Appendix — United States v. Bailey
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APPENDIX _
\
lL
—
In the Supreme Court of the {initrd States
OCTOBER TERM, 1978
No. 78-990
UNITED STATES OF AMERICA,
Petitioner
—
CLIFFORD BAILEY, ET AL.
UNITED STATES OF AMERICA,
Petitioner
—
JAMES COGDELL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR CERTIORARI FILED DECEMBER 18, 1978
CERTIORARI GRANTED MARCH 19, 1979
Iu the Supreme Court uf the United States
OCTOBER TERM, 1978
No. 78-990
UNITED STATES OF AMERICA,
Petitioner
™ —_—U—
CLIFFORD BAILEY, ET AL.
UNITED STATES OF AMERICA,
Petitioner
—
JAMES COGDELL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
INDEX
Page
i al contends eouhideannboneusnoien 1
Original Indictment (Bailey, Cooley, Walker, Cogdell) .......... 9
Retyped Indictment (Bailey, Cooley, Walker) .........00000000....... 12
Retyped Indictment (Cogdell) ........ POOL TR SECON Se ea 15
Defendants’ Proposed Instruction No. 1 oo..........0ccccccccc occ cceee eee 17
Defense Exhibit (Defendant Bailey) No. 10 ...0000..00000000000000.... 18
Transcript of Proceedings, March 8, 1977 (Bailey et al.
Nee eee ae ss aadicbeusinsacisnwacdunccgnyene 19
Testimony of Ronald James Harvin, Supervisor of Record
Office, New Detention Center 20.0..00.0....0..ccccccccccececeeeeee 21
Testimony of Barry Colvert, FBI Special Agent ............ 25
ii INDEX
Transcript of Proceedings, March 9, 1977 (Bailey et al.
WI 02 oo 5 ak sare acdacecl DS ebeltcebacuegenesanenaiiaetberinaseddisecbecienepincedansss
Government rests; defense motions .........................-.----+-
Testimony of Bernard Eugene Wilson, Inmate ................
Colloquy on duress defense .........,.....-..-:.c:sccsceeeeseeeseeeeeeees
Testimony of Lester Delane Robinson, Assistant Ad-
ministrator for Operations, New Detention Center ....
Transcript of Proceedings, March 10, 1977 (Bailey et al.
NSS ah nc veld cuakerech eseteceuiber} iauapeaventiabitevevuvlenuseveengssnseeinen
Testimony of Lester Delane Robinson (continued) ........
Testimony of Barry Orlando Trent, Correction Officer,
New Detention Center .........................-...- ese) He AYE Thea
Testimony of Oliver Boling, Inmate ............................--.--
Testimony of Garland Hines, Inmate ........................-...----
Testimony of Defendant Cooley ..............----.-..1-:eceseeeee
Testimony of Dr. Samuel L. Bullock, Physician, Depart-
Ae, Ee CORI co sci dccsdens sbevtdinecsbdenobosscaqenbe
Testimony of Defendant Bailey ...................---..-:::1eseee
Transcript of Proceedings, March 11, 1977 (Bailey et al.
WO ee Saale aaa a hereabenpinddecevinbsasveiawaredeeyvosnantenancehien
Testimony of Defendant Bailey (continued) ..................
Testimony of Michael Thomas Dozier-Beay, Inmate ........
Testimony of Vincent Walker, Brother of Defendant
RO ee) Meret el deieiniaedcqnancddncnlaaewens oui
Transcript of Proceedings, March 14, 1977 (Bailey et al.
IED at 4 icacnshlacaeecteh Sikes bate eanimibtacerwesabenwseusupbuninnedyleeneasord
Court statement On Guress ....................--00eeeeseeeeeeeeeeeees sia
Testimony of Dr. Aris Karas, Staff Psychiatrist, U.S.
Penitentiary, Leavenworth ......................cccccssssesecesseesete
Testimony of Defendant Walker ...................2-.-..-.s-000+
Coeni’: Serie CU CTI 5 onsen cnceceivepcecpeesccnsrccen PR RO
Testimony of William Fluharty, FBI Special Ag *.
Testimony of Joel Dean, FBI Special Agent ....................
Testimony of Major William Long, Correctional Super-
visor, New Detention Center ....................::cccecssceeseeeeseeee
Defense motions and discussion of instructions ..............
Instructions to the jury ............. bed Eee REN Vin NE An
eS
INDEX
Transcript of Proceedings, May 6, 1977 (Cogdell pretrial
hearing)
Transcript of Proceedings, May 9, 1977 (Cogdell trial) (col-
apa at RIG Hii i et Poe ee ea pe ee
Transcript of Proceedings, May 10, 1977 (Cogdell trial)
CEOCPOCCIOS Wh BOD Aino cnei ies Ce
Order Granting Certiorari, March 19, 1979 .............................
The following opinions, judgments, and orders of the
United States Court of Appeals for the District of Columbia
Circuit have been omitted in printing this appendix because
they appear on the following pages in the appendix to the
printed Petition for Certiorari:
In United States v. Bailey et al.:
Opinion, July 12, 1978
Order amending opinion, July 14, 1978 ..........
Order denying Government’s petition for rehearing, Oc-
tober 19, 1978 ..
Order denying Government’s suggestion for rehearing
en bane, October 19, 1978
In United States v. Cogdell:
Opinion, July 12, 1978
SUI, Ba ees Te na ae nee
Order denying Government’s petition for reheari -
tober 19, 1978 searchin
Order denying Government’s suggestion for rehearing
en banc, October 19, 1978
iii
Page
226
228
231
234
tt tthe nn Nee A
1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Crim. No. 76-735
UNITED STATES OF AMERICA
v~.
CLIFFORD BAILEY
RONALD CLIFTON COOLEY
JAMES COGDELL, a/k/a JAMES COGWELL
RALPH WALKER
90 PO
DOCKET ENTRIES *
DATE ‘ PROCEEDINGS
1976
Nov 23 Defs. #1, 2,3,4: Indictment filed.
Defs. +1, 2, 3: Defendants committed: Commitment
issued.
Def. #4: Bench warrant ordered and issued upon pre-
sentment of indictment.
Nov 30 Defs. #1, 2,3,4: Counsel appointed.
Dec 2 Defs. #1, 2,3: Arraignment: pleas of not guilty en-
tered; trial set for 1/10/77.
Def. #4: Fugitive.
Dec 16 Def. #4: Arraigned; plea of not guilty entered;
trial set for 1/10/77.
1977
Jan 3. Def. #3: Motion of John J. Hurley to withdraw
as counsel for Def. Cogdell.
Jan 5 Def. #3: Status hearing; court vacates order ap-
pointing John J. Hurley as counsel for Def. Cogdell, and
appoints Albert Overby as counsel.
Jan 10 Def. #3: Motion for mental examination granted.
* Entries deemed irrelevant by the parties have been omitted.
DATE PROCEEDINGS
1977
Jan 12 Def. #3: Order dated 1/11/77 vacating John
Hurley as counsel and appointing Albert Overby nunc pro
tunc issued.
Jan 18 Def. #8: Def.’s motion for commitment to St.
Elizabeth’s Hospital for mental examination granted.
Feb 3 Def. +3: Letter from St. Elizabeth’s Hospital stat-
ing Def. competent to stand trial.
Feb 28 Def. #3: Motion of Def. to dismiss indictment
filed.
Feb 23 Def. #3: Motion of Def. for severance and to ex-
cuse filed.
Mar 8 Def. #3: Def.’s counsel engaged in other proceed-
ings; case severed on court’s own motion.
Defs. #1, 2,4: Jury sworn; trial begins; respited until
3/9/77.
Mar 9 Defs. #1, 2, 4: Trial resumed; respited until
3/10/77.
Mar 10 Defs. #1, 2, 4: Trial resumed; respited until
3/11/77.
Mar 11 [Pefs. +1, 2, 4: Trial resumed; respited until
3/14/77.
Mar 14 Defs. #1,2,4: Trial resumed; retyped indictment.
Defs. proposed instruction No. 1—denied as submitted.
Verdict: Guilty each Def. as indicted on Counts 1, 2 &
8; jury discharged.
Mar 21 Def. #4: Def. escaped custody while being trans-
ported to D.C. General Hospital; bench warrant ordered
and issued.
Mar 28 Def. +3: Status hearing; trial set for 5/9/77.
eee
3
DATE PROCEEDINGS
1977
Apr 7 Def. #2: Sentenced to five years’ imprisonment to
run consecutively to any sentence now being served,
subject to the provisions of 18 U.S.C. 4205(b) (2);
judgment and commitment issued.
Apr 12 Def. #1: Sentenced to five years’ imprisonment to
run consecutively to any sentence now being served,
subject to the provisions of 18 U.S.C. 4205(b) (2);
judgment and commitment issued.
Apr 14 Def. #2: Notice of Appeal filed.
Apr 20 Def. #1: Notice of Appeal filed.
May 3 Def. #3: Motion to dismiss pursuant to 18 U.S.C.
3161(c) filed by Def.
May 6 Def. #3: Motion to dismiss indictment for lack of
speedy trial heard and denied.
May 9 Def. #3: Motion to dismiss indictment because of
violation of 45 day rule denied; jury sworn; trial begins;
respited until 5/10/77.
May 10 Def. #3: Trial resumed; guilty verdict returned
for violation of 18 U.S.C. 751(a).
Def. #3: Retyped indictment; Def’s. proposed jury
instructions denied; Gov’t submits opposition to Def.’s
oral motion to dismiss for violation of Interstate Agree-
ment on Detainers (IAD).
May 18 Def. #4: Bench warrant returned executed.
May 19 Def. +4: Def. sentenced to five years’ *mprison-
ment to run consecutively to any sentence now being
served, subject to the provisions of 18 U.S.C. 4205 (b) (2).
Def. #4: Notice of Appeal filed.
May 26 Def. #3: Gov’t moved for leave to file certified
copies of exhibits of Circuit Court of Fairfax County,
Virginia.
Jun 3 Def. #3: Reply to govt’s opposition to motion to
dismiss indictment for violation of LAD filed by Def.
DATE PROCEEDINGS
1977
Jun9 Def. #38: Opposition to Def.’s renewed motion to dis-
miss indictment for violation of IAD filed by gov’t.
Jun 20 Def. #3: Memorandum on motion to dismiss filed
by Def.
Jul 6 Def. #3: Def’s. motion to set aside conviction heard
and denied. Def. sentenced to five years’ imprisonment
to run consecutively to any Federal sentence now being
served; judgment and commitment issued.
Def. #3: Notice of Appeal filed.
Jul 12 Def. #8: Court issues order directing Warden,
‘Lorton Reformatory to provide Def. with access to
law library, to arrange for transfer of his papers and
personal documents to that facility, and to transport Def.
by bus rather than by van in the future.
Jul 23 Def. #3: Court issues memorandum denying Def’s.
motion to dismiss indictment.
Jul 24 Def. #3: D.C. Corporation counsel moves to vacate
order of July 12.
Aug 14 Def. #3: Opposition to motion to vacate order of
July 12 filed by Def.
Nov 1 Def. #3: Motion for clarification of sentence filed
by def.
1978
Feb 3 Def. #3: Def’s. motion for clarification of sentence
denied.
5
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
DOCKET ENTRIES
77-1404
UNITED STATES OF AMERICA
v.
CLIFFORD BAILEY
DATE PROCEEDINGS
1977
May 13 Appeal docketed.
Aug 16 Order consolidating with Nos. 77-1413 (Cooley), 77-
1502 (Walker), 77-1602 (Cogdell), for consideration on
the merits.
Oct 31 Order consolidating No. 77-1602 (Cogdell) with
Nos. 77-1404, 77-1418, and 77-1502 vacated.
Dec 5 Oral Argument before Wright, McGowan, and Wilkey,
JJ.
1978
Jul1i2 Judgment entered reversing judgments of the District
Court and remanding for a new trial.
Oct 19 Government petition for rehearing with suggestion
for rehearing en banc denied.
6
77-1413
UNITED STATES OF AMERICA
v.
RONALD CLIFTON COOLEY
DATE PROCEEDINGS
1977
May 18 Appeal docketed.
Aug 16 Consolidated with Nos. 77-1404 (Bailey);.77-1502
(Walker), and 77-1602 (Cogdell), for consideration on
the merits.
Oct 31 Order consolidating No. 77-1602 (Cogdell) with Nos.
77-1404, 77-1413, 77-1502 vacated.
Dec.5 Oral argument before Wright, McGowan, and Wilkey,
JJ.
1978
Jul 12 Judgment entered reversing judgment of District
Court and remanding for a new trial.
Oct 19 Government petition for rehearing with suggestion
for rehearing en bane denied.
7
77-1502
UNITED STATES OF AMERICA
Vv.
RALPH WALKER
DATE PROCEEDINGS
1977
Jun27 Appeal docketed.
Aug 16 Consolidated with Nos. 77-1404 (Bailey), 77-1413
(Cooley), and 77-1604 (Cogdell) for consideration on
the merits.
Oct 31 Order consolidating No. 77-i602 (Cogdell) with Nos.
77-1404, 77-1413, and 77-1502 vacated.
1978
Jul 12 Judgment entered, reversing judgments of the District
Court and remanding for a new trial.
Oct 19 Government petition for rehearing with suggestion
for rehearing en banc denied.
8
77-1602
UNITED STATES OF AMERICA
v.
JAMES T. COGDELL
DATE PROCEEDINGS
1977
Aug 8 Appeal docketed.
Aug 16 Consolidated with Nos. 77-1404 (Bailey), 77-1413
(Cooley), and 77-1502 (Walker) for disposition on the
merits.
Oct 18 Order consolidating with Nos. 77-1404, 77-1418, and
77-1502 vacated.
1978
Jul 12 Judgment entered reversing judgment of District
Court and remanding for a new trial.
Oct 19 Government petition for rehearing with suggestion
for rehearing en banc denied. J
a oe pe
9
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Holding a Criminal Term
Grand Jury Sworn in on October 4, 1976
Criminal No.
Grand Jury Original
Violation: 18 U.S.Code § 751 (a)
(Escape of Prisoner From Custody)
22 D.C.Code § 2601
(Prison Breach)
THE UNITED STATES OF AMERICA
v.
CLIFFORD BAILEY
RONALD CLIFTON COOLEY
JAMES T. COGDELL
Also known ‘3s James T. Cogwell
RALPH WALKER
The Grand Jury Charges:
FIRST COUNT:
On or about August 26, 1976, within the District of
Columbia, CLIFFORD BAILEY, having been lawfully
committed to the custody of the Attorney General on
March 6, 1973 and April 18, 1973, by virtue of a convic-
tion and sentence imposed by the United States District
Court for the District of Maryland in Criminal Case
Numbers 72-0599 and 73-077, respectively, did unlawfully
and wilfully flee and escape from such custody.
(Violation of Title 18, U.S.Code, Section 751 (a) )
10
SECOND COUNT:
On or about August 26, 1976, within the District of
Columbia, RONALD CLIFFTON COOLEY, having been
lawfully committed to the custody of the Attorney Gen-
eral on May 20, 1976, by virtue of a conviction and sen-
tence imposed by the United States District Court for the
District of Columbia in Criminal Case Number 76-17,
did unlawfully and wilfully flee and escape from such
custody.
(Violation of Title 18, U.S.Code, Section 751 (a) )
THIRD COUN’:
On or about August 26, 1976, within the District of
Columbia, JAMES T. COGDELL, also known as James
T. Cogwell, having been in the custody under and by
virtue of a committment issued under the laws of the
United States by a Judge of the Superior Court of the
District of Columbia following his arrest on a charge of
a felony, did unlawfully and wilfully flee and escape from
such custody.
(Violation of Title 18, U.S. Code, Section 751 (a) )
FOURTH COUNT:
On or about August 26, 1976, within the District of
Columbia, RALPH WALKER, having been lawfully com-
mitted to the custody of the Attorney General on April
11, 1973, by virtue of a conviction and sentence imposed
by the United States District Court for the Eastern Dis-
trict of Virginia (Alexandria Division) in Criminal Case
Number 27-73A, did unlawfully and wilfully flee and
escape from such custody.
(Violation of Title 18, U.S. Code, Section 751 (a) )
FIFTH COUNT:
On or about August 26, 1976, within the District of
Columbia, CLIFFORD BAILEY, having been committed
to a penal institution of the District of Columbia, did
11
escape therefrom and from the custody of an officer
thereof.
(Violation of Title 22, D.C. Code, Section 2601)
SIXTH COUNT:
On or about August 26, 1976, within the District of
Columbia, RONALD CLIFTON COOLEY, having <P
committed to a penal institution of the District of Colum-
bia, did escape therefrom and from th
officer thereof, e custody of an
(Violation of Title 22, D.C. Code, Section 2601)
SEVENTH COUNT:
On or about August 26, 1976, within the District of
Columbia, JAMES T. COGDELL, also known as James
T. Cogwell, having been committed to a penal institution
of the District of Columbia, did escape therefrom and
from the custody of an officer thereof.
(Violation of Title 22, D.C. Code, Section 2601)
EIGHTH COUNT:
On or about August 26, 1976, within the Distri
; , ct of
Columbia, RALPH WALKER, having been committed to
a penal institution of the District of Columbia, did escape
therefrom and from the custody of an officer thereof.
(Violation of Title 22, D.C. Code, Section 2601 )
A TRUE BILL:
/s/ Anna E. Chambers
Foreman
/8/ Earl T. Silbert
Attorney of the United States in
and for the District of Columbia
12
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Holding a Criminal Term
Grand Jury Sworn in on October 4, 1976
Criminal No. 76-735
Grand Jury Original
Violation: 18 U.S.C.Code § 751 (a)
(Escape of Prisoner From Custody)
- 22 D.C.Code § 2601
(Prison Breach)
THE UNITED STATES OF AMERICA
Vv.
CLIFFORD BAILEY
RONALD CLIFTON COOLEY
RALPH WALKER
The Grand Jury Charges: \
FIRST COUNT:
On or about August 26, 1976, within the District of
Columbia, CLIPFORD BAILEY, having been lawfully
committed to the custody of the Attorney General on
March 6, 1973 and April 18, 1973, by virtue of a con-
viction and sentence imposed by the United States Dis-
trict Court for the District of Maryland in Criminal
Case Numbers 72-0599 and 73-077, respectively, did un-
lawfully and wilfully flee and escape from such custody.
