1

 

 

     1          SUPERIOR COURT OF NEW JERSEY

                LAW DIVISION - HUDSON COUNTY

     2          DOCKET NO. HUD-L-3520-04

       PETER deVRIES and TIMOTHY

     3 CARTER

                                       TRANSCRIPT

     4                               OF PROCEEDING

       Plaintiffs,

     5                                TRIAL DAY 1

            Vs.

     6

       THE TOWN OF SECAUCUS,

     7 Defendant.

       - - - - - - - - - - - - - - - -

     8

       HUDSON COUNTY COURTHOUSE

     9 595 Newark Avenue

       Jersey City, New Jersey  07306

    10 Monday, May 7, 2008

       Commencing 10:35 a.m.

    11

       B E F O R E:

    12           HONORABLE BARBARA A. CURRAN

 

    13                     TRACEY R. SZCZUBELEK, CSR

                           LICENSE NO. XIO1983

    14

 

    15

 

    16

 

    17

 

    18

 

    19

 

    20          SCHULMAN, WIEGMANN & ASSOCIATES

 

    21           CERTIFIED SHORTHAND REPORTERS

 

    22                 216 STELTON ROAD

 

    23                     SUITE C-1

 

    24           PISCATAWAY, NEW JERSEY  08854

 

    25                (732) - 752 - 7800


 

 

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     1 A P P E A R A N C E S:

 

     2

 

     3 SMITH MULLIN, ESQS.

 

     4 Attorneys for the Plaintiffs

 

     5      240 Claremont Avenue

 

     6      Montclair, New Jersey  07042

 

     7 BY:  NEIL MULLIN, ESQ.

 

     8      NANCY ERIKA SMITH, ESQ.

 

     9

 

    10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.

 

    11 Attorneys for the Defendants

 

    12      360 Passaic Avenue

 

    13      Nutley, New Jersey  07110

 

    14 BY:  DANIEL R. BEVERE, ESQ.

 

    15      DAVID M. PARIS, ESQ.

 

    16

 

    17

 

    18

 

    19

 

    20

 

    21

 

    22

 

    23

 

    24

 

    25


 

 

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     1               JUDGE CURRAN:  We are on the

 

     2 record in the matter of deVries and Carter

 

     3 versus the Secaucus -- the Town of Secaucus,

 

     4 Docket Number 3520, the 2004 term.

 

     5                I will note that counsel is

 

     6 present.  There are no parties present.

 

     7                Shall we start with the precharge

 

     8 request or do we have an in limine request first

 

     9 or we can go back to issues that were not

 

    10 totally reserved -- that were reserved, some of

 

    11 which can be resolved, perhaps some of which

 

    12 cannot, as I indicated when I reserved I would

 

    13 basically, in regard, for instance, to the

 

    14 expert, need to have a hearing outside the

 

    15 hearing of the jury in regard to that issue.

 

    16               MR. PARIS:  Your Honor, I -- I

 

    17 just created a very brief agenda.  I just want

 

    18 to see whether it matches what plaintiffs'

 

    19 counsel has as being outstanding and what the

 

    20 Court has as being outstanding.

 

    21                I have number one is the effect

 

    22 of the Fifth Amendment claims by witnesses.  The

 

    23 plaintiff has sought certain presumptions

 

    24 against the Town, which, obviously, we object

 

    25 to.


 

 

                                                     4

 

 

     1                Number two, the issue of the

 

     2 expert with the in limine motion we had

 

     3 originally made was an in limine motion with

 

     4 regard to Dr. Bursztajn being a treating --

 

     5 excuse me, an examining psychiatrist, as

 

     6 compared to being an expert in any other area.

 

     7 By the same token, there was also an application

 

     8 and the Court had also brought it up; and that

 

     9 was with regard to the plaintiffs' need for

 

    10 police practices expert.  And I think that that

 

    11 issue has to be dealt with prior to openings, in

 

    12 the event that Mr. Mullin intends to talk about

 

    13 what police should have done, could have done,

 

    14 you know, would have done, if his clients had

 

    15 their way, whatever.

 

    16                And the third thing was with

 

    17 regard to the incidents in Jersey City.  Mr.

 

    18 Mullin had sought some additional time to

 

    19 respond to that.

 

    20                Those were the three items that I

 

    21 had as the opening, based upon the discussions

 

    22 that were held in limine on the -- on the

 

    23 29th -- 28th, excuse me.

 

    24                The other -- you know, the other

 

    25 issue and the last issue is regard to the


 

 

                                                     5

 

 

     1 request for precharge.

 

     2               JUDGE CURRAN:  As I remember it --

 

     3 and I usually say please correct me, if your

 

     4 recollection is different; but we have Tracey

 

     5 here, so -- as I remember it, in regard to

 

     6 number two, I reserved on both issues,

 

     7 especially in regard to the issue of police

 

     8 practices because I think I even said it

 

     9 would -- you know, normally I would tend to

 

    10 think that a psychiatrist would not be able to

 

    11 testify as an expert in that regard.

 

    12 Plaintiffs' counsel asked me to hold off until

 

    13 we had a hearing, so that he could talk about

 

    14 the kind -- there was reference to the courses

 

    15 that he taught and that kind of thing.  I could

 

    16 be wrong.  I'll be glad to look at my notes.

 

    17               MR. PARIS:  Your Honor, I think

 

    18 that -- respectfully, I think that does not

 

    19 accurately state where I think that we had left

 

    20 off.  I think there were two separate issues.

 

    21 One issue was an issue that you indicated that

 

    22 you would have a Rule 104 hearing.  And that was

 

    23 a specific issue with regard to testimony in

 

    24 terms of official municipal conduct in

 

    25 practices.  But that did not have anything to do


 

 

                                                     6

 

 

     1 with Dr. Bursztajn being considered a police

 

     2 practices expert.  I don't think that anyone

 

     3 could possibly contend that Dr. Bursztajn, a

 

     4 medical physician, who is a psychiatrist, who

 

     5 examined the plaintiffs and rendered an opinion

 

     6 that they're suffering from posttraumatic stress

 

     7 disorder, could possibly be conceived to be a

 

     8 police practices expert.

 

     9                And in fact, during the argument

 

    10 which took place on the 28th, in looking at the

 

    11 transcript of that argument, even Mr. Mullin

 

    12 didn't argue that somehow Dr. Bursztajn was

 

    13 going to come in and be an expert with regard to

 

    14 police practices.  Certainly, there is

 

    15 absolutely nothing in his CV that would indicate

 

    16 he had ever been involved in police practices,

 

    17 other than examining people who might have been

 

    18 affected by police or anything else.  I mean,

 

    19 he -- he is -- he is a physician.  He is a

 

    20 medical doctor.  He is a psychiatrist.  And the

 

    21 opinions that he renders in this matter clearly

 

    22 should be limited to medicine, the practice of

 

    23 medicine and his diagnosis of the plaintiffs.

 

    24 And again, Mr. Bevere's application was to limit

 

    25 his testimony to that.  But nowhere was it ever


 

 

                                                     7

 

 

     1 argued that somehow Dr. Bursztajn was going to

 

     2 come in and save the day as a police practices

 

     3 expert.

 

     4               JUDGE CURRAN:  I'm going to ask as

 

     5 we go through these motions -- and I'm sure

 

     6 there will be others.  Counsel on both sides

 

     7 have presented excellent information to the

 

     8 Court.  We basically have -- I basically think I

 

     9 have all the exhibits and anything to -- to

 

    10 which reference could be made.  It would help

 

    11 me, because, obviously, you all are prepared for

 

    12 your arguments, if you would indicate at the

 

    13 beginning of the arguments to which documents

 

    14 you're referring.

 

    15                I believe in this case I have as

 

    16 double I the curriculum vitae of Mr. -- of Dr.

 

    17 Bursztajn.  And I just want to be sure that

 

    18 double I is his report.  September 1st, 2006.  I

 

    19 just want to make sure I'm using the same

 

    20 documents that you are.

 

    21               MR. PARIS:  He submitted two

 

    22 reports.  They're both dated September 1st,

 

    23 2006.  And his -- I'm looking at exhibit marked

 

    24 at depositions.

 

    25               JUDGE CURRAN:  II and JJ appear to


 

 

                                                     8

 

 

     1 me to be the two reports.  Does that sound

 

     2 right?

 

     3               MR. MULLIN:  That sounds right.

 

     4 You are looking at our summary judgment

 

     5 appendix; is that what it is?

 

     6               JUDGE CURRAN:  I am looking at the

 

     7 large black book.

 

     8               MR. MULLIN:  Yes.

 

     9               MR. PARIS:  Then, Your Honor, I am

 

    10 not sure it was submitted -- and I can double

 

    11 check in terms of the defendants exhibits.  But

 

    12 we have a copy of Dr. Bursztajn's curriculum

 

    13 vitae, which --

 

    14               JUDGE CURRAN:  Actually, II and JJ

 

    15 appear to me to be duplicates.

 

    16               MR. BEVERE:  No, one is for

 

    17 Mr. deVries and one is for Mr. Carter, Your

 

    18 Honor.

 

    19               JUDGE CURRAN:  Got it.  One is

 

    20 longer.  Okay.

 

    21               MR. MULLIN:  Shall I respond, Your

 

    22 Honor?

 

    23               JUDGE CURRAN:  Surely.

 

    24               MR. MULLIN:  Okay.  I just want to

 

    25 put -- put a non-issue to bed.


 

 

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     1               JUDGE CURRAN:  A, interrupt me,

 

     2 Mr. Mullin, from now on.  I don't need a

 

     3 document, if that's what you're going to do.

 

     4               MR. PARIS:  Your Honor, excuse me.

 

     5 Just for the record, you can interrupt me, as

 

     6 well, during argument.

 

     7               MR. MULLIN:  And you all can

 

     8 interrupt me.  I just want to say, look, I'm not

 

     9 going to call Dr. Bursztajn as a police conduct

 

    10 expert.  Never intended to; never will.  We

 

    11 should have a 104 hearing on whether he can

 

    12 testify about the Constitutional observations.

 

    13               JUDGE CURRAN:  Exactly.

 

    14               MR. MULLIN:  But I'm not going to

 

    15 do that.

 

    16               JUDGE CURRAN:  Thank you.

 

    17               MR. MULLIN:  So I just don't want

 

    18 to fight a battle we don't have to fight.

 

    19               JUDGE CURRAN:  Good.

 

    20               MR. MULLIN:  The cases are

 

    21 replete, the case law is replete with decisions

 

    22 under U.S.C. 1946, the indifference standard,

 

    23 like the City of Canton, Ohio V. Harris, U.S.

 

    24 1989, a 1989 case.  I have looked and looked and

 

    25 looked; and I see no case law saying that in


 

 

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     1 order to prove deliberate indifference under the

 

     2 Constitutional standard you have to have a

 

     3 police expert.  In fact, I don't see one

 

     4 mentioned in that case.  You know, maybe it's

 

     5 buried there somewhere; but I sure -- sure don't

 

     6 see it.

