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Full-text: August 28 2003
Protest zones: “No War for Oil” (October 24 2002)

United States District Court for the District of South Carolina Columbia Division

 

	)
United States of America	)
)
-vs-	)
)
Brett A. Bursey,	)
Defendant.	)
	)

Pretrial Conference

Before the Honorable Bristow Marchant
United States Magistrate Judge, presiding.

Appearances:

______________________

Raymond D. Simmons
1507-B West Evans Street
Florence, South Carolina 29501
843-610-0192 {p.2}

______________________

The Court:  We’re on the record in the case of United States of America versus Brett Bursey, Criminal Number 3:03-0309.

And we’ve got a pretrial in the case scheduled for this afternoon.

Just by way of a little history in the case, the case had previously been scheduled for trial on June 24th.

And we had an issue arise right at the beginning of that trial, right before it was supposed to start, about the proper elements of the charged offense and what the government would be required to prove, in order to obtain a conviction in the case.

So, the trial was postponed at that time, in order to allow the parties to brief that issue. And that issue has been briefed — the last brief, I think, having been filed on August the 15th.

I would be happy to hear some argument from counsel about that issue if you think further argument is necessary.

I do think there was, at least, some agreement — not total agreement but, at least, there’s, I think, some agreement — about the punctuation in the statute.

We’ve, also, got a discovery motion pending other than just a boiler-plate motion. We’ve got a motion pending from July the 18th seeking some specific inspection and discovery. And, then, after this pretrial was scheduled, we had a couple of more motions filed by the plaintiff — one on August the 20th and one on August the 25th. {p.3}

I’m sorry. By the defendant.

One on August 20th and one on August 25th, to which the government has not yet had an opportunity to respond.

You all haven’t filed anything, have you?

Mr. Barton:  I have not, Your Honor.

The Court:  What I would like to do today is get a resolution on the question about the elements, which is what had come up previously, and maybe hear a little bit about these two additional motions that have been filed and also get a resolution about this discovery motion and set a new trial date.

Obviously, I think one of these new motions is a motion to dismiss. If that motion were to be granted, obviously, the trial would be cancelled. I would like to get a trial date scheduled so we’ll go ahead and have it on the calendar.

Do either counsel disagree with anything I’ve said so far?

Mr. Barton:  No, sir.

Mr. Pitts:  No, sir.

The Court:  Mr. Nettles is no longer in the case.

Mr. Pitts, you’re counsel now, aren’t you?

Mr. Pitts:  Yes, sir.

The Court:  The file from the beginning also had Mr. Blume listed as a counsel. I think he came to the {p.4} arraignment, but I haven’t seen him since.

Is he still in the case as of counsel?

Mr. Pitts:  I believe he is. He has not withdrawn. He’s not with us today, but he’s still on board. We’re just —

The Court:  I just didn’t know if he had withdrawn.

Mr. Pitts:  No. He’s —

The Court:  He’s still participating?

Is he still planning on participating in the trial?

Mr. Pitts:  I don’t think so, Your Honor.

The Court:  If he’s going to be withdrawn, obviously he needs to let us know. But, otherwise —

Mr. Pitts:  I agree. We’ll take that up and will have to —

The Court:  The only reason it’s important is, if something came up and, you know, we had to get in touch with counsel quickly about something and we couldn’t get in touch with either you or Mr. Wise and we got in touch with Mr. Blume, he’s on the hook. Since he’s listed as counsel, he would be expected to be up to speed and know what was going on. If he’s not going to be —

Mr. Pitts:  That’s very reasonable. We’ll clarify that.

The Court:  Please let us know.

The issue about the elements and the original issue, {p.5} I think, had been about the punctuation.

And I think, after looking at the legislative history of the statute as presented by the government, it’s my understanding, Mr. Pitts, from reading the defendant’s brief, that you all really don’t have a dispute about the punctuation anymore, that you all acknowledge that that is probably a typographical error and that should be a semicolon.

Mr. Pitts:  That’s true. But we do have a position or concern regarding the ramifications conversion process.

The Court:  I understand that.

In particular, I think you had one question about the fact that you don’t think the government, when it lists the elements saying they have to prove each and every part of all of those steps — which I think the government acknowledges that they do have to prove that — but, obviously, you’re going to take another position.

You need to tell me. I’m assuming that’s what the government’s position is.

Mr. Barton:  That’s correct, Your Honor.

The Court:  I think what they’re saying is, if you look at what the requirements of the statute say, it says you have to prove beyond a reasonable doubt that the defendant willfully and knowingly entered in, or remained in.

And this is how you all — you all, the government — has it listed: willfully and knowingly entered, or {p.6} remained in, any posted, cordoned-off or otherwise restricted area of a building or grounds where the President or other person protected by the secret service is or will be temporarily visiting in violations of the governing regulation to the ingress or egress thereto.

I don’t want to put words in your mouth, Mr. Pitts.

My understanding of what your problem was as set forth in your brief is that you thought the government was just saying that Mr. Bursey had to have willfully and knowingly entered or remained in a restricted area but they didn’t have to prove that it was a place where the President is or was going to be or that he willfully or knowingly violated those regulations.

Do you want them to have to prove each and every step along the way?

Mr. Pitts:  That’s correct.

And Mr. Wise is going to handle that argument.

The Court:  If I can save you, maybe, a little bit of time, Mr. Barton, do you disagree with any of that?

Mr. Barton:  No, sir. I believe, in the memorandum, the original elements I gave you, those are the elements we have to prove, Your Honor.

The Court:  You have to prove that the defendant willfully and knowingly did each of those things, not that he was in the restricted area? {p.7}

Mr. Barton:  I believe —

Well, I think I have to prove that he knowingly and willfully entered into a restricted area —

The Court:  Right.

Mr. Barton:  — that was a restricted area, restricted because the President —

The Court:  You have to prove the rest of it, too. That it was an area where the President was, or was going to be, temporarily visiting, And, also, that it was in violation of those regulations.

Mr. Barton:  Correct. Yes, sir.

The Court:  You cited a separate regulation, I think, which talks about invitees.

Mr. Barton:  No, sir.