(Violation of Title 18, U.S.Code, Section 751 (a) )
SECOND COUNT: =
On or about August 26, 1976, within the District of
Columbia, RONALD CLIFTON COOLEY, having been
Oe ae ee ee
13
lawfully committed to the custody of the Attorney Gen-
eral on May 20, 1976, by virtue of a conviction and
sentence imposed by the United States District Court
for the District of Columbia in Criminal Case Number
76-17, did unlawfully and wilfully flee and escape from
such custody.
(Violation of Title 18, U.S.Code, Section 751 (a) )
THIRD COUNT:
On or about August 26, 1976, within the District of
Columbia, RALPH WALKER, having been lawfully com-
mitted to the custody of the Attorney General on April
11, 1973, by virtue of a conviction and sentence imposed
by the United States District Court for the Eastern Dis-
trict of Virginia (Alexandria Division) in Criminal Case
Number 27-73A, did unlawfully and wilfully flee and
escape from such custody.
(Violation of Title 18, U.S.Code, Section 751 (a) )
FOURTH COUNT:
On or about August 26, 1976, within the District of
Columbia, CLIFFORD BAILEY, having been committed
to a penal institution of the District of Columbia, did
escape therefrom and from the custody of an officer
thereof.
(Violation of Title 22, D.C.Code, Section 2601)
FIFTH COUNT: ° shave
On or about August 26, 1976, within the District of
Columbia, RONALD CLIFTON COOLEY, having been
committed to a penal institution of the Distric’ of -Co-
lumbia, did escape therefrom and from the custody of
an officer thereof.
(Violation of Title 22, D.C.Code, Section 2601)
SIXTH COUNT:
On or about August 26, 1976, within the District of
Columbia, RALPH WALKER, having been committed
14
to a penal institution of the District of Columbia, did
escape therefrom and from the custody of an officer
thereof.
(Violation of Title 22, D.C.Code, Section 2601)
A TRUE BILL:
Foreman
Attorney of the United States in
and for the District of Columbia
15
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Holding a Criminal Term
Grand Jury Sworn in on October 4, 1976
Criminal No. 76-735-3
Grand Jury Original
Violation: 18 U.S.Code § 751 (a)
(Escape of Prisoner from Custody)
22 D.C.Code § 2601
(Prison Breach)
THE UNITED STATES OF AMERICA
Vv.
JAMES T. COGDELL
The Grand Jury Charges:
FIRST COUNT:
On or about August 26, 1976, within the District of
Columbia, James T. Cogdell, having been in the custody
under and by virtue of a commitment issued under the
laws of the United States by a judge of the Superior
Court of the District of Columbia following his arrest on
a charge of a felony, did unlawfully and willfully flee and
escape from such custody.
(Violation of Title 18, U.S.Code, Section 751 (a) )
SECOND COUNT:
On or about August 26, 1976, within the District of
Columbia, James T. Cogdell, having been committed to
16
a penal institution of the District of Columbia, did es-
cape therefrom and from the custody of an officer thereof.
(Violation of Title 22, D.C.Code, Section 2601)
A TRUE BILL:
Foreman.
Attorney of the United States in
and for the District of Columbia
Fn ete en re eee
17
DEFENDANTS’ PROPOSED INSTRUCTION NO. 1
DURESS
A defendant is not criminally responsible for the com-
mission of the crime of willingly and voluntarily escap-
ing from jail if he committed the act of escaping from
incarceration as a result of coercion exerted on him.
Coercion which would excuse the commission of a crimi-
nal act must result from:
1) Threathening [sic] conduct sufficient to create in
the mind of a reasonable person the fear of death or
serious bodily harm;
2) The conduct in fact caused such fear of death or
serious bodily harm in the mind of the defendant;
3) The fear or duress was operating upon the mind
of the defendant at ‘he time of the alleged act; and
4) The defendant committed the act to avoid the
threathened [sic] harm.
When evidence of coercion or duress is present, the
Government must prove beyond a reasonable doubt that
the defendant did not act under coercion. In other words,
if you have a reasonable doubt whether or not the de-
fendant acted under coercion as the court has defined it
to you, your verdict must be not guilty.
People v. Harmon, 394 Mich. 625, 232 N.W.2d 187 (1975) ; People v.
Luther, 394 Mich. 619, 2832 N.W.2d 184 (1975); Model Penal Code,
Section 2.09 (Proposed Official Draft, 1962).
/s/ Gasch, J.
[denied—as submitted]
18
DEFENDANT BAILEY’S EXHIBIT No. 10
SUPERIOR COURT OF THE
DISTRICT OF COLUMBIA
WASHINGTON, D.C. 20001
[SEAL]
Date—December 28, 1976
Clifford Bailey—E1
District of Columbia Jail
19th and D Streets, S.E.
Washington, D.C. 20003
RE: Clifford Bailey-et v. D.C. Govt. et al.
Dear Mr. Bailey:
This is to inform you that your petition to proceed in
forma pauperis has been granted by the Superior Court,
and has been assigned Civil Action Number CA 12495-
76. Enclosed is a copy of the judge’s order.
Summonses and Marshal’s Service Forms are attached
for your convenience. Please fill out these forms and re-
turn them for Marshal Service.
You are required to provide the Court with the original
complaint and summons for filing. In addition, you must
include copies of both the complaint and summons for
each defendant.
All correspondence relating to the above case should
reflect the Civil Action Number.
JOSEPH M. BURTON
Clerk
By /s/ [Illegible]
Deputy Clerk
——e
a
i es
19
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Cr. No. 76-735-4
UNITED STATES OF AMERICA
Vv,
CLIFFORD BAILEY, DEFENDANT
RONALD COOLEY, DEFENDANT
RALPH WALKER, DEFENDANT
Washington, D.C.
March 8, 1977
The above-entitled matter came on for trial in open
court at 10:10 o’clock, A.M., before:
THE HONORABLE OLIVER GASCH
United States District Judge, and a Jury.
APPEARANCES:
Counsel for the Government:
STEVEN SCHAARS, ESQ.
Assistant United States Attorney
Counsel for defendant Bailey:
JOHN E. DRURY, ESQ.
Counsel for defendant Cooley:
ROBERT ROBBINS, ESQ.
RALPH WALKER, pro se
Also present: BRUCE ARMSTRONG, ESQ.
[2] PROCEEDINGS
THE DEPUTY CLERK: Criminal Case No. 76-735-
4, The United States of America v. Clifford Bailey,
Ronald Cooley and Ralph Walker.
(Defendants present in open court :)
20
THE DEPUTY CLERK: Shall I send for a jury
panel?
THE COURT: Yes, Mr. Patterson.
MR. SCHAARS: Your Honor, if the record may re-
flect, I have served upon each defendant in this case and
each counsel those acting as counsel for the defendants
and those standing in as an assistant to the defendants
acting in their own behalf, copies of a memorandum of
law which we have filed with the Court this morning
concerning the defense of duress or necessity, and I think
the record should reflect that, and with regard to that
defense we would suggest that based on the representa-
tions of those defendants who intend to raise that that
they certainly on the face of this case cannot raise that
defense, because each of them failed to report promptly
to any sort of law enforcement, Congressional or judicial
authority after their escape to, in an attempt to redress
their grievances. I suggest that our memorandum ad-
dresses that issue specifically and in detail that in order
to raise that defense one must be able to demonstrate that
they presented themselves to the proper authorities for
the redress of any grievance or anything that necessitated
an [3] escape.
THE COURT: All right, Mr. Schaars, we will take
that point up later when we reach the defense.
MR.SCHAARS: Yes, Your Honor.
* * os _
[12] (Whereupon, Government’s Exhibits 1, 1-A, 1-B,
2, 2-A, 3 and 3-A were received into evidence. )
MR. SCHAARS: I would like to publish these before
the jury by reading portions to them at this time.
Ladies and gentlemen of the jury, what has been [13]
marked and admitted into evidence in this case is Gov-
ernment’s Exhibit 1, 2 and 8.
* * a *
Government’s Exhibit Number 1 is what is entitled:
Writ of Habeas Corpus Ad Testificandum, which bears
a seal from the Superior Court of the District of Co-
lumbia and the signature of Sylvia Bacon, Associate
Judge, Superior Court of the District of Columbia.
21
It is a writ of habeas corpus in the case of the United
States of America v. Brad King. It is a writ directing
the warden of the United States Penitentiary, Leven-
worth, Kansas, [sic] United States Marshal for the Dis-
trict of Columbia and United States Marshal for the
District of Kansas to produce the body of Mr. Clifford
Bailey, by you imprisoned and detained to either the U.S.
Marshal in and for the District of Columbia or the U.S.
Marshal for the District of Kansas or one of their
deputies, so that Mr. Bailey can be brought to the Dis-
trict of Columbia on June 5th of 1976, so that he would
be available to testify for trial. In this particular case,
United States v. Brad King on June 14th of 1976.
[17] RONALD JAMES HARVIN
was called as a witness by and on behalf of the United
States and after having been duly sworn was examined
and testified as follows:
* * * *
[23] By Mr. Schaars:
Q All right, sir, I refer you to specifically Govern-
ment’s Exhibit 4. The face sheet, if I may show you a
copy of it. I direct your attention to the upper left hand
corner. {24] Whose name appears on that document, sir?
A Clifton Bailey.
Q Now, sir, I refer you to the right hand side of
that document. One line down, where it says, ‘“commit-
ment date.” Is there a date there?
A Itis June the Ist 1976.
Q Sir, what is this document? What does it purport
to be?
A This is a Face Sheet No. 1 that is completed upon
commitment to the Detention Services.
Q What does this document reflect in terms of com-
mitment?
A The date that an individual was received into
custody.
22
Q Who is the individual here and when was he re-
ceived in custody?
A Clifton Bailey. He was received on June Ist, 1976.
Q Now, sir, I’m going to refer you to the next Gov-
ernment exhibit that has been marked as 4. It would
be 4-A, and ask if you can indicate to the ladies and
gentlemen of the jury what that is.
A It is an Escape and Apprehension Form. It is used
by the Department of Corrections.
Q Does a name appear on there, sir?
A Yes, sir.
Whose name is that?
[25] A Clifton Bailey.
Q Does it reflect any dates or times with regard to
an escape?
A It reflects a date of escape at 5:35 A.M. on August
26th 1976.
Are Government’s Exhibits 4 and 4-A related at
all? You used the same name, sir.
A They are from the same institution.
Q Do they relate to the same individual?
A Yes, sir.
Q Now, sir, I’m going to invite your atteniion to
what has been marked as Government’s Exhibit 5. Is
— a Face Sheet in connection with those exhibits,
sir
Mr. Harvin, I specifically draw your attention to what
bears a photograph within those exhibits.
A This is an Escape and Apprehension Report.
Whose name is that, sir?
A Ronald Clifton Cooley.
Q Does that bear a date, sir?
A Yes, it does.
Q What date does that bear?
A August 26th.
Q Of what year, sir?
A 1976.
Now, sir, drawing your attention to the last [26]
packet of documents which you have. Do you have what
you referred to as a Face Sheet in connection with that
packet?
A Yes, sir, I do.
&
23
Q What is the identification number of that piece of
paper?
158630.
No, sir, I’m referring to the yellow stamp.
Government’s Exhibit 6.
Is there a name that appears on that, sir?
Ralph Walker.
Is there a commitment date, sir?
June 11th 1976.
What does that document reflect?
That the individual was committed on that date
in the custody of the Department of Corrections.
Q Now, sir, referring you to the next portion of
the documentation labeled Government Exhibit 6 portion
with a photograph on it. What yellow stamp appears
on that, sir?
A That is Government Exhibit 6-A.
Q What does that document purport to be?
A It is the Escape and Apprehension Report that
was filed on August the 26th 1976.
Q What is the name of the individual on that, sir?
A Ralph Walker.
Q What is the relationship of that document to the
other document that you indicated bore the name Ralph
Walker?
[27] A They are both from the same individual’s rec-
ord jacket.
Now, sir, have you had a chance to review the files
of each of these gentlemen?
A Yes, I have.
Q_ The files of the Department of Corrections?
A Yes, sir.
Q You are familiar with the record keeping of the
Department of Corrections?
A Yes, Iam.
Q Are you familiar with the paper work that is un-
dertaken and that is preserved when an individual is to
be released from an institution?
A Yes, sir.
Q Is there paper work prepared when one is to be
released with permission from an institution?
A Yes, sir.
>
PO PO PO PO
24
Q Did you search these files to see if there was any
such paper work in any one of these gentlemen’s files?
Did you search the files, sir?
A Yes, sir, I did search the files.
Q Were you able to discover whether or not there
was any paper work or any forms or business records
indicating that any one of these gentlemen was permitted
to leave the institution on or about the 26th of August
of 1976?
[28] A No, sir, there was no such paper.
Q If these gentlemen had been permitted to leave the
Detention Facility would there have been paper work?
A Yes, sir, there would have been.
Q Now, sir, with regard to Mr. Cooley. Did you have
an opportunity to review the file of Mr. Cooley?
A. Yes, sir.
Q And does the file of Mr. Cooley reflect his coming
to the institution?
A Yes, sir, it does.
Q Do you know what that date is, sir?
A I would have to check on the Face Sheet for that
particular individual. I don’t have that with me at this
time.
Q Did you have an opportunity to review the docu-
mentation to determine whether or not Mr. Cooley was
an inmate on August 25th of 1976?
A Yes, he was.
Q He was an inmate?
A Yes, sir.
Q On August 26th you have a sheet indicating an es-
cape, is that correct, sir?
A Yes.
[52] RE-CROSS EXAMINATION
By Mr. Drury:
Q Mr. Harvin, are the records that are under your
supervision and the records that you have been re-
wm“
25
ferring to here this afternoon, are they the complete
file of any inmate at the New or Old D.C. Jail?
A They are the complete file for the Department
of Corrections that we have on hand.
* oe 7 *
[56] Q And does defense exhibit number 2 reflect that
same record? That would be Defense Exhibit No. 2 that
you have in your possession, the folder?
A Oh, the folder itself? Yes, it does.
Q And he was brought back here to testify in a trial,
is that correct on a habeas corpus ad testificandum?
A That is true.
And the escape occurred—does the subpoena note
the date of the trial in Government’s Exhibit No. 1?
A It says for the individual to be »vailable to testify
for trial in this case presently set for J une 14th.
Q I see. Now, subsequent to June 14th, this assum-
ing [57] testimony was given. Why was this—
THE COURT: Now, Mr. Drury, we all know there
are many continuances in the Superior Court. There
are many continuances in this Court.
MR. DRURY: Your Honor, I believe that we will
be able to show that the case did take place in the month
of June or early July, sir.
MR. SCHAARS: Your Honor, I don’t see the rele-
vancy of that as regards the Government’s case and the
cross-examination of this witness. It has nothing to do
with whether or not he escaped.
THE COURT: Yes, I think that is correct.
MR. DRURY: I will move on to another subject,
Your Honor.
THE COURT: All right.
as * au *
[62] BARRY COLVERT
was called as a witness by and on behalf of the United
States and after having been duly sworn was examined
and testified as follows:
26
DIRECT EXAMINATION
By Mr. Schaars:
Q Sir, would you please state your name?
A My name is Barry Colvert.
[63] Q How are you employed, sir?
A I’m assigned as a Special Agent with the Wash-
ington Field Office of the F.B.1.
Q How long have you been so employed?
A Approximately fifteen years.
Q Is it then fair to say that in August of 1976 you
were with the F.B.I.?
A That is correct.
Q_ I invite your attention to the 26th of August of
1976. Were you an F.B.I. agent at that time?
A Yes, sir, I was.
Q Do you recall whether or not you were on duty
on that date?
A Yes, sir, I was.
Q Do you recall what your hours of duty were that
day, sir?
A I think I came in at approximately 6:30 in the
morning and worked until around 6:00 o’clock that night.
' Q Now, sir, during the course of your tour of duty
or your work hours on that particular, day, did you be-
come involved in, or assigned to the investigation of a
jail break within the District of Columbia?
A Yes, sir, I was.
Q And, as a result of your participation in that in-
vestigation did you actually assist in the arrest of some
[64] individuals who allegedly escaped?
A Yes, sir, I did.
Q Do you recall the names of the individuals whom
you participated in the arrest of?
A Mr. Clifford Bailey. Mr. Ralph Walker. Mr. Ron-
ald Cooley and Mr.—that would be it.
Q Now, sir, do you see any or all of those individuals
in Court at this time?
A Yes, sir, I do.
Q_ If so I would ask that you identify them by loca-
tion in the courtroom and by wearing apparel.
27
A Mr. Walker is seated at this end of the defense
table with a burgandy or maroon sport coat on. Mr.
Bailey seems to be wearing a blue shirt, and Mr. Cooley,
oe at the far end of the table is wearing a green
shirt.
Q Could you be a little bit more specific? There are
at least three gentlemen over there with blue shirts on.
A The gentleman turning around, facing the Marshal
with a blue chambray or prison type shirt on, and the
other gentleman at the far end, between two gentlemen
in the suits wearing a green wollen [sic] jacket over a
light blue shirt.
Q Whois the last gentleman?
A Mr. Cooley.
Q I would ask that the record reflect that Mr. Colvert
has in fact identified each of the defendants in this
case.
(65] THE COURT: Very well.
By Mr. Schaars:
Q Now, sir, with regard to Mr. Bailey. Will you,
if you know, advise the Court of the nature of your as-
sistance when the arrest of Mr. Bailey occurred?
A It was on November the 19th, last year. The ad-
dress was 1236 11th Street, Northwest in the 7th floor
apartment, I believe Apartment 77.
Q Was that within the District of Columbia?
A Yes, sir, it was.
Q Did you assist in the arrest of the gentlemen whom
you have identified in Court today?
A That is correct.
Q Now, with regard to Mr. Cooley, sir. Did you
assist in that arrest?
A Yes, sir, I did.
Q Where did that take place and when?
A September 27th, last year. - address was 4229
2nd Place, Northeast.
Q Is that within the District of Columbia?
A It was in Washington, D.C.
9 One of the gentlemen you identified in Court today?
That is correct.
28
Now, with regard to the last gentleman, Mr.
Walker. Did you assist in the arrest of Mr. Walker?
[66] A Yes, sir, I did.
Q When did that take place, sir? ae ig
A December 13th last year at Number 39 Mississipp1
Avenue, Southeast in the basement apartment.
Q Is that within the District of Columbia?
A That is correct. :
Q Is that the Mr. Walker whom you have identified
in Court today?
A Yes, sir. f : 3 ‘
CROSS-EXAMINATION
By Mr. Drury:
Q Agent Colvert, did you say that you arrested Mr.