 

     7                Your Honor dealt with this a bit

 

     8 on in limine and said, look, if it's within

 

     9 common knowledge, I can comment.  It's when you

 

    10 get into the more arcane issues that laymen are

 

    11 not expected to know that I can't comment.

 

    12 Well, I assume Your Honor will draw that line

 

    13 during the trial.  I'll be cautious in my

 

    14 opening argument and assume Your Honor will draw

 

    15 that line on the basis of objections during the

 

    16 trial.

 

    17                There is an awful lot within

 

    18 common knowledge.  You know, if you -- now let

 

    19 me also add this.  One of the exhibits we're

 

    20 going to put into Evidence is the Secaucus

 

    21 Police Department's Bias Crime Guidelines.

 

    22 These were based on the Attorney General Bias

 

    23 Crime -- Bias Crime Guidelines.  This is a

 

    24 standard of care imposed on the Police

 

    25 Department by itself.


 

 

                                                    11

 

 

     1                And they talk about at a bias

 

     2 crime scene the need to immediately interview

 

     3 witnesses in detail, about the need for

 

     4 surveillance, for the need to secure the crime

 

     5 scene.  So when I refer to this, I intend to put

 

     6 into Evidence this document, which is

 

     7 indisputably the standard of care imposed, in

 

     8 detail, by the State -- by Secaucus Police

 

     9 Department on -- on its officers.  No question

 

    10 this is a standard of care.  And it is derived

 

    11 from the Attorney General's not guidelines but

 

    12 standard operating procedures.  I know earlier

 

    13 someone referred to them as guidelines.  These

 

    14 are standard operating procedures.  The Attorney

 

    15 General requires all local police departments to

 

    16 enforce them.  No question about it.  No room.

 

    17                So -- so I will use that as a

 

    18 standard of care at times in asking what

 

    19 officers did and didn't do.  And I think that's

 

    20 totally appropriate.  Who has more expertise on

 

    21 this than the policymakers of the Secaucus

 

    22 Police Department who created those guidelines

 

    23 consistent with the policymakers in the Attorney

 

    24 General's Office?  So I'm not going to be

 

    25 referring to --


 

 

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     1               JUDGE CURRAN:  I'm sorry, do you

 

     2 intend to lay a foundation?

 

     3               MR. MULLIN:  Of course.  I will

 

     4 lay a foundation by putting that into Evidence.

 

     5 And I'm not going to -- but in my opening I --

 

     6 I'll refer to some deviations from this, but I

 

     7 promise you I will put it into Evidence.  I am

 

     8 not going to say anything that I don't intend to

 

     9 prove.  So that -- that's as to that.

 

    10                I agree we have to do the --

 

    11 comment on a few things on the Fifth Amendment.

 

    12 Some of them -- some of the Fifth Amendment

 

    13 issues fall away and they're simple; I also

 

    14 notice that.

 

    15                I have reread all the police

 

    16 reports.  What I realize is that there is no

 

    17 evidence at all that the Snyders took the -- the

 

    18 Snyders or Mutschler took the Fifth Amendment

 

    19 with the Police Department of Secaucus during

 

    20 their investigation.  All the policemen report

 

    21 is that the Snyders and Mutschler refused to

 

    22 cooperate.

 

    23                Then you recall the document

 

    24 which the Police Department fired Snyder, Jr.

 

    25 for refusing to cooperate.  That is not a Fifth


 

 

                                                    13

 

 

     1 Amendment issue.  I can clearly comment on that,

 

     2 especially the fact that the Police Department

 

     3 fired Snyder, Jr.  And the Town of Secaucus

 

     4 can't come in here and say, well, we couldn't

 

     5 fire Snyder, Jr. from the Fire Department.

 

     6 Because they fired Snyder, Jr. from the Police

 

     7 Department they would be estopped from saying

 

     8 that.

 

     9                The fancier issues come in with

 

    10 respect to the Grand Jury.  There is no evidence

 

    11 here that any of the Snyders or Mutschler ever

 

    12 took the Fifth Amendment with respect to the

 

    13 Grand Jury, so no one should say that in this

 

    14 trial.  There is no evidence of that.

 

    15                There is evidence that Snyder

 

    16 took -- Snyders and Mutschler took the Fifth

 

    17 Amendment in the depositions; and therefore,

 

    18 under the law I have cited to you, they have to

 

    19 take the Fifth Amendment when I put them on the

 

    20 stand here.  Whether Your Honor has to order it,

 

    21 hold them in contempt if they don't is a matter

 

    22 we can -- we can ask ourselves, but there is no

 

    23 question you can't block discovery and then come

 

    24 into court and start testifying.  So I'll ask

 

    25 you to order them when they take the stand to


 

 

                                                    14

 

 

     1 take the Fifth.  And if they deviate from that,

 

     2 I will ask you to hold them in contempt and then

 

     3 order them to take the Fifth again.

 

     4                Now, here is -- there was an

 

     5 issue raised, which may or may not be relevant,

 

     6 now that I have pointed out the Snyders never

 

     7 took the Fifth with the Police Department.  The

 

     8 statute that was pointed out to the Court by Mr.

 

     9 Bevere is 2A:81-17.2a1.  And I have a copy of it

 

    10 here.  Let me hand it up to you.

 

    11               JUDGE CURRAN:  Thank you.  Thank

 

    12 you very much.

 

    13               MR. MULLIN:  Now, this is -- this

 

    14 is relevant to the more complicated topic is

 

    15 what we ultimately -- what will you, Your Honor,

 

    16 ultimately tell this jury about these men who

 

    17 take the Fifth Amendment.  And we -- we have

 

    18 given you a series of cases on this.  The simple

 

    19 truth is that when parties like this take the

 

    20 Fifth Amendment, then the jury gets told they

 

    21 can draw a negative and adverse inference based

 

    22 on it.  That seems to be black letter law.  They

 

    23 can be -- the jury can be told that had they

 

    24 testified, they would have testified in a way

 

    25 that favored the plaintiffs.


 

 

                                                    15

 

 

     1               JUDGE CURRAN:  Well, that the jury

 

     2 has the ability to infer that.

 

     3               MR. MULLIN:  That's right.

 

     4               JUDGE CURRAN:  Correct, okay.

 

     5               MR. MULLIN:  And the jury gets

 

     6 instructed they may but not must draw an adverse

 

     7 inference.

 

     8               JUDGE CURRAN:  Right.

 

     9               MR. MULLIN:  That seems to be all

 

    10 over the cases, and I accept that that's the way

 

    11 a jury gets instructed.  One of the issues,

 

    12 though, that was raised by Mr. Bevere -- I have

 

    13 read the transcript of the in limine motions --

 

    14 was that, well, there is a statute which would

 

    15 have prohibited us from firing these guys

 

    16 because they took the Fifth.  Actually, the

 

    17 statute says the literal opposite.  And I

 

    18 thought it did.  But I'm not as -- I don't deal

 

    19 with municipalities as much as these gentlemen

 

    20 do, so I thought I ought to go back and check.

 

    21                Here is a statute, 2A81-17.2a1.

 

    22 Shall be the duty of every public employee to

 

    23 appear and testify upon matters directly related

 

    24 to the conduct of his office, position or

 

    25 employment before any court, Grand Jury or the


 

 

                                                    16

 

 

     1 State Commission of Investigation.  Any public

 

     2 employee failing or refusing to so appear and to

 

     3 so testify after having been informed of his

 

     4 duty to appear and testify under this act by the

 

     5 prosecuting attorney or member of or attorney

 

     6 for the State Commission of Investigation shall

 

     7 be subject to removal from his office, position

 

     8 or employment.

 

     9                Well, let's take this a step at a

 

    10 time.  When the Snyders testify in the

 

    11 deposition, they were testifying in this court.

 

    12 Testifying in a deposition is under the aegis of

 

    13 a court.  And they took the Fifth.  The

 

    14 prosecuting attorney in this case -- it would be

 

    15 the prosecutor of the Town -- should have and

 

    16 could have advised them, "Look, if you don't

 

    17 testify, you are going to get fired."  If the

 

    18 prosecutor had told them that, well, then they

 

    19 had -- they would have to testify.  And the good

 

    20 news for them would be under this statute, if

 

    21 they testified, they would have complete

 

    22 immunity for what they said.  So the Town --

 

    23 there is no evidence the Town sought their

 

    24 testimony.

 

    25                Under this statute all -- all


 

 

                                                    17

 

 

     1 they literally had to do is say, "If you don't

 

     2 testify, you'll be fired."  No prosecutor ever

 

     3 did this.  They never urged -- this is no

 

     4 evidence they urged the State prosecutor to do

 

     5 this.  And maybe they can produce some.  There

 

     6 is no evidence that they had the municipal

 

     7 prosecutor do this.  So they made no effort to

 

     8 force these men to testify, when all they had to

 

     9 do was lift a finger and -- and these guys would

 

    10 have had to do it.

 

    11                Here is one thing the statute

 

    12 doesn't say.  The statute doesn't say that you

 

    13 can't fire these guys because they refused to

 

    14 cooperate with the police investigation.  It has

 

    15 nothing to do with it.  So clearly I can comment

 

    16 on that these men refused to cooperate with a

 

    17 police investigation, the Town could have and

 

    18 didn't fire them.  As to whether they could be

 

    19 fired for not -- for taking the Fifth in the

 

    20 depositions and here, well, clearly the Town

 

    21 could have taken action to require them to

 

    22 testify.  Just like that.  So when Mr. Bevere

 

    23 says, "Oh, we were hurt by this too," that

 

    24 doesn't carry any water.  Not at all.  The Town

 

    25 just had to snap their fingers, have a


 

 

                                                    18

 

 

     1 prosecutor threaten them with termination and

 

     2 they would have had to testify.

 

     3                So this is like the Rad case that

 

     4 I gave Your Honor the other day.  The -- we have

 

     5 witnesses here.  One of them is a high level

 

     6 witness, high level executive, if you will, for

 

     7 the Town, battalion chief, destined to be chief.

 

     8 While he is battalion chief he takes the Fifth.

 

     9 Within the scope of his authority -- while still

 

    10 within the scope of his authority while employed

 

    11 by the Town he takes the Fifth.  And as a result

 

    12 of that I don't -- I don't get any discovery.

 

    13 That's binding on the Town.  That causes the

 

    14 jury to take an adverse inference against the

 

    15 Town under the Rad case.  That's really clear.

 

    16                And these arguments that, well,

 

    17 it hurt us both, they don't amount to a hill of

 

    18 beans, Your Honor.  That argument was made in

 

    19 the Rad case, by the way.  You will see the

 

    20 court's analysis of that argument, Judge.

 

    21 And -- and the court says no, I don't think so.

 

    22 The company benefited from the -- these -- these

 

    23 guys taking the Fifth.  Town has benefited

 

    24 immensely from blocking discovery.

