?

A.  After the telephone calls?

Q.  Right.

A.  I —

Q.  Well, let me rephrase it. Did you leave before or after Mr. Bursey was arrested?

A.  No, they were carrying — they were escorting Mr. Bursey to the car when I left.

Q.  Okay. And where was the car located, or the van located?

A.  We were here, and they were walking in this direction.

Q.  All right. And that’s when you left?

A.  That’s when I left.

Q.  Okay. Do you remember when Harry left?

A.  Harry left around the same time that I left.

Q.  All right.

A.  Harry and Jerry left around the same time that I left.

Q.  And none of y’all got arrested?

A.  None of us got arrested. {p.2-157}

Q.  And they — okay. And when you left, where did you go then?

A.  I went to my car.

Q.  And what route did you take out of the airport at that time?

A.  I went — I walked down — my car was back over here somewhere.

Q.  All right.

A.  And I walked along Airport Boulevard, and down here off of this map is another road that leads off of the Airport Boulevard. And I walked down there and got into my car, drove out of here and went out of the airport.

The Court:  Let the record reflect that she’s indicated she walked to the right on —

By Mr. Wise:

Q.  You were walking in an easterly direction along Airport Boulevard; is that correct?

A.  Yes.

The Court:  The testimony is, when you were leaving they were — the officers were escorting Mr. Bursey to the left down Airport Boulevard?

The Witness:  All right, I left this spot, they were escorting Mr. Bursey in this direction.

The Court:  To the left down Airport Boulevard?

The Witness:  Yeah — well, yeah. And I left and I {p.2-158} went across the street and walked in that direction.

The Court:  Okay.

Mr. Wise:  Okay. Thank you, that’s all I have.

The Court:  Mr. Barton.

Mr. Barton:  Just a moment, Your Honor.

I don’t have any questions.

The Court:  Thank you, ma’am.

Mr. Wise:  Jerry Rudolph.

The Court:  Call your next witness.

Mr. Wise:  He’s coming.

The Clerk:  If you could, place your left hand on the Bible —

Mr. Wise:  He affirms, too.

The Clerk:  Raise your right hand and state your full name for the record.

The Witness:  Gerald L. Rudolph.

Gerald L. Rudolph, Affirmed

Direct Examination

By Mr Wise:

Q.  All right, Mr. Rudolph, where do you live?

A.  I live in Lexington County on 1038 Corley Mill Road.

Q.  How long have you been living in Lexington County?

A.  I have been living there since — I guess ’95 in this current location.

Q.  Where are you employed? {p.2-159}

A.  I have a business, the business is Clarity Development.

Q.  And what does that do?

A.  We do software development.

Q.  Okay. Travel a fair amount in your business?

A.  Not recently. From about ’95 until about 2000 I was traveling extensively over the weekend.

Q.  Okay.

A.  Coming home.

Q.  What is your educational background?

A.  I graduated from the University of Kentucky in ’73, and I went to Southern Seminary in Louisville, Kentucky for a master’s of divinity degree. And after that I got a master’s of theology degree at Southern Seminary.

At that point — this was a Baptist seminary — at that point I realized that I was not — my beliefs were not compatible with Baptists and I left the seminary. And I studied Japanese language at Middleburg College for two summers, they have a summer intensive language program.

And then I did some work in upholstery. My father was an upholsterer and I learned the skill. I did that a couple of years while I was doing things with Quaker Meeting in Louisville.

Q.  Okay.

A.  And decided that I needed to get a real job, and so I went back to school again, went to — I applied at various colleges, {p.2-160} various MBA programs. Got an academic scholarship for Vanderbilt. So, I went to Vanderbilt University, was there for one year and I took the summer — I got a job with a Japanese company. That fall they offered me a full-time job, so I got an arrangement with the Vanderbilt business school to switch to their executive MBA program.

Q.  How did you end up in South Carolina?

A.  After working about seven years for the Japanese company, my wife wanted to come back to South Carolina, she’s from Charleston, she has family in Lexington.

So, I went back to school again. My brother said I needed a head stop program. I went back to school again and so I got a Ph.D. at — in management science at Clemson University.

Q.  And when was that?

A.  I finished that in ’94. I went to work for a consulting firm, Data Systems Technology, and worked for them over a year. And then I got an opportunity to go into business for myself and had a contract with a company in Chicago, and I travel back and forth to Chicago on weekends.

Q.  Did you have occasion on the 24th of October to be at the airport?

A.  I was.

Q.  Tell us, if you would, how you ended up — how you came to be there. {p.2-161}

A.  Well, I was concerned — you mean the reason I went there?

Q.  Right.

A.  I was concerned about Bush’s aggression in the Middle East, the war in Afghanistan, and the war in Iraq that was coming. And so we went up there to protest Bush’s policies.

Q.  Who did you go out there with?

A.  I drove out there with — Harry Rogers and myself drove out in my car. And we tried to find a place to park in the — behind the pool area, in the — tried to find a place to park. They asked us if we were going to the thing, and we said, “No, we are protesting.” And they said we had to — we couldn’t park in the close parking lot, we had to go to one in the back.

Q.  Okay.

A.  Which we didn’t find. We ended up going — well, we saw Melanie and —

Q.  So, you ran across some policemen and they asked — they told you you couldn’t park in the closer parking lot?

A.  I don’t think it was a policeman. I don’t recall, I think it was just — it may have been a policeman, I don’t recall.

Q.  All right.

A.  But it was a person there.

Q.  Okay. Someone —

A.  Someone.

Q.  — directing traffic?

A.  Who was assuming a role of authority there. {p.2-162}

Q.  And did they ever tell you that you couldn’t come into the airport area —

Mr. Barton:  Object to the leading, Your Honor.

Mr. Wise:  All right.

By Mr. Wise:

Q.  Did they — you told them you were going to be protesting?

A.  Yes, I told them that we were going to be protesting. They said we could park in the back lot. But we decided to — after we picked up Melanie and dropped her — we weren’t sure whether we were going to stay or not at that point because of the difficulty in finding a place. So we — we dumped Melanie off where there was a lot of people, and then we went and decided to park in the long-term parking lot.

Q.  All right.

A.  So, we drove out — out this street, and we came into Airport Boulevard, and drove up to the airport parking lot and parked in the long-term lot.

Q.  Okay. Then what did you do?

A.  Then we walked back down Airport Boulevard —

Q.  Let me show you — I believe it’s Defendant’s 10. Do you recognize Defendant’s 10?

A.  Well, actually we were down in this part by the — the long-term parking at the airport, and we walked along the hanger side of Airport Boulevard down to where the intersection is of the road where the pond is. {p.2-163}

Q.  This road?

A.  This road.

Q.  Okay.

A.  And we saw Brett and others across the street over in that other side of the street, so we crossed over to where they were.

Q.  You saw them on the opposite side of Airport Boulevard?

A.  They were on the opposite side from the hanger, on the pond side.

Q.  All right. What happened when you stood there?

A.  Well, first I went up and was just observing and then I — oh, they had some signs there, I didn’t bring my own sign, they had a stack of signs. So, I picked up a sign, one that was there, and started holding a sign. At that point the police started telling me I couldn’t be there with the sign, I had to —

Q.  What did the sign that you were picking up say?

A.  I don’t recall. I didn’t make it, I just picked it up off the stack that was there.

Q.  What happened then?

A.  Well, after picking up the sign, they started telling me that I couldn’t be there with the sign, and there was some debate about it being — they were telling me it was private property. It was a woman with a lapel pen, I think she was Secret Service, that was instructing the other police officers {p.2-164} there. And they were telling us it was private property, we couldn’t be there and we —

Mr. Barton:  Your Honor, I’m going to object to what he’s being told by these unknown, unidentified police officers.

The Court:  Tell us what happened and what you did.

The Witness:  I thought that’s what I was trying to do.

The Court:  It’s not as easy as you might think.

The Witness:  As you might think. Let’s see, where was I? I was —

The Court:  You had held up a sign.

The Witness:  Yeah, I help up a sign and they were telling me that I could not —

Mr. Barton:  Your Honor, again —

The Court:  I’m going to allow that.

Mr. Wise:  Yeah, I mean, it’s a little bit of background.

The Court:  He didn’t just walk away, so I mean, something had to happen, so —

The Witness:  He was telling me I couldn’t be there with a sign and it was private property. And I argued about it not being private property, it was a main road —

The Court:  Don’t get into a broad discussion about what they said. They told you you had to leave?

The Witness:  No, they told me I couldn’t be there {p.2-165} with a sign.

The Court:  Okay.

By Mr Wise:

Q.  As a result, what did you do?

A.  Well, I debated with them. I said, “Well, can I put my sign by the other signs that were on the road? Can I put my signs down by the — can I stand down by the pond? Can I hold my sign down there?” I even asked them could I walk back to my car with the sign, and they said no.

Q.  Okay.

A.  And we debated for, I don’t know, it seemed like a long time.

The Court:  The pond is to the —

The Witness:  The pond was behind me to the right, if I’m standing, facing —

The Court:  It was back towards the airport?

The Witness:  No, it was kind of — it was an intersection there at that point.

Mr. Wise:  Let me put Defense — or State’s 1 back up.

By Mr. Wise:

Q.  And the pond is where in that —

A.  This big thing, the blue part. I was standing here —

Q.  Upper left-hand corner?

A.  Yes, standing in the upper left-hand corner of that {p.2-166} triangle, on the opposite side from the hanger. On the pond side of the road.

The Court:  Right.

By Mr. Wise:

Q.  So, you asked them if you could carry your sign down toward the pond?

A.  No, I asked if I could go back to my car. I told him I was parked in a long-term lot. I said, “Could I go back down Airport Boulevard with my sign?” And they said, “No.”

Q.  All right.

A.  And it continued — they continued to debate and — about various things. I was asking various questions about what could I do with the sign and they said something about a free speech zone. I told them that I thought we had a right to be here and there’s not — and we weren’t breaking any laws.

Q.  At any point did a car stop and pick the signs up?

A.  At about the time — there was a car — at the time I thought it was Virginia’s car, it turned out it wasn’t, had stopped, who pulled in the lot from Airport Boulevard facing the — what is up here.

Q.  Right. The road that goes straight up?

A.  Yes.

Q.  Okay.

A.  And on the right-hand side.

Q.  Okay. {p.2-167}

A.  And — but that was about the time that — there was a debate going on, and the police were trying to get us to leave.

Mr. Barton:  Your Honor, please.

Mr. Wise:  He’s just saying there was a debate going on.

Mr. Barton:  I believe he was about to tell us what the police told him, Your Honor.

Mr. Wise:  Well, Your Honor —

The Court:  Well, if the police told them to leave, if he can’t tell me that, how am I supposed to figure out what he’s doing?

Mr. Barton:  Judge, I mean, that’s his problem to prove his case.

Mr. Wise:  Well, Your Honor, if the police told him to leave, it’s obviously — if it’s because of the sign obviously it impacts the facts of the case in this —

The Witness:  He actually didn’t tell me to leave, he told me I couldn’t be there with a sign.

By Mr. Wise:

Q.  Okay.

A.  I gave up — at the point at which the — at the time the police officer with the lapel said, “Arrest him,” and they — at that point they said get out the cuffs. And I gave up my sign —

The Court:  You are talking a little fast for me, {p.2-168} I —

The Witness:  At that point when the policeman with the lapel said, “Arrest them —”

The Court:  Arrested Mr. Bursey?

The Witness:  No, they said, “Arrest them.” We were both holding signs. I gave up my sign at that point, and they left me alone and they arrested Bursey.

The Court:  Oh, you thought they were going to arrest you?

The Witness:  At the time I was afraid they were going to arrest me. But I gave up my sign and they didn’t.

By Mr. Wise:

Q.  So, after — after you gave up your sign?

A.  We put the signs in the car. The car had stopped there and Brett gave me his keys. When they started arresting him, he gave me his car keys.

Q.  All right. And were you sitting — where did they take Brett?

A.  They took Brett across the road to the other side, which would be this side, on the hanger side. And they brought in this wagon, was a paddy wagon, I guess.

Q.  Where did you go? Did you see him get placed in the wagon?

A.  Yes, I did.

Q.  Where did you go after he was placed in the wagon?

A.  Well, Harry had already — at the point when they first {p.2-169} started threatening us, Harry said he couldn’t stay because of his — his security clearance, he might lose it if you are arrested. So, he left and went down Airport Boulevard, but he came with me. And so I had to go back down Airport Boulevard. I walked down — I went aways and I came back —

Q.  And when you came back, when you say you came back, what route did you go coming back?

A.  Well, I went part of the way down the airport road and I came back and I stood there with all the other — there were still a lot of people around.

Q.  Okay.

A.  And I stood there and watched them put him in the thing. And then I gave my — I went to the — I met Harry and I went back towards the airport. Met Harry and gave him my keys.

Q.  Okay.

A.  And then I came back again and crossed — came back and crossed over the road and cut through the same area where we were before.

Q.  Right.

A.  And nobody bothered me through any of this time after I gave up my sign. I crossed the road and I walked back to where Brett had left his car. He told me where it was parked. He parked on the upper road going back to the right, and I went back to his car.

Q.  All right. So, after Mr. Bursey was arrested, where did {p.2-170} you go in relation to that intersection?

A.  After he was arrested is when I went across the street to my car — to Bursey’s car on the other side.

Q.  Where did you — can you show us on that diagram in State’s Number 1 about where it was that you met Mr. Rogers?

A.  It was back here — it was back here in the back.

Q.  It would be on the left side of that —

A.  On the left side. And I’m not sure, I don’t remember just how far it was, but I had to give him my keys.

Q.  So, you gave him your keys at that point?

A.  I gave him my keys so I could go back. And then he left in my car.

Q.  And then you did what?

A.  And I went to — I went back across here and crossed the intersection, went back to —

Q.  The intersection of the road that goes straight up?

A.  Yeah, the same intersection.

Q.  When you walked back through that intersection —

A.  Yes, sir.

Q.  — after Mr. Bursey was arrested, did anyone stop you?

A.  No, no one stopped me.

Q.  Did anyone ask you for a ticket?

A.  No one asked me for anything.

Q.  Did anyone ask what you were doing there?

A.  No, no one asked me anything. {p.2-171}

Q.  Did you go back out to the airport later that day and take some pictures?

A.  Yes, I did, I went — well, part of the time too when I was walking back and forth I had my cell phone, I was trying to call newspaper people and trying to call colleagues and stuff to contact the newspaper. And then we left, my phone battery went dead —

Q.  Hold on a second. I hand you Defendant’s Exhibits 11, 12, 13, and 14 and ask you if these were the pictures that you took when you went back out there that day? The government has already seen these pictures.

A.  Yes, they are.

The Court:  Would you like them marked?

Mr. Wise:  I would like to move them in —

The Court:  Without objection?

Mr. Barton:  No objection.