Bailey or that you assisted in the arrest?
A IL assisted in the arrest of Mr. Bailey.
[68] By Mr. Drury:
Q Directing your attention Agent Colvert to Defend-
ant’s Exhibit 3. I ask you whether you can identify
that document, if so how can you?
A This is an F.D. 302 that reflects the apprehension
of Mr. Clifford Bailey at 1236 11th Street.
Q Is that an official or recognized copy of the official
document that contains the report by the Federal Bu-
reau of Investigation as to the apprehension on the 19th
of November of 1976 of Clifton Bailey?
A That is correct.
Q In the text of that document is there reference to
the agents, Dean, Patriak, Fluharty and another agent?
A Yes, sir, there is.
Q Who is the other agent?
A Mr. Patrick, Mr. Murphy, Mr. Dean and Mr.
Fluharty. :
Q If you were present on the scene why is your name
not present, mentioned in the body of that text?
A They were emerging from Apartment 77 with
Mr. Bailey in custody when I came on the scene. I ob-
served the arrest.
_ * * *
29
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Cr. No. 76-735-4
UNITED STATES OF AMERICA
Vv.
CLIFFORD BAILEY, DEFENDANT
RONALD COOLEY, DEFENDANT
RALPH WALKER, DEFENDANT
Washington, D.C.
March 9, 1977
The above-entitled matter came on for further trial in
open court at 9:50 o’clock, A.M., before:
THE HONORABLE OLIVER GASCH
United States District Judge, and a Jury.
* * * *
[94] THE COURT: Now, with respect to the defense.
The Court read the Federal cases which are cited on Page
6 of the memorandum submitted by the Government.
The cases stated, particularly Joiner, Woodring, Miller
and Coggins, I think state the law that would be ap-
plicable to this case. I am not sure that I understand
the relevancy of the cases cited by Mr. Drury, one of
them was not an escape case.
MR. DRURY: Cassell is not an escape case, Your
Honor. It deals with the Jones-Miller Act, narcotics of-
fense, but Witsnow is a case—
THE COURT: That was tried by Judge Smith. He
made no findings and conclusions. The matter was re-
ferred back to him and subsequently affirmed.
MR. DRURY: Yes, Your Honor. But it dealt with
the [95] essential element of escape under the Federal
Statute and that was criminal intent, and as you know
the Cassell case is cited in the Snow case and the Cassell
case, perhaps is the touch-stone for the argument that
30
I am making and it is refined in Snow and it is refined
by Judge Bazelon, which he says that a necessary ele-
ment of any criminal offense under escape, under the
crime charged here is that, that of criminal intent and
that there must be a showing that the act was committed
or at least the defense should have the opportunity to
show that the act was committed under compulsion such
as appreliension of serious and immediate bodily harm,
and that that act was involuntary and therefore not
criminal.
THE COURT: Well, I understand that theory. Of
course the cases also mention the obligation of one who
escapes under those conditions to turn himself in having
affected the escape.
MR. DRURY: Your Honor, I would contend that
Snow is controlling. The cases that the Court has re-
ferred to in memorandum submitted by Mr. Schaars are
not cases dealing with the law in the District of Co-
lumbia.
THE COURT: Well, in the District of Columbia it’s
no different.
MR. DRURY: Your Honor, I believe from my re-
search in this case, and I spent a short time this morning
attempting to find further authority for the argument
that I am [96] asserting, in the library, and I believe
the issue is unresolved in the District of Columbia.
THE COURT: Certainly doesn’t resolve it.
MR. DRURY: I think Snow says, Your Honor, that
the defense should be allowed to submit evidence negat-
ing criminal intent.
THE COURT: Well, I am disposed to agree with
that.
a + * *
[122] MR. SCHAARS: Your Honor, the Government
has no further evidence to offer in its case in chief at
this time.
[123] THE COURT: All right.
MR. SCHAARS: The Government, accordingly, rests,
Your Honor. ,
THE COURT: All right.
31
Ladies and gentlemen, you may step into the jury
room, briefly.
(Whereupon, the jury retired to the jury room and
the following proceedings were had out of their
hearing and presence: )
MR. SCHAARS: Your Honor, if I may be heard just
briefly before Mr. Drury begins. I have rested, but I
rested for the purposes of the jury having heard that.
It is my intention to move into evidence in this case all
exhibits which have not been admitted to this date and
at the same time I would seek leave to, at the conclusion
of the case withdraw the original copies of those items
of evidence which do not have Xerox copies in evidence
now and substitute true and accurate Xerox copies for
those documents.
THE COURT: Are there any Gover**ent exhibits
that have not been received?
THE DEPUTY CLERK: No, Your Honor. All of
the Government exhibits have been moved in and
received.
MR. DRURY: I see no objection to any of the change
in documents except one. I note that this master finger-
print card, which is Government’s Exhibit 13-A notes no
[124] date. However, it notes on the second page a
crime of attempted robbery. I would ask that that be—
that the words, “attempted robbery’, be deleted from this
document. ,
MR. SCHAARS: We certainly have no objection to
that, Your Honor.
THE COURT: That will be done.
Now, gentlemen, it is my impression that the Gov-
ernment has made out a prima facie case. If any of you
have anything specific to bring to my attention with
reference to failure of proof on the part of the Govern-
ment I will hear you briefly.
MR. DRURY: I want to note that I move for a ro-
tion for judgment of acquittal with regard to Clifton
Bailey. —
I would contend that the Government has not proved
identity in this case. Moreover, I would contend that the
32
Government is under an obligation to demonstrate the
means with which this escape occurred. This has been
a documentary case. I believe that because it has been
a documentary case, and because it has been demon-
strated, at least in part that through Government wit-
nesses that there is a potential for human error in the
compilation of documents. I believe that that supports
the reason why there should be a showing of the manner
in which, the exact manner, the exact location where
the escape occurred, and that the Government should not
proceed on a mere documentary case and showing that
the man was [125] there one day and that he was absent
on August 26th.
THE COURT: I will overrule you on that. Ghoram
and Jones, the Government was unable to prove how they
knotted the sheets together and got out of the third
floor of the jail or whatever it was, so I will overrule
you on that.
MR. DRURY: Court’s indulgence for one moment.
I want to point this document out to Mr. Patterson.
13-A, second line down, under “crime”.
MR. SCHAARS: We would be happy to provide Mr.
Patterson with another Xerox copy of that page, the
2 pti robbery, so there is no scratching on there at
all.
THE COURT: All right. Now, Mr. Robbins.
MR. ROBBINS: I too wish to move for a judgment
of or a motion for acquittal on behalf of Mr. Cooley.
I adopt Mr. Drury’s arguments for the record and also
note that the failure in the case against Mr. Cooley,
specifically with the records is that there has been no
records introduced to show that Mr. Cooley was in the
New D.C. Jail on August 26th or on the dates before.
The records indicate that he was committed to the D.C.
Jail which a witness said commonly meant the Old Jail.
He was committed there on April the 10th of 1976. There
were no records and no testimony to indicate that he was
there prior to—in the New Jail prior to August the 26th,
and this points even further to the problems with the
Government’s case in that it was only documentary evi-
dence, [126] not testimonial evidence. There was no
———————
ce EEE a
33
testimony either to indicate that Mr. Cooley was in the
New Jail prior to August the 26th, only the documentary
evidence which fails on that point.
THE COURT: All right. Same ruling.
Now, Mr. Walker. Do you wish to adopt the motions
previously made?
THE DEFENDANT WALKER: Yes. Defendant
wishes to adopt both counsel Robbins and Drury.
THE COURT: All right. Same ruling.
THE DEFENDANT WALKER: As far as judgment
of acquittal is concerned?
THE COURT: Yes.
THE DEFENDANT WALKER: All right.
* * * *
[149] BERNARD EUGENE WILSON
was called as a witness by and on behalf of the defendant
Ralph Walker and after having been sworn was examined
and testified as follows:
DIRECT EXAMINATION
BY THE DEFENDANT WALKER:
Q Mr. Blake, would you state your full name to the
Court, please?
A Bernard Eugene Wilson.
Q Bernard Eugene Wilson?
A Yes.
Q All right. Mr. Wilson, where are you presently
located, or where do you presently reside?
A At Lorton Reformatory.
Q Mr. Blake, I call your attention—Excuse me. Where
[150] were you, or what was your residence during the
period wi between August the lst and August the 26th?
‘A * believe I had been at 1901 D Street, Southeast,
District Jail.
Q All right. Was there any particular housing unit
that you were housed in or do you remember the housing
unit that you were housed in at that time?
A Yes. Northeast One.
34
Q The Northeast One housing unit?
A Yes. Dead lock.
Q Of the District of Columbia Detention Facility?
A Yes.
Q Isthat a maximum security section?
A Yes.
Q Do you recall whether an inmate by the name of
Ralph Walker, El, that would be myself, was housed with
you there?
A Yes.
Q All right. Mr. Blake on any occasion there do you
recall any burnings or fires that took place between Au-
gust the 1st and August 26th?
A Every day.
Q Every day?
A Every day.
Q Do you recall any inmates of the Northeast One
housing unit complaining of any type of illnesses and
specially [151] concerning smoke inhalation?
A Yes. The ventilation unit, you know, all of windows
and so forth, all of the inmates started breaking out the
windows for air inside of the units.
Q You say that there is no ventilation or there is no
air? In other words, are you saying that there are no
open windows?
A No opefi windows.
Q At the Detention Facility?
A Probably is now, but then there wasn’t.
- Q You say that also that inmates had started break-
ing out windows?
“ A Yes.
“Q Were these windows broken out as a direct result
of the fires that were set?
A Yes.
‘MR. SCHAARS: Object. The extent of this gentle-
man’s knowledge as to why they were broken out—
THE COURT: I think if you tell him under what
circumstances were the windows broken out maybe he can
answer ‘t without a leading question.
ee TS 8g GE
rq —=f|
35
BY THE DEFENDANT WALKER:
Q Under what circumstances were the windows broke
out Mr. Wilson?
A For air because of smoke.
[152] Q Did you, yourself, personally suffer any type
of smoke inhalation?
A Yes.
Q Did you complain to the authorities about suffering
from any type of smoke inhalation?
A Yes.
Q Were you ever able to receive any type of medical
attention because of your complaints?
A No.
Q How often did you complain, Mr. Wilson?
A More than ever day that I stayed down there. I
stayed down there almost a month and a half.
Q And how often did you say burnings took place?
A Just about every day I was down there.
Q Were there, to your knowledge, any physical beat-
ings by the authorities there at the jail while you were
there?
MR. SCHAARS: Objection, Your Honor. It is another
leading question. —
THE COURT: Overruled.
THE DEFENDANT WALKER: Would you answer
the question, Mr. Wilson?
THE WITNESS: Yes. I got beat a few times.
BY THE DEFENDANT WALKER:
Q You say that you were personally beat?
A Yes.
[153} Q Who were you beat by, Mr. Wilson?
A A guard by the name of Officer Webb.
Q Would the record reflect that Mr. Wilson indicates
that he was beaten by an officer by the name of Mr.
Webb.
THE COURT: Yes. The testimony is reflected in the
record.
86
BY THE DEFENDANT WALKER:
Q Do you remember on what date you were beaten,
Mr. Blake?
A No, I ecan’t—
Q Or, Mr. Wilson.
A I can’t remember all of the dates it happened, but
I know incidents that did take place, you know.
Do you remember what month it took place?
Yes. August.
August?
Yes, it has been August.
you remember what the beating resulted from?
es.
Would you explain to the Court, please.
Yes. It was, resulted from me supposing had been
a friend of some inmate that was in the jail by the name
of Clifton Bailey or something. Somebody told me that I
was a friend of his, and they told me that I should de-
liver a message to this dude.
Q That you should deliver a message to the dude?
[154] A Deliver a message to him.
Q To who?
A To this guy by the name of Clifton Bailey. He told
me, they said, “since.he’s one of your buddies, you deliver
him this message. You tell }‘m that we are going to kill
him and he’s also going to receive some of the treatment
that you just received for testifying in the Brad King
case this summer.”
Q Mr. Wilson, would you describe the incident that
took place when this officer, Officer Webb beat you?
MR. SCHAARS: Your Honor, I must object again.
We are not concerned whether this gentleman says he
was beaten; whether or not Mr. Walker has a defense
along those lines.
THE COURT: I think some leeway should be ac-
corded the defendant, Mr. Schaars. However, having al-
ready brought out something of his own personal recol-
lection now I would ask you to confine your questions to
what he knows about your condition.
THE DEFENDANT WALKER: Your Honor, what
I’m asking him is— :
POPO PO PO
37
THE COURT: I «understand what you’re asking.
THE DEFENDANT WALKER: It is my position—
THE COURT: I would like you now to go into what
happened to his knowledge concerning yourself.
BY THE DEFENDANT WALKER:
[155] Q Mr. Wilson, excuse me. Were there any
other beatings that took place at the jail during the time
that you were there in the Northeast One housing unit?
A Yes, more or less like that, a every day thing.
MR. SCHAARS: I’m sorry. I can’t hear the witness.
THE DEPUTY CLERK: Pull the mike up.
THE WITNESS: I’m saying this is more or less like
an every day thing that went on down there.
BY THE DEFENDANT WALKER:
Q_ All right...
Defense has no more questions.
THE COURT: Any other defense counsel wish to ask
questions?
CROSS-EXAMINATION
BY MR. DRURY:
Q Sir, my name is John Drury and I am defense
counsel for a gentleman who is on trial today by the
name of Clifton Bailey.
Now, do you from your personal knowledge know
Clifton Bailey?
A No.
Q I see. Have you ever met Jim before? Have you
ever met anybody by the name of Bailey at the District
of Columbia Jail or at Lorton?
A, That is when I first met him over at the jail.
[156] Q I see. Do you know him by any name other
than his name, Clifton Bailey?
A No.
Q Do you know a person by the name of Sonny?
A No, Ivean’t remember. I know a few Sonnys, you
know.
Q Mr. Bailey, would you stand up?
* ; el
38
This is my client, Clifton Bailey. Have you ever met
him before?
A I have seen him over at the jail. Personally, I have
seen him. We had a confusion, you know. I personally
don’t know him.
Q Well, now your name is Bernard Eugene Wilson, is
that correct?
A Right.
Q Mr. Walker-E] referred to you as Mr. Blake. Could
you please explain to the ladies and gentlemen of the
jury why he referred to you as Blake?
A Well, like during my, you know, my prior history
as a child, so forth I sorta like figured I was getting out
of the Department of, you know—the place. In other
words, I was trying to get out of the place and I gave
them a false name, you know, thinking I could get out.
Q But you are known both as Mr. Blake and Mr.
Wilson?
A Right.
[157] Q Do you mind if I refer to you as Mr. Wilson?
A It doesn’t make any difference.
Q Now, as I understand from your testimony you are
at Lorton, Virginia, is that correct?
A Yes.
Q Prior to being at Lorton you were at the D.C. Jail.
Now, when was it that you were transferred to Lorton?
« A I was transferred to Lorton—
Q Now, let me—Mr. Wilson, this is a microphone.
The best way to give any testimony in this case is to lean
forward and to speak very closely to that microphone» so
all of the ladies and gentlemen in the courtroom and of
course the ladies and gentlemen in the jury box might
hear you.
Now, wren were you transferred to Lorton?
A I had veen transferred to Lorton twice. Which are
you referring 10?
Q Iam actually referring to your present commitment
to Lorton.
A Just my present commitment, just when I got down
to Lorton last month.
39
So that would be in February.
February.
Where were you prior to that?
Everywhere.
) Well, were you at D.C. Jail?
[158] A Right.
Now, during the summer months, June, July, and
August of last year were you at D.C. Jail?
A Yes.
Q When did you first see my client, Mr. Bailey who
I have shown to you?
A The day I went down in dead lock there was an
incident.. Him and some other guy was having an incident
in the hall.
Q Okay. Let me first of all ask you questions concern-
ing the New D.C. Jail. Is that where you were?
A Right.
Q And the D.C. Jail is divided into sections. One of
the sections being Northeast One?
A Right.
Q And that means’that it is the—in the Northeast
section on the first floor, is that correct?
A Right.
Q Is there a particular—Is the Northeast section of
the first floor, is that what they call dead lock?
A Right.
Q~ And is dead lock a place where they put prisoners
who have difficulty at the jai il, who ed protection or fo
perhaps—who perhaps ard to removed and separated
from the normal population of the prison? '
[159] A Right.
MR. SCHAARS: Objection. He is asking the witness
to testify as to correctional polities. :
THE COURT: Yes. I think he can probably tell you
4 good ‘déal about that without a leading question, Mr.
rury.
BY MR. DRURY:
Q From your knowledge could you explain what dead
lock is and speak very loud so the ladies and gentlemen
of the jury can hear you.
DP PO
—
40
A Dead lock is a segregated part of the jail for in-
mates who are under protective custody, for inmates who
can’t function in open population and inmates under
threat of inmates within the jail.
Q Is an inmate—Strike that.
How many individuals are there in dead lock?
A Eighty.
Q Eighty?
A _ Yes.
Q Are they all on the ground floor or on one floor or
are they on tiers, sir?
A They are tiers.
Q Now, are you ever let out of dead lock during the
day time?
A No. No.
Q Could you tell me the manner in which you—Strike
[160] that.
How many individuals are in each cell in dead lock?
A One.
Q Between each individual cells are there bars or are
there walls in which you cannot talk through?
A There are walls.
Can you see the person next to you in the other
A No.
Q Can you see the person across the hall in the other
‘
Q
cell?
A Yes, sometimes. If he is directly across from you.
Q Now, I assume that there is a door? .
A Right.
Q Is there anyway that you can look out of that door?
A Oh, yeah, you can look out the door. It is just bars
on the front of the door.
. Q Is it a completely barred door or is there only a
little peep hole?
A There is a complete—In the Northeast One there is
complete bars. The rest have, you know, doors.
Q. You have explained to us what dead lock is like.
How did you happen to see my client, Mr. Bailey, there?
A I seen him arguing with a dude who is a friend of
mine. They had somewhat of a conflict. The dude was
more or less like a personal friend of mine.
41
[161] Q By “the dude” you mean a friend of yours in
jail?
A Yes.
Q With the exception of this time, how would you
have an occasion to see someone like Mr. Walker-E] or
Mr. Bailey?
Would you ever meet in the hallway?
A No. No.
Q_ Are you allowed out of your cell?