Mr. Wise:  I think it’s just splitting hairs to say that Mr. Bursey knew that this was a restricted area, not that he was in an area that was restricted.

I think they have conceded that they have to prove Mr. Bursey knew it was a restricted area.

Mr. Barton:  That’s correct.

That’s knowingly and willfully remained in the area.

We don’t have a dispute about that.

Mr. Pitts:  Very good.

The Court:  The second problem, as I interpreted the defendant’s brief, was that you weren’t disputing, “Yes, it’s a {p.8} colon in the statute, but it should have been a semicolon.”

But, because of that error, the statute is, therefore, unconstitutionally vague and should have been left out for that reason as well.

Is that right?

Mr. Pitts:  That’s right. The statute as published clearly says that the conduct Mr. Bursey engaged in was not unlawful. I think they in discussions earlier pretty well conceded that.

The Court:  I think one of the new motions that you all filed last week also raises the issue of vagueness. Doesn’t it?

Mr. Pitts:  It doesn’t really raise it. I think it’s more of a reply to their response.

What we raised in our motion on that is that, if a citizen goes to the published statute and sees that the law doesn’t apply to him, then I don’t think he’s required to engage in extensive research such as the assistant U. S. Attorney did and have to put together a 16-page brief involving the legislative history and go back to the Congressional Record to say, “Oh, my conduct is legal under the instant statute.”

That’s your difficulty of vagueness on that. Any statute that requires a citizen to do the extensive research that the assistant U. S. Attorney had to do couldn’t apply.

It’s akin to the way the old Roman emperors published the law. They published the law on columns so high that the citizens {p.9} couldn’t see them from the street.

To give a definition to a statute that makes a conduct criminal and is so obscure that you have to go through the legislative history just defies logic.

Citizens shouldn’t be required to do that.

The Court:  We’re still in the time period under our local rules for the government to respond to that. So, I’m going to, even though you also raised it in that first memorandum, since you’ve raised it again, I’m going to give them an opportunity to respond to that.

With respect to the discovery motion, one question I’ve got —

And, Mr. Barton, you’re going to have to explain this to me.

I looked at your response. And, I guess, using Mr. Wise’s splitting hairs example, when I’m looking at your response, you indicate that, at least with respect to “A” through “D,” no such evidence exists in the identified material.

And I didn’t know if you were trying to — I wouldn’t say fool me. I don’t know what you mean by “identified.”

Have you got some material that you’ve already turned over and then that’s all your going to refer to?

Or, are you saying —

Mr. Barton:  We’ve turned over information which I {p.10} believe that’s discoverable.

Under the statute, anything —

The Court:  Normally, you would say: Such evidence exists.

But you say: No such evidence exists in the identified material.

You don’t define what “identified material” is.

So, I didn’t know exactly what you were talking about.

Mr. Barton:  That’s in specific reference to his request “A” in his motion for discovery.

The Court:  Okay.

Mr. Barton:  He has requested certain material. What I’ve said is, he has requested it, Your Honor, on his argument that he’s entitled to anything that’s exculpatorily favorable to his defense that is in that material. And I’m saying there is nothing in that material that you have requested that is exculpatorily favorable to you.

The Court:  For example, when he says he wants a copy of the SLED operational plan, when you say no such evidence exists, you’re not saying that a SLED operational plan does not exist. You’re saying that there is nothing in that plan to which he’s entitled?

Mr. Barton:  That’s correct.

The Court:  All right. {p.11}

Mr. Barton:  I apologize. That wasn’t clear.

The Court:  I looked at some of these requests and couldn’t believe you didn’t have them.

Mr. Barton:  Well, there is a SLED file. I don’t go as far as to call it an operational plan. The SLED file dealing with this particular investigation itself, I have reviewed it as part of the obligation that is placed on me. And based on my understanding of it — and I have a very good understanding of his defense — as to whether or not anything is exculpatory in there. And there is not.

The Court:  It also makes reference to a Lieutenant Baker.

Is that something you have already turned over in previous discovery?

Mr. Barton:  That is, yes.

All statements of my witnesses, Your Honor, I have turned over to the defense.

The Court:  Who’s handling that?

Mr. Wise:  I am, Your Honor.

The Court:  Do you want to tell me why you’re entitled to that material.

Mr. Wise:  Yes, sir.

May it please the Court, it would probably be helpful if we start with the standard.

I don’t think the standard is exculpatory. The standard is Rule 16 standard, {p.12} which is information that is material to the preparation of our defense.

In our defense at this point, since it’s prior to us receiving the requested discovery is, simply put, the First Amendment.

And what we have asserted in our motion with some initial proof — that being the transcript portions of the transcripts from Michigan — is that there appears to be a Secret Service policy of, when the President visits, ensuring — usually through local authorities ensuring — that anybody protesting, demonstrating, in opposition to the President, is removed to a so-called free-speech zone. And if they refuse to go to that free-speech zone, they’re threatened with arrest.

And that, we think, is unconstitutional. And we think —

The Court:  If you’ve got the airport and the President is coming and you’ve got an area the President is coming to, you’re saying that, obviously, they can restrict the area right there. But, the rest of the airport, you ought to be able to go around and not have to go to one particular area?

Is that what you’re saying?

Mr. Wise:  That’s correct.

What we would like to show today to make our —

Well, to make our threshold or colorful claim, we don’t have to prove beyond a reasonable doubt or establish to some high {p.13} level but just that it’s material to the preparation of our defense.

We want to show and go over briefly with the Court the Michigan transcript.

We’ve got a transcript from Pittsburgh with another law enforcement official saying the same thing.

And rather than go through that right now, the essence of what these other documents and testimony, more or less paper documents, will show is the same as the Michigan transcript did. That is, that the local police were — the words that they used were “ordered or instructed” by the Secret Service to, essentially, set up so there are three areas.

We concede it’s a very legitimate area if it’s defined as a restriction because of legitimate security to our President.

Then, there’s an area they recognize for the general public. That’s the much broader area that’s outside, should be anything outside, of that restricted area.

However, what we’re finding — and what we can show to this Court — is that anybody within the general public area who is designated as a protester — meaning in opposition, as one police spokesperson said about the Tampa police — anybody in eye shot of the President, they have to be transported out of the general public area to the so-called free-speech zone — which the pattern has been, including the {p.14} one here in Mr. Bursey’s case, that’s somewhere half a mile or farther away, usually in an area — ineffective area.