By Mr. Wise:

Q.  I hand you then Defendant’s Exhibits 12, 13, and 11, all right?

A.  Uh-huh.

Q.  What do those show as far as any signs in those pictures?

A.  They show a lot of Lindsey Graham signs, Hiltgen signs, Joe Wilson signs, political signs of various kinds.

Q.  Were those signs there at the time —

A.  They were there — {p.2-172}

Q.  — when he was arrested?

A.  — for the whole time. They were lining all the streets and the sidewalks.

Q.  I hand you Defendant’s Exhibit 14, tell us what is shown in that picture.

A.  I went back and Kevin Graves was with me when we — this was — this was, I don’t know, maybe an hour later or so. Some time —

Q.  All right.

A.  Because we went back to Harry’s house, and there were some phone calls and things. And then we decided to go back and take pictures of where we were.

Q.  Okay.

A.  I was standing where — where we were being threatened by the police.

Q.  So, that’s where you were standing when they were having the conversation?

A.  Yes.

Q.  That is Defendant’s Exhibit 14, correct?

A.  Yes.

Mr. Wise:  Okay. Thank you, that’s all I have.

The Court:  May I have those pictures please?

The Witness:  (Handing).

The Court:  Mr. Barton.

Cross Examination {p.2-173}

By Mr. Barton:

Q.  About what time do you recall that you got to the airport, Mr. Rudolph, do you remember?

A.  I don’t remember the exact time, no.

Q.  But you came in through Airport Boulevard?

A.  Yes, I did.

Q.  And there were a bunch of cars, as I understand?

A.  Yes, there were a bunch of cars.

Q.  How long did it take you to get from Airport Boulevard to make that right turn; the best you can recall?

A.  Oh, I don’t know, ten —

Q.  You said it was backed up but moving?

A.  You know, I didn’t really say that, but, yeah — you must have meant somebody else. But it was kind of backed up. And there was a lot of cars, but it wasn’t — you know, it wasn’t a standstill.

Q.  Okay. I’m sorry, I may be confusing your testimony with someone else. But the line was moving?

A.  Yes, it was moving.

Q.  And you pulled onto Lexington —

A.  I mean, it was moving slowly.

Q.  You took a right into Lexington Avenue and went up and started looking for parking?

A.  Yes.

Q.  Were other cars turning right? {p.2-174}

A.  Yes, there were. Most of the cars were turning right.

Q.  And there were people walking out from there on Lexington Avenue?

A.  Yes, there were.

Q.  As I understood your testimony, you came back and went back and parked in the regular airport parking lot, I guess?

A.  Yes.

Q.  The short-term, did you say?

A.  No, it’s the long-term.

Q.  Long-term parking lot?

A.  The closest we could get to the — where we wanted to go.

Q.  Okay. And you walked back down Airport Boulevard to this intersection?

A.  Uh-huh.

Q.  And there was still people coming in —

A.  There was still people still coming in.

Q.  — down Lexington Avenue? And as they came down Lexington Avenue, did the police stop them there at that intersection until they stopped traffic and then let people cross?

A.  I don’t recall.

Q.  Okay. As the people came down Lexington Avenue where you were standing, where did they go?

A.  Oh, they crossed to the other side of the road. They came down — they had these, these orange —

Q.  Okay. {p.2-175}

A.  — dividers.

Q.  Okay.

A.  They had these orange dividers and they were blocking off this side of the road.

Q.  Okay.

A.  And so they were walking along and we were standing actually on pavement out here. And it was in the area that was blocked off by the orange safety cones.

Q.  But the folks who were walking down Lexington Avenue, where were they —

A.  They were walking down this same — inside the cones. I mean, there was some on the street, there was cars, some walking on the other side of the street.

Q.  Okay, I guess I’m not being clear. When they got to that intersection, did they cross on across Airport Boulevard?

A.  I don’t recall exactly how they crossed. They did — there was some that crossed, there was a policeman there. I was mostly focused on what was going on with Brett and the police officer, I wasn’t paying that much attention to the people walking.

Q.  Okay. But people were coming and then going somewhere?

A.  Yes, they were walking past us. They were, you know, dressed like you are. They were dressed in various clothing, but they were walking past us.

Q.  Okay. Did you observe a line of people going into {p.2-176} Doolittle Hanger? Did you notice that while you were out there?

A.  There was a lot of people over there, and like I say, I was focused mostly on what was happening in Brett’s circle. They were going over there, and there was a lot of people over there, but they were organizing a line. I was not conscious of that, I was thinking more about what was going on —

Q.  Okay, sure. And so you walked up Airport Boulevard and then — and you were on the terminal side of Airport Boulevard, I think you said —

A.  Yes.

Q.  — as you walked up?

A.  Yeah, the hanger side.

Q.  Okay. The south side of Airport Boulevard. Then you crossed over to that — I think this is south down here.

A.  It was on the hanger side.

Q.  Got it. And when you got to that intersection, you crossed over and joined Mr. Bursey?

A.  Yes.

Q.  And you stood there for a while, as I understand your testimony?

A.  For a short while, until I saw the sign saying —

Q.  And Mr. Rogers was with you?

A.  He was with me, yes.

Q.  And Ms. Sanders was already there? {p.2-177}

A.  Yes, she was there.

Q.  And Mr. Bursey was there?

A.  Yes.

Q.  Then after standing there for a short while, you picked up a sign?

A.  Yeah. It was a very short time, it was less than a minute or so.

Q.  And that’s when the police said, “You can’t stand here with that sign”?

A.  Yes, that I had to go to a free speech zone. They started telling me it was private property and I couldn’t be on private — you know. We argued about whether it was private property while I was still on — on the asphalt.

And then, you know, they would say arrest me, and then we broached another topic. We talked about the signs — proximity of our signs with the other signs that were on the side of the road, and why couldn’t I go back there to my parking spot carrying a sign.

Q.  So, there’s a lot of conversation going on?

A.  A lot of conversation going on.

Q.  Not just by you, but by other people as well?

A.  Yes.

Q.  And other people were having conversations with other law enforcement officers than you were having conversations with?

A.  Yes. {p.2-178}

Q.  I mean, just a lot of talking going on?

A.  Yes.

Q.  But after you picked up the sign and they said, “You can’t stand here with that sign, you have to go to” — what you are calling a free speech zone?

A.  Yeah, that’s what they were calling it, free speech zone.

Q.  That’s what the law enforcement officers were calling it?

A.  Yeah, the woman with the lapel — with the pen on her lapel.

Q.  Okay. And did she tell you where it was?

A.  No, she didn’t.

Q.  Did she direct you — did you ask where it was?

A.  No, I didn’t.

Q.  Okay. Did you have any intentions of going to that place?

A.  No, I didn’t.

Q.  You don’t know where it was and you had no intentions of going to it?

A.  Unless it was closer than what I was. I was there to exercise my freedom of speech, I wasn’t interested in going off somewhere else.

Mr. Barton:  Okay, thank you, that’s all I have.

The Court:  Redirect.

Mr. Wise:  Nothing on redirect.

The Court:  Thank you, sir, you can step down.

Mr. Pitts:  Call Brett Bursey, Your Honor. {p.2-179}

The Court:  All right.

Brett Bursey, Sworn

Direct Examination

By Mr. Pitts:

Q.  Mr. Bursey, would you tell us where you reside, please?

A.  I live on Silverwood Lane in Lexington, South Carolina.

Q.  And have you lived in the Columbia, Lexington area — for how long?

A.  Since 1973.

Q.  And are you employed?

A.  I am employed. I’m the director of the South Carolina Progressive Network.

Q.  And would you tell us what the South Carolina Progressive Network is?

A.  It’s a coalition of organizations around the state that work in various arenas of what I would consider to be environmental and social justice. There’s 54 organizations that are members of our coalition now. It’s statewide and multiracial, multi-issue. And it’s a wonderful thing, it’s nine years old.

Q.  What are some of the organizations? Not all 54 —

A.  Not all 54? AFL-CIO, and we have the National Writers Union and the Communication Workers and unions, environmental groups, we have Environmental Watch, the Legislative Black Caucus is a member, which is the group of black legislators, {p.2-180} and women’s groups.

Q.  All right. Well, what is — what are your duties?

A.  Inasmuch as I am the only staff person that we have, we have a part-time staff person that helps with communication. My duties are everything from helping to create literature, to do research on policy work.

And one of our main goals is to be able to investigate problems in South Carolina as they affect our constituent groups, working people, minorities, women, and to pose alternatives. And those alternatives can be either educational work for the general public or specific legislation that would be suggested, presented to the legislature.

And in the nine years that we have been doing the Progressive Network, we have introduced at least a half a dozen bills that reflect the type of educational work that we are doing, such as the Clean Elections Act, which would reduce the influence of money on politics, a bill to restructure the Department of Health and Environmental Control that would give people more of an opportunity to know about decisions that affect the environment prior to them being made, and other pieces of legislation.

Q.  Have you been with the Progressive Network all those nine years?

A.  Yes, I was involved in the founding of the network. I was — prior to being the director of the Progressive Network, {p.2-181} I was the director of another tax exempt — federally tax exempt organization. That was started in 1978. Then in 1995 that group, The Natural Guard, which was an environmentally social justice organization, got a grant to try and develop a statewide coalition to try and maximize the efforts of these individual constituency groups that were basically one at a time losing their fights.

And we felt that if we were to be able to get together on the things that we agreed on, it would leverage our effect in being able to make positive changes on the social policies that we felt were important.

Q.  As part of your work with the South Carolina Progressive Network in 19 — I’m sorry, in 2002, did you have occasion to know about and attend President Bush’s visit to Greenville, South Carolina?

A.  Yes, sir.

Q.  And would you explain what you did in connection with that visit? A. Well —

Mr. Barton:  Your Honor, I ask for relevance.

Mr. Pitts:  I would be glad to respond that.

What we want to establish is evidence that will go to counter the required proof that Mr. Bursey knowingly and willfully violated the statute in question today.

And the conduct and activities of the Secret Service {p.2-182} agents and other officials in prior visits by President Bush in the very same year, 2002, that Mr. Bush — I’m sorry — that Mr. Bursey was then later arrested, go to show a variance in how they handled that security, and bears directly on his state of mind, and the proof or lack of proof concerning the specific criminal intent that is necessary for the government to achieve a conviction. And we think it’s imperative to be able to be allowed to go into it.

The Court:  It’s only going to be relevant if he was told — when he went to these other events that he was told that he couldn’t protest at a certain spot and had to leave.

Mr. Pitts:  And that’s what we will be showing the court. That’s exactly what it goes to.

Mr. Barton:  If I may be heard, Your Honor. I think what is relevant is whether or not he was told he was in a restricted area, that is what is relevant. And that is what was charged in this statute, not whether you protest or not protest.

The Court:  I don’t know what he’s gong to testify to yet, though.

Mr. Barton:  Well, Judge, he just said it was concerning the protest area, both of which I believe are hearsay. They have to be offered for the truth of the matter asserted or they have no relevance in there. And the fact that he may have been — I mean, Judge, if we start running down {p.2-183} this trail the problem we are running into — you heard the Secret Service say they come in a week ahead of time to set up the security arrangements.

The Court:  It’s going to be different in every place.

Mr. Barton:  And we have no idea what the security arrangements may or may not have been in connection with the Greenville visit. And it’s going to vary — as a matter of fact, it’s apples and oranges, is what the defendant is trying to compare.

There is simply no way you can relate a previous visit with the extensive planning that goes into it. And in addition, who sets up the demonstration area and who is responsible for it in Greenville and what was done in connection with the demonstration area —

The Court:  It doesn’t matter where the demonstration area is, if that’s what you are trying to show.

Mr. Pitts:  Judge, the government has alleged —

The Court:  Is that the purpose of this testimony?

Mr. Pitts:  No, not to show where he is, but to show a context for his frame of mind on October the 24th last year, which is a core issue —

The Court:  I mean, is the effort — is what he’s going to testify to, that he was told he had to move on or he was going to be arrested, and when he refused, they didn’t {p.2-184} arrest him?

Mr. Pitts:  That’s correct. We are going to show that through examples, chronologically 1, 2, 4 — and then 3 happened and he gets arrested. And then in 5 they fold again. And we want to show exactly what their own evidence has shown, is that they are wishy-washy, they are amorphous, they change the rules according to the event.

The Court:  Well, are you telling me his defense is that he didn’t think that he was knowingly in a restricted area and would be arrested if he didn’t leave because he had been told that before and hadn’t been arrested, so he had a right not to believe them when they told him that this time?

Mr. Pitts:  That’s exactly right, Judge. Because that’s the bluff that they do. That’s their bluff that’s been occurring. And in fact, they didn’t arrest him on October the 24th, the government didn’t. That’s precisely — and it connects very much to also our pending contention about the selective prosecutions occurring. That we — we are certainly entitled — I’m just kind of troubled, though, that —

The Court:  So, the defense says that he had a right to expect that he wasn’t going to be arrested because he had been told to move on at other places, and when he refused he wasn’t arrested?

Mr. Pitts:  Your Honor, we are countering the government’s already lack of evidence that there was a knowing {p.2-185} and willful violation of this statute. That’s a — one of the three elements that is in contention here today. This pattern —

The Court:  Because he had a right not to believe them when they told him that they —

Mr. Pitts:  No, because as we think we have already established through the government’s witnesses, there in fact was not a restricted area.

The Court:  Well, that’s a whole — that’s a totally different issue.

Mr. Pitts:  Well, and that’s what Mr. Bursey’s testimony will go to —

The Court:  But what’s that got to do with Greenville?

The Witness:  Your Honor, may I —

The Court:  No, no.

The Witness:  No? I mean —

Mr. Pitts:  Because we are entitled to show if there’s a pattern and practice — that’s what we have asserted —

The Court:  Well, a pattern and practice of what?

Mr. Pitts:  A pattern and practice of trying to convince people who want to protest that they can’t. And they have one choice where they can, which is some remote designated — {p.2-186}

The Court:  Well, you don’t have to show a pattern and practice, you can show that here.

Mr. Pitts:  It wouldn’t be a pattern if it was just this one occasion. You know, Judge, the notion of relevance —

The Court:  You have to show that they did something wrong here.

Mr. Pitts:  And that’s what we are trying to do by showing they tried to do it — you know, relevancy is, make a fact in issue more probable than not. In this set up — and we aren’t going back to other cases, we are going —

The Court:  Well, I know, I know. But what has what he got told in Greenville got to do with the law enforcement coming up to him at the event in Columbia, standing where he was standing, and telling him that was a restricted area and he had to move?

Mr. Pitts:  Because we can show you that when they tried to make that — when they made that representation to him, and he said, “I have my free speech rights, I’m going to stay here,” he was allowed to stay there, which goes directly to —

The Court:  He was allowed to stay there in Greenville.