A To take a shower. Sometimes they permitted you
to make a phone call, or if you’re going to medical or
something like that. :
Q Now, you have described that you, or you have
related to the jury that you first saw Mr. Bailey and
that you knew that he was in Northeast One, the dead
lock section sometime in the summer of 1976, is that
correct?
A Right.
Q And you have referred in your testimony to burn-
ings. Who starts these fires?
A Idon’t know. I don’t know.
Q My question is: Do the inmates start the fires or
do the guards start the fires?
A It is actually hard to say. Like I can’t tell what
actually goes on outside of my cell.
You cannot see to the left and you cannot see to
the right out of your cell, but you notice that there were
fires occurring in the hallways or in other cells? _
[162] A Well, you know inmates would set their own
cells on fire, but they would set some outside of the tiers,
you know.
Q What would the gyards do?
A Nothing. Let it burn.
Q What would they use for fire, for kindling? Would\_
they use cigarette packs or what, sir?
A Use things that was burnable.
Q Would there ever be any attempt to put out these
fires by the guards?
A Oh, no. They go in the office. They have a little
booth, so forth. They go in the office, shut the booth door.
42
Q I can’t hear you, sir. I’m less than ten feet away
from you and I can’t hear you.
A Well, like when the fire starts, like they normally
go inside of their booth and close the door.
Q Their booth?
A Yes, and then like they don’t haps 5 about what goes
on outside.
Q With regard to an individual cell. Are there any
windows in your cell?
A Umm. ?
Q What are the windows like? Are the long windows,
length wise or are they little peep holes?
A Long windows, you know.
[163] Q Isee. Now, are they barred?
Yes.
Is there glass?
Yes.
Can you open the window and get fresh air?
Yes; take the glass out.
In the normal occurrence of events can you turn a
Bie _ the window between the bars and get fresh air?
0. *
Q What would happen when these fires are started
and the smoke would filter into your cell?
I tore my window out.
Pardon me.
I tore my window out.
You broke it out?
Yeah.
Is there airconditioning in Northeast Ong?
In the winter time.
Is it in the summer, sir?
No.
You have referred to physical beatings that oc-
vse Now, there are fights between inmates, are there
not
A Umn, umm.
Q And are these the beatings that you are referring?
A Uh-huh.
[164] Q Speak up, sir. What are the beatings that
you are referring to?
OPO POP
DPOPOPO Pop
ee a PR SO
43
A I’m speaking about the beatings that the guards
will do to inmates. I mean like the jail, I mean like I
was—asked to transfer to any other institution, wherever
the man has custody rather than that institution. I didn’t
want to stay up there for sure.
MR. SCHAARS: I object to this at this point. He is
giving his reaction: to this stuff rather than what Mr.
Walker’s defense purports to be.
MR. DRURY: I am merely trying to get a clear pic-
ture of the beatings and who the beatings are directed
against. My next question is: Why the beatings are
directed against them.
THE COURT: You may question the witness.
BY MR. DRURY:
Q The beatings are conducted by the guards, by one
or two guards?
A Normally—
Q You will have to speak up.
A I would say there would be numerous. More than
one. Sometimes like it would be maybe six or seven
guards, you know.
Q Now, are the beatings inside an individual cell or
outside of an individual cell?
A They come in your cell.
[165] Q Well, how would you know that these beat-
ings were occurring? You can’t see left, you can’t see
right. You can only hear out the window.
A All you have to do is hear.
Like the guy who slept next door to me, you know, there
was evidence that they was practically killing him. He
was hollering when they brought him out of the cell. He
was bleeding half to death. Nobody else in the cell. He
was by himself. All of the other inmates were locked up.
Q Thank you. My question—The next question that
' I have is: If the inmates are not allowed out of the cell
what is going to cause, from your experience, a D.C. Jail
guard to go into the cell and beat a man? ~
A I don’t know what caused that. I don’t know.
Q Were you ever beaten?
A Yeah.
44
Q Why? |
A I don’t know. They told me to deliver a message.
Simply for that. The next thing I know they came down
to my cell and tried to beat me half to death. I got all
cut up so forth for nothing.
Let me ask you this: Have you ever heard of the
Brad King case? , ;
A That is part of what the guards was discussing
with me.
[166] Q Slow down in your testimony. Speak to the
ladies and gentlemen of the jury.
MR. SCHAARS: Your Honor, that is not responsive
to the question. The question was: Had he heard and
he answered that.
THE COURT: I sustain the objection.
BY MR. DRURY:
Q In what context have you heard of the Brad King
case?
From a guard.
Who was the guard?
Officer Webb, same one that beat me.
You said Officer Webb?
Right.
Could you tell us what the officer told you and when,
™m
2O>O PO >
First of all, when?
A This was—
MR.SCHAARS: Your Honor, that is hearsay.
THE COURT: Yes. Sustained.
MR. DRURY: Your Honor, I believe that at a later
point in time that there will be some corroboration from
my client concerning that. I believe in order to shorten
the defense presentation in this case it is necessary for me
to not bring back Mr. Wilson at a later time, but to elicit
this [167] testimony now.
THE COURT: Hearsay is hearsay. It is not evidence.
MR. DRURY: Thank you, Your Honor.
BY MR. DRURY:
Q Did you testify in the Brad King case?
A No.
—
ee eee
45
Q Did you ever know a person, personally, Brad King?
A No, I did not.
Q Did you know if anyone testified in the Brad King
case?
A Yes. They told me that this dude did.
Q Did you know whether someone testified in the
Brad King case?
A. Yeah.
Q Was that person an inmate in Northeast One?
A Yes.
Q Was there ever any—strike that Ne
Is there a medical facility down at the new D.C. Jail?
A Yes.
Q Do doctors and nurses staff that medical facility?
A Yes.
Q Have you ever gone to that medical facility?
A Yes.
Q Have you ever been treated for any type of an ill-
[168] ness or a cut or any type of disease?
A Yes. I was treated for a cut.
Q Have you ever gone there for any type of smoke
inhalation which would mean being overcome by smoke?
A No.
Q Have you ever been present when anyone has, a
prisoner has been brought into the jail who has been
subject to breathing too much smoke or inhaling too
much smoke?
A Yes.
Q Have you ever seen any prisoners in Northeast One
being taken out by the guards as a result of inhaling too
much smoke?
A Yes.
Q Would the people who had been overcome by smoke
have been ill as a result of the fires that were started?
MR. SCHAARS: Objection, Your Honor.
THE COURT: He can state what he has observed
concerning those people.
BY MR. DRURY:
Q After the fires have been put out, either burned
themselves out, an inmate has placed them out, what
action has been taken by the authorities with regard
to inmates who have ben sickened by too much smoke?
46
A What action would be taken?
Yes.
[169] A _ Ihave never seen no action taken.
Q I can’t hear you. But you have seen people taken
to the medical facility for smoke inhalation?
A I don’t know where they was taken. I know they
was Baty know they was taken out, of the unit.
see.
MR. DRURY: Court’s indulgence for one moment.
I have no further gq testions.
THE COURT: Mr. Robbins.
CROSS-EXAMINATION
BY MR. ROBBINS:
Q Mr. Wilson, my name is Robert Robbins. I am
repreesnting Mr. Ronald Cooley today. Do you know Mr.
Cooley?
A Yes.
Q During the summer of 1976 when you were in
Northeast One in the Jail were you acquainted with Mr.
Cooley?
A We weren’t acquainted. i had known him.
Q Was he in that same housing unit at that time?
A Yes.
{170} Q Did you ever see him during the summer of
1976 with any physical injuries
A Umm.
Q Could you describe those, please?
A Ihave seen them take him—
Q Could you please speak up?
A It wasn’t a physical injury. What it was, was
they taking him out of the block. He was vomiting some
kind of black stuff. I don’t know what it was. I don’t
know what happened to him. When he was around there
one time they took him out. He must have had an argu-
ment with one of the guards. They took him out up to
the clinic. I don’t know what actually happened or
caused it.
Q Can you specifically remember when this was?
A This was in the month of—I can’t be—you know,
approximately. My day can’t be processed up to the
47
exact date, but it would have to be within July or late
part of July or early part of August.
Q Are there any other incidents that you remember
with regard to Mr. Cooley?
A Involving this case?
Q Similar incidents to what you just described or
[171] any other physical injuries.
A I recollect—discussed all the things that happened.
Like at the jail, if it doesn’t have anything to do with
this case—
Q Iam only concerned about Mr. Cooley.
A You mean have I ever seen anything happen to
him? Those are the only two things I ever seen happen
to him, the few times they would let him out to take a
shower then one of the guards would be intimidating him
or something like that, pushing him down to the shower,
telling him to take a shower with the handcuffs and
shackles. I remember things like that.
Q Now, earlier you said that he was taken out of his
cell and he was vomiting.
A Yes.
Q Do you know why he was taken or where he was
taken?
A No. I don’t know where he was taken. I actually
—I don’t know what goes on. I was outside of Northeast
One after they take him out of there.
Q Do you know what occurred before that?
A Yes. They was burning up a whole lot of sheets,
so forth around the back hall.
Q Who was?
A I don’t know. I don’t recall the names.
And, after that you saw Mr. Cooley being taken
out [172] of the cell?
A Right.
Q Now, Mr. Wilson, you said earlier that you had
been taken to the hospital at one point for a cut.
A Yes.
Q Why were you taken to the hospital?
A Because Officer Webb, you know, I was in my room
sleeping and he came in there and just—I don’t know,
just went off.
Q Who did this?
A Officer by the name of Webb.
48
Q A moment’s indulgence, Your Honor.
THE COURT: All right.
MR. ROBBINS: No further questions, Your Honor.
THE COURT: Mr. Schaars.
CROSS-EXAMINATION
BY MR. SCHAARS:
[176] Q You have testified that your cell was around
the corner from Mr. Cooley’s, is that correct?
A Right.
Q Did you ever hear any beatings from Mr. Cooley?
A Hear them?
Q Well, you have testified that you could hear a beat-
ing but you couldn’t—
A I couldn’t see it. I could hear it just about every-
thing going on.
Q How many cells are between yours and Mr. Cooleys?
A It wasn’t actually cells. I’d say, if you was
counting cells, I say maybe he’d be eight cells over.
Q Yet you are positive when you heard something it
was Mr. Cooley’s cell, not any of the other eight?
A Let me tell you something about institution life.
If you lived just there and you’re around them you know
them when you hear them.
Q Now, could you answer the question? Did you
know that it was Mr. Cooley as opposed to any other
gentleman?
A Yes.
Q Did you ever hear the other gentlemen being beaten
in those other eight cells?
A Yes, and know who it was.
Q You had—You knew absolutely who it was each
time?
A Right.
[177] Q No question?
A If I wasn’t sure it was somebody, any one man
saying they jumping on so and so, and so and so. It
was as simple as that.
Q Now, when Mr. Cooley was taken out after these
sheets were burned where were the sheets being burned?
A I assume out the back hall.
49
Q How far was that from your cell?
A Id say about eight cells.
Q Eight cells over?
A Right.
Q Eight cells towards Mr. Cooley or away from Mr.
Colley from your cell?
A That would be eight cells—If I counted eight cells,
evidently must have been two cells away from him.
From Mr. Cooley?
Right.
And they were sheets and stuff?
Yes.
How do you know they were sheets?
You could tell the way paper burns, sheets burn
and continue to burn.
* * * +
[180] REDIRECT EXAMINATION
BY THE DEFENDANT WALKER:
Q Mr. Wilson, was I, myself, an inmate of Northeast
One houseing [sic] unit while you were housed there?
A I believe so.
Q Another question I’d like to ask you is: During
the time of the burnings, were any inmates at any time,
to your knowledge, allowed to or let out of their cells
to escape the burnings or smoke inhalation?
A No.
Q Have you ever heard me, personally complain to
any officials concerning smoke seca neane or the need for
medical attention?
A Yes.
[181] Q What did you hear, if anything, concerning
my complaints, Mr. Wilson?
MR. SCHAARS: Objection as to hearsay.
THE COURT: Well, the defendant said which is
over heard by the witness is admissible.
BY THE DEFENDANT WALKER:
Q Would you answer the question, Mr. Wilson. Would
you answer the question, Mr. Wilson?
A I heard you say that if they didn’t straighten out
some of the rules or the jails you were going to file a
PO PO pO
50
writ pertaining to jails, towards the—with respect toward
the inmates there.
Q Do you know of any writs of this nature were
ever filed?
A I don’t know.
Q All right. Where was your cell located in the North-
east One housing unit, Mr. Wilson?
A I was in Cell 37.
Q Cell 37?
A Yes.
Q Is that on the top tier or bottom tier?
A That is the bottom tier.
Q Where was my cell located, if you remember?
A If I remember you must have been over top of
me.
Q Umm. Where was my cell in relation to yours?
[182] A I would say you had to be exactly over top
of me. If not exactly over top of me you had to be maybe
down some, I can’t positively remember.
Q From where you were located in reference to where
I was located were you able to clearly hear conversations
that were going on between myself and anybody that may
have been standing in front of my cell or near my cell?
A No, I couldn’t hear.
Q All right. The District Attorney asked you were
you able to know who would be in—who was being
beaten by hearing the voice. I’d like to ask you: Is that
just your assumed opinion or could you be absolutely sure
by voice alone who was being beaten?
A Yes. If there was a fellow inmate, inmates that
I more or less had any dealings with, yeah.
Q Let me ask you this: What other way did you
have of determining who was being beaten other than
by voice recognition?
A Somebody would just say it.
Q Somebody would just say it?
A Yes. Like if Joe was getting beat, Frank would
say: “They’re beating Joe.”
THE DEFENDANT WALKER: That is all, Mr.
Wilson. Thank you.
* * *
51
[184] BY MR. DRURY:
Q Are there any type of fire-fighting equipment with-
in Northeast One that—
I guess so.
There are?
Yes, there is some down there.
Where are they located, sir?
Within the officer’s booth.
They are located in the officer’s booth?
Yes. |
Now, you were an inmate, were you ever allowed to
go in the officer’s booth without authorization?
A No.
Q Were you ever let out of your cell to go get a
OPO PO POY
| fire-fighting piece of equipment?
A
No.
Q Is there any fire-fighting equipment in your cell?
A No.
Q Is there any water in your cell?
A Yes.
Q They have lavatory facilities, is that correct?
[185] A _ Right.
Q When a fire occurred were any inmates allowed in
your experience out of their cells to fight these fires?
A No.
Q Are inmates allowed to have matches?
A Yes.
Q In Northeast One are they allowed to have matches?
A Yes, they are allowed. No, not no more since
I was just down there two weeks ago they took all of
our matches so evidently they can’t keep matches.
Q On August 26th, the day or the night of the
escape, were you at D. C. Jail?
A I don’t know when the escape took place. I was
down in Lorton Youth Center.
Q I see. Thank you.
When a beating occurs is there any information that
you receive from other inmates or from the guards?
A Yes.
Q That indicates that a beating is taking place or
did occur last night or at some time prior?
52
A Yes. Like most of the inmates will boo, say “Why
don’t you let two or three of us out and two or three of
us would fight you all.” I mean a man on man thing
instead of three men taking one man. It would be some-
thing like that.
* * * .
[188] MR. SCHAARS: Your Honor, if I may at this
* time I would ask the Court to require the defendants that
they make a proffer as to how they intend to satisfy what
at least appears from the Government’s point of view
to be fairly clear aspect on all the law on duress and
necessity that is when one escapes under duress or be-
cause of necessity one turns himself in immediately.
That does not appear evident in this case in any way,
shape or form, and I would respectfully suggest to the
Court to pursue this kind of line of defense witnesses
only to perhaps revolve in the end in the striking of testi-
mony or eliminating that testimony by way of instruction,
because the defense could not establish the last element
of duress, is to really waste the time of the Court.
I would suggest that a proffer would be appropriate.
THE COURT: Is Counsel prepared to make a proffer?
MR. DRURY: Your Honor, I speak for my client,
Clifton Bailey. I believe that Clifton Bailey’s defense
is premised on the fact that he was subjected—Court’s |
indulgence. He was subjected to harassment and beat-
ings by jail officials. He made an attempt prior to the
escape according to my study of his testimony and my
confirmation according to the study of his statements to
me and my confirmation of certain aspects of it, I believe
that prior to the escape he came back [189] here prepared
to testify in the Brad King case. The Brad King case
was a case that occurred before Judge Bacon in the
Superior Court. He gave testimony and King was ulti-
mately acquitted. He came back to the jail. This was
in June or early July. He was not shipped back to the
appropriate Federal Institution where he should have
been. He was subject to harassment and beatings by the
guard officials. As a result of these beatings he filed a
suit in Superior Court, which I have been able to cor-
53
roborate with a certified copy of the complaint and the
existence of that suit will be offered as evidence tomorrow.
He has in his possession subpoenas that have been sent
out. An answer by Mr. Risher’s office that was sent to
him on March 2nd of 1977. However, the institution of
the suit occurred prior to the escape and it is our
contention that this suit is corroborative of attempts to
bring to justice the harassment that occurred, the beat-
ings that occurred and I would respectfully oppose any
inclusion into the requirements of duress being offered
as a defense of this aspect that there must be some re-
porting to Governmental officials after the man escapes.
I have read the Chapman case very carefully. The
Chapman case, as the Court is aware, which was offered
by Mr. Schaars earlier today, dealt with an escape from
prison and what happened the defendant’s testimony con-
cerns his [190] defense, basically, was that he was forced
by the other prisoners to leave the custody of the jail,
and he went along for the ride so to speak and once out-
side the confines of the jail and once outside of the
“custody” of the other prisoners he decided he made a
voluntary decision to leave and he did not go back. That
case, very clearly, points out that—and it is a Fifth Cir-
cuit case, that there should have been some reporting
or attempt to contact the police.
In this case, Your Honor, however we have an issue
that is separate from Chapman. We have the case where
a man was subjected at least as I believe the evidence will
show, subjected, to, beatings. He made an attempt to
rectify those beating through the legal system that we
have here in the District of Columbia, was not success-
ful immediately and was subjected to more beatings.
Then when the opportunity arose he availed himself of .
it. He left. He did not go back. He did not go back
because of his knowledge, Your Honor, that there was only
one institution that you go back to in the District of
Columbia. This Clifford Bailey has been in jail since
1972. He has, according to his statement to me, on Mon-
day evening, he has been in dead lock more than three-
quarters of the time that he’s been in jail since 1972.
54
Now this neither confirms or disapproves what the Court
may feel, and_what the prosecutor may feel about Mr.