 

    25                I wish the Town had followed the


 

 

                                                    19

 

 

     1 procedures of 2A:81.  I wish that they had

 

     2 ordered these gentlemen to talk at the

 

     3 deposition under threat of termination.  And we

 

     4 would have had a lot of information.  And I --

 

     5 and the Town would not have benefited from my

 

     6 complete lack of discovery with respect to

 

     7 Mutschler and the two Snyders.  They made it so

 

     8 difficult for me that in this case I have

 

     9 subpoenaed someone who has knowledge of the

 

    10 various jobs they hold, they wouldn't even

 

    11 answer questions about what jobs they held.  I

 

    12 issued a subpoena for someone to come from the

 

    13 Town to say what jobs they held with the Town

 

    14 and everything.  They blocked everything.  They

 

    15 benefited immensely from this.

 

    16                So, Your Honor, down the road,

 

    17 when we get to the jury instruction, it's clear

 

    18 that there should be an adverse inference

 

    19 against the Town based on these witnesses taking

 

    20 the Fifth.

 

    21                So those are my thoughts, Your

 

    22 Honor, on this these motions for limine.

 

    23                Again, simple thing is I should

 

    24 be able to say the Town could have done what the

 

    25 Police Department did.  These guys didn't


 

 

                                                    20

 

 

     1 cooperate with the police, and they fired them.

 

     2 And they fired Chuck Snyder, Jr.  Well, the Fire

 

     3 Department should have done the same thing.

 

     4 That has nothing to do with the Fifth Amendment.

 

     5 And this statute does not prohibit a Town from

 

     6 firing someone who simply doesn't cooperate with

 

     7 investigation.  This has to do with people who

 

     8 take the Fifth.

 

     9               JUDGE CURRAN:  I have learned in

 

    10 doing somewhat complex cases that I don't want

 

    11 to assume anything at the beginning because you

 

    12 all are so familiar with this, you have read

 

    13 these documents.  Frankly, I may have read some

 

    14 of the documents to which you're referring when

 

    15 there were motions or whatever; but to be frank

 

    16 about it, I wouldn't trust that I've remembered

 

    17 everything.  I want to be exactly certain.  In

 

    18 regard to the Fifth Amendment we are talking

 

    19 about the two Snyders and Mutschler, correct?

 

    20               MR. MULLIN:  That's correct, Your

 

    21 Honor.

 

    22               JUDGE CURRAN:  Nobody else?

 

    23               MR. BEVERE:  Nobody else.

 

    24               JUDGE CURRAN:  And again, I will

 

    25 tend to ask simplistic questions like that to


 

 

                                                    21

 

 

     1 make sure I know where we are.

 

     2                Mr. Bevere.

 

     3               MR. BEVERE:  Judge, and here is

 

     4 where we get to the -- I hate to keep coming

 

     5 back to police practices; but you know, this is

 

     6 the problem we are running up against here.  All

 

     7 right.  The Snyders and Mutschler were contacted

 

     8 by the Secaucus Police Department.  Their

 

     9 response is, "We're not going to talk to you."

 

    10 They have a Constitutional right not to speak to

 

    11 the police.  Who is going to come in here and

 

    12 say from a police practices standpoint that the

 

    13 police were allowed to talk to them when they

 

    14 said, "We don't want to talk to you"?

 

    15                Now, as lawyers, we all know that

 

    16 you have no obligation to speak to the police.

 

    17 And if the police -- and if the police say to

 

    18 you, "I want to talk to you," you could say,

 

    19 "I'm absolutely not talking to you, and there is

 

    20 nothing the police can do about it."

 

    21                Now, the Prosecutor's Office, the

 

    22 Attorney General's Office, they can convene a

 

    23 Grand Jury, they can subpoena you to come and

 

    24 give testimony, subject, obviously, to your

 

    25 Fifth Amendment right against


 

 

                                                    22

 

 

     1 self-incrimination.  But what are the police

 

     2 supposed to do?  I think we would all agree, if

 

     3 one of our clients called up and said, "The

 

     4 police think I was involved in a crime, and they

 

     5 want me to come down and give them a statement,"

 

     6 I think, as good lawyers, we would probably all

 

     7 say, "You're not going down there because if

 

     8 they had enough, they would come and charge

 

     9 you."

 

    10                So, I mean, everybody has a

 

    11 Constitutional right not to speak to the police.

 

    12 And not just people who are the targets of a

 

    13 criminal investigation.  Somebody who is a

 

    14 witness has the right not to speak to the

 

    15 police.

 

    16                Now, if they get a subpoena to

 

    17 appear before a tribunal, Grand Jury, trial,

 

    18 probable cause hearing, certainly, they can't

 

    19 refuse to honor the subpoena.

 

    20                Now, what happens when they get

 

    21 in that witness stand and they're posed

 

    22 questions that then might require them or they

 

    23 believe would be in their best interests to

 

    24 assert the Fifth amendment privilege, that's a

 

    25 different story.


 

 

                                                    23

 

 

     1                But this is the problem with the

 

     2 police practices, Judge.  Who is going to come

 

     3 in here and say that the police could have done

 

     4 something else, once these guys said, "We're not

 

     5 going to speak to you"?

 

     6                And in addition, with regard to

 

     7 this issue with the discipline and the statute,

 

     8 Secaucus had no authority to grant these guys

 

     9 use immunity from their testimony.  This was

 

    10 reported to the Prosecutor's Office within a day

 

    11 of the incident.  It went to the Attorney

 

    12 General's Office.  The Secaucus Police can't

 

    13 give these guys use immunity.  Only the Attorney

 

    14 General or the County -- I would say the County

 

    15 Prosecutor.  But once the Attorney General took

 

    16 it over, only the Attorney General could give

 

    17 you use immunity.  The Secaucus Police couldn't

 

    18 give them use immunity.  I mean, how is that --

 

    19 how would that have possibly been binding and

 

    20 enforceable?  Attorney General would have said,

 

    21 "We're not bound by that.  We're going to use

 

    22 this statement."

 

    23                And this is another problem

 

    24 without the police practices expert, Judge.  And

 

    25 that's why I keep coming back to that in this


 

 

                                                    24

 

 

     1 case.  Because who is going to say these things

 

     2 could have, should have, would have been done

 

     3 and that it was within a standard of care to do

 

     4 these things?

 

     5                You know, we are talking about

 

     6 esoteric issues here.  And a lot of attorneys in

 

     7 this room -- Mr. Mullin has done criminal work.

 

     8 I have done criminal work.  You know, Mr. Paris

 

     9 has done criminal work.  Miss Smith has probably

 

    10 done criminal work.  But we can't testify and

 

    11 Your Honor can't testify and tell them that,

 

    12 yeah, witnesses can do this in this situation,

 

    13 witnesses can't do this, yeah, when you say you

 

    14 want to talk to the police, you know, that ends

 

    15 the inquiry.  So we're getting into -- I think

 

    16 that's a fundamental -- fundamental issue in

 

    17 this case.

 

    18                Going beyond that, let's talk

 

    19 about if someone is going to get up there and

 

    20 plead the Fifth and an adverse inference is

 

    21 going to be drawn.

 

    22               JUDGE CURRAN:  Do me a favor.  I

 

    23 don't want to go there yet.

 

    24               MR. BEVERE:  Okay.

 

    25               JUDGE CURRAN:  We really didn't


 

 

                                                    25

 

 

     1 have to go into -- but let's go back to your

 

     2 argument.  If a day after the incident at the

 

     3 firehouse these three had gotten a call saying,

 

     4 "Come on down here.  We have to talk about this"

 

     5 and they said, "No," you're right.  I mean, they

 

     6 cannot, to use the word in the Constitution, I

 

     7 believe, they cannot dragoon the individuals

 

     8 down to police headquarters that day.

 

     9                But let's move on to, for

 

    10 example, the depositions.  The standard is

 

    11 different at a deposition than just in a

 

    12 telephone call saying, "Come on down here and

 

    13 talk to us."

 

    14               MR. BEVERE:  I understand, Judge.

 

    15 Now, the Attorney General has closed their

 

    16 investigation in this matter.  But if Your Honor

 

    17 recalls the Attorney General's letter, what the

 

    18 Attorney General said was that we don't have

 

    19 enough evidence to identify anybody at this

 

    20 time.  But as we all know, there is a five or

 

    21 six-year statute of limitations on these types

 

    22 of crimes.

 

    23                The Attorney General clearly

 

    24 indicated in their letter that they reserved the

 

    25 right to reopen the criminal investigation, if


 

 

                                                    26

 

 

     1 additional information was to come forth.  It

 

     2 wasn't like these guys went to trial and they

 

     3 were acquitted and the State could never touch

 

     4 them again.  So once again, the Town couldn't

 

     5 compel them to come to a deposition, waive their

 

     6 Fifth Amendment --

 

     7               JUDGE CURRAN:  Did the Town try?

 

     8               MR. BEVERE:  -- and bind the

 

     9 Attorney General.

 

    10               JUDGE CURRAN:  Did the Town try?

 

    11               MR. BEVERE:  The Town -- the Town

 

    12 did not try, Judge, because the Town -- the Town

 

    13 can't -- the Town can't say to them --

 

    14               JUDGE CURRAN:  Isn't that the

 

    15 issue, whether or not the Town tried?  Let's say

 

    16 the Town tried and let's say the attorneys for

 

    17 one or all of these guys went back and said,

 

    18 "Gee, we want a real explanation of what this

 

    19 letter means" and then they went to the AG's

 

    20 Office and they said, "No, no, we really are

 

    21 retaining jurisdiction."  Because I think the

 

    22 letter is -- could certainly, at the very least,

 

    23 be read more than one way.  Then that would be

 

    24 an argument that says there was not, under 1983,

 

    25 any kind of indifference, deliberate or not.


 

 

                                                    27

 

 

     1                But is it not, at least at this

 

     2 point, a fair argument -- and if the plaintiffs

 

     3 use it, they've got to be able to prove it.  But

 

     4 is it not at least a fair argument, although I

 

     5 haven't heard any testimony, that the Town

 

     6 didn't even try that?

 

     7               MR. BEVERE:  That when they

 

     8 received deposition subpoenas we should have

 

     9 gone to the Attorney General's Office and

 

    10 said --

 

    11               JUDGE CURRAN:  No, no.

 

    12               MR. BEVERE:  -- and said to the

 

    13 Attorney General --

 

    14               JUDGE CURRAN:  After the Attorney

 

    15 General was finished or between when the -- and

 

    16 you'll have to remind me on the chronology.  Did

 

    17 it go -- the State took it over, so, really, you

 

    18 didn't have any chance with the prosecutor here.

 

    19 But after the State sent that letter did the

 

    20 Town try to get them to come in to be deposed,

 

    21 to be part of an investigation?  Isn't that the

 

    22 issue?

 

    23               MR. BEVERE:  Well, Judge, the

 

    24 issue -- the issue comes down to whether or not

 

    25 we could tell these guys that they had use


 

 

                                                    28

 

 

     1 immunity.

 

     2               JUDGE CURRAN:  It backs up.  If,

 

     3 let's say, after the Attorney General -- and

 

     4 again, this is as I understand the law from the

 

     5 cases.  If, after the Attorney General sent the

 

     6 letter, there was two ways of reading the

 

     7 letter -- I, frankly, read it one way; but I

 

     8 could understand there be another way to read

 

     9 it.  Two ways.  A, there could have been --

 

    10 there could have been a request for

 

    11 clarification.  But as I understand it, there

 

    12 wasn't.

