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short time later, three other women-Karen Zimmerman, Sandra Schulman and Stephanie Roth-engaged in similar conduct. After being arrested by the Capitol Police, the six women were charged under informations in the District of Columbia Superior Court [Criminal Case Nos. M-4347-81, M-4348-81, M-4349-81, M-435381, M-4354-81, M-4355-81] with violating D.C. Code 1973, § 9123(b)(4) which provides:
(b) It shall be unlawful for any person or group of persons willfully and knowingly
(4) to utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any diliberations of, any committee or subcommittee of the Congress or either House thereof.
On April 24, 1981, the defendants pled not guilty and were released on bond.
On June 15, 1981, the defendants filed a motion to dismiss the informations on grounds of selective and discriminatory prosecution. In an accompanying memorandum, the defendants' counsel argued that the motion was based on their "belief that they have been singled out for prosecution based upon the views they advocate, rather than the nature of any conduct they may have engaged in." [Memorandum of Points and Authorities in Support of Motion to Dismiss ..., June 15, 1981, at 2] The memorandum alleged that Subcommittee Chairman Senator John East had refused to allow testimony from witnesses in favor of abortion and had an "animosity" toward those who supported the right to abortion. As evidence of this, the defendants submitted to the court a letter from Subcommittee Member Senator Max Baucus criticizing the plans for conducting hearings on S. 158. Finally, the defendants contended that "the brief interruption in the hearing proceedings occasioned by the conduct they are alleged to have engaged in is of the nature that occurs not infrequently in the course of Congressional proceedings." [Id. at 3] They noted that they had been "unable to find any other instance of arrest and prosecution under § 9-123(b)(4), D.C. Code, for conduct similar to what they have done." [Id.] These facts all led to the conclusion, the defendants maintained, that they had been singled out for arrest and prosection on the basis of their political views.
Because, according to the defendants, the evidence necessary for the determination of their selective prosecution claims was in the hands of the Government, they also simultaneously filed a motion for discovery and an evidentiary hearing.
On June 26, 1981, the Government filed a motion in limine to exclude irrelevant evidence. Specifically, the motion asked the court to rule in advance of trial that evidence concerning the "merits and substance of the inquiry conducted by the Separation of Powers Subcommittee, the procedures used by the Subcommittee to select witnesses for the hearing, and the political and philosophical
views of any witnesses at trial on the legality or morality of abortion is irrelevant and inadmissible." [Government's Motion in Limine to Exclude Irrelevant Evidence, June 26, 1981, at 1] Arguing that in cases "involving politically motivated defendants, the criminal justice system often faces the danger that the narrow factual and legal question at issue may become overwhelmed by highly-charged political concerns" [Id. at 2], the Government contended that a criminal trial should not become a forum for the defendants to air their views on the legality and morality of abortion. Such evidence, said the Government, was irrelevant to the question of whether the defendants illegally disrupted a Congressional proceeding, and its introduction would not enhance the orderly conduct of the trial.
On June 29, 1981, the Government filed a memorandum in response to the defendants' motion to dismiss the informations on grounds of selective and discriminatory prosecution. At the outset, the Government contended that neither of the allegations on which the defendants based their motion-that Chairman East wanted to prevent pro-abortion views from being heard, and that interruptions of Congressional hearings by spectators occur "not infrequently"-would, even if proved, provide legitimate grounds for dismissal for selective prosecution. Although the Government acknowledged that courts did occasionally reverse convictions on the basis of selective prosecution, it argued that to succeed in such a claim defendants must "prove they have been singled out for harsh treatment on the basis of some unjustifiable standard such as race, religion or political views" or show they "have been prosecuted in punishment for activities other than violating the criminal statute involved." [Points and Authorities in Response To Defendants' Motion to Dismiss the Informations on Grounds of Selective and Discriminatory Prosecution, June 29, 1981, at 3] The Government explained:
To prevail on this motion, then, defendants must show either 1) that individuals holding views on abortion and women's rights such as their own have been consistently prosecuted for conducting demonstrations and protests during Congressional proceedings that were no more disruptive than those for which individuals holding contrary views have not been prosecuted; or 2) that this case is in the nature of a pretextual prosecution by the Government to punish these defendants for activities outside of Hearing Room 1202 on April 23, 1981. [Id. at 4]
According to the Government, the defendants' allegations in this case fell "far short" of the cognizable ones necessary for their motion to be granted. The fact that there might have been few prosecutions under the relevant criminal statute did not, asserted the Government, constitute a denial of equal protection, since even the defendants had concluded that mere laxity in law enforcement did not amount to a constitutional violation. Further, the Government maintained, the political views or conduct of the hearings by Chairman East were equally irrelevant:
[T]he Government submits that the applicability of D.C. Code § 9-123 and the duty of the United States Capitol Police and the United States Attorney to enforce the law do not depend on the political persuasions of the chairman or the even-handedness of the hearing. A committee chairman determined to present a completely one-sided slate of witnesses is still under the law entitled to do so in an orderly fashion.