Clifford Bailey’ s desire for peace and good order. Per-
haps [191] he is rowdy when he’s in jail, Your Honor, but
the issue is that he’s been in dead lock. He realized when
he got outside of the District of Columbia Jail, after
escaping that the only place he was going to go, the only
dead lock area in the New D. C. Jail was Northeast One.
He would go right back to the area of his captors, to that
extent I believe it is distinguishable from Chapman. I
believe that any inclusion, Your Honor—
THE COURT: Well, Court processes do not limit the
Plaintiff to return to the same institution where he
may have been confined.~I have many times had the
experience of directing that an individual be confined at
some other jail.
MR. DRURY: That is correct.
THE COURT: So, I den’t know what type of suit
he filed or whether the prayers for relief were monetary
in character or whether they sought injunctive relief.
I haven’t seen the suit, but at this time I will not pre-
clude the presentation of evidentiary material, but I warn
you this is one of the elements: Turn oneself in or the
equivalent at least, notify the authorities where you are
and seek relief by seeking the opportunity of being con-
fined at some other institution. That is something you
can think about.
MR. DRURY: Your Honor, I would point out at this
time, at least for Clifford Bailey, that I have not been
informed of any evidence of that nature.
[192] THE COURT: All right.
Let’s proceed. Bring in the jury.
+ * * *
[194] LESTER DELANE ROBINSON
was called as a witness by and on behalf of the de-
fendant, Ralph Walker, and after having been duly sworn
was examined and testified as follows:
55
DIRECT EXAMINATION
BY THE DEFENDANT WALKER:
Q Mr. Robinson, would you state your full name,
please?
A Lester Delane Robinson, Assistant Administrator
of Operations, Lieutenant, Second Duty.
Q Where are you presently employed?
A New Detention Center.
What is your official capacity or function at the
Detention Facility?
[195] A Assistant Administrator for Operations.
Q Would you give us a brief summary of what your
functions entail?
A My functions entail the overall day to day activity
of the D. C. Jail as far as security and housing, recrea-
tion, meals are concerned.
Q The overall, what?
A Function and operation of the D. C. Jail, D. C.
Detention Center in areas of security, housing, clothing,
feeding is concerned.
Q Thank you. Do you have any immediate staff work-
ing under your direct supervision?
A Major William Long is my immediate subordin-
ate, and all of the correctional staff.
Q Approximately how many persons do you feel comes
under your direct supervision?
A About 360.
* * * _
[203] Did you on any occasion betwen July 11th and
August 26th receive orally, or otherwise any records
of any burnings in the Northeast One housing unit?
A Yes, I did, Mr. Walker.
Q All right. Did you on any occasion between July
11, and August 26th receive orally or otherwise any
reports of any physical beatings in the Northeast One
housing unit by official personnel?
A No, I didn’t, Mr. Walker.
Q Umm. Did you on any occasion between July 11th
and August 26th received orally or otherwise any reports
56
of any physical restraints on inmates by correctional of-
ficials?
[204] A Oh, yes, I did.
Q How many, or how frequently were these reports
received by you if you can answer that as far as the
burnings are concerned?
A Well, all of the burnings were put in memo form
and that should be a matter for the record.
The restraints used on residents were mostly put in
memo form and should be a matter of record.
I can’t give you an answer as to the exact number.
* * * *
([206] THE COURT: Were you aware of the fact or
the allegation that when there were fires the officers left
and allowed the fires to burn themselves out?
THE WITNESS: No, sir.
THE COURT: All right.
3Y THE DEFENDANT WALKER:
Q Were you aware of the—were you aware of the
magnitude or of how terminal the situation in Northeast
One had become as a result of the fires, how terminal?
A Mr. Walker, I was aware of some problems in
Northeast One due to inmates setting fires.
Q But you weren’t aware—
A If that answers your question.
Q That doesn’t answer my question.
Were you aware of how terminal the situation there
had become?
THE COURT: That is argumentative. He can state
the degree of his awareness.
[207] THE DEFENDANT WALKER: All righty.
BY THE DEFENDANT WALKER:
Q Did you receive any written reports or petitions
from the inmates of Northeast One complaining about
the terminal situation that existed in Northeast One?
A I received a petition, I think, from the inmates
in Northeast One.
Q_ All right.
57
A But I also received some petitions from other in-
mates in other housing that pertains to other matters.
Q That is not the question.
A Okay. iy ;
Q The question: Did you receive petitions from in-
mates in Northeast One complaining about the conditions
that existed there concerning the fires?
' A I would think that I had received petitions. Let
me put it this way: I can’t state for certain that I re-
- ceived one. I think I did.
Q Okay. Thank you. Now, what did you personally
do, if anything to bringing an end to the beatings and
burnings and smoke inhalations being suffered almost
daily?
MR. SCHAARS: Your Honor—
THE COURT: You may rephrase that. Take up one
subject at a time.
BY THE DEFENDANT WALKER:
[208] Q What did you do, personally, if anything
toward bringing an end to the beatings that you had re-
ceived reports of?
A I didn’t get—
MR.SCHAARS: Your Honor—
THE WITNESS: —petitions stating that anyone had
been beat, Mr. Walker.
BY THE DEFENDANT WALKER:
Q And the same question in reference to the burn-
ings.
A I didn’t get a petition stating they had been burned.
I got a memorandum from my supervisor stating that
residents had set fires in Northeast One.
Q Did you, personally, do anything concerning the
conditions there?
A Yes. I referred it to Major Long.
Q You referred me to Major Long?
A I referred the petitions—the memorandum back to
Major Long,—
Q So, in other words—
A —for corrective action.
58
Q So if I was to find out what type of ccrrective ac-
tion was actually taken I would have to qoeptio Major
Long?
A Not necessarily. As far as the fires are “concerned
I also put the fires out and cleaned the place up.
[209] Q . The officers did put the fires out?
A Yes.
Q Was that something that you received in a report?
A Yes.
Q From the officers.
Did you check into it to see the validity, the settles
pore of the reports as far as the officers putting the fires
out
A Yes, sir, to my satisfaction I am certain the officers
put the fires out.
Q That will be all, Mr. Robinson, thank you.
* * * *
[CROSS EXAMINATION]
[BY MR. DRURY]:
[225] Q Were you aware of any complaints that my
client, Clifford Bailey, made against any specific officers
on Northeast One during June, July and August?
A In reference to what, sir?
Q In reference to beatings.
A No, sir, I am not aware of any complaint Mr.
Bailey made in reference to a beating.
Q Are you aware of any complaint that Clifford
Bailey has ever made?
A Mr. Bailey has made a lot of complaints.
Q in fact he’s complained so much that he’s filed a
suit in Superior Court, hasn’t he?
A We could never—
Q Answer my question.
A I don’t know about the civil suit he’s filed.
Q You are not aware of any suit?
A Iam not aware of it.
[226] Q Are you aware of an Officer Graves?
A We have two Officer Graves, yes, sir.
ee ee ne et
a i RE an a
59
Q Are you aware of an Officer Graves that works
on Northeast One?
A We don’t have an Officer Graves, I don’t believe
that works at Northeast One at this time.
Q June, July or August, are you aware of an Officer
Graves that worked in Northeast One?
A We have 360 officers. I don’t know where all of
the officers work on all three shifts. I’m not denying that
he did work there when I wasn’t aware of it.
Q Did you ever have an Officer Graves that worked
in Northeast One?
MR. SCHAARS: Objection, Your Honor. He has an-
swered the question three times.
THE COURT: Yes. Sustained.
BY MR. DRURY:
«~ Have you ever been served with a subpoena in a
case now pending in Superior Court by any U.S. Mar-
shal?
MR.SCHAARS: Objection, Your Honor.
THE COURT: Too broad.
BY MR. DRURY:
Q Have you ever been serve with a United States—
strike that.
Have you ever been served with a subpoena by a U.S.
[227] Marshal in the .ase of Clifford Bailey v. The Dis-
trict of Columbia?
A I don’t know, sir.
Q You don’t know?
A I don’t know.
Q Well, would you personally receive a subpoena at
your office if one was served upon jail officials?
A Let me explain it this way:
I have been served with a number of subpoenas for a
number of years for different reasons, and in my posi-
tion I get served with a subpoena quite frequently.
THE DEPUTY CLERK: Defendant Bailey No. 4
marked for identification.
(Whereupon, Defendant Bailey’s Exhibit No. 4 was
marked for identification. )
60
THE COURT: This will not be regarded as legal
service, Mr. Drury, if that is what you are seeking to do.
MR. DRURY: Thank you, Your Honor.
BY MR. DRURY:
Q I’m going to show you what has been marked as
Defendant’s Exhibit No. 4 for identification and ask you
whether you know what that document is, whether you
can identify it, sir.
A This is a marshal receipt for return of service.
[228] Q Whois the service to have been directed upon,
sir?
A Mr. Robinson.
Q Lester Robinson. ;
Is there a name on the bottom of that, sir?
Where, on the bottom, sir?
Is there a signature in writing?
There is a Marshal’s signature.
Can you read it, sir?
No, sir, I can’t.
And is there a notation that has been made on that
document that personal service has been made on you?
A I see it is personal service. i
Q Itsays: “p-e-r-s- period, service,” doesn’t it?
A Yes. e . ?
[230] BY MR. DRURY:
Q Now, do you have any familiarity with the com-
plaints by my client concerning an attack that was made
by an Officer Graves on him during June, July or August?
A 1976?
Q 1976, yes, sir.
A Maybe, yes.
Who brought it to your attention?
A I think it was brought to my attention by the ad-
ministrative assistant to the saperintendent.
Q Who would that be?
A That was Mr. Viss. That was about two months
ago. The complaint was not made in June, July or August
of 1976. It was made a couple of months ago to my
knowledge.
OPO Poy
* * * -
61
[235] Q Mr. Walker-El asked you about fires that
occurred in the Northeast One sector. Who caused these
fires, sir?
[236] A The residents set the fires.
Q What material was used to set these fires?
A Sheets, pillow cases. In some cases mattresses, per-
sonal items of institution clothing, shirts, underwear, blue
denim.
Q Would these fires be confined to a particular cell
or would the items of burning material be thrown out
into the hallway?
A They would be thrown out into the block and hall-
way. No one wants to keep the fire in the cell.
Q What is the procedure that you or the Department
of Corrections has laid down for the putting out of these
fires? Who is to do it, the inmates or the officers?
A No, sir. That is why some of them set fires to
get out of the cell. We have officers put out the fires. We
turn the smoke exhaust fans on. We take anybody to the
hospital that the MTA, which is a medical technician
who comes down to examine them to see if they need
to go to the hospital, quite frequently.
[239] Q Are you personally aware from any source of
information that comes into your possession that Clifford
Bailey was the subject of threats by guards under your
supervision or in the District of Columbia Jail complex?
A No, sir.
Q Has Mr. Bailey ever complained to you about these
threats?
Yes, sir.
So that you are aware?
I am aware that inmate complained.
On more than one occasion?
Yes.
To more than one individual?
_To me and most to the Adjustment Committee.
Prior to his escape?
I don’t know whether it was prior or after. I
don’t know.
rPOPO PO Pop
62
Q When did he go before the Adjustment Committee
after his arrest on November 19, 1976?
[240] A I can’t tell you the date, but Mr. Bailey—
Q Was he before the Adjustment Committee subse-
quent to November 19, 1: 76?
A Oh, yes, on a number of times. As a matter of
fact I think I saw Mr. Bailey two, three weeks ago.
How many times has he complained to you, sir?
A It depends. He complains about different things.
Sometimes wants you to call Glendale Hospital. Some-
times he wants to call one of the hospitals or St. Eliza-
beths or some place.
Q My question to you really was, sir: How many
times has he been before the Adjustment Board?
A I can’t tell you how many times he’s been before
the Board.
Q How many times have you, personally known that
he has complained to you about threats to do bodily
harm to him by jail officials?
A I don’t know.
Q More than once, though?
A Oh, yes.
Q Quite possibly before his escape, is that correct?
A Quite possibly correct.
Q Of course that would be contained in the documents
that you keep?
MR. SCHAARS: I must object. The documents have
[241] been subpoenaed. This gentleman has indicated
again and again he’s not intimately familiar with the
documents. If the defense wants the documents they are
being subpoenaed. They can cross-examine the witness
from them. This is just belaboring—
THE COURT: Sustained.
BY MR. DRURY:
Q Have you ever made out any form or put your
name to any form acknowledging existence that shows
that my client complained to you about threats?
A Mr. Bailey comes up before the Adjustment Com-
mittee.
Q My question is very simple.
st eae
o=—— -———
63
MR. SCHAARS: May the witness be permitted to an-
swer the question.
THE COURT: Usually we follow that rule even in
cases you prosecuted before this court, Mr. Drury.
MR. DRURY: I’m sorry.
THE WITNESS: The results of the action at the
Adjustment Board is kept by recorder.
BY MR. DRURY:
Q On tape?
A On a tape, by an officer who does the recording.
Q You keep a series of notes for every adjustment
hearing?
A Yes.
[242] Q I’msorry. You do or—
A The recorder keeps them.
Q And these notes would be in the possession of the
D.C. Jail officials and the tapes would be also?
A We don’t have any tapes.
Q_ Transcript like this lady is—
A No, we don’t have that. We don’t have that much
se We keep notes. We make a summary from the
notes.
Q In his complaints to you prior to the escape, did
he accuse any officer of, any specific officer of making
threats to him?
A He might have. I don’t remember.
Q You do not recall whether an officer under your
supervision threatened to do bodily harm to my man?
_ MR. SCHAARS: That is exactly what Mr. Robinson
just said. .
THE COURT: We are going to get these re .
MR. DRURY: Thank wth sitet ang
BY MR. DRURY:
Q Sir, do you consider as a supervisor that such a
complaint of a threat directed against an inmate by a
guard is a matter of such significance that it deserves
investigation?
ry Faery is true, sir.
nd at your direction was any investigation ever
[243] made of these threats directed against my client?
64
MR. SCHAARS: Objection, Your Honor. The alleged
threats. Mr. Drury is drawing conclusions again and
again. He is arguing stuff that isn’t in evidence.
THE COURT: That is correct. Objection sustained.
MR. DRURY: _I will rephrase the question.
BY MR. DRURY: .
Was any investigation directed to determine the
validity of these threats, alleged threats?
A Every allegation Mr. Bailey has ever made has
been investigated, has been filed, we felt without founda-
tion, totally without foundation.
Q Of course every investigation that is conducted—
A Yes.
Q —is memoralized on paper, is that correct?
A I didn’t say that, no.
Are the investigations that concerned the threats
made against—the alleged threats made against my client
put in memorandum form?
A Some are, some aren’t. Some are so frivolous we
don’t bother to put in memorandum form.
MR. DRURY: Court’s indulgence, please.
THE COURT: Yes.
MR. DRURY: Your Honor, with the Court’s permis-
sion may I suspend my questioning of Mr. Robinson until
I have— [244] I am in receipt of the records?
THE COURT: The Court has been suggesting that to
you for the last half hour, Mr. Drury. I’m glad you got
the word.
MR. ARMSTRONG: Would the Court allow me to
talk to Mr. Drury and Mr. Schaars for a moment?
THE COURT: Yes.
MR. ARMSTRONG: Thank you, Your Honor.
Mr. Walker, why don’t you join us.
THE COURT: All right, Mr. Robbins.
CROSS-EXAMINATION
BY MR. ROBBINS:
Q Mr. Robinson, correct be if I’m wrong, but your
testimony was that a man could be on Northeast One,
65
maximum security because he was considered incorrigible
and that he would be considered incorrigible if a com-
plaint was filed by the shift supervisor. Is that not
correct?
_A No, I didn’t say a complaint. I said a shift super-
= ig ons Poaner'y place the man on dead lock status
and an incidental report whi
po Biches el p ch would then go to the
Q But—
A —for clarification.
Q —he would first be placed on dead lock before he
appears at the Adjustment Board?
[245] A That is true.
Q And thereafter he, as long as he was on dead lock
he would go before that Adjustment Board every four-
teen days?
A Every fourteen days, yes.
Q Now, during the summer months of 1976 do you
know where Mr. Cooley was housed?
A I believe Mr. Cooley was in Northeast One.
Q So during the summer months he would have come
before the Adjustment Board every fourteen days?
in rod nig gong: before the Adjustment
very fourteen days.
We don lle oe y ome people refuse to come.
Do you personall i i i
ee Pt J y remember seeing him during
A I have seen Mr. Cooley before, yes.
Q During those visits to the Adjustment Board would
ia a make any complaints about his treatment in the
A I don’t believe Mr. Cooley ever i
about anything except getting off of obi ree
Q How long would these visits to the Board last?
A Well, we are talking about whatever he had on his
mind, his complaints were. Some of them—Dependin
on - caps were a ten to twenty minutes. .
0 you recall how | isit wi
oaks i a Ms : ong an average visit with Mr.
[246] A No. They were pretty short. As I say, Mr.
Cooley, he really didn’t have anything to c i
didn’t make any complaints to me. . efapiain shout,
66
Q All of the times he was before you he never made
a complaint about physical abuse?
A No. He just wanted to know when he was going
to get off dead lock. yep
Q Did you ever notice any physical injuries on Mr.
Cooley? ’
A None.
Q Not during the entire summer.
A Not during the entire summer.
Q If he did make any complaints would there be a
record of that?
A If he made any complaints then there may be in the
records of the minutes of the Adjustment Board pro-
ceedings.
* * * *
[248 ] CROSS-EXAMINATION
BY MR. SCHAARS:
Q Good afternoon, Mr. Robinson.
* * + *
[252] Q Can you estimate the number of petitions
from inmates that you have received in the last three
months, let’s say?
A Well, are we talking about petitions now or sub-
poenasy
Q Petitions, just signed petitions from the inmates.
A Well, we really haven’t received many petitions.
We have received some. Petitions sometimes asking for
[253] certain items that are not sold in the canteen. If
we get enough people asking for them maybe we will
order a dozen Kools, we will ask the Canteen manager
if they have them. That is one type of petition. The
other petition will be to ask if they would be allowed
to watch t.v. after 11:30. Sometimes we get petitions
that will complain about, maybe the lack of certain items
on the menu, pancakes for instance, which we used to
serve in the old days. We don’t serve in this jail, we
just don’t do it. So, those are the type of petitions that
I’m talking about.
152ae.
67
Q Do you ever comply with the request of the inmates
who give you petitions? Do you ever attempt to satisfy
the petition they ave seeking?
A If it doesn’t involve security and can be handled
we do it.
