Also on July 2, 1981, Judge Harriet Taylor granted the Subcommittee on Separation of Powers' motion to appear as a movant to quash the subpoenas. In the same order, Judge Taylor deferred ruling on the motion to quash pending the disposition of other motions which, if granted, could render it moot.

On July 9, 1981, Judge Taylor denied the defendants' motion to dismiss the information on grounds of selective prosecution. The same day, Judge Taylor heard arguments on the Government's motion in limine which she granted in an oral ruling from the bench on July 10.

On July 29, 1981, Judge Taylor filed her opinion and order on the July 9th denial of the defendants' motion to dismiss for selective prosecution. While conceding that it was a settled principle of law that the Constitution prohibits discriminatory enforcement of criminal laws, Judge Taylor held that "mere laxity or selectivity in enforcement does not constitute discriminatory enforcement; prosecutorial discretion may be exercised freely, so long as neither the decision to prosecute nor the police decision to arrest rests on unjustifiable standards such as race, religion, or political beliefs or associations." [Opinion and Order, July 29, 1981, at 2 (footnotes omitted)] Further, Judge Taylor stated that not every claim of discriminatory prosecution automatically entitled the claimant to discovery to aid in the defense; a prima facie showing has to be made "that others similarly situated have not been prosecuted for similar conduct." [Id. at 41

Turning to the facts of the case, Judge Taylor found that the defendants had not sustained the initial burden of demonstrating prime facie discrimination. The judge rejected the defendants' contention that the standard of comparison should only be between the treatment they received and that accorded others arrested at committee hearings (as opposed to those arrested for disturbances in the House or Senate galleries):

The Court has carefully considered this contention and finds it totally lacking in merit-the classic "distinction without a difference." Certainly, it finds no support in the language of the statute: the prohibition of Section 9123(b)(4) extends equally to acts directed at "the orderly conduct of any session of the Congress or either House thereof, or . . . any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof." Nor does any of the record evidence support such a distinction. To the contrary, the only evidence addressing this point was Captain Hudak's unhesitating "no" when he was asked whether the Capitol Police follow different policies or practices for disturbances in the galleries and those at hearings. [Id. at 5-6]

Judge Taylor concluded:

Members of the public do not participate in hearings as
the spirit moves them; a congressional hearing room is not
a Friends meetinghouse. As our Court of Appeals empha-
sized in connection with a closely-related provision of the
same law, "[t]he purpose of the statute is to permit Con-

gress to carry out the people's business unhindered by seri-
ous disruption." Because the business carried out in hear-
ing rooms differs from that carried out in the House or
Senate Chambers, it is to be expected that the necessary
logistics and controls will differ, too. But that is a far cry
from defendants' suggestion that the differing circum-
stances render conduct disruptive of proceedings on the
floor ipso facto acceptable when it occurs at a committee
hearing. [Id. at 7 (footnote omitted)]

On August 4, 1981, the Government filed a supplemental memorandum concerning the Subcommittee's motion to quash the subpoenas. Specifically, the memorandum dealt with the question of whether Chairman East, who appeared on videotapes of the April 23rd hearing which the Government intended to offer into evidence, had to be made available for cross-examination. It was the Government's position that, under common law rules of evidence concerning hearsay, it was not obligated to produce Senator East for cross-examination, although it admitted that there was no case law directly on that point. According to the Government:

Such a contemporaneous recording is not inadmissible hearsay because it is not offered to prove the truth of anything said on the tape. See e.g., Rule 801(c), Federal Rules of Evidence. Rather, any statements on the tape are admitted simply to give the jury a complete picture of what happened at the scene of the crime. They are admitted via the tape in the same way that a witness describing the incident would be permitted to testify concerning statements made that were heard by the defendants and might illumine their intent or the reasonableness of subsequent conduct by them or others on the scene.