That, we think, will show, when we’re able to get this discovery, first is unconstitutional. And that’s exactly what happened in Mr. Bursey’s case and amounts to our defense, basically, the First Amendment, which says no law and no application of any law shall be applied or used or written to abridge or deny the exercise of the most fundamental right that we have: political expression.

If I may, Judge —

Mr. Barton:  Your Honor, I’ll be happy to —

The Court:  Let me ask.

It’s my understanding from just reading all of the materials that have been filed in this case that the defendant is going to —

Again, I’m not putting words in your mouth. You have to tell me what the defendant is going to do.

But the defendant is going to argue that, irrespective of whether the statute itself is unconstitutional, that the statute, even if constitutional, was enforced in an unconstitutional manner.

That’s one of your defenses, correct?

Mr. Wise:  First, that it’s unconstitutionally vague, if even it’s constitutional.

The Court:  And, then, you’re, also, going to make {p.15} argument for selective prosecution or are you not?

Mr. Wise:  Well, I’ve been poring over the cases on that. That’s a tough one. That’s what we want to research. Whether or not we want to step over into calling it that, that’s why we want the benefit of these documents. Maybe that’s what this amounts to.

I think the Fourth Circuit has used the term “prosecutorial misconduct.” It’s choosing to go after Mr. Bursey and anybody else if you’re willing to stand there and assert their First Amendment rights.

The Court:  Based on the conduct of the prosecutor?

Mr. Wise:  Yes.

The Court:  That’s correct?

Mr. Wise:  Yes.

The Court:  But, obviously, you have to make a colorable showing of that in order to proceed on that. Of course, I guess you’re asking for discovery so you can see if there’s any evidence of it.

Mr. Wise:  I’m sorry. I didn’t hear you.

The Court:  I assume you’re seeking some of this material so you can see if there’s any evidence of that.

Mr. Wise:  Yes, in this particular case.

And I think one thing that distinguishes — And I think it is very important — Actually, there’s a threshold point, if I might, Judge. I thought it very troubling in Mr. {p.16} Barton’s response to our request for discovery.

At page 7, he says, in effect, to you — And I quote Page 7:

And it goes further.

I think it’s threshold.

We need to establish very clearly that that is just dysfunctional.

That’s sort of kind of threatening to you, as they’re saying to Mr. Bursey, that he would be unpatriotic, or that would be improper for you to second-guess that.

And if I could, I think —

If you are satisfied with that power you have and that duty, then I’ll move on.

The Court:  The case law provides and with respect to a statute such as this that the protection provided to the President — and this is a quote out of one case that we found — may not be achieved by sweeping unnecessarily broadly and thereby invade the area of protected freedom.

So, that would be the argument as to what you’re going to make. And, obviously, to that extent, this Court has the power and authority to look at the facts and see whether that was done in this case.

Mr. Wise:  That’s correct.

The Court:  Now, obviously, I think what Mr. Barton {p.17} is saying is that you can’t go around second-guessing the Secret Service every time where they are going to have to make a decision as to where there’s going to be a protective area since they’re the ones that are charged with that duty.

But, obviously, they can’t say when the President is coming to the airport so all protesters have to be in the parking lot over here at the chamber of commerce. There has to be some rational basis for it. And to that extent, the Court does have that power.

Mr. Wise:  Right. I assumed that you recognized that. But I was just very troubled by that assertion.

The Court:  I’m sure Mr. Barton didn’t mean exactly that.

Mr. Wise:  As the Court of Appeals for the District of Columbia, the federal circuit, said: We’re not agreeing with the government’s argument that mere mention of the President’s safety must be allowed to trump any First Amendment issues.

Actually, what we’re talking about today, Your Honor, is the Secret Service policy, not so much prosecutorial decision-making. That can come later. What we’re looking for and what we show you today is to unable us to make a colorable claim to get over this — and I have to keep coming back to an important and threshold. Because, the Fourth Circuit said you don’t want to have insufficient issues litigated. {p.18}

The Court:  Specifically looking at this discovery, a copy of the SLED operational plan is referred to in Lieutenant Baker’s statement of 2/19/02.

Now, I hadn’t seen that statement, so I don’t know what it is you’re talking about. But I assume that’s the plan that SLED, together with the Secret Service, devised for the President’s visit that day.

Is that right?

Mr. Wise:  I would think that.

The statement, I could hand up.

The statement we received — the only statement we were given — was an unsigned statement by SLED Agent Baker, who says it was her duty to prepare this operational plan. And she talks about prior meetings with her chief and others. That’s what —

The Court:  Does she say in the statement what that operational plan was?

Mr. Wise:  It was an operational plan in order to deal with the President’s visit here.

The Court:  I mean, was it everything, logistics, whoever was going to be assigned where?

Mr. Wise:  It didn’t say anything more than that, Your Honor.

It does say in that very same statement, Your Honor, that, at the meeting prior to the President’s visit on the {p.19} 24th, with the chief of state law enforcement division and others, that there was a discussion about Mr. Bursey and his plans to be there as a protester.

In light of the other matters that we’ll bring up, we can’t imagine that it wouldn’t be something in that.

But the point is, we think we should be able to see that.

The Court:  Let me ask you, Mr. Barton. Again, I don’t know what’s in this evidence or in this material to the extent that it exists.

But if an operational plan was drawn up which would include the law enforcement’s decision about what was going to be the cordoned-off area and where protesters were supposed to be and that kind of thing, why wouldn’t the defendant be allowed to see that?

Mr. Barton:  I’m sorry. I thought it was to be material to his defense that there is this Secret Service policy enforced by local law enforcement to unconstitutionally move protesters away.

The Court:  Well, I think one of his defenses is, based on the elements of the crime, I’m assuming this wasn’t a properly restricted area.

Mr. Wise:  That’s correct.

The Court:  So, if you’ve got a document that says — And, again, I don’t know what the operational plan says. {p.20} But, say, that the operational plan says: All right. This is what we’re going to do at the airport. This is where the President is going to be. This is where the restricted area is. And the area that’s listed on there is where the restricted area is going to be.