* we ” *
[254]Q Now, Mr. Drury repeatedly characterized the
guards and the correctional officers within your institu-
tion as having attacked inmates. Have you ever, as a
result of your investigation of any inmate complaint—
let me rephrase that.
With any complaint from any of these three gentle-
‘men, Mr. Cooley, Mr. Bailey, Mr. Walker-El, determined
that a [255] guard attacked one of these gentlemen?.
A No, sir. There has never been any proven fact
any instance where this could have happened, where an
officer attacked one of these gentlemen here.
Q Now, if one of these gentlemen indicated that he
run been anne what if anything would you do to
etermine whether or not that allegati
some substance to it? es
A Well, what we do is we call in the shift supervisor
and given an assessment of what we have and ask him to
make his own investigation first and take whatever ac-
tion is appropriate. We try to be fair about this. I
know we are fair, but we have not found any instance
where either one of these young men were attacked by
pm It has been the other way around in most
Q In fact in all cases that you have d i i
has been them attacking guards ah able ane r
6 ao is true.
sn’t it in fact that in the case of -
fendants he broke the jaw of another baie? wuss
A I think, yes.
68
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Cr. No. 76-735-4
UNITED STATES OF AMERICA
uv
CLIFFORD BAILEY, DEFENDANT
RONALD COOLEY, DEFENDANT
RALPH WALKER, DEFENDANT
Washington, D.C.
March 10, 1977
The above-entitled matter came on for further trial
in open court at 9:45 o’clock, A.M., before:
THE HONORABLE OLIVER GASCH
United States District Judge, and a Jury.
* * * *
[269] [MR. SCHAARS:] The second thing I would
like to raise this morning is to renew my request for a
proffer from these gentlemen as to what they intend to
-do with regard to the last element in the defense of
duress. That is, the turning of themselves in. Mr. Bailey
has indicated through counsel that he did not do that.
He did not turn himself in. We have yet to hear from
[270] Mr. Walker whether he turned himself in or
whether Mr. Cooley as to whether he turned himself in.
I suggest to the Court that given time this trial is
taking to try that a proffer might be appropriate, other-
wise I would suggest we are simply wasting the Court S
and the jury’s time in going through all of this evidence.
THE COURT: What about the issue just raised by
Government counsel?
MR. DRURY: Your Honor, yesterday afternoon I
had the opportunity to spend some time in the library
to research on the cases that the Court noted in the
Government memorandum of law submitted by Mr.
Schaars on the opening day of trial.
69
I read the Joiner case, the Woodring case, the Coggin
case, and the Miller case, Your Honor. I believe that each
case is distinguishable on its facts from the case that
we have here, and—
THE COURT: Do you recognize there is an obligation
of a defendant who seeks to utilize this defense to turn
himself in or make his presence known to the authorities.
MR. DRURY: Your Honor, I do not believe that
element that the Court and that the Government have
called attention to is a necessary element.
THE COURT: Do you have any authority to support
your position?
MR. DRURY: Your Honor, I believe that the Wood-
ring [271] case, if I might merely explain what I—the
jist [sic] of my argument. The Woodring case involved a
defendant who was on a two-day furlough. He was let out
to attend some divorce proceedings, and he was arrested
for a traffic offense sometime later, and he is—his de-
fense was, and it was uncontradicted, that he had an
epileptic fit which was caused by the shock of the divorce
proceedings, and this triggered the seizure, the epileptic
seizure. It left him confused and affected his memory.
However, the Court pointed out that there was an obliga-
tion on the part of the defendant to turn himself in and
pointed out that certain, that the defendant was capable
of remembering certain incidents that occurred during
his fugitivity, and he was able to respond clearly to ques-
tions that were directed by the officer at the time of the
arrest.
I would also point out that at that time he had in his
possession a false driver’s license and registration and
the Court felt that since this man was on a furlough,
and that since he claimed an epileptic seizure, which can
be properly termed an involuntary incident that caused
his failure to return to the institution, I believe that the
issue of failure to report—the Court recognized as some-
thing necessary to this particular fact situation. Now, .
‘as the Court is well aware in this situation as I argued
yesterday afternoon, after lunch, we have here a man
who left the jail because he could not rely on his captors
or the guards to adequately [272] respond to his com-
70
plaint that had been made. Now, turning to the Wood-
ring case. The Woodring case concerned an escapee from
an honor farm, a federal honor farm, and the facts in
that case are highly amusing to read. In the defendant's
testimony is that he was watching the movie one evening
at the honor farm when he was tapped by, on his shoulder
someone.
"YEE COURT: I recall the facts.
MR. DRURY: And the stranger took him away from
the jail and pointed a gun at him, that he was forced
to remove himself from the jail. He was gone for 19
months, Your Honor, and the Court termed it a volun-
tary abduction. Now, there the Court said that they felt
the man should have made an attempt to contact the
prison authorities and turn himself in in the sense that
he was voluntarily abducted. In the Miller case, it was
actually a bail jumping case where a man was let out
on bail and failed to show up for trial and the reason
was given that he feared bodily harm. The judge said
that—the judge at the trial level said that even if it were
true, there would be no defense at law. I quote, ‘Es-
pecially since the defendant failed to tender himself to the
authorities or otherwise ask that any protective measures
be taken for his safety prior to fleeing the jurisdiction,
here we have a man who is outside of the criminal jus-
tice system with the one tentacle that he’s on bail. He
fails to return to trial. He states as his [273] defense
that he’s threatened by someone on the outside if he
did return he would be subjected to bodily harm.
There, the Court’s reasoning was that he had an ob-
ligation to at least alert the police, that these threats
were occurring.
The Coggins case, which incidentally concerns a fugi-
tivity in Virginia of a D.C. resident who was incarcerated
at Lorton, concerned a one-day furlough and the de-
fendant contends that he did not return from the fur-
lough, however that he called and there is evidence in the
record of that case that he called the District of Co-
lumbia and was personally instructed on the phone to
return to Lorton. He failed to return, Your Honor, and
the Court said that clearly, the willfulness of the action
71
when he did not return, when he did not turn himself
in, was an indication that indeed the defense was not
substantive.
Here, Your Honor, we have an entirely different case.
I would assert and submit that the Courts of Appeals
in the Fourth Circuit and Tenth Circuit and Ninth Cir-
cuit have added this extra element to the facts of the
case. It is not a necessary element to be included in
these facts. Duress is a proper defense. Judge Bazelon,
makes no mention of this extra element that the Govern-
ment has asserted should be included in here. Judge Baze-
lon does not refer to that. I would submit, Your Honor,
that it is not an appropriate—
THE COURT: I don’t think that was before Judge
[274] Bazelon. You’re talking about Judge Smith’s case.
MR. DRURY: Your Honor, yes, I am sorry, but I
believe that— :
THE COURT: There were no findings and conclu-
sions in that that is the reason it was referred back to
Judge Smith. When the findings and conclusions were
made the conviction was affirmed.
MR. DRURY: Yes, Your Honor. I believe that the
case, the ruling of Snow is dicta. I will concede to the
Court, but I believe it is such that can be interpreted.
THE COURT: It is the position of the Court that
when the defense of duress is asserted and when one
escapes from custody, one has the obligation of making
his presence known or turning himself in. These men did
neither according to what I have heard so far. Now, I
haven’t heard all of the evidence—
THE DEFENDANT WALKER: That’s right.
MR. DRURY: Your Honor, would the Court rule that
way even though—
THE COURT: If there is no stated reason why these
men didn’t turn themselves in or make their presence
ely I don’t think the defense of duress will avail
them.
MR. DRURY: Even if it can be shown that my client
was frustrated in failure to have the proper authorities
hear his complaint prior to his escape?
THE COURT: I think he has the obligation of mak-
ing [275] his presence known. He can’t unilaterally
72
take the law into his own hands, break out of jail and
then hide.
MR. DRURY: Your Honor, I would submit that the
crime occurs at the time that the exit from the jail
happens and that the indictment here states that the
escape and that the crime occurred at that time, and any
action subsequent—
THE COURT: I would agree with you, but you have
asserted the defense of duress. I am simply pointing
out to you by way of information to the defense counsel
and the defendant who is proceeding pro se, with the
assistance of Mr. Armstrong, that that is something that
must be shown to avail themselves in this defense. All
right, bring in the jury.
* * * *
[296] FURTHER CROSS-EXAMINATION
BY MR. ROBBINS:
Q Mr. Robinson, do you recall yesterday afternoon
being served with a subpoena by me?
A Yes, sir.
Q What did that subpoena request you to bring to
court today? You can look at your notes if that would
refresh your recollection.
A Records of the Adjustment Board concerning any
meeting with actions taken concerning Mr. Ronald Clif-
ton Cooley, during July and August of 1976.
Q Did you bring those requested records here to court
today?
A I think we completed it.
* * * *
[302] Q Now, Mr. Robinson, did these represent the
complete records of the Adjustment Board during July
and August of 1976 as concerned Mr. Cooley?
A To the best of my knowledge, yes, sir.
Q And all of these records indicate if I am correct,
that he was present and that you were present at least
three times and the reason why he was present?
A Mr. Cooley chose on some occasions not to appear
before the Board for review.
73
Q My question is: That that is all they indicate as
to Mr. Cooley, that he was present, that you were present
and the reason for his presence?
A Mr. Cooley chose at certain times not to appear
before [303] the Board. On some of these dates he
would not necessarily be present of his own choosing.
I don’t know whether he was present or not on certain
dates here.
Q So, his name being on the list does not mean that
he is there?
A That is correct.
Q And, there is nothing to indicate at all whether he
made any complaints to you or to any members of the
Board even if he were there?
A That is correct, sir.
Q So, the only record of complaints that he would
make that you would know of would be from your own
recollection?
A That is correct, or in writing.
Q And at many of those meetings you saw ten or
more men, is that not correct?
A That is correct, sir.
MR. ROBBINS: I have nothing further, Your Honor.
* * * *
[305] BY THE DEFENDANT WALKER:
Q Mr. Robinson, would you tell the Court exactly
what this is that has been marked Defendant’s Exhibit
Number 1, please, this book?
A This is a log book that was kept on Northeast 1 for
this period of time.
Q_ It is a log book that is kept in the Northeast 1 hous-
ing unit?
A Northeast I housing unit.
Q Now, this log book that is kept, will you briefly
explain to the Court what it entails, what it incorporates,
what is kept in this log book? |
A The log book of Northeast 1 should show time of
relief and time of going off duty and all of the per-
tinent details.
Q All of the pertinent details?
A That happened during an officer’s tour of duty.
74
Q Whose responsibility is it to write or report in
or through this log book?
A Officers on duty.
Q Yesterday you testified that you read a log book or
you read brief summaries of what is in a log book each
morning, five days a week. Does this entail what you
read or is this what you read daily?
A I didn’t testify to that, Mr. Walker. I said I read
[306] each morning shift supervisor’s reports, which is
this item here.
MR. SCHAARS: Your Honor, perhaps we could have
that marked if that pertains to this time period that Mr.
Robinson can refer to it.
THE DEPUTY CLERK: I will mark that as Walker
Exhibit Number 1A.
(Whereupon, Defendant Walker’s Exhibit Number
1A was marked for identification.)
BY THE DEFENDANT WALKER:
Q Now, would the supervisor’s report that you read
every morning have a summary of what went on in the
log book that day?
A The supervisory report would be a condensation
of the pertinent details that happened in the institution,
including Northeast 1.
Q Who is the supervisor, who was considered as a
supervisor?
A The ranking person on duty on that shift. It is
normally a captain or lieutenant in his absence.
Q Do you ever, in your capacity as an assistant ad-
ministrator, read this particular log book that comes out
of Northeast 1?
A If I am in Northeast 1 I will check the log book,
but we don’t normally bring the log book out of the hous-
ing unit.
[807] Q Does any of your supervisors that are im-
mediately under you—lI’m referring to who made this,
the captains, do they read this log book periodically?
A They are required to read the log book periodically
the same way that I read it. We do not bring it out of
75
the housing unit. We visit the housing unit and we check
the log book.
Q So, if incidents occur in a housing unit and it is
recorded here, what other way is it for the employees
that work on an administrative level to know that these
incidents are taking place in the block?
A Anything that is important enough to record in the
book, as far as incidents are concerned, officers are re-
quired to notify supervisors. Supervisors will write an
incidental report and take whatever correctional action
needed to be taken at that point. The incidental re-
port would come up through the chain to the superin-
tendent.
Q All right. I notice in the book it has Watch 1,
Watch 2 and Watch 3. What does Watch 1, Watch 2 and
Watch 3 signify?
A Okay. Watch 1 is shift 1 which is the tour of duty
from 11:30 p.m. until 8:00 a.m. in the morning.
Watch 2, shift duty, 7:30 in the morning until 4:00
o’clock in the afternoon.
Watch 3 is shift 3, the tour of duty from 3:30 p.m.
[308] in the afternoon until 12:00 o’clock at night.
Q Now, these records are kept by the senior officer
in the block?
A The senior officer should keep it. If he is not in
the booth then the officer in the booth keeps it. The
senior officer does not stay in the booth for eight hours.
Q In other words, before each shift goes off he is
required to make some type of report of the pertinent
things that happened in the block?
A That is true, if there is a pertinent happening.
If nothing happens over there he may just indicate when
he came on, the number of keys he reecived and number
of inmates in the housing unit.
Q Mr. Robinson, calling your attention to Watch 1 on
8-10-76, do you see any indication here where Officer
Lessington, or Captain Ellis reported fires or said any
fires were burning in the block?
A It indicates here that on 8-10-76 on Watch 1,
that is the shift from 11:30 p.m. until 8:00 a.m., that
Officer Lessington received a status report from the
76
officer he relieved that there had been some fires in
Northeast 1.
Q Would you read the contents of this, please?
THE COURT: Is this in evidence?
THE DEPUTY CLERK: No.
MR. SCHAARS: It hasn’t been moved in yet, Your
Honor. :
[309] THE COURT: Do you wish to move it into
evidence?
THE DEFENDANT WALKER: Yes, I would like to
move it in evidence. ;
THE COURT: Now, I take it this is a record kept in
the ordinary course of business—
THE WITNESS: Yes.
THE COURT: —required to be kept and—
THE WITNESS: Yes.
THE COURT: —and entries are contemporaneously
made?
In view of that, do you wish to be heard further?
MR. SCHAARS: No your Honor. Just one request I
would like to make is that we be permitted to make xerox
copies of all of the documents so that the book may be
returned to its proper place.
THE DEFENDANT WALKER: Before we proceed?
THE COURT: No, you may proceed, but the original
record will be returned to the institution and xerox copies
will be made of the pertinent portions.
BY THE DEFENDANT WALKER:
Q Mr. Robinson, just this brief section, from here to
here please.
THE DEPUTY CLERK: Is that 1 or 1A?
THE DEFENDANT WALKER: 1 and 1A.
THE DEPUTY CLERK: 1 and 1A received in evi-
dence.
[310] (Whereupon, Defendant Walker’s Exhibit Num-
bers 1 and 1A were received in evidence. )
THE COURT: All right, now you may ask him to
read it.
cence cee ren
77
BY THE DEFENDANT WALKER:
Q Would you read it, please, Mr. Robinson?
A On 8-10-76, 11:45 p.m., Officer Lessington came on
duty. 1:50 p.m,, Officer Lessington called Captain Ellis.
Some of this I can’t make out. Received the water and
garbage, setting fires, throwing soap, when my second
officer came seventy-nine people—
Q That is sufficient. May I indulge the Court for
one minute, Your Honor?
THE COURT: Yes, the Court will indulge you for a
minute.
THE DEFENDANT WALKER: Your Honor, do I
understand from the ruling that this whole book is in
evidence?
THE COURT: _The ruling of the Court is that the
book is accepted in evidence as a record kept in the
regular course of business, however, it wil! be removed
and returned to the institution and the pertinent portions
will be photocopied and that will constitute the record in
this case.
ioe DEFENDANT WALKER: Thank you, Your
onor.
THE COURT: All right.
BY DEFENDANT WALKER:
[311] Q So, there was a fire and throwing garba
on 8-10-76, according to the records of =. “if
A According to the record.
Q Now, I’d like to move to 8-11-76, which was the
next day and I'd like to direct your attention to Watch 1,
I think that was signed by Mr. Fogg, and I would ask
you to read that.
A Okay, Watch 1 on 8-11-76, Officer Clements, and
Officer Fogg—
MR. DRURY: Your Honor, with the Court’s indul-
gence, could the microphone be moved over.
THE COURT: All right.
THE: WITNESS: 8-11-76, Watch Number 1, Officer
Clements, Sanders and Fogg, secured. 12:00 o’clock
count 76 residents. Unit is dirty with trash, food and
burned clothing on all tiers.
78
BY THE DEFENDANT WALKER:
Q So, from this, Mr. Robinson, it indicates that there
was burning on this date, also?
A That is the—
Q On 8-11-76, according to the record?
A That is true.
The next date we would like to move to 1s 8-16-76.
SHE DEPUTY CLERK: That page hasn’t been
marked yet. '
THE COURT: Well, the whole book will be in evi-
dence. Mark the pages as you go along.
[312] THE DEFENDANT WALKER: That is what
I indulged the attorney about. ;
THE COURT: Mr. Patterson will help you. Let him
assist you.
THE DEFENDANT WALKER: Okay.
THE DEPUTY CLERK: This is Walker’s 1-B, Your
Honor.
THE COURT: All right.
(Whereupon, Defendant Walker’s Exhibit Number
1-B was marked for identification. )
BY THE DEFENDANT WALKER:
Q All right, Mr. Robinson, I direct you to Defendant’s
Exhibit 1-B, at 8-16-76, and I ask you to read the section
from 7:50 a.m. in the morning.
A. This is Watch 2 on 8-16-76, 7:50 a.m. Believe num-
ber one count, 74. Unit is fouled up. Burning trash, water
and sodas on floors. Second watch refused to take unit
until ordered by Lieutenant Feidler. Informed by Num-
ber 1 watch detail refused to enter unit and Number 1
watch had to feed inmates. Officer Bimbo called and said
that he would get some men to clean unit. |
Q Now, at the top of the page, Mr. Robinson, you
read what I asked you to read as Defendant’s Exhibit 1,
you read that: “Believe Number 1 watch, count 74,
unit fouled up.”
Is that what this reads?