 

    13                So then assume that the Attorney

 

    14 General -- because I think the Town had the

 

    15 right to assume it -- has basically, whatever

 

    16 you want to call it, washed their hands, backed

 

    17 away, decided to let -- didn't want to handle

 

    18 it, whatever, they were not executing any kind

 

    19 of jurisdiction.  So then, as I understand it,

 

    20 there is at least a possibility that the Town

 

    21 could say, okay, we're going to do X, Y and Z.

 

    22 Their argument, as I understand the plaintiffs'

 

    23 argument, is that was never done.

 

    24                Getting to use immunity at that

 

    25 point, honestly, I don't think is a hard


 

 

                                                    29

 

 

     1 question for the Town at that point.  But you

 

     2 don't even need to get there yet because, as I

 

     3 understand their argument, it is nothing was

 

     4 done.  Therefore, that is part of their basis

 

     5 for deliberate indifference under 1983.

 

     6               MR. BEVERE:  So the --

 

     7               JUDGE CURRAN:  Excuse me.  Is that

 

     8 a fair recitation of your argument?

 

     9               MR. MULLIN:  Definitely.

 

    10               JUDGE CURRAN:  Okay.

 

    11               MR. BEVERE:  Judge.

 

    12               MR. MULLIN:  Part of their

 

    13 deliberate indifference.

 

    14               JUDGE CURRAN:  Part.

 

    15               MR. MULLIN:  Part of it.

 

    16               MR. BEVERE:  Judge, I -- I know of

 

    17 absolutely, absolutely no case law that says

 

    18 that that's deliberate indifference.  The Town

 

    19 gets a letter --

 

    20               JUDGE CURRAN:  No, no, it's the

 

    21 juror that decides if it is or isn't.

 

    22               MR. BEVERE:  Here is what we're

 

    23 talking about.  We are talking about the Town

 

    24 getting a letter.  And I understand what Your

 

    25 Honor is saying.  I, quite frankly, read the


 

 

                                                    30

 

 

     1 letter clearly to say that if we get

 

     2 information -- and maybe that's information that

 

     3 comes through the course of the civil trial,

 

     4 depositions, maybe through some other -- other

 

     5 source -- that we reserve the right to reopen

 

     6 this investigation and have people -- have this

 

     7 Grand Jury reconvened and pursue criminal

 

     8 charges.

 

     9               JUDGE CURRAN:  That is a fair

 

    10 argument.

 

    11               MR. BEVERE:  And quite frankly,

 

    12 Judge, for us to have said to these guys that,

 

    13 "You are going to either waive your Fifth

 

    14 Amendment privilege and be subject to being

 

    15 terminated or you're going to testify, possibly

 

    16 incriminate yourself and run the risk of

 

    17 criminal indictment because we can't do anything

 

    18 to save you from that, if you say something to

 

    19 incriminate yourself" -- and that's what we're

 

    20 talking about here, Judge.

 

    21                I mean, this is -- this is not a

 

    22 situation where -- you're talking about it's

 

    23 within the statute of limitations.  The Attorney

 

    24 General's Office clearly said that they're

 

    25 closing their investigation but that if any


 

 

                                                    31

 

 

     1 additional information comes to light -- I mean,

 

     2 I don't see how to compel these guys to waive

 

     3 their Fifth Amendment right against

 

     4 self-incrimination.

 

     5                And then, Judge, and then we

 

     6 dovetail into the issue of what -- what's -- how

 

     7 is -- how is this even employment related?  How

 

     8 is it even employment related?  We come back to

 

     9 the basic fundamental issue in this case,

 

    10 private conduct versus public conduct.  So now

 

    11 you're asking them to waive their Fifth

 

    12 Amendment privilege under penalty of possible

 

    13 indictment because you're within the statute of

 

    14 limitations.  It wasn't as if somebody was found

 

    15 not guilty at a trial and therefore they were

 

    16 home free.  But now you are talking about having

 

    17 them waive their Fifth Amendment privilege,

 

    18 subject them to possible reopening of that

 

    19 investigation and indictment by the Attorney

 

    20 General's Office.  And quite frankly, it wasn't

 

    21 even anything that was employment related.  And

 

    22 when we come back to the issue of adverse

 

    23 inference, that becomes the issue.

 

    24                And Judge, you know, we -- and I

 

    25 come back to what I said before.  There are


 

 

                                                    32

 

 

     1 certainly questions that these guys could have

 

     2 answered that would have exculpated the Town,

 

     3 particularly on the color of law issue.  And if

 

     4 they come in here and plead the Fifth Amendment

 

     5 on whether they did X, Y and Z, this, this, this

 

     6 and this, they would have come in and exercised

 

     7 their Fifth Amendment privilege, you know, on

 

     8 certain issues.  Your Honor will have to make

 

     9 the ruling.  But I think that there is certain

 

    10 questions that they'd have to be compelled to

 

    11 answer regardless of their Fifth Amendment

 

    12 privilege.

 

    13               JUDGE CURRAN:  Mr. -- excuse me,

 

    14 Mr. Mullin.

 

    15                Did you want to add something?

 

    16               MR. PARIS:  The other thing is I

 

    17 think there was intimation that somehow the Town

 

    18 should have approached the Attorney General and

 

    19 somehow that is a standard as to what the Town

 

    20 should do in this circumstance.  And even if --

 

    21 even if we were to go to at that point to create

 

    22 an adverse inference against the Town requires

 

    23 that you assume and speculate that the Attorney

 

    24 General would have given these three people use

 

    25 immunity, you know, would have given their


 

 

                                                    33

 

 

     1 immunity to testify at a deposition and

 

     2 potentially identify themselves as the

 

     3 perpetrators of a bias crime.

 

     4                Now, where -- where is the

 

     5 likelihood of that?  So if the court is going to

 

     6 say you should have contacted the Attorney

 

     7 General, I don't think it's enough just to say

 

     8 you should have contacted the Attorney General.

 

     9 There has to be a presumption that the Attorney

 

    10 General would have then granted immunity, even

 

    11 though they basically said we're leaving this

 

    12 open, even though the plaintiffs were in

 

    13 constant contact with the Attorney General

 

    14 constantly seeking to have this prosecuted and,

 

    15 regardless of all that, somehow the Attorney

 

    16 General would have granted immunity and they

 

    17 could have testified at their deposition.

 

    18                In order to make that kind of a

 

    19 ruling I think it -- that ruling would rest upon

 

    20 speculation as to what the Attorney General

 

    21 would have done; and I don't think that the Town

 

    22 should be penalized based upon some assumptions

 

    23 that Attorney General would have given immunity

 

    24 in a bias crime that the plaintiffs had

 

    25 publicized, et cetera, et cetera.


 

 

                                                    34

 

 

     1               JUDGE CURRAN:  Thank you.

 

     2                Mr. Mullin.

 

     3               MR. MULLIN:  I want to try to

 

     4 simplify, rather than complicate.  If you look

 

     5 at the police reports, there is a time when

 

     6 Snyder is talking about -- to the police.  He

 

     7 talks to Ulrich.  And he admits to Ulrich,

 

     8 Snyder, Sr., that they were just yelling.

 

     9 Ulrich catches them red-handed, still yelling at

 

    10 the scene.  He talks to him.

 

    11                There is a meeting that takes

 

    12 place on April 25th with the Mayor and the Fire

 

    13 Chief, and Charles Snyder, Sr. is there.  And

 

    14 he -- he admits, according to Walters'

 

    15 testimony, to yelling.  And he says at that

 

    16 meeting, "Who are you going to believe; those

 

    17 faggot cock-suckers or us?"  And that's in

 

    18 Walters' deposition testimony.  So we don't have

 

    19 a guy taking the Fifth.  We have a guy not

 

    20 cooperating with the police.

 

    21                Finally the police call.  And we

 

    22 have that exhibit on the -- finally we marked it

 

    23 P-255.  The police call and say, look, we want

 

    24 you to talk to us.  And all it says is Snyder

 

    25 refuses to talk to the cops, P-255.


 

 

                                                    35

 

 

     1                P-215 in our exhibits, Mutschler

 

     2 and Snyder, Jr. refuse to talk to the State

 

     3 investigators.

 

     4                So you don't have anybody

 

     5 asserting the Fifth.  You don't have attorneys

 

     6 on the scene yet asserting the Fifth.  You have

 

     7 those guys picking and choosing I am going to

 

     8 talk to you, I am not going to talk to you.

 

     9                Well, the Police Department is

 

    10 smart enough to know you can be fired for that.

 

    11 Mr. Bevere said this statute prevented them from

 

    12 being fired for that.  This statute, if

 

    13 anything, says the literal opposite.  It sure

 

    14 doesn't say you can't fire a Town employee for

 

    15 refusing to cooperate with a police

 

    16 investigation.  So I should be clearly able to

 

    17 comment on the Town's failure to deliberate

 

    18 indifference, their failure to do the police --

 

    19 the Fire Department's failure to do what the

 

    20 police did, to fire these guys for refusing to

 

    21 even cooperate with the police.  This was not an

 

    22 assertion of the Fifth.

 

    23                Yeah, as to the Grand Jury, we

 

    24 have no clue whether the Snyders, Mutschler

 

    25 asserted the Fifth.  I don't know that to this


 

 

                                                    36

 

 

     1 day.  They should say nothing about that.  They

 

     2 act in their arguments as if that happened.

 

     3 There is no evidence of that.  They will present

 

     4 no evidence of that.  So no one should say they

 

     5 took the Fifth with respect to the Grand Jury.

 

     6               JUDGE CURRAN:  I thought we

 

     7 resolved that the other day.

 

     8               MR. BEVERE:  I was not -- Judge,

 

     9 we -- quite frankly, I will admit that I don't

 

    10 know whether they went there, took the Fifth or

 

    11 whether they said, "We are not coming at all."

 

    12 I mean, I don't know.

 

    13               MR. MULLIN:  So now let me put

 

    14 aside the issue of commenting that it was

 

    15 deliberate indifference, that when these guys

 

    16 didn't cooperate, they should have been fired

 

    17 because I should be allowed to say that.  The

 

    18 police did fire Snyder, Jr.  Let's get up to the

 

    19 more complicated issue, which is what does Your

 

    20 Honor do with the fact that these three firemen

 

    21 are going to come in here and take the Fifth?

 

    22 What are we allowed to say or not say?  That's

 

    23 really the -- the narrow issue.  Laws flying all

 

    24 over the place, but that's the practical issue.

 

    25                Now, I think the most one should


 

 

                                                    37

 

 

     1 say in an opening argument is that, "The Court

 

     2 will comment on this, will give you the law on

 

     3 this and you will see that we're entitled to

 

     4 what is called an 'adverse inference.'  That is,

 

     5 you may give us an adverse inference.  Now, you

 

     6 may draw some conclusions in our favor; but the

 

     7 Court will deal with that."  I don't think a

 

     8 whole lot should be said in an opening argument

 

     9 about these guys taking the Fifth.