Is not the area where Mr. Bursey was when he was arrested — That would be material to his defense, I would presume.

Mr. Barton:  If that were there, I would give that to him. As I say, there is no such material like that material to his defense in the SLED operational plan. There’s nothing there that says “restricted area” somewhere other than where Mr. Bursey was. Nothing like that is in the SLED operational plan at all.

I understand the significance that would impart. But it’s just not there. There is nothing like that in there.

The Court:  So, there isn’t any kind of documentary evidence that shows where the restricted area was going to be at the airport before the President arrived?

Mr. Barton:  Like a map outlining it?

The Court:  No.

Mr. Barton:  And I told Mr. Wise that months ago, that we had no such map outlining it. That’s something that’s done by the Secret Service when they arrive to designate it.

The Court:  So, you’re representing to the Court {p.21} today, and you represent to the defendant as well, that the decision about where the restricted area was going to be was not made until that day?

Mr. Barton:  No, sir. I believe it was made prior to that, to the day of his arrival. But it is not made on a written plan where there’s a map and they’re doing it. It’s at a law enforcement briefing where they’re advising where they’re going to place the individual officers to protect the particular area where the President is. But a written document —

The Court:  They don’t have any kind of a map they were showing?

Mr. Barton:  They were out there.

The Court:  They were what?

Mr. Barton:  They were out there, Your Honor.

The Court:  They were out there?

Mr. Barton:  I mean, the Secret Service at the Columbia airport. That’s not the first visit. So, it’s not as if this was a mystery to them. I mean, they understand the geography of the airport out there.

But, again —

The Court:  That was all done originally?

There is nothing in writing anywhere that shows where that area was going to be?

Mr. Barton:  Correct. Correct. {p.22}

That’s what the Secret Service tells me. They have reviewed the file. I’ve reviewed the files that they’ve shown me. They simply have not taken a map of the airport and drawn it out like that. But they do know where they’re going to post officers so they can advise individuals where the restricted area is.

But, Your Honor, if I can address some of this before we go too far down this path — And what I understand Mr. Pitts wants us to provide, Your Honor, today about how this supposed policy exists and how it’s operated, I mean, what he says is all well and good if any of it is true. And I’m not maintaining, in fact, that any of that is accurate.

The Court:  I’m not worried about what happened in these other states.

Mr. Barton:  Okay.

The Court:  I mean, even assuming something improper happened in these other states, he’s got to show it happened here. I’m concerned about what happened here.

Mr. Barton:  Thank you, Your Honor.

Mr. Wise:  Well, Judge, I think, in the common occurrence of things, what helps us arrive at a conclusion or a belief as to how common occurrences reflect it. I think it’s relevant.

The Court:  I don’t have any doubt that, prior to the Presidential visit, they’re going to local law enforcement {p.23} to formulate how to handle security.

Mr. Wise:  We don’t doubt that.

The Court:  What’s the testimony in those other briefs — at least, the brief I read shows — also show that the Secret Service, who is in charge —

Mr. Wise:  It shows the Secret Service is in charge.

The Court:  What?

Mr. Wise:  Yes, Your Honor. Right. It shows that the Secret Service is in charge.

We, also, have a sworn transcript from a Secret Service agent in South Carolina, Mr. Dolan, who acknowledges —

The question was: Did your agency have anything to do with the creation of the free-speech zone?

And he said: Yes, we did.

Will your agency have anything to do with enforcement of matters in this area?

No, sir. Only if they cross over into the secure area.

That’s relating to this case. We certainly want to be able to show and have you stay with us as we talk about it how this same thing is happening. You’ve seen the excerpts from Michigan.

The Court:  What I’m saying is, whether that did or didn’t happen in these other states, you still have to show something improper happened here. {p.24}

Mr. Wise:  I would suggest to you, like in any other sort of evidentiary hearing, sometimes it’s helpful to know what happened elsewhere in the same or similar context.

The Court:  I think the case you refer to in your brief — And I didn’t look it up. But what Mr. Barton said in his brief is that that case resulted in a conviction of the defendant. And to the extent it was appealed, it was upheld on appeal. So, I don’t know of anything unconstitutional that happened in this case. I have no evidence that it did.

Mr. Wise:  I think the fact is, you have sworn testimony from a police captain saying that the Secret Service told him to remove anybody from the generic general public area —

The Court:  What I’m saying is, even if that did happen in Michigan, you still have to show that that happened here.

So, what?

Mr. Wise:  You’re right.

The Court:  We need to focus on what the evidence is here, in this case.

Mr. Wise:  I agree with you.

Here, where it’s an important point here, we have to show what we’re describing when we get to our trial. And to put that burden on us without giving us these documents, that is our burden today. {p.25}

The Court:  I understand that. We’re talking about these documents. What I’m saying is, if you have some burden to show at trial, it doesn’t help you to say: Let me tell you what happened in this case in Michigan. It doesn’t make any difference what happened in Michigan. The only thing that makes a difference is what happened here.

They may have done everything right in Michigan and may have done it wrong here, in which case you wouldn’t rely on that.

Mr. Wise:  I agree. We had one isolated event. Mr. Barton tried to undermine it. You were only shown one example. We’ve got several more. I have got a sworn transcript —

The Court:  I’ve read those transcripts.

Mr. Wise:  No, you haven’t. You haven’t read this one. This one hasn’t been tendered.

The Court:  I read the one you had in your brief.

All right?

What it shows is that the Secret Service gets together with local law enforcement to arrange the security for the Presidential visit. And the Secret Service is the one in charge. And I’m sure that that’s exactly what happened here. Whoever was calling the shots, it was the Secret Service that did it.

Mr. Wise:  Well, it seems to me — {p.26}

The Court:  I don’t have a problem with that.

Mr. Wise:  It seems to me like, fundamentally, it’s a lot more than that. It says: And we have specific instructions from the Secret Service that any demonstrators would have to demonstrate from that established area. He says it about six times.

The Court:  If he did or didn’t, you still have to show that happened here. It doesn’t matter what happened in Michigan.

Mr. Wise:  But, Judge, I guess, maybe, we need to —

The Court:  We’re just beating a dead horse here.