[318] MR. SCHAARS: There is no doubt, but there
is a bit of profanity there. I think Mr. Robinson is trying
ee ae « he stm
rn te
eth al Ob le mi Ne hy aS
a a a OB he tl
79
to avoid putting that into the record. There is a bit of
profanity put into quotes, if Mr. Walker wants to read
it, let him read it. It is his exhibit.
THE COURT: Do you wish to read it, Mr. Walker?
THE DEFENDANT WALKER: Yes, I will read it.
The language that is used in this particular exhibit,
I think it shows—
THE COURT: Not what you think it shows, just read
the language if you wish.
THE DEFENDANT WALKER: It says the unit is
“fucked up.” That burning trash, water et cetera is on
floors.
Now, I would like to direct your attention to Watch
2 on 8-17-76, the next day and ask you to read that, Mr.
Robinson.
THE WITNESS: Okay. 7:50 a.m., 8-17-76, unit
still “fucked up”. Count 72. Lieutenant Feidler present
in Southeast 1.
BY-THE DEFENDANT WALKER:
Q F-d up?
A Lieutenant Feidler left Southeast 1.
Q To avoid the use of profanity at the trial in respect
to the people that are here, F-d up is what I had referred
to a moment ago.
[314] THE COURT: All right.
BY THE DEFENDANT WALKER:
; Q Now, on 8-18, which was two days later, Mr. Rob-
inson, which is here on Watch 2, would you please read
that section for us?
A 8-18-76, Number 2 watch, 7:50 a.m., unit still
F-d up. Count 76. 11:25, Captain Lee in unit. 11:30—
Q You didn’t read this part right here, Mr. Robinson.
“No relief in sight.”
A One razor and no relief in sight.
Q Thank you. That will be all from Mr. Walker.
THE COURT: Mr. Drury?
MR. DRURY: Just a few short questions.
80
FURTHER CROSS-EXAMINATION
BY MR. DRURY:
Mr. Robinson, in reference to the day of August 13,
1976, there is a notation—
THE COURT: Now, Mr. Drury, Mr. Patterson will
mark that page since we are going to duplicate pages to
be utilized that will be marked.
MR. DRURY: Let me move on, I will not attempt to
mark all of the incidents in here. I will refer to very
briefly, the incidents that Mr. Walker-El had referred
to.
Directing your attention to Defendant’s Exhibit 1-B,
Mr. Ralph Walker—in reference to the Watch Number
1, which [315] you read into the record, can you de-
termine who wrote that entry, is there a signature on it?
A There is the officer’s. One is Mr. Schneider. I don’t
know who made the entry.
Q But, one of the officers. Their names, Burton, Bur-
gess and Schneider, appear, is that correct?
A That is correct.
Q That is on August 16, 1976; as you proceed down,
there is another entry on August 17th, 1976 where the
names are—it appears to be Burton and Schneider, right?
A That is right.
And the first entry at 7:50, is it correct to say
that the writing appears the same on both the 7:50
entry and— :
A I would say the writing appears to be the same.
Q And, is there also referring down here to the
entry on August 18th, which is all on that one page,
Your Honor, is there not also signatures after that and
is the entry still the same. Does the writing still appear
to be the same?
A The writing from the entries appear to be the
same ones.
Q For at least three days, is that it? Is it fair for
you to say that the same officer reported each and
every time?
MR. SCHAARS: Your Honor, I object at this point.
He has indicated that his experience as a layman they
nee T Rb RB oe. ~~
81
appear to be the same. Mr. Robinson isn’t an expert in
handwriting. [816] The items are already in pal essa It
is absolutely immaterial who wrote it.
MR. DRURY: I withdraw the question.
BY MR. DRURY:
? he ci Robinson, do I take it from the entries ‘on this
at you were aware of this mutinous si j
the part of the operator— Eee
Mice SCHAARS: Objection. It doesn’t say “mutin-
THE COURT: Of the situati
the question. e situation, you may rephrase
BY MR. DRURY:
2 » aig you a of the situation on Northeast 1?
es, sir, I was well awa i i
ieee re of the situation on
Q And it was a problem of signi
Sata ots p of significant magnitude,
7) ean 1 was a problem.
ny question during August 16, August 17 and
August 18th that this was an incident of sufficient mag-
nitude to warrant your immediate attention?
7) Yes, sir.
And, of course, as soon as i
, " you were aware of thi
you went to Northeast 1 to attempt to straighten out rat
difficulties that your employees might h ;
on Northeast 1, didn’t you? gnt have about working
— ey: No, I did not.
id you consider the action b
whoever that involved— shea nm madi,
A Right.
Q —did you consider that action, thei
, r refusal t
on to Northeast 1 and to assume their duties that rin
did you consider that a violation of their employment?
Plt I—no, . 1s not a violation of the employment. An
0 can refuse to take a post if the post is not in
Q Mr. Robinson, I note that there ar
’ e people—
the correctional officers are referred to as ‘ees zine
82
lieutenants and captains. Do you have a particular
denomination? Are you a captain or a general or—
MR. SCHAARS: Your Honor, I object.
MR. DRURY: I am merely trying to find out the
line of authority.
THE COURT: The administrator.
MR. DRURY: I see.
BY MR. DRURY:
Q Now, accordingly you are the supervisor of these
men who are on Northeast 1, is that correct?
A I’m not their direct supervisor, I am responsible.
Q It is your responsibility?
A My responsibility. |
For the day to day operations of the security?
[318] A Of the jail, right. 3
Q And, these men refused to go“emduty because of
this unsightly mess that was on Northeast 1, is that
correct?
A They didn’t refuse to go on duty, sir, they refused
to relieve the midnight shift on that particular post.
Q The entry says: “Refused to take unit until or-
dered by Lieutenant Feidler.” Now, that is an entry by
an employee, is that correct?
A I’m not denying that. |
Q That watch detail refused to enter the unit. Now,
were the conditions, from your investigation, so bad that
they refused to go in there?
A You're getting the detail—that is the working
detail assigned that unit, and you’re getting the officer
detail mixed up. There are two different segments there.
This is the cleanup crew, is that correct?
This is the cleanup crew.
And it is their job to clean up this refuge, is it
That is correct.
And they are getting paid for it?
They are getting paid.
And if it was bad for them, did you ever make any
type of an investigation to determine the complaints of
the inmates who are locked in their cells?
= |
DPO>soOro
ers es a os te
83
A It wasn’t the complaint, sir. It was that the de-
tail [319] men were afraid to go into the unit, because
of the inmates in Northeast 3 had threatened them re-
peatedly. They didn’t want them to clean it up. They
were threatened to come in and clean up or even feed.
They were going to kill them.
Q But the inmates are locked in the cells?
A Inmates aren’t always locked in the cells, sir.
Everybody goes on the street. Everybody goes to Lorton.
Everybody goes to the Federal penetentiary.
Q Northeast 1 is called dead lock?
7 ae is correct.
at means that the inmates are locked up in
unless they are specificaly allowed out for bs ere
for eating or for bathing, is that correct?
9 aoe is correct.
uring this time period, these i
St Prem p hese inmates were locked
Q one “A correct, sir.
ow, there is a statement here that Officer Bi
called and said that he would get some men ‘ rs
the unit. I take it from the import of this entry at
7:50 on August 16, the reason the detail refused to go
in Pag was because it was ‘so dirty.
at isn’t the reason. The re j
“a eager} detail was afraid. aie oreireiie tae
ow, 24 hours later on the 17th of Au i
— a very cryptic statement: “The ce a
We will excise the little cussword that is there
THE COURT: Now, Mr. Drury, do you have any
more questions? Judge Hart had to go to a meeting of
the judicial conference of the United States. His jury
is out and they have asked a question. I promised to take
the question and seek to answer the inquiry of that jur
If you have much more, I’ll take a recess. e
MR. DRURY: Yes, sir.
BY MR. DRURY:
Q 24 hours later then the cryptic statem i
ent that is
made on August 17th, there is another statement on
84
August 18th, the unit is still “F-d up—count 76—one
razor and no relief in sight.” Now, that phrase, “relief
in sight,”—
A Yes.
Q Are you telling this jury that for 48 straight hours
you had a mutinous crew and there was no cleaning up
of this Northeast 1 Sector?
A Yes. The unit was cleaned up. It does not say
that the unit was never cleaned up. The unit was cleaned
up. I think Officer Bimbo indicated he brought a crew
in there and cleaned it up.
* * * *
BY MR. SCHAARS:
[830] Q Now, on the 16th of August, of 1976, when
the Northeast 1 was referred to as the unit that was
fouled up, who fouled it up?
A The residents, themselves.
Q Did the correctional officers participate and assist
[331] in fouling it up?
A No, sir. You have to feed the residents. What they
do with their food, after you give it to them is some of
them eat it, some of then throw it out, some of them
throw it on the floor, some them them even throw it at
the officers. We have documented evidence, documented
cases where the officers have been assaulted.
Q Now, I would like you to clarify, if you could for
a moment, the two types of crews that you have on the
Northeast 1. You have a cleanup crew and a crew of cor-
rectional officers.
A That is correct.
Q Would you distinguish between the two and describe
for the ladies and gentlemen of the jury the function
in particular of the cleanup crew?
A Well, the inmate detail crew, which is the cleanup
crew, when I say detail, it is not cleanup, they also come
in and feed the residents. This is, they bring trays and
take it down to them and feed them and when they are
finished eating, they pick up the plates and take the food
out and they do all of the cleaning.
Q Are these individual employees of the Department
of Corrections or trustees?
ae a
85
A They are detailed inmates who have been classi-
fied as.a less security risk than some of the other inmates
and they are paid a small fee, not a large amount of
money, but they [332] are paid for their labors.
Q Was it these inmates who refused to go into the
Northeast 1 on this particular occasion?
A That is true, sir.
Q That is, on the 16th and 17th and 18th of August,
1976?
A During that period, yes, sir.
Q Now, you indicated at least in partial response to
one of counsel’s questions, that one of Mr. Drury’s ques-
tions, that this detail was threatened with death and
bodily harm?
A These are fellow inmates.
Q And these are inmates who would associate with
people from maximum security if they got off maximum
security and went back into the general population?
A That is correct.
Q These are inmates who may also associate with
people who had been on maximum security whether they
wound up at Lorton or another correctional institution?
A That is correct.
Q So, is it fair to say in parlance and dealings within
that institution, the inmates who refused to go in were
acting pretty wise at that point, because they probably
could have gotten harmed?
THE DEFENDANT WALKER: Objection.
MR. DRURY: Objection. It is leading.
[333] THE COURT: It is cross-examination, of
course, but this man is essentially a Government witness,
so I would ask you to refrain from cross-examination
from questions that normally you would ask on cross-
examination to an adverse witness. I think you can do
that without any difficulty.
BY MR. SCHAARS:
Q Can you draw any conclusions, sir, based on your
experience, number of years as a correctional officer and
tour within the Department of Correction, as to the wis-
dom or lack of wisdom as to these inmates going to
Northeast 1 on these three days?
86
MR. DRURY: I object to that.
THE COURT: No, I think that is a proper question.
Overruled. :
THE WITNESS: Based on my past experience, it
was a very prudent decision on the part of the residents
to refuse to go in. I only found one man who was totally
unafraid to go into Northeast 1, and I imposed on the
Major to detail him to Northeast 1. They couldn’t
frighten him, so they tried to get rid of him by com-
plaining to me that he was mistreating them, but I kept
_ him in there.
Q This was another inmate?
A This was another inmate. '
Q Despite the threats who would go in there?
A Despite the threats. ;
[334] Q Now, Mr. Drury questioned you with re-
gard to the gentlemen in Northeast 1 as being locked
up, what can they do if they are locked up, in your ex-
perience can they do anything?
A Well, you have to let a man out, you have to iet
him out to shower. You have to let him out to go to
his visits. You have to let him out to go to medical, even
if he is locked up, you have to feed him. You have to give
him a trade. You have to give him a broom so they can
sweep his cell out and a broom handle broken in half,
in two, makes an excellent spear and people get hurt.
* * *
[348] THE DEFENDANT WALKER: The defense
would like to call Officer Trent, please.
Whereupon,
BARRY ORLANDO TRENT
[849] was called as a witness by and on behalf of the
Defendant Walker and after having been duly sworn was
examined and testified as follows:
DIRECT EXAMINATION
BY THE DEFENDANT WALKER:
Q Would you state for the Court your full name,
please?
A My name is Barry Orlando Trent.
panini as enc
87
Q Where are you presently employed, Mr. Trent?
A Iam employed with the D.C. Deparmtent of Cor-
rections. v
Q Is that at the new D.C. Detention Facility?
A Yes, it is.
Q Were you employed there between July 1st and
August 26, 1976?
A Yes, I was.
Q Uh-huh. And during that time what was your
official capacity or function at the detention facility?
A Correction officer.
e * * *'
[353] BY THE DEFENDANT WALKER:
Q Now, Mr. Trent, during the period that you worked
in Northeast 1 housing unit as a correctional officer, were
there any fires or burnings to your knowledge?
MR. SCHAARS: I would object. Any is a pretty
broad term. Perhaps Mr. Walker can be more specific
in terms of time frame.
THE COURT: You may ask the question during the
month we are concerned with, July and August of ’76.
BY THE DEFENDANT WALKER:
Q During the period of August lst and 26, were
there any fires in the Northeast 1 housing unit to your
knowledge?
A Yes.
Q Mr. Trent, I know you probably can’t remember
exact days of fires that took place in that particular |
housing unit, but is it possible for you to demonstrate to
the Court the frequency of the fires that took place in
that unit?
A It varied. Sometimes you might have one or two
and sometimes you might have none.
Q Would you say that there was at least a fire every
week?
A Yes, sir.
[354] Q Would you say that there were possibly at
least two every week?
A Yes.
88
Q Uh-huh. From your recollection, Mr. Trent, how
long did the fires usually last?
A About five or seven minutes.
Q From your recollection, Mr. Trent, when these fires
took place was it difficult to breathe in the block?
A No.
To your recollection, is there any fire equipment in
Northeast 1 housing unit?
A Yes.
Q And where is that fire equipment located?
A It is located in the booth where the officer sits.
Q Whose function is it to extinguish fires?
A We have three officers in the block. One officer is
in the booth, two on the floor.
Q Between August the lst and August 26th, during
the time you worked at the Northeast 1 housing unit, Mr.
Trent, were there any incidents of beatings by inmates or
correctional officers beating inmates?
A No.
* * * .
[356] CROSS-EXAMINATION
BY MR. DRURY:
Q Officer, my name is John Drury and I represent
Clifton Bailey, Clifford Bailey in this case.- You stated
that the fires sometimes ran to two fires a/week, is that
correct?
a ek
Q And at most they were five to se minutes in
duration, is that correct?
A~ Yes.
Q And these fires started sometime in June and ran
into August, is that right?
A No.
Q~ When did they start?
A July and August.
Q July and August. So, that is approximately an
eight to ten week period, is it not?
A Yes.
. MR. SCHAARS: It is obvious what length of period
it is.
89
THE COURT: Yes, Mr. Drury, don’t trespass any
more than you really have to.
BY MR. DRURY:
[857] Q Do you remember if any fire included or
extended beyond a period of five to seven minutes?
No.
What were the items used in starting these fires?
Sheets, mattresses, towels.
And how would the fire be extinguished?
With a fire extinguisher.
Who would do it, a correctional officer?
Every time I was in the unit I did it.
I see. And, isn’t it a fact from your knowledge
you know that more than one prisoner was taken out
and treated, medically, for smoke inhalation?
A No.
Q You never knew any officer or—strike that.
You never knew of any prisoner who was ever treated
for smoke inhalation?
MR. SCHAARS: He has answered the question. Mr.
Drury is asking each question twice.
THE COURT: Well, not each question. Once is
enough, Mr. Drury.
BY MR. DRURY:
Q Have you ever assisted a prisoner to the sick bay
or to the medical area?
A No.
Q Now, directing your attention to the period of June,
[358] July and August of 1976, from your personal
knowledge or own observations or from your readings
in the log book, do you know whether any prisoner—or
from any other source, do you know whether any pris-
oners were éver taken to a medical facility?
A For what reason?
Q For any reason. For a cut, for a bruise or smoke
inhalation.
A Yes, sir.
Q And, do you remember if that was on Northeast
are Do you remember the cause for which they were
aken—
OPO PO roy
90
MR. SCHAARS: Your Honor, I object at this point.
‘ epresents Mr. Bailey. sore
THE COURT: Yes. That is right. I am limiting
your interrogation to Mr. Bailey. You have asked for
records from the infirmary. I suppose that would be
the best evidence.
MR. DRURY: Yes, sir.
BY MR. DRURY:
Do you know my client, Clifford Bailey?
Yes, sir.
And, do you know him as a resident of Northeast
OPO
1?
Yes, sir.
And have you ever been present or from your per-
sonal knowledge, do you know whether he has ever oe
curred any beatings by the correctional officers there?
A No.
[359] Q Do you know from your own personal knowl-
edge whether he has ever been the subject of any smoke
inhalation?
A No.
Q Isee. I have no further questions.
THE COURT: Mr. Robbins.
oP
CROSS-EXAMINATION
BY MR. ROBBINS:
Q Officer Trent, when a fire starts it takes about
five or seven minutes for it to be extinguished, is that
your testimony?
A Yes.
Q And does that refer to the flames only?
A No.
Q The smoke is all gone in the unit in five or seven
minutes?
Sometimes.
Other times it lasts longer, right?
True.
How long is that?
Probably fifteen minutes.
POPPY
91
Q How does the smoke get out of the unit?
A Through the windows.
Q Aren’t the windows shut?
A At that particular time the windows had been
pried open by the residents calling out on the streets
to the visitors [360] going past so the ventilation was
pretty free, but the ventilation in the inside system was
open.
Q Is there any other type of ventilation inside? Are
there any fans in the unit?
A Once in awhile, sometimes we put fans up to get
the smoke out of the unit.
Q Where would you put those fans?
A On the side that had the most smoke.
Q And, could you approximate the size of the units,
of Northeast 1 unit?
A Forty cells on each side.
Q. And the smoke at times would fill up the entire
unit
A No.
Q You could control the smoke before it got through
the rest of the unit?
A No, sometimes it would all be on one side.
eA What would permit it from getting to the other
side
A Sometimes smoke is not that heavy on the other
side and wouldn’t reach the other side.
Q Sometimes it would, and it would take a significant
period of time before all of that smoke was gone?
A Yes, sir.
MR. ROBBINS: I have nothing further.
& * * *
[362] BY MR. SCHAARS:
Q Officer Trent, when these fires were started and
you went to put them out, did you ever wait-a significant
— < time before you went in there to put them out?
