# Appendix — United States v. Bailey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0041%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 444 U.S. 394 ## Text 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 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 ask [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0041%3A02. Public record. Not legal advice.