Mr. Pitts:  Let me finish, please. He was allowed to stay there, which goes to show you, it wasn’t a legitimate security concern. {p.2-187}

The Court:  That wouldn’t show that one bit.

Mr. Pitts:  Why wouldn’t it? If it happens —

The Court:  Because it wasn’t —

Mr. Pitts:  — once, twice, three times —

The Court:  What the security arrangements were in Greenville can be totally different than what they were —

Mr. Pitts:  And that’s the —

The Court:  It depends on the location, where buildings are —

Mr. Pitts:  And that’s for you to evaluate. That’s for you as the court to evaluate.

The Court:  No, we are not going down that road.

Mr. Pitts:  Well, then I would like to, in the interest of time, make a proffer of this testimony for purposes of the record, rather than come back and do it again. If you want to seal it off in your mind — but we —

Mr. Barton:  We can do that at the close of the evidence, Your Honor.

Mr. Pitts:  We have to be able to present this in order to have anything to resemble a fair trial.

The Court:  That is absolutely not correct and I don’t believe that one bit.

Mr. Pitts:  If we establish, as we are going to, a pattern —

The Court:  You have got to establish that he did not {p.2-188} knowingly remain in a restricted area in Columbia to get an acquittal. It doesn’t matter what happened in Greenville.

Mr. Pitts:  Well, I —

The Court:  Even if — if he was in an area in Greenville that was restricted, and he told them he wanted to protest there and they decided not to arrest him and let him do it, it wouldn’t have anything to do with what happened in Columbia. Because he is not charged with anything in Greenville, he’s charged with what happened in Columbia.

Mr. Pitts:  But —

The Court:  And whether or not he’s guilty of this crime is based on what happened in Columbia.

Mr. Pitts:  That’s correct. And whether or not he’s guilty of the crime charged today is made — is made less probable when we show you what’s happened to him in prior events where he was president — I’m sorry, where he was present — we are not talking about some other defendant — where Mr. Bursey was there, what he was told, President Bush was there, proximity to the building, issues around —

The Court:  But that’s not — it’s not up to him or you or Mr. Barton to decide how close people can get to the president.

Mr. Pitts:  That’s exactly right.

The Court:  So, it doesn’t matter how close or how far away people were from the president in Greenville versus in {p.2-189} Columbia.

Mr. Pitts:  But, Judge, in light of what I was arguing to you this morning, it does matter to you as the judicial official who has the responsibility of evaluating the very allegations and assertions that are being made about security.

The heart of our defense is that assertions about security and restrictions are in fact, as applied to Mr. Bursey, a ruse, a pretext for chilling and depriving people of their fundamental constitutional rights.

Now, that may be unpleasant for Mr. Barton to hear, he may disagree with it. And it may not matter what I think and what Mr. Barton thinks, but it certainly matters to our defense. And it certainly matters whether or not we have the basic right to put on a full and complete defense. And it’s very common in courts of law to deal with patterns and practices of conduct which make more or less likely certain events.

The Court:  I will let you ask him a few questions about Greenville. We are not going very far down this road.

Mr. Barton:  Your Honor —

Mr. Pitts:  Well, I would like the opportunity to develop it fully for purposes of a proffer.

The Court:  Well, I might let you do that at the end of the case. Go ahead and ask him a few questions. {p.2-190}

Mr. Pitts:  All right.

The Court:  Maybe you can convince me of its relevance, but I doubt it.

Mr. Pitts:  I think what it goes to also, or additionally, Your Honor, that we are entitled to challenge and contest the credibility of the government’s witnesses, the government’s case. This testimony will do that in ways directly involving a person with firsthand knowledge about it.

I will proceed consistent with your instructions.

By Mr. Pitts:

Q.  Mr. Bursey, did you have occasion to go to Greenville, South Carolina in March of 2002 where President Bush was attending an event?

A.  Yes, sir.

Q.  And did you go in your capacity as part of the Progressive — the South Carolina Progressive Network?

A.  Yes, sir.

Q.  And did you do anything prior to that event?

A.  Yes, sir.

Q.  Did you make contact with the authorities?

A.  I called the Greenville police and ended up talking to their special events coordinator who told me —

Mr. Barton:  Your Honor.

The Court:  All right, that’s — what does it matter what the Greenville police told him, he didn’t deal with the {p.2-191} Greenville police in this case.

Mr. Pitts:  We have heard — the government is trying to argue that Mr. Bursey and these other people don’t care about — aren’t trying to abide by the law. He’s —

The Court:  Well, even if he showed me that he tried to abide by the law in Greenville, that’s not the issue. The question is whether he broke the law in Columbia.

Mr. Pitts:  But the issue —

The Court:  What does it matter what a police officer in Greenville told him?

Mr. Pitts:  Well, it’s going to move beyond the police officer, it’s going to go to the Secret Service.

The Court:  Well, ask him about a Secret Service agent then.

By Mr. Pitts:

Q.  Did you go to Greenville to the Bush event?

A.  Yes.

Q.  Where was it taking place?

A.  At the Palmetto Expo Center in Greenville.

Q.  And this was March of 2002?

A.  Correct.

Q.  Were you accompanied by other people as part of a demonstration protest?

A.  There was approximately 100 people there from different organizations. {p.2-192}

Q.  And did you — where did you move in proximity to the Bush event building or location?

A.  The Secret Service had established a free speech zone behind the coliseum by the dumpsters, and that’s where we were told that we would have to be.

Mr. Barton:  How would he know that?

The Witness:  Because I was told by somebody that represented themselves as a Secret Service agent and somebody in a Greenville police uniform, that’s how.

Mr. Barton:  Which unless he’s a offering that for the truth of the matter asserted — I mean, it’s clearly hearsay. It’s clearly hearsay. And he said somebody represented himself as a member of the Secret Service, he doesn’t know that.

The Court:  Did you go to a free speech zone in Greenville?

The Witness:  No, sir, we refused to go behind the coliseum by the dumpsters, and they left us where we were.

The Court:  Okay.

Mr. Pitts:  And, Your Honor, this other part about hearsay, this is introduced to show the state of mind of the declarant, which we suggest, and we think if you will let us develop, it will show —

The Court:  Is it —

Mr. Pitts:  Let me finish. {p.2-193}

The Court:  He refused to go to the free speech zone in Greenville, so he went somewhere else and they let him stay there?

Mr. Pitts:  Yes.

The Court:  Well, what has that got to do with Columbia?

The Witness:  One of the things, sir —

The Court:  No, no, no, no, you have got to speak through him.

Mr. Pitts:  It seems it has to do with everything, Judge. It has to do with whether or not the assertion that —

The Court:  Well, what does it matter if he refused to go to a free speech zone in Greenville so the {sic: they} let him go somewhere else, what does that have to do with Columbia?

r

Mr. Pitts:  Well, let me ask the court a question. Let me just — there’s an elephant in this room that we have to talk about, and that’s the context that there are — there’s a significant federal lawsuit that has been filed in Pennsylvania.

The Court:  That’s a civil lawsuit.

Mr. Pitts:  I know it is. And it makes the assertion, made by credible officers of the court from New York to California, that in at least a dozen cases that they have documented, that the Secret Service — because the Secret Service is named as a defendant — is shepherding and pushing {p.2-194} people who are trying to exercise their First Amendment right into a so-called free speech zone.

The Court:  Well, that’s a civil lawsuit that has been filed. Has it been litigated?

Mr. Pitts:  No, sir.

The Court:  Has there been any findings in that case?

Mr. Pitts:  No, sir.

The Court:  Well, we are not going to deal with that in this criminal case.

Mr. Pitts:  Okay. But what I do want us to do — I’m just saying that’s the context, I guess to suggest, that we aren’t —

The Court:  You can file a civil lawsuit and allege anything you want.

Mr. Pitts:  But they are officers of the court who are subject to Rule 11 sanctions, we can give some credibility that —

The Court:  Where is that lawsuit pending?

Mr. Pitts:  Where?

The Court:  Where?

Mr. Pitts:  In federal district court in Pennsylvania.

The Court:  In Pennsylvania.

Mr. Pitts:  Yes, sir.

The Court:  And we are in Columbia, South Carolina. {p.2-195}

Mr. Pitts:  I know. And one of the assertions that is made in that lawsuit is that part of that pattern and practice of using security as a pretext to chill First Amendment rights is this case against Mr. Bursey. That’s one of about 12 that’s listed.

The Court:  We can’t litigate that civil lawsuit in this criminal trial.

Mr. Pitts:  I agree. But I’m asking you to let me litigate a defense for Mr. Bursey where he can describe his participation, his being almost victimized by that very same pattern.

The Court:  And he can do that, he’s on the witness stand, and he can describe what happened to him in this case.

Mr. Pitts:  But this case cannot be taken out of the context of the same thing that has happened to him in March, then in August, and then following the next year, to Mr. Bursey himself, when it’s the same very pattern. And if you hear the testimony and you don’t believe it, that’s one thing —

The Court:  Is the pattern that he’s told to go to a free speech stone and he refuses to go? Is that the pattern?

Mr. Pitts:  He’s told that he has to because for Secret Service reasons he has to go to some zone —

The Court:  All right.

Mr. Pitts:  — which is ineffective and far away. And the pretext or the assertion made is that it’s for {p.2-196} presidential security. When he pursues or follows the supreme law of the land, which says, “I don’t accept that, I have got rights to be within a reasonable proximity —”

The Court:  He can make that argument in this case.

Mr. Pitts:  I’m sure in criminal cases you have seen the government —

The Court:  Make the argument. I can’t make a finding in this criminal case based on what may or may not have happened — or is going to happen maybe in a civil lawsuit in Pennsylvania, or even what happened during a presidential visit to Greenville.

Mr. Pitts:  I gave the Pennsylvania example just to set the context, and you can — it’s not what may or may not happen —

The Court:  That’s the same theory you want to argue.

Mr. Pitts:  Yes. But I’m arguing it out of the mouth of a sworn witness, you can believe it or disbelieve it.

The Court:  What I want to hear from out of the mouth of the sworn witness is what happened to him here in this case.

Mr. Pitts:  We will certainly get to that.

The Court:  That’s what I want to hear.

Mr. Pitts:  We will certainly get to that.

The Court:  No, that’s what I want to hear now. I want to hear what happened to him in this case and see what happened, see if his version differs from what the government {p.2-197} witnesses said and find out what his version of the event was. But I don’t know why what happened to him in Greenville is going to make any difference.

Mr. Pitts:  Well, Judge, in criminal cases I’m sure you have heard the government argue pattern and practice of prior —

The Court:  We don’t even know if the same people were involved in Greenville.

Mr. Pitts:  Well, should we proceed to the October 24th first? It doesn’t matter if it’s the same people, Your Honor, it’s the same Secret Service —

The Court:  It does matter if it’s the same people. You have to have the same people making the decisions. Just like he started off talking about whatever some Greenville policeman told him, that’s — there wasn’t a Greenville policeman involved in the case down there.

Mr. Pitts:  If there’s a pattern and practice, it doesn’t have to be the same person that gives the direct information, it can be a policy of the Secret Service.

The Court:  Well, do you have a policy?

Mr. Pitts:  Just one moment.

(Off record discussion between Mr. Bursey and Mr. Pitts).

Mr. Pitts:  I think you asked, do I have evidence of patterns and practice? {p.2-198}

The Court:  You’ve got discovery in the case and you’ve got e-mails from the Secret Service, you’ve got the Secret Service manual, you’ve got documents that reference the contacts between the Secret Service and the local police here, is there any evidence in any of those documents that support this theory you are talking about?

Mr. Pitts:  Not in what they handpicked to hand over to us. I didn’t expect that there would be.

The Court:  There were directed —

Mr. Pitts:  Because we also heard the testimony —

The Court:  They were directed to hand over everything they have.

Mr. Pitts:  I’m aware of that, Judge. But I have been around the track more than once in 30 years, I don’t expect the government to hand over a smoking gun —

Mr. Barton:  You know, Your Honor, I resent that. We turned over everything we were required to turn over to the court —

The Court:  They were asked —

Mr. Barton:  — and I resent that implication.

The Court:  They were instructed by the court to turn over everything they had in this file, and unless you have got some evidence that they didn’t do that and they withheld the evidence, that’s just not a proper statement to make.

Mr. Pitts:  But, Judge, I have got transcripts of {p.2-199} officers, sworn officers, not here —

The Court:  That’s right, not here, and that’s your problem.

Mr. Pitts:  Why does that break the chain if the Secret Service has a national policy — and I can try to show you, as I have tried, and you are not interested, in Michigan and in Pennsylvania where street level cops —

The Court:  Because I want to know what happened here.

Mr. Pitts:  Well, we will get to that.

The Court:  Well, that’s what I want to hear.

Mr. Pitts:  We will move to that. If that’s Your Honor’s instruction, I will move right to that.

The Court:  Okay.

Mr. Pitts:  But I’m just asking for the opportunity to refute an element that is alleged of willful and knowing, and refute the government’s assertion that Mr. Bursey went there with the intent of getting arrested. They make an allegation, if we aren’t entitled to refute it —

The Court:  Well, you have got your witness on the stand.

Mr. Pitts:  All right, Your Honor.

By Mr. Pitts:

Q.  All right, Mr. Bursey.

A.  Yes, sir. {p.2-200}

Q.  Did you have occasion prior to October 24th of 2002 to learn that President Bush would be attending the Columbia Metropolitan Airport?

A.  I learned that the president was going to be at the Columbia airport probably a week before he arrived.

(Off record discussion between the clerk and the court).

Mr. Pitts:  Do we need to break?

The Court:  Well, I’ve got another hearing I’m supposed to be doing but —

(Off record between the court and the deputy marshal).

The Court:  I’m sorry.

Mr. Pitts:  That’s all right.

By Mr. Pitts:

Q.  As a result of learning that the president was coming to Columbia, what did you do?

A.  Well, I discussed the possibility or the desirability of participating — the Progressive Network participating in protesting Mr. Bush’s policies, both foreign and domestic, as they impact the constituents of the Progressive Network. And there was enough interest to do so, and so we planned to organize a presence at Bush’s visit. And I made a call to Major McKinley Weaver of SLED.

Q.  And did you actually get to talk to Major Weaver from the {p.2-201} South Carolina Law Enforcement Division?

A.  I did. I beeped Mr. Weaver and he returned the call. And —

Q.  And do you recall approximately when that was?

A.  It — it was the week prior to the visit. The visit was, I believe, on a Thursday, so it could have been the pre — the prior Thursday or Friday.

Q.  And you spoke with him? What did you say to him?

A.  I did. I talked with him and I told him that we planned to go out to the airport and to protest the president, and that I had reason to believe that the Secret Service would create a free speech zone that would be out of sight and out of mind, and that I wanted to meet with him after — I knew that — see, because I volunteered to him that I figured that the Secret Service would basically preempt any plans that SLED and myself or the other local law enforcement people could make, but that I wanted him to intervene on our behalf. Major Weaver is the community liaison for SLED. This is his job, is to help protect my rights.