0.
Q If you saw a fire start in Northeast 1, what would
be the first thing that you would do?
A The first thing I’d do is tell the officer in the booth,
call up the man, tell them we have a fire in the unit
92
and then I get the fire extinguisher and try to put the
fire out.
Q Is the booth also the bubble?
[363] <A Yes.
Q What would you estimate, if you can, sir, your
reaction time would be from the time that you discover
a fire to the time you got there and tried to put it out?
A Two, three minutes.
Q In your experience in that cellblock during July
and August of 1976, did you and the other officer who
was out in the cellblock itself, ever decide to retire to the
bubble or the booth to wait out a fire?
A No.
Q Have you ever known that to happen in that cell-
block?
A No.
MR. SCHAARS: No further questions, Your Honor.
[365] OLIVER BOLING
was called as a witness by and on behalf of the Defend-
ant Bailey and, after having been duly sworn was ex-
amined and testified as follows:
DIRECT EXAMINATION
[866] BY MR. DRURY:
Q Sir, my name is John Drury. I represent Clifton,
Clifford Bailey in this case. What is your name, please?
Oliver Boling.
Where are you residing at the present time?
At the new jail facility, 1901 D Street, Southeast.
What section of the jail?
Maximum security, supposedly Northeast 1.
What cell are you in?
Cell 62.
Did there come a time in the month of July, July
and August that you had an occasion to be placed at the
D.C. Jail, the new D.C. Jail facility?
A Yes.
OPO PO POY
93
What section were you placed in in the new D.C.
facility?
Section Northeast 1.
How long have you been in Northeast 1?
I have been in Northeast 1 for nine months.
Is that called the ‘dead lock’ section?
Yes, it is.
Do you know my client, Clifford Bailey?
Yes, I recognize the defendant.
How do you know him? How do you recognize
&
Jai
—
OPO PO POY
him?
A I recognize him, first of all he’s about five or six
[367] cells from me and, you know, I used to trade books,
you know, I used to do a lot of reading, so I just traded
books with him.
Q Have you ever, personally, had an extended con-
versation with him?
A Only on one occasion.
Q When?
A When? Right before the incident, or incident was
supposed to have occurred, Officer or Lieutenant—
Q You had a conversation?
A Right.
Q Let me go into that later. When did you have an
opportunity to trade books with my client, Clifford Bailey?
A That is once in a blue moon.
Q Okay. Directing your attention, specifically, to the
month of July and August, do I take it that you were
not in dead lock prior to July at the new D.C. Jail
facility?
A Right.
Q Have you ever witnessed or been a victim of any
beatings in Northeast 1?
MR. SCHAARS: Objection, Your Honor. The ques-
tion is not whether Mr. Boling has been the victim of
anything, it is whether Mr. Bailey has been, and also
the question is a leading question.
THE COURT: Suppose you go into your client’s
[368] experiences first.
BY MR. DRURY:
Did there come a time in August that you learned -
that Clifford Bailey had left the jail?
A Yes.
94
Q Preceding that date or that time, had you ever,
personally, observed or from your senses determined that
my client was being beaten by any jail guards?
A I ean recall that he had.
Q Can you tell the ladies and gentlemen of the jury
in narrative form how you can tell and what happened
and what you saw or heard?
A Well, first of all my cell is, like five cells like I said
once before, down from him. One particular evening I
heard this racket at the door, because I’m right at the
door, and it is about six or seven guards came into the
cellblock, you know, they came in, they came right down
to Bailey’s cell. One pulled out a blackjack, the other one
reached in his pocket and pulled out a can of mace and
they- proceeded into the cell, then I heard a couple of
moans, a couple of groans you know. Then they came
out of the cell and shut the cell back and then that was it.
Q Did there ever come a point in time that you per-
sonally were aware from your own senses of the threat
directed against my client?
[369] A Yes.
Q Did you ever communicate that threat to my client?
A Yes.
Q Tell us how you became aware of that threat in
your own words and as descriptively as possible.
A Okay. First of all, Captain Dickinson, Officer Webb
and Sergeant Curran, came to my cell one morning and
they say, “Boling . . .”.—can I say what the words are?
Q Please.
A “We’re going to bust your god damn ass.” You
know, I said, “For what?” You know, they said, “God
dammit, you think you’re rough.” i say, well, you know,
like I’m speaking out for my rights. And he said, “God
dammit we’re going to get your buddy, that nigger
Bailey.” ‘We’re going to kill him.’ And, Officer Webb
went into his pocket and pulled out a little knife, looked
like a Boy Scout knife and said, “We’re going to do it
nice and quiet.”
Q What did you do after hearing about this?
A Well, after i learned about it, the first thing I
did was to inform the brother, you know, so he would
be—
95
Q The “brother” meaning—
A Bailey.
Q How did you communicate it to him?
A The only time I was able to communicate that
was when I got a visit, you know, that I was allowed
to come out [370] during that period of time.
Q Tell us exactly what you did and how many days
after you heard the threat and how, during being trans-
ported to a visit you talked to my client.
A I’m not clear on what you said.
Q You said that during a visit—
A Right.
Q —-you left your cell—
A Right.
Q —and, did you have an opportunity to talk to
Clifford Bailey?
Right. Right.
Where?
In his cell.
For how long?
Approximately, about four minutes.
And who was being visited on that day?
Who was being visited? I had a visitor.
I see.
Right.
Were you taken out of your cell by the authorities?
Right.
What occasioned the opportunity for you to talk
or stop and talk to my client?
MR. SCHAARS: -Your Honor, I object. We already
had [371] testimony from this witness that he spoke
to Mr. Bailey. I frankly don’t see what the point is,
how he happened to speak to him is relevant at all.
THE COURT: You may ask the question.
THE WITNESS: Well, when I came out of the
cell, the particular officer that was carrying me to my
visit, he forgot the handcuffs so he went up to the booth
and during that time I was out without any handcuffs
and I walked down to Bailey’s cell.
DPOPHO PH PLO POP
96
BY MR. DRURY:
Now, were you aware of any fires that occurred on
the hall or in the jail in Northeast 1?
A Yeah, I’m very, very much aware.
Q Can you tell us the nature of those fires or how
they were started, how long they existed and who put
them out?
A Yes. There is one particular officer in mind. Of-
ficer Webb, sometimes he comes in there and gets a paper
bag and the cell that we are in doesn’t have any windows,
so he goes exactly right to, near Bailey’s cell and pushes
the bag in there and sets it on fire, you know, and then
he adds a little bit more to it, him and his other officer
that would be on with him.
Q Who else starts fires?
A Sometimes the inmates start them, too.
Q How long are they allowed to burn?
[872] A They are allowed to burn—an hour is the
longest, maybe, sometimes longer.
Q Was this occurring, in your time frame, was this
occurring when you were in dead lock between the time
you came, in July, and the time that the escape occurred,
in August?
A Right.
MR. DRURY: No further questions.
CROSS-EXAMINATION
BY MR. ROBBINS:
Q Mr. Boling, my name is Bob Robbins. I represent
Mr. Cooley. Do you know Mr. Cooley?
A I know him by being an inmate, yes, I do.
Q Where, specifically in the institution did you know
him?
A In the section, Northeast 1.
Q During what period of time was that that you
knew him?
A In July.
Q Of what year?
A ’76.
Ne ee ee
97
Q Did it extend any longer than that period of time
that you knew him?
A Well, you know, I knew him, you know, by my
being in the institution on the same side. See, they have
certain cells with no windows. He was in one of them.
[873] Q Was he there in August of ’76?
A To my recollection he was.
Q Were you aware that Mr. Cooley left the jail on
August the 26th?
A Was I aware?
Q Yes.
A Yeah. Yeah. I was aware, you know, after I heard
about it, you know.
Q And in the days and weeks prior to that time, did
you ever see Mr. Cooley injured in any way?
A Well, rumors, occasions, you know, I had seen the
officers—
MR. SCHAARS: Objection, Your Honor. If it is
rumors.
THE COURT: Just answer the question.
BY MR. ROBBINS:
Q Did you see—
A Right.
THE COURT: Did you see?
THE WITNESS: Right.
.BY MR. ROBBINS:
Q Did you see any injuries that Mr. Cooley had in
the weeks and days before August the 26th?
A His lip was busted.
Q And, do you know how his lip became busted?
A I seen the officer take a blackjack and hit him in
[374] the face. | a)
Q Where did that occur?
A I seen that occur in the hall.
Q What hall are you referring to?
A The hall leading to Northeast 1.
Q Could you describe the slap, how it occurred, if
you know?
A I was coming off of a visit and, you know, it was
about two or three officers, you know, I was wondering
98
who they had, you know, in the corner. I saw the officer
came back with the slapjack and when he come up I saw
Cooley over there. He had got hit in the mouth.
Q With a slapjack?
A Right.
Q What do you mean by a slapjack?
A A slapjack is a leather ornament that police norm-
ally carry with a piece of steel on the inside of it, you
know, this is what they use, you know.
Q Were there any other occasions when you saw
Mr. Cooley injured?
A I seen him roughed up quite a few times in front
of my cell.
Q This is right in front of your cell?
A In front of my cell.
How could you see out of your cell?
[375] A Well, we have bars and his was about. three
doors from me, I couldn’t help but see it.
Q Can you estimate how many feet it was away from
you?
A I'd say about 13 feet.
Q Can you describe the injury that Mr. Cooley in-
curred because of this attack?
A Well, you know, later that night he had com-
plained about his side.
Q Were you ever a witness to any threats made to
Mr. Cooley?
A Well, you know, like my booth, my cell is sitting
right next door to the booth. I have heard officers come
inside the booth and ask about Cooley and on two occa-
sions I can recall them saying that they were going to
kick his ass good.
Q Did they give any reason why they were going to
do that?
A No, you know, I got back from the cell. The officer
was looking at me tike he wants to come down and‘jump
on me because I was standing there, so you know, I
didn’t hear anymore.
MR. ROBBINS: I have nothing further, Your Honor.
THE COURT: Mr. Walker?
wee
99
CROSS-EXAMINATION
BY THE DEFENDANT WALKER:
[876] Q Mr. Boling, you presently reside at the D.C.
detention facility, 1901 D Street, Southeast?
Yes, I am.
In what part of the location—you are in Northeast
Q
A Yes.
A
A
>
1?
Right.
What is your cell location?
My cell location is cell 62. It is right—as you are
coming from the door, right in front on the booth.
Q What is- my cell location?
A Your cell location was over on the other side.
Q What is my cell location now?
A Your cell location is about two doors from me.
Q When were you first committed to the detention
facility?
A The early part of July.
Q So, you were housed there between July 11 and
August 26th?
A Right.
Q You are familiar with me?
A Right.
Q You know my name?
A Right.
[877] THE DEFENDANT WALKER: Ralph Walker-
El. Will the Court show that the defendant has identi-
fied Ralph Walker?
BY THE DEFENDANT WALKER:
Q You are aware that an escape allegedly took
— the D.C. detention facility sometime in August of
A Right.
Q Are you able to tell exactly what day that alleged
escape took place?
A_ To my recollection, I can’t recall the precise date,
but I knew thct it was in August.
Q The deadlock section?
Q
100
Q Now, you spoke about the burnings that took place
in the cell house?
A Right. Right.
Q To your recollection, how often did the burnings
take place during this period between July Ist and
August the 26th?
A It was every day.
Q Every day?
A Every day. _
Q All right. You say the fires lasted approximately
an hour? “
A Hour.
Q As far as being able to breathe freely during the
time the fires were burning when the smoke was in the
block, were you able to breathe freely?
[378] A No, I wasn’t
Q Did you do anything to help accommodate you as
far as your freedom of breathing?
A I tell you how I did breathe. The toilet that we
have is a big round commode. It was cold water coming
up from it, and the block gets smoky and I have to get
on my knees and stick my head in the toilet in order
to breathe I have a cell with no window. ‘'rhere is no
ventilating system there, so this is how I breathe after
a period of time.
Q Is there any type of fire equipment in Northeast
1, to your knowledge?
A They got about two fire extinguishers, but they
stay empty.
Q Do the officers ever put these fires out?
A No, the just let them burn until they burn out.
Q You say that sometimes the inmates started the
fires and sometimes the officers.
A Right.
Q You have witnessed starting fires too?
A I have witnessed it.
Q All right. Have you ever requested medical at-
tention for smoke inhalation?
MR. SCHAARS: Objection, Your Honor. It is not
a matter whether this gentleman has requested attention,
whether or not Mr. Walker has.
101
[8379] THE COURT: Sustained. '
THE DEFENDANT WALKER: All right.
BY THE DEFENDANT WALKER:
Q What if an individual gets sick during the evening
or night, is it possible to get to the hospital from North-
east 1?
A It is very, very likely that he would get there.
THE DEFENDANT WALKER: I have no further
questions from Mr. Boling.
THE COURT: Mr. Schaars.
CROSS-EXAMINATION
BY MR. SCHAARS:
Q Sir, I’d like to speak to you and ask you questions
initially about your answers to questions from Mr. Drury,
Mr. Bailey’s counsel.
You indicated that there was a time that you saw six
or seven guards come to the cellblock with a blackjack,
and mace, and you heard moans and groans.
A Right.
Q And, you concluded that those mcans and groans
were from whom?
A Bailey.
Q Did you see Mr. Bailey at that time?
A Did I see him? He was hanging halfway outside
the door.
[380] Q Outside of which door, sir?
A Cell door.
Q He was clearly within your view, eyesight?
AT could see it.
Q Do you know when this occurred, sir?
A Do I know when it occurred? It occurred in Au-
gust, the first part.
Q The first part of August. Would that be before the
15th? August has 31 days, would it be safe to say it was
before the 15th?
A Yes.
Q Now, sir, you have indicated that there was also
a time that Mr. Bailey was apparently told that he was
going to be killed?
A I didn’t say that.
102
You were told he was going to be killed?
Right. Right. Right.
Do you know when that was, sir?
It was the early part of—late part of July.
Would that be from the 20th to the 31st?
From the 20th to the 31st? Right.
Now, you also indicated that you had an oppor-
tunity to communicate that threat to Mr. Bailey?
A Right. .
Q How soon after you heard that threat were you
{381] able to communicate that threat to him?
A Assoon as I got out for a visit. '
Q Well, sir, what I’m asking is in terms of minutes,
hours, or days, when was it?
A It was about two days later.
Q So, would that still put that in July, sir? Would
that be fair to say that it was sometime in July that you
warned him?
A About the end.
Q Now, sir, it is your testimony that although the
inmates started some of the fires, some of the correctional
officers started some as well, is that correct?
A That is correct.
Q And these fires burned for an hour, right?
A Right.
Q What is used to get these fires going by the cor-
rectional officers?
A Well, you know, one particular officer, where he
gets the trash bag, they have plastic containers with
trash in it and he gets the trash bag and goes right down
to Bailey’s.
Q That is Mr. Bailey?
A Right. Right near his cell. I used to wonder why
9 used to go down there, but he’d go there and set it on
re.
Q How long would a trash bag burn?
A Well, it would probably burn about ten minutes.
[382] Q Ten minutes. But, see, first of all let me
stipulate they keep on putting trash on top of trash.
Q So, he returned to feed the fire?
A Right.
OPO PO PO
103
Would he stand there and watch the fire burning?
No, he sits up in the booth.
As soon as the fires die down, he returns?
Right. Until they run out of trash.
Let’s talk about Mr. Cooley, sir.
ou indicated that you noticed that Mr. Cooley had
his lip busted?
Right.
Do you know when that was, sir?
I can’t recall the precise date.
Well, sir, would it have been in July or August?
Coming into August.
Well, would it be fair to say that it was within
the first ten days of August?
A Well, I’m not going to say. I’m not sure. I recall
the inzident.
Q What I’m trying to ask you, if you can say, by
coming into August, what do you mean?
THE DEFENDANT WALKER: Objection, Your
Honor. He said he couldn’t answer the question. He
didn’t know.
MR. SCHAARS: Very well, Your Honor. I will with-
draw [383] the question.
BY MR. SCHARRS:
Q Now, you indicated that there came a time when
two or three officers had Mr. Cooley in a corner.
A Right.
Q Do you know when that was?
A This came in as a surprise to me. I can’t give you
verbatim the day.
Q Im sure it was a surprise to you, but what I’m
asking is: Can you put it in terms of month, July or
August?
A Icannot say. I cannot say.
Q Now, sir, you knew Mr. Bailey and you knew Mr.
Walker and you knew Mr. Cooley, is that true, sir?
ia a You know, know of them by the inmates in the
ock.
Q Did you know that there was a time you no longer
saw them on the block in August of 1976?
A I remember that.
KO PO PO
OPO PO
104
Q One day they were there, the next day they weren’t?
A I’m not saying that.
Q Well, how would you characterize it, sir?
A I characterize it they were there month with me
before they were gone. ‘
Q But, there was a time when they weren’t there
anymore?
A Right. There was a time.
Q Do you know whether or not they were released
by the [384] correctional authorities?
A Ihave no idea. I’m not nosey.
Q@ Yes, you managed to see just about everything
that goes on in the cellblock, right?
A When it makes noise and racket.
Q You’re able to distinguish moans and groans and
who they belong to?
A Right. I can tell voices.
MR. SCHAARS: No further questions, Your Honor.
MR. DRURY: Nothing further, Your Honor.
MR. ROBBINS: Just a couple of questions, Your
Honor.
RECROSS-EXAMINATION
BY MR. ROBBINS:
Q Mr. Boling, August 26, does stand in your mind
as a date you remember, does it not?
A Right.
Q How long before that, how much earlier did the
officers hit Mr. Cooley in the face with a slapjack?
A I want to be right. I don’t know if it was June
or—I don’t want to say June or July when it might have
happened in August. I have to go for July. I have to go
with July.
Q What about the—when the officers had him in the
corner and were beating him. How much time elapsed
between [385] that and August 26th?
A How much time did elapse?
Q When did that occur in relation to August 26th?
A I can’t recall. I can’t recall. See, the first time
when he got slapped was in July that I had told you. I
said he got backed up against the cell door.
105
Q Uh-huh. And the other incident occurred after
that?
A The other incident occurred before that.
Q Okay.
MR. ROBBINS: Thank you, Mr. Boling.
MR. DRURY: I have no questions, Your Honor.
* * * *
[386] GARLAND HINES
was called as a witness by and on behalf of the defend-
ant Cooley and after having been duly sworn was ex-
amined and testified as follows:
DIRECT EXAMINATION
BY
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