Mr. Wise:  This goes to the Court’s very right to have access to this, Judge.

The Court:  I understand that. Let’s look at what you’re asking for here and whether or not you ought to get copies of it. It doesn’t really make any difference what happened in Michigan.

Mr. Wise:  It doesn’t matter if you have seven people that are saying, in effect, I think an objective —

The Court:  That’s seven people that talked about something that happened in Michigan. We’re talking about something that happened in South Carolina.

Mr. Wise:  It seems to me like the Secret Service has this routine policy where they —

The Court:  We don’t know, even know, if it was the {p.27} same people.

Mr. Wise:  I know it was the same agency, the same President, the same security.

The Court:  The same agency that employs hundreds of people. Let’s focus on the South Carolina occasion.

Mr. Wise:  Right. I’ll be glad to talk about it. But I would like the opportunity at some point to present to you the other transcripts and affidavits and other information that we have to show that this is a pattern and a practice of, in effect, labeling any protester.

The Court:  You still have to show me that did it here.

Mr. Wise:  All right. We plan to do that.

Mr. Barton:  Your Honor, if I could address that briefly. The point I was trying to make —

And I understand there is nothing to be gained —

The Court:  Nothing to be gained by the time you get through with it.

Mr. Barton:  But the difficulty about worring about this demonstration here in South Carolina —

The Court:  I’ve already agreed with you.

Mr. Barton:  I understand. And I’m happy that you agree that these other states are irrelevant. I still maintain that the demonstration in South Carolina and what happened to the demonstration area here is irrelevant to this {p.28} particular case.

It simply, certainly doesn’t go to any of the elements the government has to prove. And I would maintain that is irrelevant, to the enforcement of this particular statute, where they may have been sending Mr. Bursey.

Let’s assume that the Secret Service wanted the protestors out of eye shot, where they make cement.

How is that relevant to his refusal to leave a particular restricted area?

That’s the difficulty I have bogging down the demonstration area in South Carolina, what that is to be relevant.

The Court:  The only way it would be relevant, if the only reason that area was being restricted by the Secret Service because anybody standing in it could be seen by the President.

Mr. Wise:  That’s exactly right.

The Court:  They wanted to get these people as far away from the President as they could. And that might be a violation of the First Amendment.

Mr. Barton:  I would agree. If the Secret Service decided we’re going to restrict this area and keep everybody out of the way, that would be an important situation.

The Court:  That’s what he’s asking for.

Mr. Barton:  I don’t know what the demonstration {p.29} area has to do with the decision of the Secret Service to restrict a particular area.

The Court:  Other than that’s where they were sending them to get them out of the restricted area.

But that’s what he’s asking for.

And, again, I don’t know what’s in these documents.

If, for example, the SLED operational plan had anything that said, all right, this is what we’re going to do.

And I can’t imagine that someone, frankly, would be so dumb that they would do this.

But let’s say there was something in the SLED operational plan that says, you know, this is where the President is going to be, so the first thing we need to do is get all demonstrators demonstrating against him out there.

He wants to know if that’s in there.

Mr. Barton:  I’m saying, telling you, it’s not. There’s nothing even remotely close to it.

Mr. Wise:  We’re not at all satisfied with that posture.

The Court:  The only way I know to resolve it, the President being here for —

I assume he’s going to come here again. Obviously, you don’t want the public knowing how law enforcement handles all of these visits.

The only way I can resolve it is for you to turn it over to me, and I’ll review it in camera and see what’s in {p.30} there.

Mr. Barton:  I would be happy to with the exception, Your Honor, that we not be required to turn over any memo that any Secret Service agent ever wrote on any visit anywhere.

The Court:  Well, I think that’s too broad.

Mr. Wise:  If I might respond, Judge, just for the record —

The Court:  He says any and all memos or other written or electronic documents to or from any Secret Service agent or official which makes reference to any public appearance that acknowledges President George W. Bush in any statement and which describes references, plans, guidelines or policies to be used when individuals attempt to exercise their right to freedom of speech. A little editorializing, end of it.

The documents, you’re asking them for would be warehouses full of documents.

Mr. Wise:  Judge, what you just described as editorializing is what narrows it down to the very constitutional issue we are working toward. We didn’t say Presidential security for every visit, if you noticed.

The Court:  When you narrow it down to say, “to be used when individuals attempt to exercise their right of freedom of speech,” that’s going to be a matter of opinion.

Mr. Barton may say, well, there’s nothing that says that. {p.31}

Mr. Wise:  I’m sure he will say that. He’s the prosecutor.

Mr. Barton:  I say that because there’s nothing there, Your Honor, in the material.

The Court:  You probably say that about every single document.

Mr. Wise:  But, Judge, what I do think —

And forgive me. I’m circling back a little bit.

In the sanctity of this courtroom, when the prosecutor comes up and when you even say that nobody would be stupid enough to write this down, I would like to think that. But that’s why it’s so relevant.

In these other documents that we’ve got, if police officers are willing to swear under oath that they were instructed not to provide security for the President but they were instructed that, if there’s a protestor in the vicinity of the President, to remove him and send him to the protest zone, the free-speech zone, or arrest him, that goes to the heart of the matter.

The Court:  Right. Right. But you’ve got to do that in this case.

Mr. Wise:  But to get to that, I guess, maybe, we’re at that hurdle.

The Court:  It doesn’t matter if a Secret Service agent told a police officer in Portland, Oregon to do that. It’s not going to help Mr. Bursey. You have to have that to {p.32} have happened in this case.

Mr. Wise:  Right. What I think it can do —

And I appreciate your —

And I want to come back to this.

The Court:  We’re back to that dead horse again.

Mr. Wise:  I appreciate your, in effect, ruling that you want to see it in camera. But I think, just like the case law of Dennis versus U.S. says, you can’t rely on the prosecutor but only on the advocate who is crafting the defense to review the material. That, unless you allow us to help inform your judgment about this policy, then, even if you look at it in camera without us, then these issues could be missed.

And our request is —

We’ll gladly be put under protective order with regard to these things.