And I asked Major Weaver to please communicate that we had no interest in being put in a free speech zone that was out of sight and out of mind, and could we please get together and work out a location that would accommodate their concerns, their legitimate concerns to the president’s physical security, and to accommodate our concerns for being able to adequately {p.2-202} express our free speech.

Q.  Why did you believe that the Secret Service would preempt any planning and resolution of an appropriate place by the local officials?

A.  Well, within the prior six months I have had occasion to deal with local police in both Greenville and Charleston who told me that. There were visits by Bush to Greenville in March —

Mr. Barton:  I object to that.

The Court:  That’s overruled.

Mr. Barton:  Excuse me, Your Honor?

The Court:  Overruled.

A.  There were visits by President Bush to Greenville in March and to Charleston in August. And in both instances I had been talking to local police, and at both locations local police told me that the Secret Service had basically preempted the security arrangements and that they had established free speech zones for us to go to.

The Court:  Hold on.

Judge McCrorey is a nice guy, he’s going to do my hearing for me. We can keep going. Sorry, go ahead.

By Mr. Pitts:

Q.  All right. Did —

The Court:  And I’m going to allow that testimony. And as I understand, he had other events in Greenville and {p.2-203} Charleston where they did the free speech zone too and that his testimony is the local police in Greenville and Charleston told him that the Secret Service told him or told them where to put the free speech zone.

Mr. Pitts:  That’s correct.

The Court:  Now, you understand that’s not the testimony in this case.

Mr. Pitts:  Then I guess it’s part of our proffer for appellate record.

The Court:  That’s not a proffer, that’s in the record, I have allowed it. But I’m just saying, you understand that’s not the testimony in this case from the local police officers or from the Secret Service.

Mr. Pitts:  All right.

The Court:  Okay. All right.

Mr. Pitts:  And I guess just for the — and in this case there was an arrest.

The Court:  Okay.

Mr. Pitts:  And in the other cases there were not.

The Court:  All right.

Mr. Pitts:  All right, sir.

By Mr. Pitts:

Q.  Did Major Weaver ever set up or arrange for you to meet with anybody from SLED?

A.  No, sir. {p.2-204}

Q.  Did you ever get a call back from —

A.  No.

Q.  — from SLED?

A.  No, not after my one conversation with Major Weaver.

Q.  Did any other law enforcement get back to you as a result of that call about the plans for October —

A.  You are talking about October now —

Q.  Yes.

A.  I had to pause because I did have returned phone calls in Greenville. And if we are talking October 24th, Columbia, 2002, after I made my call to Major Weaver and asked for a meeting where we could work out something, I never heard from any law enforcement.

Q.  All right. Did you send any communications out to other people with regard to notifying them about the Bush visit October 24th?

A.  We sent messages to our membership through an e-mail system and a press release to the general public through the media.

Q.  And did you go out to the Metropolitan Airport October 24th?

A.  Yes, sir.

Q.  And would you describe how you went and when you went?

A.  I drove, and I came in on Interstate 26 from the Spartanburg direction, and was surprised — I was closing in on the airport perhaps at 10:15 and the traffic was backed up all {p.2-205} the way onto the freeway, which is five or six miles from the airport. And I was surprised that there were that many people. And it took quite some time to get to Airport Boulevard.

And I went in on Airport Boulevard and turned right on Lexington Drive and —

Q.  Was there traffic on Airport Boulevard?

A.  Bumper to bumper.

Q.  When you entered off of the — was the main highway you turned off of 302?

A.  Correct.

Q.  Were you stopped when you entered onto Airport Boulevard?

A.  No.

Q.  Were you — did anybody check a ticket, make any inquiry of you at all?

A.  No.

Q.  Were they making inquiries of the other vehicles that you observed —

A.  Not that I observed, no.

Q.  All right. Proceed to tell us what happened.

A.  Then I went down Airport Boulevard probably 300 yards and parked on the side of the road.

Q.  On Airport Boulevard or —

A.  Correct.

Q.  — or Lexington? Okay. {p.2-206}

A.  No, excuse me, Lexington Drive.

Q.  You turned right on Lexington?

A.  And then I got out of the car and I —

Q.  I mean, as you turned through that — into that intersection onto Lexington, were there any checkpoints, anybody stop —

A.  There were officers directing traffic. There was a lot of traffic and they were, the best I could figure, determining who wanted to park and who wanted to get to the actual terminal itself, because the road leads to the terminal.

Q.  Which is on our chart — the chart in front of you right now, Government’s Exhibit 1 — would be on down Airport Boulevard west of the Doolittle Hanger?

A.  Correct.

Q.  All right. At that intersection and across and near the hanger, describe what you saw as you drove through.

A.  Well, the traffic was bumper to bumper coming in from 302 on Airport Boulevard. At the intersection of Airport and Lexington, there were large numbers of people that were queued up waiting for traffic breaks to be directed by traffic officers to cross Airport Boulevard. And there were —

Q.  These were pedestrians?

A.  These were pedestrians. And there were a large number of pedestrians lined up along a chain link fence across on the southern side of Airport Boulevard, a chain link fence that ran {p.2-207} from the Doolittle Hanger that runs back towards the main terminal at the airport.

Q.  If you don’t mind, Mr. Bursey, step down and take the pointer that is in front of you and show us the chain link fence that you are describing.

A.  And do what?

Q.  The area of the chain link fence where you saw people lined up?

A.  This chain link fence runs from the Doolittle Hanger up to this area here.

Q.  And is it indicated on that chart, Government’s 1?

A.  It’s a fine black line that Your Honor can probably —

The Court:  It’s running west from the northwest corner of the hanger.

A.  So, I’m driving in on Airport Boulevard, traffic is very slow, a lot of people queued up crossing Airport Boulevard, coming down from Lexington Drive and going and getting in line here.

And then I continue on down Lexington, parked, get out of the car, pick up my signs, my megaphone, and get in line with the people that were waiting to cross over into the area where they were queuing up to go —

The Court:  The line extended all way north of Airport Boulevard?

The Witness:  The line was backed up into Lexington. {p.2-208}

And I stood in line with people and waited for my opportunity to cross the street. And the police were at that point, I took it to be, directional assistance, it wasn’t security.

They weren’t saying, “Are you ticketed? Let me see your ticket.” They were stopping traffic and letting pedestrians cross, much as if you were going to a sporting event, is the way I saw it.

By Mr. Pitts:

Q.  Did you observe when you were walking, after you had exited your car, did you observe any signs on — in the ground area or being carried by individuals?

A.  I did. There were political signs for various republican candidates lining the sides of Airport Boulevard. And the people that were queued up to get into the event, a goodly number of them were carrying signs. The ones that I recall were signs that supported the republican gubernatorial candidate, Sandford, and the republican senatorial candidate, Graham.

Q.  And describe what you did when you reached that intersection?

A.  Well, I waited for my turn to cross the street, and when the police officer —

The Court:  Did you have signs with you at that time?

The Witness:  I had like an armload of signs. I mean, I would assume that my visible appearance, that anyone {p.2-209} could determine that I was a protestor. I had a bull horn over one shoulder and a bundle of signs under another.

And I crossed Airport Boulevard. And when the mass of people that we assumed were going to the event, they were going in further, to queue up, I came across over here where I was trying to figure out where could I get so folks that are coming behind me could see me, so we could get our protest together.

So, I stepped over here into this grassy strip that’s south —

The Court:  We are calling the southeast corner.

A.  The southeastern corner of the intersection of Airport Boulevard and Lexington Drive. And I laid the stuff I was carrying down and was approached fairly immediately by a police officer that I — I’m only inferring was Lexington County, and was told that I had to go to the free speech zone.

By Mr. Pitts:

Q.  And was anybody with you at the time?

A.  I was alone.

Q.  Okay. And did you respond to the Lexington County officer after you were told to go to the free speech zone?

A.  Well, I — I did respond. We had some dialogue. What I do recall basically is that I was like deferring a decision to try and let other folks come, so if we are going to move we could at least do it in a coherent fashion. {p.2-210}

Q.  When you say “let other people come,” who were you thinking about?

A.  Well, the people that I knew that were going to be there. Some of them have been witnesses today, and others.

Q.  Meaning protestors who would be joining you?

A.  Several other protestors.

Mr. Barton:  Your Honor, I’m going to object to the leading. I mean, he can do this without —

The Court:  Try not to lead him too much.

Mr. Pitts:  All right, sure.

By Mr. Pitts:

Q.  Who were you waiting on or who were you sort of —

A.  People that were associated with Progressive Network or our constituent groups.

Q.  All right. Proceed with describing the events as they unfolded.

A.  Well, the Lexington police officer told me that I couldn’t be there. And a woman that I later found out was Secret Service Agent Abel, I didn’t know who she was at the time, came up and reiterated that I couldn’t be there, I had to go to the free speech zone.

And I picked up my material and went back across the intersection to the northwestern corner of that intersection. And there were some construction barrels that lined the side of the road, and they had been forming a pedestrian walkway that {p.2-211} ran back up to Midlands Tech.

And they also were — the barrels were where people were stopping to wait to cross the road. And so it was an effective barrier separating the area north of Airport Boulevard.

And I went behind the barrels. And there was a stop sign at the northwestern corner and I laid my material down at that stop sign, again waiting for my colleagues to show up.

Q.  When you say “behind the barrels,” indicate if you would on Government’s Exhibit 1 what you are describing.

A.  The construction barrels ran along the side of — on this what we are referring to as the western side of Lexington Avenue and around the corner. And so I went through the barricade of the barrels and stood on that side.

The Court:  Just so I will know, is that Defendant’s Exhibit 13 and 14? Is that what that shows?

The Witness:  Yes, sir, that’s exactly the corner.

The Court:  Okay.

The Witness:  And the stop sign would have been about 30 feet back.

The Court:  Okay, all right.

By Mr. Pitts:

Q.  All right. I suspect you are going to still need to stay near the diagram. What took place at that point?

A.  I had been joined prior to crossing the road by a number of {p.2-212} law enforcement people. When I crossed the road, they followed me. The woman I later found to be Agent Abel was getting more strident about her insistence that I couldn’t be there, I had to go to the free speech zone.

And after a few minutes, probably two or three or four, Mr. Rudolph and Ms. Sanders and Mr. Rogers showed up, and we were discussing amongst ourselves what we should do.

I had — in my mind then I was reflecting on the fact that we had just been through similar scenarios in two different cities where they told us the same thing, and that we basically found a place that we felt was out of the way to accommodate their concerns and ours, and they left us there. And I’m volunteering to Agent Abel, “I will go back this way some more, I will move back this way towards Midlands Tech.”

Q.  Verbalize what you are describing —

A.  “I will go north on Lexington Avenue towards Midlands Tech some distance, is that okay? We will move. If we can’t be here, we will move there.”

The Court:  North on Lexington Avenue?

The Witness:  Sir?

The Court:  North on Lexington Avenue, right?

The Witness:  Moving north on Lexington.

The Court:  Right.

A.  And Agent Abel said, “You can’t be anywhere but the free speech zone.” I had — I mean, there was no option, there was {p.2-213} nowhere else I was told, even upon inquiring, that I would be able to exercise my free speech except the free speech zone, which no one — none of the officers in that immediate group knew where the free speech zone was, or communicated that to me. So, I had — I didn’t know what to do or where to go.

By Mr. Pitts:

Q.  And at that point in time were there three other protestors, Jerry, Harry, and Virginia with you?

A.  Yes.

Q.  All right, sir. And then proceed from that point in time.

A.  Well, after several minutes of back and forth — and by that time Amanda and Michael had driven through and we had given them some of the signs —

Q.  When you say “some of the signs,” explain a little more what you are talking about.

A.  The only — we may have given them all the signs except the one that I kept, I don’t — I don’t recall whether Harry and Jerry and Virginia kept the sign or not. But I pulled a sign out of the signs that I had been carrying and we gave the rest of them to Amanda so she could take them to the free speech zone.

And I was standing behind the barrels right here by the stop sign in the northwest corner of Airport and Lexington and Agent Abel —

Q.  I’m sorry. At that point had you picked up the sign? {p.2-214}

A.  I was holding a sign.

Q.  Let me hand you what I have marked as Defendant’s Exhibit 15. Do you recognize Defendant’s Exhibit 15?

A.  I spent the night with it in jail, yes, sir.

Q.  What is that?

A.  It’s a poster board sign that says, “No more war for oil, don’t invade Iraq.”

Q.  And is that the sign that you held that day?

A.  This is the sign that I held that day.

Mr. Pitts:  Your Honor, may we move introduction of Defendant’s —

The Court:  Any objection?

Mr. Barton:  No objection.

The Court:  All right, without objection.

By Mr. Pitts:

Q.  All right. Proceed describing what happened at that point when you had that sign up.

A.  Well, I could tell we were reaching some denouement. I didn’t know what was going to happen, because as I mentioned, I had been in very similar scenarios recently with very similar circumstances and players, being the Secret Service and the local police and President Bush. And —

Q.  Where were those events and when? Just answer that question. Where —

A.  Charleston in August of ’02, and Greenville in August — in {p.2-215} March of ’02.

Q.  And in those events had you been told you can’t be where you were but you could only go to a protest zone?

A.  Correct.

Q.  All right. Proceed with what you did.

A.  Well, I — I did not go to the airport that day with the intention of getting arrested. As a matter of fact, I had every reason to believe I would not be arrested based on the past conduct of the Secret Service and local police during President Bush’s visits. I had no prior notion to believe that I would be arrested.

And as the encounter is reaching some point where they keep saying that “Leave or be arrested. Put your sign down or leave or be arrested —”

Q.  Who said that to you, Brett?

A.  It became — several of the police officers. The one that I can really remember was the arresting officer, Officer Campbell. Because I asked him to repeat what he was telling me loud enough where other people could hear it, and I wanted to make exactly sure what I was hearing.

And so I heard Agent Baker say, “Whose property is this?” Or Agent Abel, excuse me, the Secret Service lady, “Whose property is this?”

Someone responds, “The airport’s.” She said, “Get me an airport policeman.” A minute or so later Officer Campbell, {p.2-216} airport policeman, arrives, and Agent Abel instructs him to arrest me.

Officer Campbell walks up to me —

Mr. Barton:  Your Honor, I’m going to object to that, ask that be stricken. I mean, how — that’s got to be hearsay. She instructed him to —

The Court:  No, I’m going to allow that.

Mr. Barton:  Okay.

The Witness:  And Officer Campbell comes up to me and —

The Court:  That’s something that you say you heard?

The Witness:  Yes, sir.

The Court:  Okay.

A.  And Officer Campbell comes up to me and he says, “Sir, you are going to have to leave, put the sign down or be arrested.”

I said, “I can stay if I put the sign down?”

And he said, “Yes, sir.”