. . [T]he appropriate question is not whether defendants are entitled to cross-examine individuals appearing on tapes, but whether the tapes are admissible in the first place. If they are admissible, it is because they are not hearsay and therefore do not contain the kind of statements of which cross-examination is necessary. Although the Government would contend otherwise, should the court decide any statements on the tapes are inadmissible hearsay, the proper remedy would be to delete them or to instruct the jury to disregard them, not to order cross-examination. [Government's Supplemental Memorandum Concerning Motion to Quash Subpoenas, August 4, 1981, at 2-3]

In its memorandum the Government also supported granting the Subcommittee's motion to quash, arguing that the information sought by the subpoenas was not relevant, and that the defendants had available to them "within the bounds of the Senate resolution all testimony from Senate witnesses that is relevant and material to this case." [Id. at 5]

On August 25, 1981, the defendants submitted a supplemental memorandum in opposition to the Government's memorandum concerning the motion to quash the subpoenas. The defense posi

tion was that Senator East's statements on the video tapes constituted impermissible hearsay which had to be excluded absent an opportunity to cross-examine the Senator. The memorandum explained:

Senator East's statements on the tapes are far more probative on the issue of whether or not there was disruptive behavior, an essential element of the government's case against the defendants. Senator East's statements indicate that the Senator felt that there was a disruption and that the intervention of the police was necessary to restore order. The statements on the tapes convey the Senator's perceptions and conclusions about the events in the hearing room as a witness to those events. Clearly, the defendants must be entitled to cross-examine on those statements if they are to be submitted to the jury. [Defendants' Supplemental Memorandum in Opposition To Government's Supplemental Memorandum Concerning Motion to Quash Subpoenas, August 25, 1981, at 3]

On September 3, 1981, at the request of the defendants, Judge Taylor signed an order withdrawing the subpoenas at issue and rendering moot the motion to quash.

The trial in the case began on September 23, 1981 and continued until September 29, when the jury found the six women guilty. They were sentenced to a fine of $100 each.

On October 9, 1981, a notice of appeal of the verdict was filed in the District of Columbia Court of Appeals. Defendant Roth subsequently filed a motion on February 10, 1982 to consolidate her appeal [No. 81-1589] with those of the other defendants. [Nos. 811442, 81-1585, 81-1586, 81-1587, and 81-1588] On March 25, 1982, the motion was granted and the appeals ordered consolidated.

On September 15, 1982, the defendants-appellants filed their brief in the appeals court. Initially, the brief argued that the trial court erred in denying the defendants' motion to dismiss the informations based on selective and discriminatory prosecution. As they had previously, the defendants insisted that they had made a prima facie showing of selective prosecution and therefore the burden shifted to the Government to demonstrate that purposeful discrimination did not occur. Since, in their view, the Government did not meet its burden, the defendants contended that under applicable precedent the cases should have been dismissed.

Further, the defendants maintained, even if they were not entitled to an affirmative showing by the Government that the decision to prosecute was not based on impermissible grounds, they were entitled to continue to present evidence to the court on their selective enforcement claim and to that end were entitled to discovery of legislative and executive documents and testimony of “legislative officers." Specifically, the defendants said, they should have been permitted to discover "information from legislative officers concerning the procedures used to select persons to testify at the hearing." [Consolidated Reply Brief of Appellants, September 15, 1982, at 14-15]

The defendants once again raised the argument made in the trial court that committee hearings should be considered separately

21-618 0-83--30

from gallery proceedings for purposes of applying the Congressional disruption statute and determining whether it had been selectively enforced. According to the defendants, "the galleries are more formal, and routine procedures are applied while the atmosphere of committee hearings depend largely upon whom the chairperson is. Therefore people who attend committee hearings are not similarly situated with those people who attend gallery proceedings." [Id. at 17]

Finally, the defendants asserted, in attempting to show discriminatory treatment, they did not have to provide the court with a large sample of people who had been arrested and not prosecuted. "Discovery has been ordered in aid of a claim for selective prosecution where it was not possible to find that others similarly situated were not prosecuted. Irish People Inc., 502 F. Supp. 63," the defendants maintained. [Id. at 19] They continued:

As in the Irish People case, it is difficult to make a showing that appellants had been "singled out for prosecution"; however, there are strong allegations indicating a bias toward appellants. It has been noted several times above, that Senator East did not allow testimony from groups expressing a pro abortion view. In addition, it is common procedure for the chairperson to meet with the police to discuss tactics for the hearing. Finally, three witnesses testified that they observed disturbances in hearings in which the chairperson chose not to employ such extreme measures in restoring order.