But we —

The Court:  I may allow you to. I may allow you to look at it. But I don’t know what’s in there. But, thank the Lord, I’m not the one responsible for taking care of the President of the United States. I wouldn’t want that responsibility. We have had Presidents that have been assassinated. It’s a very serious matter.

I don’t know what these documents show. I’m going to look at them first.

Mr. Wise:  I don’t mind that.

The Court:  If I think there are documents you can {p.33} see and there’s not any danger, we’ll cross that bridge when we come to it.

But I want to see what they are first. I’m not going to say that I’m going to order them to turn them over.

If I decide to allow you to look at them after I review them, I’ll let you look at them.

Mr. Wise:  I understand. There’s a sorting issue at the very outset. I don’t want these documents sorted such as what you get doesn’t have what we’re asking for.

The Court:  I’m going to get all of the documents that deal with this case and the President’s visit to this state on that date. I don’t really need to look at documents from other visits in other states —

Mr. Wise:  That is the Secret Service and SLED’s.

The Court:  — about the President’s visit to other states or to Los Angeles in 2001.

That’s not going to do anybody any good. It’s not going to do Mr. Bursey any good. I don’t need to see those documents.

Mr. Barton:  Your Honor, if I could suggest a procedure.

I could have Agent Lee here —

It’s not difficult, but I would —

I can look, Your Honor, and know when the SLED file — which file was maintained for the Secret Service here in Columbia. And we could obtain from the Secret Service headquarters, including documents maintained there about this particular visit, have him bring those to your chambers whenever you can work out the logistics and let you know which {p.34} is which and then leave them with Your Honor.

The Court:  Don’t pick and choose.

Mr. Barton:  I would never pick and choose. That’s not going to happen.

The Court:  Bring them all.

Mr. Barton:  Your Honor will get it all.

The Court:  See what’s in there.

Mr. Barton:  Well, but, again, as I put in my motion, before anything is turned over, things that —

When I reviewed the file, that appeared to be, frankly, very innocuous to me. When I was talking to the Secret Service, they explained to me why you have to be careful as to what you turn over.

If you decide there are certain things in there to be turned over, I would like the Secret Service to have the opportunity to explain to Your Honor their security concerns. That’s all we ask for.

The Court:  I’m going to look at them first.

Mr. Barton:  Certainly.

The Court:  If I need an explanation, I’ll let you know.

I don’t want an agent of the prosecution coming into my chambers giving me a spin as to what these documents are.

Mr. Barton:  No. No. He’s not going to do that, Your Honor.

Only if you decide to turn something over. What the security concerns might be. Only that. {p.35}

The Court:  You’re talking about after I’ve looked at them and I think, “Okay, I think these should be turned over”?

Mr. Barton:  Exactly. At that point. Let the Secret Service give you their view as to why or why not.

The Court:  I may have defense counsel present and you, too. Because, he can tell me what his concerns are without discussing the specifics of the document. That way, Mr. Pitts will have an opportunity to argue if that would be the case.

Mr. Barton:  But I’ll just make sure that Agent Lee accumulates all of this. And I’ll let you two work out the logistics.

The Court:  All right.

Mr. Wise:  And what’s important, even at the minimum, even a discussion in any of these documents about the status of the free-speech zone, right where we’re talking about.

Is that right?

The Court:  I think, assuming we can meet the security concerns, it would be discoverable. Obviously, any direct comments about Mr. Bursey would be discoverable. Any documents that would allow you to make your prima facie showing of a selective prosecution would be discoverable. Any documents —

To be honest with you, I’m having a hard time not — {p.36}

I don’t believe Mr. Barton is saying something that’s not true. But to say, prior to the President coming, it was never put down in writing anywhere what the security area was going to be out there —

If he tells me what all was done originally —

That’s what he’s telling me. But —

Mr. Barton:  This isn’t quantum physics out there. This isn’t the hardest thing in the world.

The Court:  Somebody had to make a decision.

Mr. Barton:  Exactly.

The Court:  There were some discussions about that.

And there weren’t any notes taken? No E-mails? No anything?

Mr. Barton:  That’s what I’m hearing, Your Honor.

Mr. Wise:  That, certainly, leaves wide open arbitrary where Mr. Bursey is, where anybody is, with a sign that’s a restricted area.

The Court:  If that’s the fact, it’s not going to help the prosecution’s case.

Mr. Barton:  I understand.

Mr. Wise:  Judge, I appreciate where we are. I was wondering, if we are —

The Court:  We’re not going to bring up about Michigan again.

Mr. Wise:  No. I’m going to shift from Michigan. And I can see that you don’t want me to talk about it much. {p.37}

Could I, at least, quickly summarize what we would like to tender and have it marked as part of the record for this hearing and request that you, at least, look at it as a way of informing you, yourself, of what is happening out there?

The Court:  Are these transcripts from these other cases?

Mr. Wise:  Let me pick through them.

We have got a transcript from Pittsburgh, a police officer saying, in essence, that —

The Court:  I’ll tell you what. I’ll be happy to read anything you want to put in the record.

Mr. Wise:  This is only 22 pages.

The Court:  I don’t know how in the world it’s going to help you in your case, but I’ll be happy to look at it.

Mr. Wise:  And I would ask you to read the police captain’s testimony from Michigan.

The Court:  Once again, it doesn’t really matter what the police captain did in Michigan. What matters is what they did here.

Mr. Wise:  I understand.

I would like to tender up the Pittsburgh transcript.

I would like to show you from Philadelphia a different fact pattern, a verified complaint, filed by an ACLU lawyer, one page; a federal district judge’s order that {p.38} redresses the content based discrimination engaged in by the Philadelphia police and the Secret Service.

I’ve got an affidavit from a lawyer who has been practicing law for 20 years plus in New Jersey. This is about a similar situation in — I think it’s Albuquerque — where the police told him that the Secret Service told us to arrest protestors if they didn’t go to the free-speech zone.

The Court:  It’s still got to have happened here.

Mr. Wise:  I understand.

But, here, maybe, if you read it maybe, it will shift a bit.

The Court:  I’ll be happy to read it.

Mr. Wise:  Then, we’ve got a transcript as well as a tape recording, but a transcript, of a Secret Service agent out of Washington, D.C., acknowledging that they set up free-speech zones — which that, in itself, is extraordinary that they set up free-speech zones.