I said, “Sir, is the problem the content of my sign?”

He said, “Yes, sir.”

And I said, “And you are going to arrest me for what?”

And he said, “Trespassing.”

By Mr. Pitts:

Q.  And what were you thinking at that point, Brett?

A.  Well, I was thinking that I was probably the only one in {p.2-217} the crowd that knew what Hanapole versus Cobb was.

Q.  And what is Hanapole versus Cobb?

A.  It’s a Supreme Court ruling in 1971 that resulted from when some students went to the airport, the Columbia Metropolitan Airport, at a location within 200 yards of where I was standing at that very minute to protest the war in Vietnam when Richard Nixon came to town. Circumstances very similar.

Q.  You said Supreme Court, was that U.S. or South Carolina?

A.  The South Carolina State Supreme Court in — a handful of students were arrested for trespassing on public property, and I was one of those students.

And so I was very aware of the fact that the Supreme Court of South Carolina had ruled that that policeman could not arrest me, standing where I was, doing what I was. I knew that as certainly as one can know anything about the law and that I knew that the State Supreme Court had made that ruling.

And so, I had to weigh those things. I mean, I’m saying, “Am I going to let this cop tell me to do something that I know is wrong?” And I looked over — excuse me. And Virginia is crying.

And I’m thinking, “I know this is wrong, and if everybody backs up, if everybody is intimidated by the police, what on earth is going to come of our country?” And I said, “No, I can’t leave, I’m standing here.” And I told the officers, “You do what you have got to do, I’m going to stand {p.2-218} here.”

And I do believe I was polite, my voice was level, I never — I argued with them because I thought they were wrong, I thought they were making a mistake.

My interest was not in getting arrested, my interest was making my point to my government that I feel very strongly is making very bad policy decisions, and it’s my responsibility as an American to speak up.

Q.  Had Harry left the area at that point? Could you see Harry?

A.  He was still within my immediate range of vision because I — after I told the officer to do what he had to do, he handcuffed me with my hands behind my back and took me across Airport Boulevard to a paddy wagon, and I saw Harry peripherally at that time.

Q.  At that point, when you were told you would be arrested for trespass and the cuffs were put on you, describe what other individuals at the scene that you saw around you, both on the north side of Airport Boulevard and on the hanger side of Airport Boulevard?

A.  Well, I was arrested here behind the barrels right by the stop sign on the northwest corner.

Q.  All right.

A.  And handcuffed there.

Q.  All right. {p.2-219}

A.  And Virginia and Harry and Jerry had been dispersed, they were — they were leaving. And the police brought me across Airport Boulevard and there was a paddy wagon parked here. And I recall very distinctly saying some — probably something fairly inane to the people that were in line about their civil rights being threatened.

And they were — the paddy wagon was parked here and there were people queued up as close as from me to the wall, all the way down to here, and all the way back here, running down to Doolittle Hanger, which I believe is 200 yards, and back this way, many of them holding signs that were expressing their support of the republican candidates.

And they put me in the paddy wagon and drove me to — I can’t quite tell where I was. They had a police area where all the police cars and the extra police were, and they drove me there.

And I know it was somewhere in this area, because I saw the president about — I was probably in the paddy wagon for probably 25 minutes before I saw the president’s motorcade come into frame and him go into this building here.

Q.  Let’s go on back just a few minutes in time when you were back on the north side of Airport Boulevard and being told by Officer Campbell that you would be arrested for trespass if you didn’t either leave or put the sign down. Did anybody advise you that you were facing any federal criminal charges? {p.2-220}

A.  No, sir. It was real clear that I — I interrogated the arresting officer and he said I was going to be charged with trespassing on airport property.

Q.  Did you have any intent at that time to violate a federal criminal statute concerning a restricted zone for the president?

A.  It didn’t cross my mind. I was unaware of such a statute or that I was liable of violating it.

Q.  Did you have any willful mental intent to disregard or disobey any law that was a legitimate law at that point?

A.  No, sir. I think I had done everything a responsible citizen could do. I mean, I communicated with the police, I already said, a week before. And I did not go there with any intent of being arrested.

I did not willfully and knowingly enter into an area that I have heard today was a federally restricted zone. I was unaware of the fact that it was a federally restricted zone.

Q.  And prior to being confronted by the officers, which I will include the Secret Service officer, in the grassy area on the hanger side of Airport Boulevard, had you been screened or checked for tickets?

A.  No, sir.

Q.  Checked for I.D?

A.  No, sir.

Q.  Had you been told as you entered any of the — and you were {p.2-221} here yesterday and heard the area described as the restricted area, beginning at 302 —

Mr. Barton:  Your Honor, this is outrageous leading. If he could just ask a simple question. He’s leading badly, I object.

Mr. Pitts:  I will rephrase.

The Court:  Just rephrase it.

By Mr. Pitts:

Q.  Mr. Bursey, you were here yesterday for the trial and you heard the Secret Service Agent Abel and Lieutenant Baker describe what they called the restricted area for that day?

A.  Yes, sir.

Q.  When you crossed the lines that they described yesterday, did anybody check you?

A.  No, sir.

Q.  I.D. check?

A.  No, sir.

Q.  In the area that they were describing yesterday as a restricted area, when you crossed that did you see any posted area marked, anything that posted — that physically posted that area?

A.  No, sir.

Q.  Did you see anything that physically cordoned off that area?

A.  The construction barrels? {p.2-222}

Q.  Well, no, that set aside and demarked the area that was described yesterday by the agent as the restricted area, restricted for presidential security.

A.  No, sir, there was nothing that would have indicated the demarcation of the outside perimeter of the area that I understood Abel and Baker to refer to as the restricted area.

At that time, that day, those construction barrels gave the impression of having something to do with crowd control. But since those construction barrels are still there a year later, I have since come to believe that they were only there for the construction project that was going on.

Q.  All right. Now, I asked you about was it posted and I asked you was it cordoned off. Let me use the other term in the statute, was there anything to indicate that the area that you heard described yesterday as a restricted area, was, quote, “otherwise restricted”?

A.  No, sir.

Q.  All right. The —

Mr. Pitts:  Judge, what I would like to do now is go into the presidential visit that occurred —

The Court:  Well, he testified —

Mr. Pitts:  I’m going to go back to the March and August, Charleston, Greenville —

The Court:  He testified that at one point that Charleston some time another and Greenville in March of ’02 had {p.2-223} been similar situations, had been told that he couldn’t be where he was, and that he had to go to free speech zone, and that — I’m assuming something else happened there that did not happen here. I will let you —

Mr. Pitts:  Can I try this?

The Court:  I will let you ask him some questions about that to establish his state of mind because you have to show intent here.

Mr. Pitts:  Yes, sir, all right.

The Court:  If you can restrict yourself to that.

Mr. Pitts:  I will. I will try to say it slowly and we will see what Mr. Barton thinks and what the court thinks.

Mr. Barton:  Say it as fast as you want to.

By Mr. Pitts:

Q.  Compare the distance that you were from the hanger on October 24th when you were arrested to the distance you were from the site of the president’s visit in Greenville in March of 2002?

A.  March of 2002?

Q.  Yes, sir.

A.  To October 2002?

Q.  Yes.

The Court:  I will let him answer that. I don’t really know what that has to do with anything. What I’m more interested in, is he had said earlier that — I think when the {p.2-224} agents came up and told him that he would have to move —

Mr. Wise:  Can I approach counsel real quick?

The Court:  You know where I’m going with it?

Mr. Wise:  I believe —

The Court:  Well, he testified, based on what had happened earlier, that he thought something may or may not happen. If it goes to his state of mind, I will let him testify about it. I mean, it doesn’t matter how far away he was, because at different venues the Secret Service may decide different lengths could make a difference.

Mr. Pitts:  All right.

The Court:  You want to try and establish his state of mind, I think is what you are looking for —

Mr. Pitts:  Yes.

The Court:  — of a knowing violation.

Mr. Pitts:  Sure.

The Court:  Okay.

By Mr. Pitts:

Q.  Brett, go back to your state of mind and what happened March 2002 — which was Greenville, correct?

A.  Yes, sir.

Q.  Was there any reasonable accommodation worked out on the date of that visit —

A.  Yes, sir.

Q.  — between you and the security official? {p.2-225}

A.  Between me and the Greenville police.

Q.  All right. And what was that?

A.  Well, I had exchanged correspondence with the Greenville police advising them that we were going to be there, and requesting the use of a piece of the parking lot, the edge of the parking lot that had grass in it that was maybe 300 feet from the door of the center that the president was speaking at.

Q.  300 feet or yards?

A.  Feet.

Q.  All right.

A.  And the day of the event, when I arrived, the lieutenant, the Greenville police lieutenant came up and he said, “You can’t be here.” We were unloading the vehicles, we had some chairs and tables and some signs.

And the Greenville lieutenant came up and said, “You can’t be here. The Secret Service says you have to be behind the coliseum.” And I argued with him for a little bit and he said, “Well, okay,” and went away.

Q.  All right, good.

A.  And so the —

Q.  That’s okay. You remembered — did you remember that on October the 24th, 2002?

A.  Surely.

Q.  All right. Now, let’s move to the August/Charleston event.

A.  On the day of the event I was — Becky and I were the first {p.2-226} people there, and I distinctly recall it being the hottest day I experienced maybe ever.

And by shortly after 10 o’clock it was — the president was speaking at a noon luncheon at the Charleston — North Charleston Coliseum. And when I got there, analogous to the situation in Greenville, I began setting up our equipment in a place of my choosing that was in a little park under some trees.

And the police came and said, “You can’t be there, you have to be in the free speech zone,” which they pointed to and I could see, and it was behind the coliseum by the dumpsters.

And it was a box of saw horses they — perhaps a 30 foot square box that had been made by saw horses in the middle of a black top parking lot on a day that it got hotter than it had been in years, if not decades, in South Carolina. I know it was over 105 without the heat index.

And I told the officers that I had — that there was no way that I could and would subject the people that I work for to standing in the middle of a blacktop parking lot on the hottest day of the year to express their free speech. And that thank you very much, but we are going to sit up in this park right here, which was less than 300 feet from the entrance that people were going into the North Charleston Coliseum. And they — {p.2-227}

Q.  Is that where President Bush was going to be speaking?

A.  Yes.

Q.  And did you say 300 feet or yards?

A.  300 feet.

Q.  All right.

A.  And they threatened to arrest me. And the arguments went back and forth to a point that we had, oh, probably 40 or 50 people there. And the police decided that they would move the free speech zone. They left us where we were in the park under the trees and went and got the saw horses and moved them and surrounded us in the park with the saw horses. And so the free speech zone came to us in that instance.

Q.  All right. Did you remember that Charleston incident on October the 24th, 2002?

A.  Distinctly.

Q.  As a result of those prior experiences, what did you think when you were told you had to go to some distant free speech or demonstration area? On October the 24th, what did you think?

A.  I thought that calmer rational minds would prevail and that I could work something out with the local authorities to allow us to be somewhere we felt was an effective venue for our expressing our freedom of speech.

Q.  All right, sir. Was there — in the spring of 2003, this year, was President Bush planning to again visit Columbia, South Carolina? {p.2-228}

A.  Yes, the president spoke at the university commencement.

Q.  All right. Did you participate in making or working out —

The Court:  Anything that happened after October 24th wouldn’t have gone to the state of mind on October 24th, so I don’t —

Mr. Pitts:  I agree with that, but I would like to be allowed to probe this area for showing the practice, the pattern and practice of the Secret Service agents. I agree that it is post his arrest or it wouldn’t go to his state of mind on October 24th, but to show the pattern, actually, and involvement — it’s a chance to be — to say something positive here, an evolvement of that process.

Mr. Barton:  Your Honor —

The Court:  I will take judicial notice I think the free speech zone was across the street from the coliseum —

Mr. Pitts:  And then — and if we could take —

The Court:  When he came to speak to the graduation you are talking about?

Mr. Pitts:  Yes.

The Court:  I think it was across the street from the coliseum.

Mr. Pitts:  I think that’s fair enough judicial notice, but what I think might be useful to amplify is how did that circumstance come to be. There were events occurring behind the scene that Mr. Bursey was involved in that took that {p.2-229} from a place where it was not going to be that kind of proximity and reasonable access and it moved forward. And then just so that you know —

The Court:  Well, now, I think that would go to his credit if he was able to work something out with them. But I don’t know how it would go to his state of mind on October the 24th is the problem I’m having —

Mr. Pitts:  Well, I guess I would just submit, and you can rule, that these subsequent events in showing that there was a reasonable compromise worked out gives credibility to the belief that he is testifying that he held on October the 24th.

And just so you know where we would like to go, Mr. Bursey wrote a letter, which I would like to hand up to the court that’s been marked as Defendant’s — and we will do it for identification, Defendant’s Exhibit 16.

The Court:  Those describe the events at the coliseum in Columbia?

Mr. Pitts:  No, sir, this moves to the event in Greenville with President Bush Monday of this week, where an arrangement was made — a letter from Mr. Bursey confirming his efforts to make arrangements that satisfied the authorities. And in fact it was accepted and such a compromise took place.

And as I understand — we could hear from the witness — there were no efforts to then push people into a {p.2-230} free speech zone. If I could just let you see that, I will show a copy to Mr. Barton.

Mr. Barton:  Can I have a standing objection to all of this, Your Honor? I mean, a compromise indicates there are two people involved.

The Court:  I know it.

Mr. Barton:  And he can talk about it from one side, but we don’t have the other party here, Your Honor. I mean, this is a —

Mr. Pitts:  We can certainly provide testimony as to what Mr. Bursey did in Greenville, and the proximity he was allowed to the site of the president’s visit, which would then indicate —

The Court:  I will take this as a proffer exhibit. Have you got one more that Mr. Barton has?

Mr. Pitts:  He has.

The Court:  What is that, Defendant’s what?

Mr. Pitts:  16. Did I write 16?

The Court:  What’s the other one?

The Witness:  It’s the same thing.

Mr. Pitts:  It’s a copy of that.

The Court:  Oh, they are both the same — all right, I will take this as a proffer. I don’t want any testimony about what happened post October 24th.

Mr. Pitts:  Okay. All right, just one moment. {p.2-231}

I don’t have any other questions, answer any that Mr. Barton might have.

The Court:  Mr. Barton.

Mr. Barton:  Your Honor, we have been going two hours, could I have — you knew this was coming. I’m sure even the witness could use a break.

The Court:  I’m the coffee drinker, and y’all are the ones having to get up and take a break. Okay, we will take a break. It’s a quarter after 4, we will come back at 4:30.

Mr. Barton:  Thank you, Your Honor.

(Short recess)

The Court:  All right.

Cross Examination

By Mr. Barton:

Q.  Mr. Bursey, I believe you said — testified that while you were dealing with these issues that arose on October 24th, from contacting SLED to dealing with the police out there, you felt like you had done everything a responsible citizen could do; was that your testimony?