 

    10                The second question is as this

 

    11 trial goes along, how does Your Honor -- is

 

    12 there any question anymore that the taking of

 

    13 the Fifth should be attributed to the Town and

 

    14 an adverse inference should be drawn against the

 

    15 Town?  Well, the Rad case settles that once and

 

    16 for all.  It just clearly says, yeah, yeah, the

 

    17 Town -- yeah, the adverse inference may be taken

 

    18 against the Town.  Rad is absolutely clear on

 

    19 that.  But we can argue that down the road.

 

    20                So I just wanted to be really

 

    21 clear that -- about the arguments about their

 

    22 lack of cooperation.  No one should imagine for

 

    23 a minute that these guys were taking the Fifth

 

    24 in these police reports.  They are doing some

 

    25 talking.  They are doing some talking, Mutschler


 

 

                                                    38

 

 

     1 and the two Snyders, in the early stages.

 

     2 They're saying what they want to police they

 

     3 think were friends or to a fire official they

 

     4 think is going to go along with them.  And then

 

     5 they start to clam up.  And finally they refused

 

     6 to cooperate.  And they never assert the Fifth,

 

     7 never.  It's not there.  I read every single

 

     8 police report.  I read every shred of paper in

 

     9 this case.  They never took the Fifth while

 

    10 Secaucus was investigating.

 

    11                I don't want to complicate any

 

    12 further.  We can talk about what the State

 

    13 should have done, what the -- what the Town

 

    14 could have and should have done after this was

 

    15 kicked back to the Town on July 5th, 2005.

 

    16                Of course, it's been three years.

 

    17 Now, I certainly can talk about what the Town

 

    18 did or didn't do after this thing is kicked back

 

    19 to them by that July 5th letter.  Your Honor

 

    20 has, over my objection, allowed this letter in.

 

    21 I have got to be able to comment on this letter.

 

    22 The first letter, supersession letter, is when

 

    23 the State took over the investigation.  Second

 

    24 letter is when -- and they say in that letter

 

    25 don't take any administrative action until you


 

 

                                                    39

 

 

     1 hear from them.  This is them hearing from them.

 

     2 This is a year later they are hearing from them.

 

     3 I have to be able to talk about that.  I have

 

     4 said that it's going to confuse the jury to have

 

     5 a letter concerning not identification under

 

     6 reasonable doubt, criminal standard.  I have to

 

     7 be able to talk about that.  And what the Town

 

     8 did or didn't do after the investigation is

 

     9 kicked back to them.

 

    10                I also want to make this point.

 

    11 If you look at Hester Agudosi's original

 

    12 supersession letter, she says, look, we are only

 

    13 taking over the April 24th, 25th riot.

 

    14 Everything else that comes after that, that's

 

    15 still Secaucus.  So, clearly, I can talk about

 

    16 what the Town did or didn't do, even during the

 

    17 supersession period, about that and try to show

 

    18 deliberate indifference in connection with those

 

    19 incidents because it was in the Town's hands,

 

    20 clearly, according to that letter.  So I just

 

    21 also want to make those points.

 

    22               JUDGE CURRAN:  Mr. Bevere.

 

    23               MR. BEVERE:  I think we are

 

    24 starting to get far afield of the issue.  First,

 

    25 just as a matter of just for the record, I


 

 

                                                    40

 

 

     1 didn't think there was an objection to Mr.

 

     2 Mullin of -- of that letter from the Attorney

 

     3 General.  I thought he said he was happy to open

 

     4 on it.

 

     5               MR. MULLIN:  I objected to it; but

 

     6 when I lost the objection, I said I will open on

 

     7 it.

 

     8               MR. BEVERE:  But that --

 

     9               JUDGE CURRAN:  Showmanship.

 

    10               MR. BEVERE:  -- Judge, irrelevant

 

    11 at this point.  But we're talking about what is

 

    12 the jury going to be allowed to infer?  And --

 

    13               JUDGE CURRAN:  No, with all due

 

    14 respect, Mr. Bevere -- I apologize for

 

    15 interrupting you -- what we are talking about

 

    16 now is what can be said at opening.  We're not

 

    17 at the charge conference.  We are not at what

 

    18 they can or can't or should or shouldn't infer.

 

    19 I don't mean to cut you off.  I'm not making any

 

    20 determination on that argument.

 

    21               MR. BEVERE:  But, Judge --

 

    22               JUDGE CURRAN:  I'm just concerned

 

    23 about what can be said in openings.

 

    24               MR. BEVERE:  But, Judge, it was my

 

    25 understanding Mr. Mullin was going to say in


 

 

                                                    41

 

 

     1 opening they could draw adverse inferences from

 

     2 the Town of these guys taking the Fifth.  I

 

     3 don't think it's proper at this point.

 

     4               JUDGE CURRAN:  I believe what Mr.

 

     5 Mullin wanted to say was exactly that but then

 

     6 add, "But that's our opinion.  The judge will

 

     7 tell you the law."

 

     8               MR. MULLIN:  That's right.

 

     9               JUDGE CURRAN:  Is that fair to

 

    10 say?

 

    11               MR. MULLIN:  That's the way I want

 

    12 to say it.

 

    13               JUDGE CURRAN:  You're free to say

 

    14 the same thing because it is an issue.  And I

 

    15 think that you know --

 

    16               MR. BEVERE:  Judge, if it's an

 

    17 issue, then it has -- it has the potential,

 

    18 regardless of what I say, to prejudice this jury

 

    19 in -- in an area of law that Your Honor may

 

    20 decide a different way when we get to that point

 

    21 in the trial.  And I think nobody should comment

 

    22 about adverse inferences.  I think nobody should

 

    23 comment on it.

 

    24               JUDGE CURRAN:  It's a fair

 

    25 argument.


 

 

                                                    42

 

 

     1               MR. BEVERE:  If Mr. Mullin wants

 

     2 to say that -- that when the police arrived on

 

     3 the scene, these guys were in the parking lot

 

     4 and -- I mean, that's one thing because those

 

     5 are -- that's in the police report.  I think

 

     6 that's one thing.  But to say that -- that

 

     7 you -- you're going to be allowed to draw an

 

     8 adverse inference against the Town in opening is

 

     9 improper at this point.

 

    10               JUDGE CURRAN:  Mr. Mullin.

 

    11                That's a fair argument.

 

    12               MR. MULLIN:  That's a fair

 

    13 argument.  They're going to see the witnesses

 

    14 take the Fifth on the stand.  And what's being

 

    15 suggested is I shouldn't mention it.  And then

 

    16 they'll see that.  And then you'll at some point

 

    17 do something with that issue.  I'll -- I will

 

    18 not mention the adverse inference on the Fifth

 

    19 Amendment to avoid a problem.

 

    20               JUDGE CURRAN:  I think that's a

 

    21 fair way to approach it.  This is a very

 

    22 sensitive case, if you will; and I appreciate

 

    23 everybody being fair on that.  I think it's the

 

    24 fairest way to go.  And then, letting something

 

    25 down the block --


 

 

                                                    43

 

 

     1               MR. MULLIN:  I will mention the

 

     2 non-cooperative and the failure of the Fire

 

     3 Department to fire --

 

     4               JUDGE CURRAN:  That's part of your

 

     5 case.

 

     6               MR. MULLIN:  That's a part of

 

     7 deliberate indifference.

 

     8               JUDGE CURRAN:  Any other issues on

 

     9 the Fifth Amendment question other than the

 

    10 charge?  I think, if not, we move to the Jersey

 

    11 City incidents.

 

    12               MR. MULLIN:  Right.

 

    13               JUDGE CURRAN:  Do you need --

 

    14               MR. MULLIN:  Judge, you asked me

 

    15 to get some additional information on that.

 

    16 What I have determined is that Jersey City

 

    17 incident occurred on February 2005.  And then we

 

    18 produced to the lawyers for Secaucus the police

 

    19 reports of the Jersey City investigation on

 

    20 June 8th, 2005.  We also produced photos of the

 

    21 bloody rags.  And -- and that was all before the

 

    22 Town of Secaucus promoted Snyder, Sr.

 

    23                So, again, the facts are

 

    24 Mr. Carter will testify that he saw a Secaucus

 

    25 Department of Public Works truck pull up in


 

 

                                                    44

 

 

     1 front of his house in Jersey City, where it

 

     2 would have no business.  He saw it parked near

 

     3 his house.  He was frightened and hid.  He saw a

 

     4 man get out of the car and go into his lobby.

 

     5 Then, a few days later, he opened the door to

 

     6 his apartment in Jersey City and found bloody

 

     7 rags there or bloody papers.  He called Jersey

 

     8 City Police.  And they have conducted a bias

 

     9 crime investigation.

 

    10                We put Secaucus on notice both

 

    11 through our first document production answer and

 

    12 our -- we amended complaint.  So the Town of

 

    13 Secaucus was on notice of these events before --

 

    14 in 2006 they decided to promote Snyder, Sr. to

 

    15 battalion chief.  He, Snyder, Sr., was and

 

    16 continues to be a foreman and/or supervisor at

 

    17 the Secaucus Department of Public Works, which

 

    18 means he has control over the kind of trucks

 

    19 that my client saw.

 

    20                Now, of course, to some degree

 

    21 I'm very limited because I have Mr. Snyder not

 

    22 answering any questions.  Okay.  But this is, I

 

    23 think, sufficient and circumstantial basis to go

 

    24 to the jury.  It goes to the jury on two things.

 

    25 Number one, the circumstantial evidence that


 

 

                                                    45

 

 

     1 because this guy wasn't fired from Public Works

 

     2 and the Fire Department he continued to have

 

     3 access to an opportunity to harass and scare my

 

     4 client.

 

     5                Number two, the Town was placed

 

     6 on notice of this incident involving a

 

     7 Department of Public Works truck 2005 February

 

     8 and they don't do any investigation of this and

 

     9 they promote this guy to battalion chief,

 

    10 knowing that the guy is now stalking my guy or

 

    11 people on his behalf are stalking my guy in

 

    12 Jersey City.

 

    13                So, Your Honor, I think it should

 

    14 come in on both counts.

 

    15               JUDGE CURRAN:  What was the

 

    16 outcome of the Jersey City investigation?

 

    17               MR. MULLIN:  We haven't heard any

 

    18 outcome, so I don't know any outcome one way or

 

    19 the other.

 

    20               JUDGE CURRAN:  Is there any reason

 

    21 to know if Jersey City communicated with

 

    22 Secaucus in regard to the investigation, or is

 

    23 there any reason to know that they did not

 

    24 communicate?

 

    25               MR. MULLIN:  I think there is


 

 

                                                    46

 

 

     1 reason to know.  I'd have to talk to my client

 

     2 because they track -- they were trying to track

 

     3 down the specific vehicle and to do testing for

 

     4 blood in that vehicle.  So that -- that my

 

     5 client learned from a Jersey City police

 

     6 officer.  So it was a full bias crime

 

     7 investigation.  I don't know how they would do

 

     8 investigation without doing that.  But that's

 

     9 what my client heard from a police officer in

 

    10 Jersey City.

 

    11               JUDGE CURRAN:  But Jersey City

 

    12 doesn't have any report?  They haven't concluded

 

    13 the investigation?