And they say that it’s to protect the protestors from getting emotional and stepping out in front of the motorcade and getting hurt.

Then, we’ve got an article from a Tampa newspaper quoting Kathy Hughes, who is the police spokesperson, saying: We were instructed to arrest anybody in eye shot of the President who is protesting.

I would, at least, provide those up and have them marked. {p.39}

Mr. Barton:  Can we get copies of those?

Mr. Wise:  Yes, of course.

The Court:  I’ll be happy to read them. I’m not going to retry all of these cases from other jurisdictions.

Mr. Wise:  May we have a moment to consult, Your Honor.

The Court:  You may.

Mr. Barton, while they’re consulting, do you know when you are going to be ready to file your response to them?

Mr. Wise:  Your Honor, that’s something I would like to address with them listening.

The Court:  Okay.

Mr. Barton:  Your Honor, I respectfully would ask the Court for a couple of more weeks to respond to this. I didn’t see this until Friday of last week.

The Court:  No. We were here on June 24th ready to start this trial.

Mr. Barton:  And, frankly, they had since March, when this information was filed, to file this motion to dismiss for all of these constitutional grounds. And they waited until last week to do it.

And the reason I need some additional time, Your Honor, is that this might be one of the worst pieces of written adversary I’ve ever seen.

And I don’t say that lightly.

I say that because they’re taking a very important concept of law, but a very {p.40} complex concept of law, and they’re taking bits and pieces and jumbling it together. They are citing you cases that have nothing to do with this particular case, treatises that, although —

The Court:  Those are all arguments that you can make in your brief.

Mr. Barton:  I just need some time to do that.

Plus, Your Honor, I don’t mean to unnecessarily complicate this more than what it is.

But I think I now understand how they intend to attempt to prove that this statute was unconstitutionally enforced.

So, I expect I’m going to be filing a motion in limine to restrict some of that so there’s nothing —

The Court:  This is a very simple, straightforward case.

We’re simply getting —

At least, I think it was, when we were here ready to go to trial on June 24th.

Mr. Barton:  I think it has become unnecessarily complicated by this particular approach here.

So, I’m going to need a couple of more weeks.

This is a very complex area of law.

This is going to take sometime to straighten it out and to make sure I sufficiently articulate accurately the government’s position.

The Court:  How much time are you talking about?

Mr. Barton:  A couple of more weeks, Your Honor.

The Court:  You filed two motions. {p.41}

Now, one of them is asking the government to inform the defendant of what the parameters of the restricted area were.

And is there any reason why you can’t tell them that?

Mr. Barton:  What I would like to do —

I’ve talked to my agents, my witnesses, back in June about that, as part of their testimony. I would like to reconfirm that and get that to him in writing.

The Court:  You’re going to get them the information they asked for in their motion of August 25th?

That’s the one where they want to require the government to designate the restricted area.

Mr. Barton:  So I can tell them where.

The Court:  And you want a couple of more weeks to respond to their motion to dismiss?

Mr. Barton:  Yes, sir.

Mr. Wise:  In terms of where the area is, we want to see that in writing.

Mr. Barton:  That’s what I just said.

The Court:  Which will be the first time it was put that way, apparently.

At least, that’s what you told me.

Mr. Barton:  That’s what the Secret Service tells me, Your Honor. {p.42}

The Court:  Can you get it to me by September 12th?

Mr. Barton:  Yes, sir. That’s two weeks from tomorrow.

The Court:  Are you going to file a reply memorandum?

Mr. Pitts:  We may have done as much as we can do unless he raises something new.

The Court:  You’ve briefed it twice.

Mr. Pitts:  It would be related to more of a response to his. But I don’t anticipate it.

Mr. Barton:  I don’t have it right yet, Your Honor.

The Court:  Assuming the motion to dismiss is denied, is there any reason this case can’t be tried in October?

Mr. Barton:  No.

If we have to respond to his motion, we would request 10 days. But we doubt it.

The Court:  Maybe late October?

Mr. Barton:  I think that would be ideal. I had gotten some dates. I’m dealing with three agents who are from out of town. Two of them are on the Presidential protective detail.

The Court:  I’ve got a case in Charleston that I have to try down there that’s supposed to take, at least, two weeks. And that’s in September. {p.43}

Mr. Barton:  Well, that’s out.

The Court:  We’ve got to be moving into the new courthouse over the first two weeks in October. That’s what they tell me. It would be better not to schedule anything then. And, then, we would have to give a week or so to make sure all the electronics are working and everything.

So, I was thinking, maybe, Tuesday, October 28th, if you all could check your calendars.

And I don’t know how long it would take to try the case. If you can, you —

Mr. Pitts:  This is going to be a two-day trial, isn’t it?

The Court:  I was going to reserve two days. I was hoping it would be one day.

Mr. Wise:  I was supposed to leave on Wednesday, the 29th of October.

Mr. Barton:  I don’t think that’s going to happen.

The Court:  Well, then, I’ll tell you what. All of you give me some dates in November, when you all are available to try the case. Hopefully, it won’t be Thanksgiving day.

Sometime the week of November 10th would be the best for me, I think.

No. I’m sorry.

Yes. Yes. November 10th. It would be best to start it on the 10th. Any day but the 12, 13th or 14th, just {p.44} in case it goes two days.

Probably the 12th or 13th.

You call check your calendars, if that’s okay with everybody.

Check with Mr. Blume and make sure he’s available to try the case that day.

Mr. Wise:  If he’s still in.

The Court:  But, unless I hear from you all otherwise, unless the motion to dismiss is granted, we’ll try it on November 12th or November 13th.

Is there anything else?

Mr. Pitts:  You mentioned something about a reply to what Mr. Bursey’s witnesses say.

Basically, the information we provided to the Court about the other statements, where similar things occurred, that was for the purposes of the justification for our discovery request, more than anything since, obviously, it will not be going to be coming in in the trial itself.

The Court:  I know what you’re looking for. And I think, if it’s there, you’re entitled to it.

Mr. Pitts:  Maybe those documents will show it probably exists. I think that’s the best way to put it.

The Court:  I told him not to pick and choose.