Even if it could be expected that a committee chairman, being human, might have opposing demonstrators cleared from the room more quickly than those rising to applaud his efforts, not Senator East but the United States Attorney for the District of Columbia has brought this prosecution. It is any potentially discriminatory conduct on the part of this office which must be the principal focus of cognizable allegations of selective prosecution. [Id. at 5]
Finally, the Government disputed the proposition that since the Capitol Police arresting officers acted upon the complaint of Senator East, his motives were relevant:
[E]ven accepting the . . . defendants' assumption that the United States Capitol Police are also prohibited from selective and discriminatory law enforcement, Senator East's views or motivations are still irrelevant. A committee chairman obviously is in the best position to determine when his hearings have been disrupted and what must be done to restore order. One would not expect a marshal to remove someone from a courtroom without instructions from the presiding judge. A policy of deferring to a committee chairman's view of what constitutes an impermissible disruption is obviously a rational means for the Capitol Police to allocate their resources and to most effectively enforce the statute, which, after all, is designed to enable the committee chairman to conduct an orderly hearing. The very case cited by defendants on this issue, United States v. Wilson, supra, upheld the Metropolitan Police Department's Policy of seeking out and arresting female but not male prostitutes and states:
The police have, and indeed must have, broad discretion in allocating their available resources in the manner they deem will be most effective. Selectivity in law enforcement is impermissible only if designed to discriminate against those prosecuted rather than to be a part of a rational pattern of general enforcement." at 30.
In short, this court must first find the Capitol Police policy of acting on complaints by committee chairmen to be other than a "rational pattern of general enforcement" before Senator East's views or purposes become relevant to this motion at all. And the Government would submit that even then the United States Attorney's Office, which brings charges only after careful and impartial review of all cases, would have to be shown to have acquiesced in an
irrational and discriminatory enforcement pattern. [Id. at
The Government asked the court to deny the defendants' motion without a hearing.
On July 1, 1981, the Subcommittee on Separation of Powers filed a motion to appear in the case as a movant to quash the subpoenas for documents which had been served by the defendants on Chairman East and Chief Counsel James McClellan. The Subcommittee asserted that the subpoenaed documents (described as "requests of individuals and organizations, and replies thereto, to testify as witnesses at hearings on S. 158, correspondence regarding selection of witnesses for hearings on S. 158, memoranda regarding selection of witnesses for hearing on S. 158") were internal records of the Subcommittee and their production would "threaten by infringement' the privilege of the Subcommittee.
In the actual motion to quash the subpoenas and to limit the scope of testimony, filed the same day, the Subcommittee asserted that the "[d]efendants' subpoenas for documents and testimony, other than testimony concerning the events at the public hearing of April 23, seek material which is privileged under the Speech or Debate Clause of the Constitution, since preparations for subcommittee hearings, and a subcommittee's call for witnesses, are internal legislative matters." [Motion to Quash Subpoenas and To Limit the Scope of Testimony, July 1, 1981, at 2] The motion noted that the Senate, on June 25, 1981, had passed Senate Resolution 165 which authorized Senator East and two staff members to testify solely about the events at the hearing. It did not authorize the production of documents or testimony about other matters, and directed the Subcommittee to appear to quash the subpoenas covering those areas.
In a memorandum accompanying the motion to quash, the Subcommittee expanded on its Speech or Debate Clause argument: 1
Defendants' subpoenas for records and testimony by the Senator and Chief Counsel about selection of witnesses for the Subcommittee's hearings intrude upon the center of the Senate's legislative functions and thus the very core of the zone privileged from questioning under the Speech or Debate Clause. The Clause protects not only literal speech or debate, but also the other legislative activities such as preparation for subcommittee hearings and calling of witnesses; not only Members, but also aides; and not only against testimonial demands, but also against document demands. [Memorandum of Points and Authorities in Support of Motion to Quash Subpoenas and to Limit the Scope of Testimony, July 1, 1981, at 4]
On July 2, 1981, the defendants filed a memorandum in opposition to the Subcommittee motion to quash the subpoenas and to limit the scope of testimony, arguing that the Speech or Debate privilege was not absolute and that the Subcommittee had "failed
1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]
to show that any substantial interest protected by the Speech or Debate Clause is sufficient to overcome the rights of defendants to freely and fairly defend themselves." [Memorandum of Points and Authorities in Opposition to Motion to Quash Subpoenas and To Limit the Scope of Testimony, July 2, 1981, at 2] Citing United States v. Nixon, 418 U.S. 683 (1974) [involving the Watergate tapes], the defendants asserted that "claims of privilege are not absolute in the face of compelling Fifth and Sixth Amendment rights." [Id. at 4] Further, the defendants maintained, the Speech or Debate Clause was historically not meant to apply to situations such as the instant one, where the subpoenaed individuals "do not face the coercive or intimidating effects of being named as defendants in a criminal or civil proceeding" [Id. at 5-6], but were merely asked to appear, testify, and produce documents.
According to the defendants, the Government's position was also anomalous because the Senate had waived the Speech or Debate Clause protection (through Senate Resolution 165) with respect to the events at the April 23rd hearing, but had refused to do so with respect to other issues. The defendants reasoned:
If any Speech or Debate privilege exists regarding the in-
Also on July 2, 1981, the defendants filed an opposition to the Government's motion in limine to exclude irrelevant evidence. In their supporting memorandum the defendants in essence argued that a pre-trial evidentiary ruling by the court would be premature in the absence of a factual setting and would "abrogate fundamental constitutional guarantees as well as the customary procedure for ruling on objections to evidence at the time it is proffered." [Memorandum of Points and Authorities In Support of Defendants' Opposition to Government's Motion In Limine To Exclude Irrelevant Evidence, July 2, 1981, at 1] Since a wide range of evidence could be relevant to the questions of whether an actual "disruption" took place and whether the defendants had a specific intent to cause it, the defendants argued that it would be improper for the court to grant the government's motion. "The fundamental objection to the government's request is that it would deprive the defendants of their right to defend themselves on the elements of the offense with which they are charged, and to effectively examine witnesses." [Id. at 4]