 

    14               MR. MULLIN:  I haven't seen any

 

    15 report concluding the investigation.  I haven't

 

    16 seen anything further.  I have the reports I

 

    17 have.

 

    18               MR. BEVERE:  Judge.

 

    19               MR. MULLIN:  They are in the file.

 

    20               JUDGE CURRAN:  Mr. Bevere.

 

    21               MR. BEVERE:  Okay.  When we left

 

    22 this issue week-and-a-half ago my understanding

 

    23 was that Your Honor was reserving because the

 

    24 issue you were concerned about was whether or

 

    25 not the Secaucus Police had some obligation to


 

 

                                                    47

 

 

     1 investigate this incident when it happened.  And

 

     2 our position at the time was this was Jersey

 

     3 City incident; they were investigating the

 

     4 matter.  And quite frankly, to notify us in June

 

     5 of 2005, four months later after the Jersey City

 

     6 Police Department was investigating and it was

 

     7 their jurisdiction, you know -- so I mean, to

 

     8 say that the Secaucus Police Department then had

 

     9 some obligation to investigate an incident that

 

    10 didn't occur in their jurisdiction -- and that

 

    11 was the issue that Your Honor was concerned

 

    12 about.

 

    13                And I think that, you know, now

 

    14 that we -- we are kind of putting this incident

 

    15 in its context and fact that Jersey City has

 

    16 made no conclusion that there was even a bias

 

    17 crime, let alone that someone in Secaucus did,

 

    18 is so far afield from this case -- in other

 

    19 words, what you would do is you'd be asking --

 

    20 well, I don't even want to go there.

 

    21                My understanding of Your Honor's

 

    22 ruling was that you wanted to find out whether

 

    23 or not -- when the Secaucus Police -- the

 

    24 Secaucus Police were notified and when they

 

    25 would -- and whether they would have had some


 

 

                                                    48

 

 

     1 obligation to investigate.  This was a report

 

     2 that was produced in discovery in the lawsuit

 

     3 months after the incident.  There is no evidence

 

     4 that Jersey City Police called Secaucus Police

 

     5 and said, "Hey, we want your help.  We have this

 

     6 complaint.  Think it may be guys from Secaucus.

 

     7 Want your help with the investigation."  None of

 

     8 that happened.  So there is no evidence Secaucus

 

     9 Police were involved at all.

 

    10                And I think Your Honor's basis

 

    11 for Your Honor's reserving and the issue of

 

    12 relevance to the case, as I recall Your Honor

 

    13 saying, was you would find it relevant if the

 

    14 Secaucus Police had some obligation to

 

    15 investigate the incident and failed to do so.

 

    16 And I think, clearly, regardless of when

 

    17 Secaucus was notified, they didn't have an

 

    18 obligation to investigate an incident that

 

    19 occurred in Jersey City.  But you know --

 

    20               JUDGE CURRAN:  With all due

 

    21 respect, Mr. Bevere, that's why the time was of

 

    22 interest to me.

 

    23               MR. BEVERE:  I understand.

 

    24               JUDGE CURRAN:  Because you're

 

    25 right; normally I'd say that.  But considering,


 

 

                                                    49

 

 

     1 A, there was this history and, B, there was

 

     2 allegedly a Secaucus truck involved on at least

 

     3 one day or present in Jersey City on at least

 

     4 one day, it puts a little different parameter.

 

     5 That's why I was concerned about the scenario.

 

     6               MR. BEVERE:  Right.  Well, Judge,

 

     7 what they say was that they saw a Secaucus truck

 

     8 in the vicinity of their home sometime prior to

 

     9 this.  They didn't say they saw the Secaucus

 

    10 truck on the day.  They didn't say they saw

 

    11 anybody in the building on the day.  And I think

 

    12 it is highly speculative and prejudicial for the

 

    13 jury in this case to get that information,

 

    14 particularly when there is no evidence that

 

    15 Jersey City has concluded that anybody in

 

    16 Secaucus was involved at all.

 

    17               JUDGE CURRAN:  Thank you.

 

    18 Anything else?

 

    19               MR. MULLIN:  I'm not -- I'm not

 

    20 suggesting that the Secaucus Police should have

 

    21 investigated this.  That's not what I'm saying,

 

    22 and that wasn't what you were concerned with

 

    23 when you last raised this.  What I am saying is

 

    24 that we put the Town on notice that this

 

    25 happened, that a Secaucus truck was there,


 

 

                                                    50

 

 

     1 Secaucus Public Works truck was there.  It had

 

     2 no business being there.  People walked into my

 

     3 clients' apartment building, and five or six

 

     4 days later he found bloody rags there.

 

     5                We put the Town on notice through

 

     6 documents production request and through a

 

     7 amendment of the complaint that was detailed.

 

     8 They never investigated.  Forget the police.

 

     9 This has to do with whether this Town is -- has

 

    10 any interest in investigating Chuck Snyder, Sr.

 

    11 and his horrible behavior.

 

    12                They never came to us.  They

 

    13 never came to me.  They never interviewed my

 

    14 client and said, "Tell me what you saw of the

 

    15 truck.  Did he catch the license plate number?

 

    16 What color was the truck?"  We have no knowledge

 

    17 of any investigation.  When you are deliberately

 

    18 indifferent, that's what you do.  You have Chuck

 

    19 Snyder there.  And he has already been accused

 

    20 of all kinds of awful things.  And there is some

 

    21 evidence that he did it.  And he has taken the

 

    22 Fifth, and he is refusing to cooperate with

 

    23 police.  You have -- you have a police officer

 

    24 that puts him right at the scene of the attack

 

    25 on the house.


 

 

                                                    51

 

 

     1                You have all this.  You are the

 

     2 Town of Secaucus.  You know that he is a

 

     3 superintendent of streets or supervisor of

 

     4 streets, foreman of Department of Public Works.

 

     5 Now you are put on notice in detail because you

 

     6 are given the police reports, you, the Town of

 

     7 Secaucus, that he may have sent one of his

 

     8 trucks over there and they may have done

 

     9 something dastardly in Jersey City.

 

    10                We don't have to prove whether or

 

    11 not the deed was done.  What we can show is that

 

    12 they didn't investigate it.  They were

 

    13 deliberately indifferent about it.  They could

 

    14 care less about it.  And here is a reward for

 

    15 you, Chuck Snyder, knowing this about Jersey

 

    16 City.  We're promoting you to battalion chief

 

    17 after we learn of this.

 

    18                How do I -- you know, I have

 

    19 been -- a very high burden has been imposed on

 

    20 me here, which I disagree with.  Deliberate

 

    21 indifference is a stiff burden.  I'm going to

 

    22 have to prove it with every shred of

 

    23 circumstantial evidence I can muster.  It would

 

    24 be unfair to me to impose such a high burden of

 

    25 proof on me while simultaneously shutting off


 

 

                                                    52

 

 

     1 the circumstantial evidence I need to carry out

 

     2 this burden.

 

     3                My client can testify this is

 

     4 what happened, that he saw this truck and later

 

     5 he found these rags, that he complained to the

 

     6 police about it.  And he can say that he was

 

     7 never contacted about any investigation

 

     8 whatsoever.  And I can say no investigation was

 

     9 ever done because I have subpoenaed all the

 

    10 documents about investigations in this case.

 

    11 They don't have any investigations.

 

    12               JUDGE CURRAN:  You talked to the

 

    13 Secaucus Police or the Jersey City Police?

 

    14               MR. MULLIN:  The Jersey City

 

    15 Police.

 

    16               JUDGE CURRAN:  Right.

 

    17               MR. MULLIN:  I'm not going to say

 

    18 anything about the Secaucus Police.  I'm talking

 

    19 about the Fire Department.

 

    20               JUDGE CURRAN:  Okay.

 

    21               MR. MULLIN:  They keep bringing in

 

    22 the police.  Forget the police.  Let's suppose

 

    23 the -- let's suppose --

 

    24               JUDGE CURRAN:  Did your client

 

    25 contact the Fire Department?


 

 

                                                    53

 

 

     1               MR. MULLIN:  No, he wasn't allowed

 

     2 to.  The only way he could contact the Fire

 

     3 Department was through these lawyers.

 

     4               JUDGE CURRAN:  Right.  But the

 

     5 Jersey City Police presumably did contact the

 

     6 Fire Department or, if they didn't, there is no

 

     7 case against Jersey City at this point.  Did

 

     8 your client give the Jersey City Police a

 

     9 license plate number for the truck?

 

    10               MR. MULLIN:  No, he didn't have a

 

    11 license plate number.

 

    12               JUDGE CURRAN:  See, that's my

 

    13 concern is -- I can understand that -- that this

 

    14 is a high burden.  But by the same token, as I

 

    15 understand, the incident had happened a few days

 

    16 before the bloody rag incident.  There was no

 

    17 license plate.  There was nothing identifiable

 

    18 about the truck.  It was reported to the Jersey

 

    19 City Police.  The Jersey City Police

 

    20 investigated.  We don't know if there was any

 

    21 final determination because, as I understand the

 

    22 documents, there is no final determination.

 

    23               MR. MULLIN:  I am not aware of any

 

    24 final determination.

 

    25               JUDGE CURRAN:  Right.


 

 

                                                    54

 

 

     1               MR. MULLIN:  Again, I'm not trying

 

     2 to prove -- let me say what I'm not trying to

 

     3 prove.  I am not going to try to prove or argue

 

     4 to the jury that Snyder caused these bloody rags

 

     5 to be placed at my clients' door or that Snyder

 

     6 caused his truck to come and survey on my

 

     7 clients in their new home.

 

     8                What I'm saying is this is

 

     9 suspicious stuff that the Town of Secaucus, its

 

    10 Fire Department, should have investigated.

 

    11 Given this long history, when they heard a

 

    12 Department of Public Works truck was down there,

 

    13 what a simple matter it is to check to see

 

    14 whether a DPW truck from Secaucus had a right to

 

    15 be in Jersey City at that time on that day at my

 

    16 clients' house.  And who ordered it?  Which

 

    17 foreman ordered that truck down there?

 

    18                They never investigated this.

 

    19 How do we know?  Because the only way to

 

    20 investigate it would be to contact me and say,

 

    21 "Can I speak to your client?"  In the world of

 

    22 discrimination law investigations happen all the

 

    23 time all the time.  I get calls from adverse

 

    24 attorneys from towns and corporations saying,

 

    25 "Hey, Neil, you made this allegation.  Can we


 

 

                                                    55

 

 

     1 talk to your client?"

 

     2                I say, "Sure, come on down.  Talk

 

     3 to my client."

 

     4                And they do an investigation, and

 

     5 usually they write a report.

 

     6                Deliberate indifference is I

 

     7 don't care if there is a DPW truck down there,

 

     8 standing in front of -- just the fact of it

 

     9 being in front of your clients' house is

 

    10 terrifying to him.  I don't care if it's

 

    11 terrifying to him.  I don't care at all.  I'm

 

    12 not going to investigate.