A.  Yes.

Q.  And when did you become this responsible citizen where you would conduct yourself in that way?

A.  14.

Q.  At age 14?

A.  Yes, sir, I think so. {p.2-232}

Q.  Well, tell the judge, if you will, all the times you have been arrested for —

Mr. Pitts:  Objection, Your Honor. I think you know where we are going and it’s not relevant. You know what we are talking about.

The Court:  What’s the relevance?

Mr. Barton:  He has — he put into evidence, by his testimony, that he is a responsible citizen. He did everything a responsible citizen could do —

The Court:  I will take judicial notice of his record.

Mr. Barton:  Okay.

By Mr. Barton:

Q.  Okay, let’s talk about everything that you as a responsible citizen did in preparation for this visit. Tell me. You said you had done everything, tell me, begin at the beginning.

A.  Well, the beginning of this particular instance would have been my call — we are referring to —

Q.  October 24th.

A.  2003?

Q.  2002.

A.  Or ’02. I believe my responsible actions began with a phone call that I made to the State Law Enforcement Division advising them of the organization I represent, our desire to have a peaceful protest when the president came to town. {p.2-233}

Wanted to let them know we wanted to do that and volunteered to work with them to accommodate their concerns.

Q.  Okay. That was the first thing, roughly — you might have — we won’t worry about timing, but as you recall, that was the first thing you did as a responsible citizen to deal with this situation?

A.  I would say within a matter of a day or an hour, one way or the other, there were discussions that I was a party to about our responsibility to raise the issues that we care strongly about —

Q.  Okay.

A.  — during Bush’s visit. Because it was basically, Mr. Barton, I would say like an internal responsibility to ourselves, our values, our organization, and an external responsibility to civil society as represented in this instance by the state police.

Q.  Okay. And you have known Major Weaver a long time, haven’t you?

A.  Yes, sir.

Q.  And is that why you contacted him?

A.  It’s Major Weaver’s job to be contacted by people in the community. He’s the community liaison.

Q.  And what did he tell you to do?

A.  He told me he would get back with me.

Q.  Okay. And you do not recall him telling you to contact {p.2-234} Agent Tamara Baker up at the airport?

A.  No, sir. I believe there was reference by Agent Baker to a subsequent phone call that I — I don’t recall ever being made. I’m certain that if Major Weaver told me to talk to Tamara Baker that I would not only have remembered that but done it.

Q.  Okay.

A.  I did not get a call back from anyone from SLED.

Q.  So, about a week before the visit you called Major Weaver and asked him — or expressed your intentions and your plans, about a week ahead of time?

A.  Yes, sir, I believe that’s right.

Q.  And you did nothing to talk with any other law enforcement agency from that point until you showed up out there on the 24th?

A.  That’s correct.

Q.  And I believe you said you were waiting on a phone call back?

A.  Anticipating that someone would get back in touch with me, yes.

Q.  And that never happened?

A.  Correct.

Q.  And you didn’t call — and you undertook no phone calls yourself to find out what was going on with the demonstration area and what reasonable accommodations you could make with law {p.2-235} enforcement to protest out there?

A.  I had more reason than not to believe that at that event, October, when the president came to town, that the circumstances would be similar to his two prior visits, where it doesn’t matter what you discuss with the local police or the state police, the Secret Service comes in and preempts it.

With that understanding, other than notifying SLED that we were going to be there and wanted to try and reach some accommodation that would satisfy everybody’s concern, I didn’t see any need or that it would be productive to discuss the issue with local police once the Secret Service had preempted the control of the event.

Q.  So, why did you call them in the first place?

A.  It’s a matter of routine. I think it’s good — good public policy for me not to — I have no — no benefit, no intention or no need to sneak up on the police.

Q.  Why did you call them — I’m not sure I understand your answer. If you knew — you knew the Secret Service was going to come here with President Bush, right?

A.  Correct.

Q.  And so you knew at the time you were dialing the phone to Major Weaver that no matter what you talked about with him made no difference, the Secret Service was going to do — might very well do something different?

A.  Probably. {p.2-236}

Q.  Why didn’t you call the Secret Service?

A.  Why didn’t I call the Secret Service?

Q.  Right. They are in the phone book, do you understand that?

A.  I really would much prefer to deal with somebody that I know, somebody that is local, somebody that has some sense of responsibility in the community, and that’s why I called Major Weaver.

Q.  Right. But why didn’t you — is that why you didn’t call the Secret Service, you don’t know anybody at the Secret Service?

A.  My dealings with them have been unpleasant.

Q.  Well, again, they are the ones who are making these decisions out there, according to you.

A.  Correct.

Q.  And did you ask Major Weaver, “Put me in touch with somebody at Secret Service”?

A.  I asked Major Weaver to do that work for me. I asked Major Weaver in his capacity as the community liaison for the State Law Enforcement Division to have a discussion with the people organizing the event, including the Secret Service, to let them know that we do not want to be put in a free zone speech box that was out of sight and out of mind, I made that real clear. And that I was trying to get Major Weaver to take an affirmative role in doing that intervention for me.

Q.  Okay. {p.2-237}

A.  I felt that Major Weaver would have a greater degree of success in communicating with the Secret Service and talking to them. And Major Weaver, as you just pointed out, has known me for a long time, and I do believe that Major Weaver, as well as Chief Stewart at SLED, if asked, they would say that I’m a responsible party and that they have good working relationships with me in the past.

Q.  I guess we will never know that, Mr. Bursey. So, for the next six on or seven days —

Mr. Pitts:  Your Honor, I object to that little snide comment and ask —

The Court:  Keep your questions directed to the witness.

Mr. Barton:  Thank you, Your Honor, I will. I apologize, Your Honor.

By Mr. Barton:

Q.  So, for the next six or seven days, from the time you made that phone call until you went out there on October 24th, you had no idea what, if anything, Major Weaver was doing for you?

A.  Correct.

Q.  Not — you did not know if he was intervening on your behalf with the Secret Service or anyone else?

A.  Correct.

Q.  And were you aware that there was a policy at the Columbia Metropolitan Airport about demonstration areas and requiring a {p.2-238} permit to demonstrate?

A.  I’m aware of state statutes regulating as much as they do, assemblage and picketing, egress and access. I was unaware that — and I’m still not aware of the airport policy inasmuch as I haven’t seen it. I have heard the officer testify that one existed. I do not know if it is any more limiting than the state policy, so —

Q.  You were not aware that the airport had a demonstration policy that required a permit to picket on airport property?

A.  That is correct.

Q.  Okay. Did you make any inquiries of the airport about such an arrangement?

A.  No, sir. I take the airport to be public property, and based on the Supreme Court ruling of Hanapole versus Cobb, I understand that I have a right to go and stand on public property and express my views.

Q.  Right. And do you believe that there are no reasonable time, place, and manner restrictions that can be placed on demonstrations on public property? Is that your understanding of the law?

A.  No, sir, I do understand reasonable time, place, and constraint. And I would have let whoever was organizing this event know that we were standing by to try and reach some reasonable accommodations on time, place.

Q.  Who was that person? {p.2-239}

A.  That was — my liaison with the Secret Service, Mac Weaver.

Q.  And did he tell you he was going to be your liaison or did he tell you he would get back in touch with you?

A.  All I know — no, no, Major Weaver did not communicate back with me. But we do know as a matter of record from the things that you have given us that Major Weaver did bring up that conversation with the people that did meet with the Secret Service.

Q.  Okay.

A.  So, yes, the points that I made with Major Weaver did make it into the discussion with the Secret Service, they chose to ignore it.

Q.  The points you made were that you intended to come out there to demonstrate, correct?

A.  Yes.

Q.  And based on the information you got from me, that’s the only thing that was conveyed, “Mr. Bursey intends to come out here to demonstrate”?

A.  I don’t have the letter in front of me now, I will stipulate that.

Q.  The other events you have been to, you had written, I believe you said, correspondence to these folks about your intentions and what you wanted to do; is that right?

A.  In some cases. {p.2-240}

Q.  How do you decide when you are going to do that and when you are not?

A.  I don’t recall there being a decision when or when not to, I think it’s probably more a product of what other irons I have in the fire at a given time. And letting — advising the police that we are coming is something I do as a matter of routine.

Initiating specific written correspondence is something I do at an instance like the recent — the most recent, this week, event in Greenville when I wanted to make it real clear to the Greenville police the criteria we expected them to apply to protestors in the general public.

And I cited in the letter the reference page of the Secret Service manual that we got in discovery from Mr. Barton that says that the Secret Service doesn’t make a distinction between protestors and the general public. And so I put that in writing and sent that to Greenville recently.

If it’s no more than just giving notice that we are coming, I would be less inclined to actually put that in writing.

Q.  But you did more than just give notice that you were coming to the Columbia Airport on October 24th in your conversation with Major Weaver?

A.  Well, yes. I told him that we were coming and did not want to be put in a box somewhere. {p.2-241}

Q.  But during that six or seven days, after the phone call to Major Weaver asking him that you be allowed as a responsible citizen to work out these arrangements for an appropriate — in your mind an appropriate area to demonstrate, as those six or seven days are passing and you have heard nothing back from anyone, you don’t think to write a letter or to convey any further information to law enforcement until you show up out there on October 24th?

A.  That’s correct.

Q.  But you have done so in other instances; is that correct?

A.  No. There have been — I can’t recall any instances when there were multiple communications other than the initial contact. The letter that you took as the proffer is the example of the one time communication, “Here we come, this is what we expect, we are looking forward to working with you.” And then what flows from that generally is a phone call from some responsible party that we can work with.

Q.  So, you do have more than one communication?

A.  One written communication. In some instances, followed in some other instances by a telephonic communication by a responsible party that takes our offer to work with them, as in the Greenville situation this Monday, where the Greenville police officer lieutenant called and told me, “There will be no free speech zone when the president appears in Greenville Monday, and the protestors will be treated as the general {p.2-242} public.”

And I took that to be an acceptance on the part of the Greenville police, at least, if not the Secret Service, that they were going to follow their own rules.

Q.  Mr. Bursey, when you went out to the airport that day, did you believe that there would be a designated demonstration area?

A.  I — yes. If you had — if you had pulled me aside and asked me that question at that minute, I would have reflected and said, “Yeah, you are probably right.”

Q.  Okay. And what did you do to determine where that designated demonstration area was before you began your demonstration there at the corner of Lexington Boulevard — Lexington Avenue and Airport Boulevard? What did you do as a responsible citizen before you got there to determine where that location was?

A.  Other than my communication with Major Weaver, I had none until I got there, anticipating that there would be one and I would be directed to it.

Q.  Okay. And you had — is it in fact true that you had determined before you got there that that had to be, in your mind, somewhere close to that intersection?

A.  No. I had determined in my mind that it needed to be somewhere that our effort to express our just grievances to our government were tangible and meaningful and not hidden away. {p.2-243}

Q.  Okay. And the corner of 302 and Airport Boulevard, where the demonstration area was located, virtually every car and every attendee of the event on October 24th would have driven by that corner, correct?

A.  302 and Airport?

Q.  Airport Boulevard. Where the chief of the airport police said had been designated as a demonstration area, virtually every vehicle that had driven —

A.  No. The chief of police never told me that. As a matter of fact, the officers that told me to go to a free speech zone did not know where — they didn’t know where to go. I was being told to go somewhere without giving the instructions and directions as to how to get there.

Q.  And your testimony is no one out there that day on October 24th could direct you to where the airport — where the designated area was at Airport Boulevard and 302?

A.  I think the record reflects that there were multiple places, multiple sets of directions and confusion. And the answer to your question is, yes, I don’t believe there was anyone out there that could have competently directed me to an area in which I could have expressed my free speech adequately.

Q.  Okay. I will go a little further, that wasn’t my question.

A.  All right.

Q.  Try and listen to me. Is it your testimony that no police officer out there that you dealt with gave you any instructions {p.2-244} or direction as to where the designated free speech, demonstration area, whatever you want to call it, was at Airport Boulevard and 302?

A.  Yes.

Q.  No police officer gave you that instruction?

A.  Yes, sir, no police officer gave me that instruction.

Q.  And what if they had? What if they told you, “That’s where the demonstration area is,” what would you have done? I’m over here, Mr. Bursey. What would you have done if they said, “That is where the demonstration area —”

Mr. Pitts:  Your Honor, I object —

The Witness:  It’s a hypothetical, Your Honor.

Mr. Pitts:  I object to the relevance of what would he have done if somebody had said something to him. It’s sheer speculation at this point.

Mr. Barton:  What he would have done is about all we got on direct examination from this exhibits. I think I’m entitled to find out what — particularly since there is substantial evidence here that he was told where it was, I want to hear what — from this defendant, what he would have done had he been told that.

The Court:  I will allow it.

A.  Could you please cite me this evidence? You don’t have to cite all of it, you said there was substantial evidence that I was told where it was. Refresh my memory. {p.2-245}

By Mr. Barton:

Q.  Answer my question, Mr. Bursey. What would you do, what would you have done out there that day had a law enforcement officer said, “Mr. Bursey, the demonstration area is there at the corner of Airport Boulevard and 302, right there where you turn in, over on the right-hand side, that’s where the demonstration area is”?

A.  It is quite conceivable if the police had been that polite and that communicative and that clear and that interested in my being able to express my rights, they would have given me the opportunity to meet with my colleagues, we would have been able to discuss it, understand where we were going and actually get there, we may well have done that.

Q.  Gone down Airport Boulevard, out of sight at the Doolittle Hanger?

A.  Sure.

Q.  Okay. And is it your testimony that — I’m sorry, let me start again.

You didn’t do those activities, do what the police told you to do in regard to Greenville and Charleston, I believe? I believe you said they came out and told you you had to go to this particular area, and you refused to do it in those instances; is that correct?

A.  That is correct.

Q.  And that was because that wasn’t close enough to the venue {p.2-246} of the president, right?

A.  That was the prime motivating factor. The one in Charleston was a matter of the health concerns on an extremely hot day, that had something to do with it.

Q.  But here in Columbia, on this particular day, when you have ended up charged federally, you are telling this court that on this particular day you would have gone over a half a mile away from the venue of where the president was going to be?

A.  I believe the way you phrased the question is, would I have gone.

Q.  Correct.

A.  As a hypothetical.

Q.  Correct.

A.  Hypothetically, yes, I would have gone. I could construct a circumstance that would have led us to be on that corner.

Q.  What is that circumstance?

A.  The circumstance would have had to do with us being able to have an area where we could gather and decide where we were going. The area wasn’t marked. People got all the way into the mess there around the Doolittle, and some people parked, some people couldn’t find parking.

By the time we were individually and separately confronted with going to a free speech zone, which was in different locations, it was easy for us to get the impression that the police were not really working with us in good faith {p.2-247} to be able to accommodate our legitimate expression of our civil liberties at a free speech zone that we could even find if we wanted to.