In their claim for discovery, appellants sought information concerning the procedures used in selecting witnesses to testify at the subcommittee hearing and procedures.

This was relevant in proving Senator East's animosity toward appellants. If in fact the Senator attempted to conduct a one-sided hearing, appellants presenting a contrary view, could have provoked the Senator into effectuating their arrest and subsequent prosecution. Therefore, the trial court caused appellants irreparable injury in denying their requests for discovery, as appellants were unable to present a substantial defense. [Id. at 20-21]

Turning next to the Speech or Debate Clause issue, the defendants argued that discovery of the records and testimony of Senator East and his chief counsel regarding the selection of witnesses for the subcommittee hearings was not barred by the Clause because "production of the information requested would not frustrate the purpose of the immunity, which is designed to preserve the integrity of the Congress." [Id. at 23] This was particularly so, said the defendants, because neither Senator East nor his staff member was subject to any civil or criminal liability. Perhaps more important, continued the defendants, the Clause should not prevail when balanced against the Sixth Amendment right to confrontation. "Since

. Senator East invoked the judicial process, he should not be allowed to deny appellants their Sixth Amendment right to confrontation, by invoking legislative immunity," the defendants argued. [Id. at 25]

The remainder of the defendants' brief was devoted to two technical arguments. First, they contended, the trial court erred in denying their motion for a judgment of acquittal when the Government failed to prove the element of knowledge and specific intent required under the Congressional disruption statute. Alternatively, said the defendants, the trial court erred in failing to give proper jury instructions on the element of knowledge. Second, the defendants asserted, the trial court erred in over-ruling their counsel's objections to statements made by the Government in closing argument which substantially prejudiced their case. According to the defendants, the prosecutor improperly compared them to 250,000 Solidarity demonstrators.

On October 27, 1982, the Government filed its brief in the appeals court. The Government argued that the trial court was correct in denying the defendants' motion to dismiss the informations on selective prosecution grounds because they "had made no demonstration whatsoever to satisfy the threshold issue of selective prosecution: that is, appellants utterly failed to show that others similarly situated generally have not been prosecuted for conduct similar to that for which they were prosecuted." [Brief and Appendix for Appellee, October 27, 1982, at 17] Further, the Government contended, because the defendants had failed to establish that their motion to dismiss was meritorious, the testimony and documents subpoenaed from Senator East and his chief counsel were "not relevant to any aspect of appellants' defense and, therefore, were not discoverable under D.C. Super. Ct. R. Crim. P. 17(c)." [Id. at 18]

The trial court's ruling on the selective prosecution motion was not "plainly wrong" as a matter of law or evidence, the Government maintained, even if the defendants' premise was accepted that their claim of discriminatory treatment should have been judged only in comparison to those simiar incidents which had taken place in committee hearings:

In the seven prior incidents taking place in committee hearings, nine persons were arrested on two occasions. On the five other occasions, the conduct of thirteen persons required police action short of an arrest, usually explusion from the room. No meaningful distinction can be made between the nine persons arrested and the thirteen not arrested. If appellants' arrests are added to the totals, fifteen persons have been arrested in committee hearings and thirteen persons, whose conduct required police action, were not arrested. These statistics establish only one proposition: that appellants were arrested, as were many others. Furthermore, the records fail to reveal the political views of the demonstrators and fail to indicate whether the arrestees were ever prosecuted. [Id. at 21]

Moreover, said the Government, the defendants had to present evidence establishing both elements of the defense of selective prosecution-prima facie proof of selectivity and of improper motivation-before subjecting the Government to discovery. That proposition had been accepted by the District of Columbia Circuit in Attorney General v. The Irish People, Inc., No. 81-1035 (D.C. 1982), which

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