 

    13                I'm not offering this evidence to

 

    14 prove that -- that the DPW people planted the

 

    15 bloody rags.  Strong inference, but I'm not

 

    16 arguing that inference.  I'm arguing, knowing

 

    17 this, which is highly suspicious, there was no

 

    18 investigation of Chuck Snyder, foreman of the

 

    19 Department of Public Works, no investigation of

 

    20 him.  They never came to us to ask about it, to

 

    21 get the detail about it.  And they never

 

    22 disciplined him for it.  And nothing was ever

 

    23 done.  And with this unresolved -- let's just

 

    24 say it's unresolved.  With this unresolved, they

 

    25 promote him to battalion chief.  I mean, what is


 

 

                                                    56

 

 

     1 deliberate indifference, if not that?

 

     2               JUDGE CURRAN:  Mr. Bevere.

 

     3               MR. BEVERE:  Judge, once again, we

 

     4 come down to issues of standard of care.  And

 

     5 who is going to come into this court and testify

 

     6 that there was an obligation of the Town to

 

     7 investigate that complaint?  The Jersey City

 

     8 Police did an investigation.  They did an

 

     9 investigation of the complaint.  They did.  The

 

    10 Secaucus -- what we're talking about are the

 

    11 plaintiffs saying, hey, listen, we saw Secaucus

 

    12 Public Works truck in our neighborhood a few

 

    13 days ago; and now, couple days later, we find

 

    14 couple of bloody paper towels outside our door

 

    15 and therefore Secaucus -- and we notified Jersey

 

    16 City Police.  They do a full investigation.  We

 

    17 don't know what the results of that

 

    18 investigation were, but they did a full

 

    19 investigation.  And, you know, there is

 

    20 certainly no evidence that they went to Secaucus

 

    21 and they said, "Hey, listen, we think this was

 

    22 your guys; and we want to inspect all your

 

    23 trucks."  None of that went on.  None of that

 

    24 went on.

 

    25               MR. MULLIN:  How do you know that,


 

 

                                                    57

 

 

     1 Mr. Bevere, that didn't go on, that the Jersey

 

     2 City Police didn't go over and look at the

 

     3 trucks?

 

     4               MR. BEVERE:  I could tell you

 

     5 because if you look at the report, Judge, if you

 

     6 look at the reports of what the Secaucus

 

     7 Police -- what the Jersey City Police did, they

 

     8 tell you what they did.  They tell you in the

 

     9 reports what they did.  And I read the reports.

 

    10               MR. MULLIN:  Those are the reports

 

    11 we have.  We don't know what they did.

 

    12               MR. BEVERE:  Well, I agree those

 

    13 are the reports that we have.  I can only tell

 

    14 you what I know from the reports that we have.

 

    15 And what we're talking about is imposing upon

 

    16 the Town to do this investigation of this

 

    17 incident, Judge, that is so speculative and so

 

    18 far removed from what the issues are in this

 

    19 case, it is highly, highly prejudicial.  And who

 

    20 is going to come in and say that Secaucus had an

 

    21 obligation to investigate that?  And Mr. Mullin

 

    22 clearly wanted to say that it was Chuck Snyder.

 

    23 That's exactly what he wants to do.  And there

 

    24 is no proof that it was Chuck Snyder.  And

 

    25 that's what he wants to use it for.  And that's


 

 

                                                    58

 

 

     1 improper.

 

     2               MR. MULLIN:  Judge, just add this.

 

     3 It's the law of the State of New Jersey that

 

     4 entities have to investigate claims of -- of

 

     5 discriminatory harassment.  That's the Lehmann

 

     6 case and the Patent case that I have described

 

     7 to you.  You know, as much as counsel keeps

 

     8 imagining this is a case put under 42 U.S.C.

 

     9 1983, I didn't bring it under 42 U.S.C. 1983.

 

    10 42 U.S.C. 1983 is not mentioned anywhere in my

 

    11 complaint.  Counsel is imposing this whole body

 

    12 of jurisprudence on me that has nothing to do

 

    13 with this, the New Jersey Constitution or the

 

    14 way the New Jersey Supreme Court has interpreted

 

    15 the Constitution.

 

    16                The New Jersey Constitution

 

    17 prohibitions of discrimination are implemented

 

    18 through the law of discrimination.  In

 

    19 construing the law of discrimination the Supreme

 

    20 Court has said when an entity hears a complaint

 

    21 of discrimination, they have a duty to timely

 

    22 investigate.  Are we now supposed to disregard

 

    23 that duty, which is embedded in law in the

 

    24 Patent case and the Lehmann case because Mr.

 

    25 Bevere imagines that this is a case brought


 

 

                                                    59

 

 

     1 under 42 U.S.C. 1983?

 

     2                Bad enough we have imported into

 

     3 this case this whole legal standard that has

 

     4 nothing to do with the New Jersey State

 

     5 Constitution.  I understand Your Honor's ruling.

 

     6 I am going to ask you to revisit it before this

 

     7 case is over.

 

     8                But now Mr. Bevere is going

 

     9 further.  I'm not even sure that under 42 U.S.C.

 

    10 1983 an entity doesn't have the same obligation

 

    11 to investigate once there is a claim of

 

    12 discriminatory harassment.  I'm not sure that's

 

    13 the case.  But one thing I do know, in the State

 

    14 of New Jersey, if you are a governmental entity

 

    15 or corporation and its alleged that your -- your

 

    16 people -- your employees are engaged in

 

    17 harassment, you have an obligation to

 

    18 investigate and remediate.  And it must be done

 

    19 in a timely way, and it must be done in a

 

    20 thorough way.  So when Mr. Bevere says there is

 

    21 no such obligation, he is dead wrong.

 

    22                Every one of these cases, every

 

    23 one of these matters should have been

 

    24 investigated by the employer of the -- of these

 

    25 firemen and the employer of these Department of


 

 

                                                    60

 

 

     1 Public Works.  Every one of them should have

 

     2 been thoroughly and timely investigated.

 

     3               JUDGE CURRAN:  Just right now we

 

     4 are on the Jersey City one.  How do we know that

 

     5 the Town of Secaucus had knowledge that then

 

     6 required timely investigation?

 

     7               MR. MULLIN:  They had knowledge

 

     8 because I sent the documents over to the lawyers

 

     9 for them in this case in the first documents

 

    10 production request.  All the police reports I

 

    11 had, and then I amended the complaints.

 

    12               JUDGE CURRAN:  Which was roughly?

 

    13               MR. MULLIN:  It was --

 

    14               MR. BEVERE:  September.

 

    15               MR. MULLIN:  Oh, it was June 8th,

 

    16 2005 is when I sent those documents.

 

    17               JUDGE CURRAN:  That's what you

 

    18 said earlier, but then you talked about months.

 

    19               MR. BEVERE:  June was when the

 

    20 document production was given.  I believe the

 

    21 complaint was amended, I thought, in September.

 

    22 I could be wrong.

 

    23               MR. MULLIN:  I don't remember when

 

    24 the complaint was, but I can certainly find

 

    25 that.


 

 

                                                    61

 

 

     1               MR. BEVERE:  September amended

 

     2 complaint.

 

     3               JUDGE CURRAN:  June of 2005.

 

     4               MR. BEVERE:  Was when the

 

     5 documents were produced in discovery.  I believe

 

     6 it was September of '05 when the complaint was

 

     7 amended -- oh, no, sorry, Judge.  It was January

 

     8 '06 when the complaint was amended.

 

     9               JUDGE CURRAN:  When the claim was

 

    10 amended.

 

    11               MR. BEVERE:  January '06, I

 

    12 apologize.

 

    13               MR. MULLIN:  It's at the end of

 

    14 '06 -- Mr. Bevere, correct me if I'm wrong --

 

    15 appoint Chuck Snyder, Sr. to be battalion chief.

 

    16 And he actually assumes the roll, I believe,

 

    17 January 1, '07.

 

    18               MR. BEVERE:  Judge, I have to say

 

    19 that --

 

    20               JUDGE CURRAN:  Let me just

 

    21 interject.  How are you going to get this

 

    22 information into the record?

 

    23               MR. MULLIN:  My client is going to

 

    24 testify about what he saw.

 

    25               JUDGE CURRAN:  No, no, about


 

 

                                                    62

 

 

     1 sending those documents to -- in document

 

     2 production.

 

     3               MR. MULLIN:  He is a party to this

 

     4 case.  He can testify that he sent it over in an

 

     5 answer to documents production request.

 

     6               JUDGE CURRAN:  And he can testify

 

     7 he knows that?

 

     8               MR. MULLIN:  He has personal

 

     9 knowledge of that.  He gathered --

 

    10               JUDGE CURRAN:  Frankly, sometimes

 

    11 we have plaintiffs who don't know a whole lot at

 

    12 all about their cases.

 

    13               MR. MULLIN:  Well, Tim knows about

 

    14 the case.  He has personal knowledge of it.  He

 

    15 is the one that gathered the documents up for

 

    16 that documents production request.  He is the

 

    17 one that got them, and he is the one that's --

 

    18 directed me to send it over to him.  So he will

 

    19 testify to that.

 

    20               JUDGE CURRAN:  Mr. Bevere.

 

    21               MR. BEVERE:  Your Honor, I have to

 

    22 check the date as to when there was a battalion

 

    23 chief election --

 

    24               JUDGE CURRAN:  Okay.

 

    25               MR. BEVERE:  -- because -- because


 

 

                                                    63

 

 

     1 I believe -- I believe that there was a -- well,

 

     2 let me just check the date when there was a

 

     3 battalion chief election; but I'll --

 

     4               JUDGE CURRAN:  What I'm going

 

     5 to --

 

     6               MR. BEVERE:  And I think it's

 

     7 important, Judge, because, listen, it's -- it's

 

     8 not -- without revealing my strategy with regard

 

     9 to the case, I mean, it is not so simple as a

 

    10 matter of a promotion to battalion chief.

 

    11               JUDGE CURRAN:  Okay.  I know you

 

    12 need to know -- you need a decision before

 

    13 openings.  And what I'm going to do is ask both

 

    14 sides to be -- as I asked in regard to the Fifth

 

    15 Amendment, I am going to ask it be as

 

    16 circumspect as possible.  If, in fact -- and I'm

 

    17 not doubting anyone's word.  If, in fact, those

 

    18 documents were produced and, in fact, if the

 

    19 election of the battalion chief was after the

 

    20 time, it's a fair argument.

 

    21                But I'm going to ask you, Mr.

 

    22 Mullin, to be very circumspect in the way you

 

    23 make the argument.  Because everybody is so

 

    24 familiar with this case, you talk about bloody

 

    25 rags or -- or bloody paper towels, you know,


 

 

                                                    64

 

 

     1 that -- that's easy for people to remember,

 

     2 it -- it is very prejudicial, frankly.

 

     3               MR. MULLIN:  I will be circumspect

 

     4 about it.  I understand what you are saying,

 

     5 Your Honor.  But let me say this.  If this is

 

     6 some information that should have been given to

 

     7 me about promotion, I want to find about it

 

     8 before I get up.  I don't want to have missed it

 

     9 before I get up on my feet.