Q.  All of which you could have resolved prior to going out there if you had put out a little more effort as a responsible citizen to deal with —

A.  I don’t think —

Q.  May I finish my question?

A.  Yes.

Q.  — to deal with law enforcement to find out where the location was?

A.  All right. I don’t think it’s my responsibility. I let them know as a matter of courtesy that we intended to come and that we wanted to work with them. I do not adhere to any notion that I have to have permission to exercise the rights that are part of my American citizenship.

And I do believe that I am — I’m aggressive and forceful in doing that. I also believe I am reasonable. And I don’t think — as evidenced by the fact that in those two visits you referred to where we refused to go, nobody got arrested. Everybody was happy. Things came along fine.

Q.  Okay. Do you know of your own personal knowledge in Greenville who established the demonstration area? Of your own personal knowledge, who established the demonstration area? Do you know of your own knowledge? {p.2-248}

A.  In which —

Q.  In Greenville.

A.  At which event in Greenville? There was one March ’02, and —

Q.  March ’02, prior to this particular event.

A.  I dealt first with the chief of police, there was a Lieutenant Johnson — no, Captain Johnson. He referred me to his special events coordinator that I had conversations on the phone with and met the day of the event at the venue.

The Court:  Now, these are people that told you where it was. I think the question was, “Do you know who established —”

The Witness:  Well, the lieutenant that I met with at the venue told me that the Secret Service said we had to be behind the coliseum.

By Mr. Barton:

Q.  Let me ask you again, do you know of your own knowledge, other than —

A.  No. Other than the lieutenant telling me that I — I mean, I saw him talking to Secret Service people, they were the people with the little things in their ears, the dark suits, and looking very important. And they were standing there talking to this guy, sent him over to us to tell us to move. We dialogued. The lieutenant shrugged. And he says, “I will tell them.” {p.2-249}

And they went back and he apparently communicated our unwillingness to move to the Secret Service. And that was the end of it, they didn’t even come back and speak to us.

Q.  Do you know in March, for the Greenville March ’02 — that was this year, Greenville of this year? — Greenville March ’02, prior to this particular visit, where the restricted area was for the Greenville event?

A.  I don’t recall ever hearing the term.

Q.  Okay. And in Charleston, which was August ’02, a few months prior to this one, do you know of your own personal knowledge, know who set up the demonstration area in that event?

A.  I was told by the local police the Secret Service.

Q.  But you don’t know of your own knowledge?

A.  No.

Q.  And do you know where the restricted area was?

A.  There was no reference to a restricted area in Charleston, as I understand.

Q.  That you have any knowledge of?

A.  There was no reference that I am aware of.

Q.  Right. So, you have no idea if any of those demonstration areas, the original ones or right where they were moved, were within the restricted area of the Secret Service, do you?

A.  No, I have no way of knowing if there was a restricted zone. {p.2-250}

Q.  And are you — is it your testimony that no one advised you out here that you were standing in a restricted area?

A.  I don’t believe anyone used that term. I was told repeatedly by Agent Abel, who I take since she was Secret Service would have been like the person that — since I’m charged under a federal statute, she was the only federal agent that I was dealing with, she would have been the one that would have articulated that. She told me repeatedly, “You can’t be here, you have to go to the free speech zone.”

Q.  Right.

A.  I would move. She would say, “You can’t be here.” And I would move a little bit more. And she would said, “You can’t be anywhere but the free speech zone.”

So, that was my understanding, was I couldn’t be there, but I didn’t have any knowledge at the time as to why Agent Abel was saying I couldn’t be there.

Q.  Well, you knew you weren’t trespassing, right?

A.  Yeah.

Q.  Okay. Did you ask her, “Well, why can’t I be here? What’s wrong with it? Why can I not be here?”

A.  Well, yes, I did. And the message that was communicated to me was the content of my sign.

Q.  And who communicated that to you?

A.  The arresting officer.

Q.  Okay. Back to when you were talking to Agent Abel, she {p.2-251} never said that to you?

A.  Agent Abel became one or two rows back in the mass of police that were dealing with me by then, and she was giving orders to agent — to Officer Campbell to arrest me. I —

Q.  Did you hear those orders?

A.  Sir?

Q.  Did you hear those orders?

A.  I did.

Q.  Go ahead.

A.  I had very brief — very brief dealings with Agent Abel, other than her telling me I can’t be here, I can’t be here and to go to the free speech zone.

Q.  You dealt with Agent Abel here on the — southeast corner?

The Court:  Southeast.

By Mr. Barton:

Q.  — southeast corner?

A.  Agent Abel testified to that, but that’s not my recollection. My recollection, the first time I recall Agent Abel is on the northwest corner.

Q.  And you moved —

A.  After I had moved. I had been talking with somebody that I have identified as Lexington County. They were in the jumpsuit, a black jumpsuit, and I don’t recall any insignia. But I don’t recall eye contact or face to face or even recognizing seeing the woman until after I moved the first {p.2-252} time.

Q.  And your testimony is then it was on the northwest corner of this intersection was the first time you dealt — or had any conversation with Agent Abel?

A.  I’m not sure, John. The discussions with Agent Abel could have begun as I was leaving the south —

Q.  East.

A.  — east corner. My most succinct recollection of Agent Abel is on the northwest corner when she is reiterating, I can’t be there, I can’t be anywhere, “Whose property is this?” Someone is saying it’s the airport’s. She is saying, “Get me an airport policeman.” The airport policeman comes and she says, “Arrest him.”

Q.  Okay. So, you have talked to the arresting officer after all of these conversations with Agent Abel about why you are being arrested. And then he said, “It’s the content of your sign,” that’s your testimony?

A.  Yes, sir.

Q.  Prior to that, before the arresting officer gets there, before you have that conversation with the arresting officer, Agent Abel is telling you, “You can’t be here”?

You are holding your sign, you want to express this to the president and everybody walking by there, your opposition to the war, a Secret Service agent is telling you, “You cannot be here,” and you don’t ask her why? You just say, {p.2-253} “Well, can I move over here?” And she says, “No.” And again you don’t ask her why?

A.  I had reason to conclude that the reason she was telling me that was because they, the Secret Service, had established a free speech zone, that all people that were identified as protestors, basically by the content of their sign, were to go to that area. So, I — I knew the answer to the question. I knew why she was telling me that.

Q.  You did not ask her; is that correct?

A.  I did not need to.

Q.  Answer — would you answer my question? You did not ask her “Why are you making me move?”

A.  No, sir.

Q.  Okay. And when you offered, according to your testimony, that you would go back down Lexington Avenue somewhere, and she said, “No, that won’t do either,” you didn’t ask her, “Well, why won’t this do? Why isn’t this an acceptable demonstration area, Agent Abel?” just like you did in Greenville and in Charleston?

What’s different about out here? Why did you reach that assumption and that conclusion out here and you didn’t in Greenville and in Charleston?

A.  Rephrase the question.

Q.  In Greenville and Charleston you were told, “You can’t stay here,” according to your testimony. And you said, “Wait a {p.2-254} second,” or, “I’m not going to stay here, I’m going to go over here,” and you were allowed to do so, correct, something to that effect?

A.  Correct.

Q.  You dictated the terms of where you were going to be allowed to demonstrate, and the law enforcement accepted it?

A.  Correct.

Q.  After those two previous experiences in March and August of the very same year, you come out here, you are within eyesight of where the president is going to be, you are standing there, your friends are showing up, you’ve got your sign, you’ve got your bull horn, and a police officer comes up and says, “You can’t be here,” and you say, “Okay, how about over here?” “Can’t be here.” You don’t dictate the terms of it, do you, Mr. Bursey, like you did in Greenville and in Charleston?

A.  No.

Q.  And you just accepted it?

A.  Accepted it?

Q.  Right.

A.  You mean just remained there?

Q.  Yes.

A.  Yes, I remained.

Q.  What is different about Columbia on October 24th than Greenville and Charleston? What is different about here? Why are you acting differently here? {p.2-255}

A.  You should have been there, John. The — I think that the judge needs to understand the tone and tenor of the circumstance. It was scary, it was brutal, people were crying, it was ugly, it wasn’t right.

Q.  Who was crying?

A.  It got to a point — it wasn’t right. It wasn’t right to be that way and I got to a point where I —

The Court:  All right, hold on, hold on. We are not going to have any outbursts in the courtroom. If you can’t control yourself, you have got to leave. Now, I’m not kidding about that.

All right, go ahead.

By Mr. Barton:

Q.  So, it’s now you have got an agent telling you to do something and it’s turning ugly. And you are still remaining polite, you don’t get riled up, you don’t start asserting this, you don’t say — did you ever try, “No, I’m not trespassing?” Did you ever tell her that? “I’m not trespassing here, why are you making me move?”

A.  I believe I communicated to the gaggle of officers that were confronting me that I was — that I was on public property and that I wasn’t trespassing. They, unknown officers, faces in the crowd, including Abel and Campbell, used the term trespassing.

So, I — I am concluding that they want me to move to {p.2-256} the free speech zone. There is no why to it. The why is, because the federal Secret Service has established free speech zones, I know that’s their policy. That if I don’t, then I’m going to be arrested for trespassing on public property. That was real clear.

Given that understanding, I didn’t feel that I should acquiesce to what I took to be an unlawful order. They are telling me they are going to arrest me for trespassing on public property, and that’s — they can’t do that. I mean, they did it, but they shouldn’t do that.

Q.  And it was Officer Campbell who told you that, “I’m going to arrest you for trespass on public property”?

A.  Yes.

Q.  Not Agent Abel?

A.  I heard Agent Abel use the word trespass when she was talking to Officer Campbell when he had arrived.

Q.  Okay. Before he had gotten there, when all of you were standing around, did you hear Agent Abel say, “If you don’t leave,” like the other witnesses who were there with you say, “If you don’t leave, you are going to be arrested”?

A.  Yes.

Q.  And did you ask her what for?

A.  Yes.

Q.  And what did she say?

A.  Trespass. {p.2-257}

Q.  Okay. And what did you say to her?

A.  That I was on public property and I didn’t think I should be arrested for trespass.

Q.  Well, you knew more than you just didn’t think you should be arrested for trespass, you knew that would be an unlawful arrest, didn’t you?

A.  Correct.

Q.  Did you tell her that?

A.  I may have.

Q.  And you were very familiar with the fact that that would be an unlawful arrest out there?

A.  Correct.

Q.  Because you were arrested back I think in 1969; is that right?

A.  Yes.

Q.  A couple of hundred yards on back down this way towards the southwest corner —

A.  Yes.

Q.  — of the picture? And that case — those arrests were appealed to the South Carolina Supreme Court, and that’s when the South Carolina Supreme Court said, “Can’t arrest on public property”?

A.  Correct.

Q.  You were happy about that?

A.  Was happy about the Supreme Court ruling? {p.2-258}

Q.  Right.

A.  Yes.

Q.  Of course, it didn’t help you, did it? You didn’t appeal your case to the Supreme Court, did you?

A.  The collateral benefit of that ruling I found helpful.

Q.  But you did not appeal your own case, did you?

A.  This is something that I didn’t know until Mr. Wise mentioned to me recently. I thought that I was a party to that case, so if — apparently not, no. I mean, I was a party to the group that was — that the appeal was perfected on, charged with the same thing, but for reasons that I can’t explain was not named in the Hanapole versus Cobb as a plaintiff.

Q.  And when did you first learn that?

A.  Since Mr. Wise has been defending me on this case. I guess it was right after the original arrest.

Q.  And you had never read the Hanapole decision, got a copy of it and looked at it?

A.  I got it right after I was charged with trespassing on public property in October 2002.

Q.  That’s the first time you had gotten a copy of the opinion that stood for this proposition that you can’t be arrested out there on public property? The first time you looked at that opinion?

A.  The first time I recall actively seeking it out, pulling it out and reading it since the ruling, yes. {p.2-259}

Q.  So, you saw it back when it was ruled —

A.  I may have seen it 30 years ago. I don’t recall.

Q.  That was a pretty big event 30 years ago when that came down, wasn’t it? I mean, that’s — that is a time to celebrate. You had been out there to protest against Richard Nixon, you had been arrested, and you had shown them you could do that out there, couldn’t you? Wasn’t it time to celebrate when the Supreme Court said, “You know, you are right”?

A.  1969 and 1970 weren’t very celebratory times in this country.

Q.  Right. I’m talking about this case, you and this case, Mr. Bursey. The Supreme Court decision says you can go out there on public — anywhere on public property, here or anywhere else, and you cannot be arrested for trespassing?

A.  I’m not sure what you are trying to get —

Q.  Your testimony says that it was not until a few months ago that you understood that you were not one of the individuals who had successfully appealed his conviction to the South Carolina Supreme Court based on the arrest out there in 1969; is that your testimony?

A.  My testimony is that I did not know until after October of last year that I wasn’t a named party. I presumed that I was involved. It was an ACLU suit that had multiple parties, and I had participated leading up to it. And it was only when Mr. Wise pointed out — Mr. Wise by the way, Your Honor, was the {p.2-260} lawyer for the case in — when it went to the Supreme Court.

And when Mr. Wise came in to help me — when I was originally arrested on this case, October 2002, it made sense to bring Mr. Wise in as much as he had already successfully litigated a case that had to do with trespassing on public property at the airport, with a sign, protesting a war, when the president came to town.

Q.  Up until then you believed you were a party to that suit and had told people that, correct?

A.  I — I believe I did, and I believe I was.

Q.  Mr. Bursey, isn’t it in fact true that’s what is different about Columbia, South Carolina? You went out there that day on October 24th knowing you could not be arrested lawfully for doing — standing anywhere you wanted to. That was your belief, that you could not be arrested on October 24th standing anywhere you wanted because of the Hanapole versus Cobb decision?

A.  I — no, I wasn’t thinking that until they started telling me I couldn’t be there, and then I was reflecting on that. I did not go out there with that in mind. I have already testified that I did not go to the airport with any notion or even anticipation that I might end up being arrested.

Q.  When you sent out your e-mail to the South Carolina Progressive Network to alert everybody, to get everybody going out there, did you tell them, “This is a great place to demonstrate because I was arrested out there for trespassing in {p.2-261} 1969 and they can’t do that, so this will be a good place for us to go demonstrate;” did you tell them that?

A.  No.

Q.  “That the law is on our side if we want to go out there”?

A.  No, we didn’t. I’m quite certain that none of our communications, either to our membership or the media, referenced the 1969 case. I did not reference in my mind the 1969 case until I was in situ on that corner being told that I was going to be arrested for trespass.

Q.  Did it seem like a little deja vu to you that you are going back out there 30 years later, planning on going to within eyesight of where you had been arrested before, to demonstrate against a president that you don’t like or whose policies you don’t like, you are carrying a sign to protest against a war, or an impending war, just like you did in 1969, it doesn’t — and you didn’t think about that going out there?