He’s supposed to give me everything they’ve got.

Mr. Pitts:  As it relates to this case, we did have a list of testimony to proffer as to what they would testify {p.45} to relating to that issue.

The Court:  Are these about these other cases?

Mr. Pitts:  No. This is about South Carolina. Witnesses for Mr. Bursey. When Mr. Bursey was arrested.

The Court:  Well, I don’t want to try the case today.

Mr. Pitts:  You were talking about things related to South Carolina. I was going to give you a brief summary so the Court would know there are similar allegations about South Carolina. That’s what we’re getting at.

The Court:  Do you want to proffer it?

Mr. Pitts:  Just, basically, Jerry Rudolph, who would testify that he was with Mr. Bursey when he was arrested. That Mr. Bursey had a sign. That Mr. Rudolph had one, put it down. After he put it down, they went and hassled him. He did try to leave with the sign and go back to his car and was told he couldn’t leave the area with a sign. He put it down and was allowed to leave and walked in the same area without any further problems.

Mr. Harry Rogers was present when that occurred and would testify, basically, to the same thing. That Mr. Rogers, also, would testify that he saw people carrying small signs that were pro-Bush signs. They were lined up and ready to come in.

Virginia Sanders. She was there when Mr. Bursey was {p.46} arrested. That she recalls Mr. Bursey asking the arresting officer: “Is it the content of my sign?” The arresting officer said, “Yes.” Once the sign was taken up and removed and put in an automobile, that they were no longer hassled about remaining in, basically, the same area where Mr. Bursey was.

That’s, basically, the same testimony that other states tend to show that we believe some of this stuff should be in discovery.

Mr. Wise:  And we have those witnesses here today to testify. Mr. Barton has tried to slam-dunk us in response, that we haven’t put on any proof about this case, but cannot realize we’re not trying to prove the case —

The Court:  We’re looking for discoverable material right now. I understand that all of those people will probably be trial witnesses.

Mr. Wise:  They are here and ready to say that today, if need be.

There is one more matter, I guess, Judge, a separate matter.

We have asked the Court to {re}move the pretrial probation conditions on Mr. Bursey’s file in that he has a personal recognizance bond. He, certainly —

The Court:  Remove the conditions of bond?

Mr. Wise:  Yes.

Well, he, certainly, is going to appear. He’s not {p.47} going to leave. He’s not a danger to the community. Those are the existing elements of a bond.

But, as we understand it, this is very rare, if not totally unique where he’s charged with a misdemeanor.

But, yet, is being put on — I think they call it pretrial probation. He has to check in with an officer. He has to do a random drug test. Just two days ago, he had a knock at 9:00 o’clock and had to come up.

The Court:  That’s pretty standard.

Mr. Wise:  Not from —

We just don’t think that’s necessary in this case, Judge. I mean, let’s look at what we’re talking about: A misdemeanor charge brought five months after the incident where the nucleus of the facts, as you heard it, basically standing there —

And we’ve got our disputes.

The Court:  Let me see counsel up here for just a second.

(Bench conference)

All right.

Counsel is going to file a written motion about that issue.

Is there anything else we need to do on that today?

Mr. Barton:  No, sir, Your Honor.

The Court:  And, Mr. Barton, you’ve got to September 12th.

You’re going to file your response. {p.48}

Mr. Barton:  I am, Your Honor.

The Court:  Mr. Pitts or Mr. Wise. Whoever is going to do it. If you’re going to file a reply — Again, you all have briefed it twice already. If you’re going to file a reply, if you can do it by the 19th —

Mr. Pitts:  I’m sure I’m not going to file a response, unless it’s absolutely essential.

The Court:  If you all can check your calendars and tell me if you’re going — if any counsel has a problem with the 12th or the 13th of November with trying the case, and tell me which day you all would prefer to do it —

Mr. Pitts:  I would say we should start on the 12th unless we have a conflict.

The Court:  Mr. Barton, can I give you a deadline to have that material in my office?

Mr. Barton:  Surely. Yes, sir.

The Court:  How long is it going to take?

Mr. Barton:  Until Monday.

The Court:  Monday?

And, then, how long before you can give Mr. Pitts the definition of where that restricted zone —

Mr. Barton:  Give me until next Friday. Just because I don’t know how hard it will be to run that down.

The Court:  Friday, September 5th.

Mr. Pitts:  That’s two months before trial. That’s {p.49} probably more than I thought we would get.

Mr. Barton:  Monday is a holiday, Your Honor.

Tuesday.

The Court:  Tuesday.

Thank you all.

Mr. Wise:  I just want to make sure the items requested to be turned over to you to look at in camera are including photographs and videos that —

The Court:  He’s going to turn over whatever he’s got.

Mr. Barton:  I’ll turned over everything.

The Court:  He said in his response that he has already turned over videos and that stuff.

Mr. Wise:  So, with the Secret Service out there, there was no videotaping of the incident?

Mr. Barton:  President Bush makes several hundred visits around the country a year. They’re not videotaping everything aspect of every visit out there.

Mr. Wise:  On October 24th, were any photographs or videos made?

Answer yes or no.

If yes, we want you to look for the people in the restricted area.

The Court:  I thought he had already turned them over to you. To the extent he had any. {p.50}

Mr. Barton:  The photographs the government has were taken after the fact, not at that time.

There were no photographs taken by the Secret Service or any law enforcement personnel at the time.

The Court:  What photographs or videos you had were turned over?

Mr. Barton:  We have no videos.

The Court:  You can ask them again just to make sure there is no question about that.

If you’ve got any that you said you were going to turn over, just turn them over to them.

Thank you.

(Hearing concluded)

______________________

Certificate

I certify the foregoing is a true and correct transcript of the record of proceedings as hereinabove set forth.

{Signature}

Raymond D. Simmons
Court Reporter

 

This document is not copyrighted and may be freely copied. “There is no copyright on transcripts of court proceedings that are produced by court reporters” (Gary N. Smith, Court Reporter, Columbia South Carolina, email, Dec. 21 2003).

Charles Judson Harwood Jr.

Posted May 5 2004. Updated June 2 2008.

http://homepage.ntlworld.com/jksonc/docs/bursey-dsc-d85.html