A.  No.

Q.  Not until you got out there —

A.  That’s correct.

Q.  — and you are approached by the law enforcement?

A.  Correct.

Q.  And when everybody is talking about “trespass, trespass, trespass,” you don’t say, “No, you can’t do that, it is — there is a South Carolina law, and I was one of the parties to it, by the way, that says you cannot arrest me for trespass on {p.2-262} public property. So you need to leave me here, Officer Abel. Thank you very much, I appreciate your concerns, but I can lawfully stand here”?

A.  Are you saying there was evidence presented to that fact, or are you asking me —

Q.  I’m asking you why didn’t you do that? When everyone is talking —

A.  I do believe that there were discussions in that vein. I don’t know if you have ever been in a situation where you have a half dozen policemen talking to you at the same time, and the situation was not conducive to direct communication with any individual.

I didn’t think that — I didn’t have any impression whatsoever that anybody was listening to anything I said. And so I do believe that I said that I was on public property and that it was not appropriate to arrest someone standing here. I would well imagine that if I had said more or communicated it directly to Agent Abel, that she would have said something about it.

Q.  Okay. And a responsible citizen who checked this out beforehand might have had a more rational conversation with the police out there that day, right?

A.  I take issue with that. I would — wished that you had been there to determine that for yourself.

Q.  And in Greenville and Charleston, the March ’02 and the {p.2-263} August ’02 events, were you aware that the arrival of the president at those two venues was underground and inside the buildings? Were you aware of that?

A.  I’m hearing you say it. I don’t know if that’s true or not. I was unaware of that if it were true.

Mr. Barton:  Okay, that’s all I have, Judge.

The Court:  Redirect.

Mr. Pitts:  None, Your Honor.

The Court:  Thank you, sir, you can step down.

Is that your last witness?

Mr. Pitts:  Yes, sir, we rest.

The Court:  Any rebuttal witnesses?

Mr. Barton:  No, sir, Your Honor.

The Court:  The government rests on the entire case?

Mr. Barton:  Yes, sir.

The Court:  And I heard some arguments this morning, do y’all want to make closing arguments? We have a little advantage — there are advantages and disadvantages to having a jury trial and a bench trial.

Of course, one of the advantages for me for having a jury trial is the jury gets to decide this issue, whereas here I have to decide it, and I have to make specific findings of facts, which obviously I’m going to have to do in this case. That’s the disadvantage for me obviously.

But the advantage, one of the advantages that we have {p.2-264} is, obviously, is we are not as time pressed. And I will proceed however counsel tells me they want to proceed. If they want to make oral closing arguments, that’s fine. If counsel want to digest what all has happened and do a little research and submit post trial briefs, that’s fine.

If you want a return of verdict in open court, that is fine. If you want me to just issue a written order, that is fine. I will do whatever y’all want me to do and proceed in whatever fashion you want me to proceed.

Do you want to submit written briefs by way of closing, since I have had some oral argument this morning? Or would you rather make oral closing arguments? Or y’all tell me what y’all want to do, because I would like to do it whichever way y’all want to do it.

Mr. Pitts:  Thank you, Judge. I think we have two motions that I would like to make prior to getting into that.

I would like to make a motion to dismiss the information based on selective prosecution, based on the testimony that came in today during our case about the individuals being singled out because of their carrying a sign that was in opposition.

And I would ask the court to consider as part of that motion the exhibits that have been previously introduced at the pretrial hearing, which I — if I recall correctly was August the 28th of this year and — {p.2-265}

The Court:  Those were some transcripts?

Mr. Pitts:  Those were — I think there were six exhibits that —

The Court:  All right, I’m going to make those for informational purposes only. If there is an appeal from my ruling, I’m going to make those — how many exhibits, do you recall?

Mr. Pitts:  I believe it was 1 through 6.

The Court:  Well, I’m going to make those Court Exhibits 1 through 6.

Mr. Pitts:  All right.

The Court:  Just so they will be in the record, if anybody wants to argue about them. I don’t want to have you raise them as to an issue and they aren’t there anywhere for the appellate court to look at.

Mr. Pitts:  I don’t need to make further argument on that, I just do want that as a motion, now that the evidence has closed.

I would then renew our motion for judgment of acquittal and incorporate by reference everything that I have said this morning, and I won’t say it again, but would supplement that with the fact that now we have heard an afternoon of very credible witnesses who would all create a reasonable doubt about whether or not, A, there was a restricted area, the same point that I was making this morning, {p.2-266} that there was no established — at least established as such that it could pass constitutional scrutiny concerning overbreadth, vagueness, and lack of notice.

Likewise, similarly, on the failure to prove beyond a reasonable doubt any willful, knowing conduct in violation of this statute by Mr. Bursey. And, secondly, the complete failure of the proof, much less beyond a reasonable doubt, that there was a violation of the regulation, the regulation requiring that somebody — and to just underscore that point, Your Honor, I think that is the most, in terms of technical but significant, going to whether or not the proof is sufficient, I would like to say it again, Mr. Barton’s admission in his memorandum of authority concerning the elements of the offense at page 3 — I’m sorry, I apologize, let me withdraw that.

The statement that — in the government’s motion that I cited this morning, a memorandum, that Mr. Bursey was arrested — I’m sorry, he was arrested prior to the closure, the closing down of the area.

And that means the only issue that we are dealing with is this so-called restricted area, incorporate by reference the things said this morning about how it was such an amorphous border and definition there, and that there was no screening out and allowing of only invitees into that area.

That people were allowed into this so-called restricted area without any stopping, any checks, or any {p.2-267} determination that they were an invitee or in any way different from the general public. And that there is a complete failure with regard to all three of the elements that are necessary to establish this offense.

And as a final point, Your Honor, the government’s information here pleads the conjunctive on both knowingly and willfully did enter and remain, enter and remain, not one or the other, but they pleaded in their information that he did enter and remain. They totally failed to prove that there was any willful, knowing entry into the restricted area.

And further, they pled that the area that he entered was then a posted, cordoned off, and restricted area. There’s been a complete failure of proof that it was posted or cordoned off. And we also say there’s been a failure of proof on the restricted area.

The government has pled that, they have to plead that, and they failed that. And we would ask that you grant our judgment — our motion for judgment of acquittal.

The Court:  All right.

Mr. Pitts:  With regard to — we do want a decision or a verdict in open court. If I could have a moment to consult with co-counsel and my client about the issue of briefing and et cetera?

The Court:  All right.

Mr. Pitts:  Would you indulge me a moment on that? {p.2-268}

The Court:  All right.

Mr. Pitts:  Judge Marchant, we would like to have a verdict in open court.

The Court:  All right.

Mr. Pitts:  We are not requesting the opportunity to submit a brief, unless the court requests a brief on a particular issue. And I would just like to say that —

The Court:  Well, I have got your arguments from this morning, I assume your closing would be along those lines.

Mr. Pitts:  Yes, sir.

The Court:  And I can get a transcript so I can read your — it won’t be a written brief from you, but it will be a written brief by you by proxy through the transcriber. So, I will look at that.

Mr. Pitts:  I would be grateful if you would read that.

The Court:  I will re-read it with great interest. And only if we are going to proceed that way, then I think Mr. Barton did have another issue that he did not raise then but that he wanted to raise, and do you want to — and I don’t remember what the issue was.

Mr. Barton:  I would like to brief that, Your Honor, and certainly submit — an open court verdict is fine. I would like to brief that issue, it won’t be a lengthy —

The Court:  What was the issue? {p.2-269}

Mr. Barton:  The way Your Honor — the standard by which Your Honor is to —

The Court:  All right. Well, there’s — this is obviously an unusually complicated petty offense but — most of them do not take this long.

But there’s a — and I’m assuming the issue that you are talking about, we have got the statute and, of course, we have got the standards in the statute and the government has got to prove each of the elements in that statute beyond a reasonable doubt to get a conviction.

And then you have got the second issue that obviously has been raised as part of this trial, which even the government conceded in a previous brief to be that the statute, like any other statute, can’t be enforced in an unconstitutional manner, and that that’s a separate distinct issue which is to be decided based on the facts established at trial. And that’s the issue you are talking about?

Mr. Barton:  Yes, sir.

The Court:  I would be happy to get a brief from you on that. Obviously you would have to serve a copy of it —

Mr. Barton:  Sure.

The Court:  — on the defendant, and they would get an opportunity to respond. Now, he’s already said that he doesn’t want to have to do a brief. But I’m assuming you will do one if you get served one — one served on you. {p.2-270}

Mr. Pitts:  Yes, sir.

The Court:  I don’t want to take a lot of time. I have got — I do have another trial next week, you know, but I could issue — certainly be ready to issue a decision by late next week or the following week, unless it’s going to take a while for you to do these briefs.

How long would it take you to have a brief ready?

Mr. Barton:  Wednesday of next week?

The Court:  Well, I mean, that’s fine. But then you have got to serve it on the defendant and they have a chance to respond and that next week is Thanksgiving week. We could go over — I don’t want to rush y’all. I mean, the only thing I have to do with the briefs when I get them is read them, you know, y’all are the ones that have to put them together.

Mr. Wise:  We kind of conferred on our schedule, and it’s not much free time in the next two weeks for either one of us.

The Court:  Well, I have got a trial next week too, but as Mr. Pitts has said so eloquently earlier today, this is an important case and if you have to take a little time to reflect on it, that’s fine.

Mr. Wise:  If we could have 10 days after the government gets their brief —

The Court:  All right, can you get your brief — your brief is just going to address that one issue, correct? {p.2-271}

Is that right?

Mr. Barton:  Yes. I don’t intend to brief the facts, or make any type of argument.

The Court:  And you can get that to me by next Wednesday? Right?

Mr. Barton:  Yes, sir, by 5 o’clock next Wednesday I don’t have a calendar in front of me, Judge, I —

The Court:  That’s the 19th, right? Isn’t that right?

The Clerk:  (Nods head in the affirmative).

The Court:  All right. And y’all want 10 days, and that will take you — that’s very strategic on your part — that takes you past Thanksgiving. But if you can get me a — the 19th, can you have your brief to me by the 3rd of December, that would be two weeks? Now, I don’t mean to short change you because I will be giving them two weeks —

Mr. Barton:  Could I have until Friday of next week?

The Court:  Okay. Okay, you — let me have your brief by the close of business on the 14th — I’m sorry, by the close of business on the 21st, that’s next Friday. And if y’all could get me your responsive brief by no later than Friday the 5th of December.

Mr. Wise:  This will be fine.

The Court:  That will give you two weeks.

Mr. Wise:  Yes.

The Court:  And then I will — you want the verdict {p.2-272} in open court and we will schedule something shortly thereafter.

Mr. Wise:  All right.

The Court:  And I think that will be fine. I congratulate both counsel, I think y’all have done well. I’m going to reserve ruling on that motion. You know, it’s a little different in a bench trial. I would normally rule and find that there are questions of facts, and then, you know, the jury is the one that decides those questions of fact. But in this case it’s me, so I’m going to consider what you said.

Now, the first motion for acquittal that you made, the basis of that ruling will be based on the evidence that was in evidence at that time, which is at the close of the government’s case. And then you have made another motion following the close of the case, the entire case. And as soon as I get that — and the issue that is going to be briefed is just the issue about unconstitutional enforcement?

Mr. Barton:  Correct. Yes, sir.

The Court:  Okay. All right.

Mr. Pitts:  Just a very brief point, Your Honor.

The Court:  Yes, sir.

Mr. Pitts:  First, I want to apologize because this morning I believe I misspoke and attributed to be Mr. Barton’s brief when it was in fact our brief relating to this issue of the invitee and what is necessary there. {p.2-273}

The Court:  Well, surely you don’t concede that your brief is any less valuable than —

Mr. Pitts:  That’s exactly right. That’s exactly right. But I’m —

Mr. Barton:  Substantially less accurate.

The Court:  All right. And I’m going to consider now, there’s also the motion about selective prosecution. I’m going to look at the testimony and evidence that’s been presented at this trial, together with the standards for whether a separate evidentiary hearing on the issue of a selective prosecution should be held, because you have to meet a certain threshold to get there. And if that evidence is sufficient for that, then obviously I will schedule a hearing on that.

Mr. Barton:  And, Your Honor — and thank you are for reminding me. You had asked me earlier if I had responded to that motion, I told you I had not because it says — it asks you to rule on it after all the evidence. And certainly there wasn’t evidence in until just now, so that may be part — and I have a very brief argument on the selective prosecution.

The Court:  Well, you can argue — I do think it’s appropriate, so that would be — a separate evidentiary hearing, according to the case law, is only scheduled if sufficient evidence is put in to meet the prima facie case, the threshold, to proceed to the evidentiary hearing. {p.2-274}

If you want to argue that there was not, you can make that part of your brief, and obviously the defendant, I assume, is going to argue that that threshold has been met. And you can make that part of your —

Mr. Barton:  I may argue that even if there is, they haven’t proved it for a very distinct obvious legal reason.

The Court:  Okay.

Mr. Barton:  But I will get it to them, it will be in your hands by Friday.

The Court:  All right. I would like to commend both counsel on your trial of the case, I think you did well. And it didn’t take a day like you promised me, but —

Mr. Barton:  That was Mr. Wise.

Mr. Wise:  I will have to claim service on that statement.

The Court:  The trial I had last week, they said it was going to be a day and-a-half, and we started on Tuesday and we finished up at 7 o’clock on Friday evening, so y’all did better than they did.

Mr. Pitts:  Judge, may I make just one final, I guess, urgency — you were commenting on the unusualness of this with regard to a petty offense, and I guess the duty that you don’t relish and the difficulty of it —

The Court:  And I understand you made a motion for a jury trial, but I didn’t think under the law that I could do {p.2-275} that, although frankly I would have preferred it.

Mr. Pitts:  The two points that I wanted to stress is, Mr. Bursey has not had the benefit — I am not trying to replay any of this — has not had the benefit of two traditional tribunals comprised of citizens to protect him between government abuse. He hasn’t had a grand jury, hasn’t had a jury —

The Court:  Well, when you have a —

Mr. Pitts:  — I just wanted to remind you of the heightened burden you have as —

The Court:  Thank you, I really appreciate it. You are really doing me a big favor there. I’m going to try and do the best I can, I’m going to look at the facts and the evidence. And I’m not going to let the fact that if the Congress has seen fit to charge this offense as a petty offense, I’m not going to let that persuade me in any way to think that it’s not an important issue. And I’m going to treat it I think with the urgency and respect and gravity that I think it deserves, and I think it deserves a lot.

Mr. Barton:  The government agrees, Your Honor, we don’t disagree with any of that.

The Court:  All right.

Mr. Pitts:  I appreciate your courtesy during the trial.

The Court:  Thank y’all very much. {p.2-276}

(Thereupon, the proceedings were adjourned).