 

    10               JUDGE CURRAN:  I understand.

 

    11               MR. MULLIN:  The only information

 

    12 I have is from the official Town newspaper.

 

    13 It's an official paper.  Chuck Snyder, Sr. was

 

    14 promoted to battalion chief the end of January

 

    15 and -- and took -- took power in that regard on

 

    16 January 1, '07.

 

    17                Now, I have just heard some

 

    18 implication -- all this stuff should have been

 

    19 given to me in discovery, not opening.  If there

 

    20 was something that should be on the record that

 

    21 corrects that, I would like to hear it.

 

    22               MR. PARIS:  Can I ask you what

 

    23 official Town newspaper you're referring to?

 

    24               MR. MULLIN:  Secaucus whatever.

 

    25               MR. PARIS:  That is not an


 

 

                                                    65

 

 

     1 official Town newspaper, Your Honor.  And if the

 

     2 implications are --

 

     3               JUDGE CURRAN:  With all due

 

     4 respect, do they print the legals in this --

 

     5               MR. PARIS:  Yeah.

 

     6               MR. BEVERE:  Judge.

 

     7               JUDGE CURRAN:  I know it's not a

 

     8 publication of the Town; but theoretically, that

 

     9 is a phrase that can be used, if they print the

 

    10 legals in it.  But I would appreciate it if you

 

    11 don't use the Town because that gives lay people

 

    12 the idea that the Town prints it, which they

 

    13 don't.

 

    14               MR. MULLIN:  I just need a

 

    15 representation about these facts, Your Honor.

 

    16               MR. BEVERE:  Judge, Judge, let me

 

    17 say this because it was testified to in

 

    18 depositions.  And what was testified to in

 

    19 depositions, Your Honor, is that Chuck Snyder,

 

    20 Sr. is not the battalion chief, was not elected

 

    21 battalion chief.  What came out in deposition

 

    22 was that Chuck Snyder, Jr. was elected to the

 

    23 battalion chief, not Senior, who was employed by

 

    24 the DPW.  That was in depositions.

 

    25               JUDGE CURRAN:  Now you know why


 

 

                                                    66

 

 

     1 I'm asking what I asked in regard to Fifth

 

     2 Amendment rights, exactly what people were

 

     3 talking about.

 

     4               MR. MULLIN:  Okay.  I will live

 

     5 with that.  I stand corrected.  You know, the

 

     6 trouble is I have a witness who's -- I have two

 

     7 witnesses who aren't talking to me; they're just

 

     8 taking the Fifth.  And this shows you the kind

 

     9 of damage it can be.  I am glad to learn this

 

    10 now.

 

    11               MR. BEVERE:  Judge, it was

 

    12 testified to.

 

    13               MR. MULLIN:  I'll go with that.

 

    14               MR. BEVERE:  It was testified to

 

    15 in depositions.

 

    16               MR. MULLIN:  I stand corrected.

 

    17 Then I stand corrected on that.

 

    18               JUDGE CURRAN:  Okay.  I am going

 

    19 to move away from that to the proposed

 

    20 precharge.  I want to give you all a little time

 

    21 to get lunch or whatever before the jury comes

 

    22 in.

 

    23                Mr. Mullin, have you had the

 

    24 opportunity to review --

 

    25               MR. MULLIN:  I have, Your Honor.


 

 

                                                    67

 

 

     1               JUDGE CURRAN:  -- the submission?

 

     2               MR. MULLIN:  Let me just talk

 

     3 about -- criticism about the process.  This

 

     4 thing is handed to me at 5/06 p.m. yesterday on

 

     5 the eve of me getting ready for my opening

 

     6 argument.  I object to that.  I don't know why

 

     7 counsel sat with this in their bag during the

 

     8 whole time we were here -- we were here for

 

     9 hours -- other than -- other than to put me at a

 

    10 disadvantage.  I do object to that.

 

    11                Secondly, I object to any

 

    12 precharge of this nature.  This -- this is a

 

    13 statement of the law that should be worked out

 

    14 in a charge conference on the record after

 

    15 careful examination of all the relevant

 

    16 precedents.  It has nothing about the concept of

 

    17 acquiescence, ratification, condonation, which

 

    18 appeared in your Honor's summary judgment, which

 

    19 eases my burden somewhat in showing official

 

    20 Town policy or practice.  It doesn't deal with

 

    21 the body of law that has to do with what kind of

 

    22 evidence can prove policies is an official Town

 

    23 policy, as opposed to actual Town ordinance, all

 

    24 the different kinds of circumstantial evidence

 

    25 that can be used.  It doesn't talk about the


 

 

                                                    68

 

 

     1 kinds of acts and omissions that constitute a

 

     2 Town policy.  And doesn't say anything about

 

     3 damages, I might add also.

 

     4                So this last minute attempt to

 

     5 lay out a summary of the entire body of the law,

 

     6 really, of 42 U.S.C. 1983 without any citation

 

     7 to any Federal case and, more pertinently, any

 

     8 citation to any case remotely dealing with what

 

     9 this case is being brought under, New Jersey

 

    10 Constitution, it just has no -- it's not

 

    11 appropriate to rush in and do this at this time.

 

    12                Now, having said that, under the

 

    13 standard that's been imposed we know that we'll

 

    14 be dealing with the concept of color of State

 

    15 law.  We know we'll be dealing with deliberate

 

    16 indifference.  We know we will be dealing with

 

    17 the issue of high-level policy-making officials

 

    18 and the issue of whether something is an

 

    19 official Town policy, custom or procedure.

 

    20                I won't have any objection if

 

    21 defense counsel mentions these terms, you know,

 

    22 in their -- in their opening -- and I -- I

 

    23 assume there won't be an objection if I also

 

    24 mention these terms -- with the idea suggesting

 

    25 to the jury or the judge will define these terms


 

 

                                                    69

 

 

     1 later on, the way we often do in a case where

 

     2 law is intertwined with facts.

 

     3                But I would object to this.  It's

 

     4 a very one-sided undocumented statement.  It

 

     5 doesn't have any precedent citations.

 

     6               JUDGE CURRAN:  Mr. Paris.

 

     7               MR. PARIS:  Yes, if I may, Your

 

     8 Honor.  Essentially what we're trying to do is

 

     9 we're trying to just make sure that the jurors

 

    10 are aware that -- and it relates back to

 

    11 question number 39.  It relates back to all the

 

    12 questioning that went on at sidebar.

 

    13                And I think that before the case

 

    14 starts, because of the number of jurors who came

 

    15 with a preconceived notion that a municipality

 

    16 is responsible for every -- for everything that

 

    17 their employees, volunteers or officials do, I

 

    18 think at the beginning of the case it's

 

    19 important that they understand that under New

 

    20 Jersey law a Town is not responsible for

 

    21 everything that they do.  And that's what we're

 

    22 trying to set forth.

 

    23                And that's -- and that -- the

 

    24 necessity of that became clear when we were

 

    25 talking at sidebar.  The soliloquy between or


 

 

                                                    70

 

 

     1 the dialogue between counsel and jurors, can you

 

     2 follow a judge's instruction, doesn't replace

 

     3 the necessity to overcome that preconception.

 

     4 And now is the time, when the jurors say, "Yes,

 

     5 I'll follow your instructions."  The

 

     6 instruction, frankly, can be as simple as,

 

     7 "Please understand that a municipality is" --

 

     8 "under the law is not responsible for everything

 

     9 that an employee, volunteer or official does.

 

    10 I'll give you" -- "you are going to hear facts.

 

    11 I'll give you the law later.  I will get into

 

    12 more detail."

 

    13                But just because it was an

 

    14 important issue, nor -- it was an important

 

    15 issue during voir dire, I think it's important

 

    16 now that the jury understand that there is a

 

    17 requirement that it be proven that the Town is

 

    18 responsible or this wasn't an issue, such as

 

    19 virtually every juror -- and I'm talking about

 

    20 the entire pool, not just the jurors who are

 

    21 seated.  I don't think there was a single juror

 

    22 that came up and said gays are not entitled to

 

    23 the same Constitutional rights as straights.

 

    24 Everyone came with that notion that

 

    25 Constitutional rights should be equal.  Everyone


 

 

                                                    71

 

 

     1 came with the notion -- very few exceptions --

 

     2 that the use of certain words are objectionable,

 

     3 as though essentially the Town should be

 

     4 responsible for the use of words by firemen.

 

     5                But at the same time, there was a

 

     6 huge number of people, in fact, at one -- when

 

     7 we began the voir dire process, after we looked

 

     8 at the questionnaires, it was our application to

 

     9 excuse anyone who came with that notion because

 

    10 that was just as prejudicial to the Town.

 

    11 However, that was denied.

 

    12                But I think at this point in time

 

    13 the jury has to know that that is a legal

 

    14 question because a Town is not responsible for

 

    15 everything, that there are circumstances when

 

    16 they are and there are circumstances when they

 

    17 aren't and we'll give you the full charge at the

 

    18 end of the case.  So I -- that's -- that's -- if

 

    19 we're going to minimalize it and overcome all of

 

    20 the -- these objections that Mr. Mullin has, I

 

    21 think at a minimum the jury needs to know that

 

    22 in order to overcome what we saw here during

 

    23 jury selection.

 

    24               JUDGE CURRAN:  Mr. Mullin.

 

    25               MR. MULLIN:  It's nothing to be


 

 

                                                    72

 

 

     1 overcome during jury selection.  Jury selection

 

     2 was a time when Your Honor allowed us

 

     3 considerable discretion to deal with this issue

 

     4 of -- of jurors' views of when is a Town

 

     5 responsible or not.  And what I said -- and the

 

     6 record will show it -- is, "Judge" -- "Can you

 

     7 listen to the judge when she gives the

 

     8 instructions at the end of the case?"  And that

 

     9 was a reasonable thing to say.  And sometimes

 

    10 defense counsel said the same reasonable thing.

 

    11                There is no special problem that

 

    12 took place during jury selection now has to be

 

    13 overcome through this rather unique,

 

    14 undocumented precharge.  We should have a trial,

 

    15 and then we should have a charge conference.

 

    16 And we should show you our authorities, and then

 

    17 you should charge the jury.  And that's the way

 

    18 it normally goes.

 

    19                I don't think there are any

 

    20 exceptional circumstances here for a precharge,

 

    21 especially one that doesn't cite to any

 

    22 authority whatsoever for its propositions and

 

    23 one given to me at the last minute on eve of --

 

    24 of an opening argument, when I have to focus all

 

    25 my concentration on this opening argument and


 

 

                                                    73

 

 

     1 these in limines.  I wasn't about to get on-line

 

     2 and start to do a -- you know, the 10, 15 hours

 

     3 of research necessary to give Your Honor.

 

     4                A careful and well documented

 

     5 jury charge.  But I can tell just by looking at

 

     6 this that that document does not include the

 

     7 standard that Your Honor used in the -- in the

 

     8 summary judgment opinion.  You cited to a case

 

     9 whose name I can never pronounce.  It begins

 

    10 with B.

 

    11               JUDGE CURRAN:  I can't pronounce

 

    12 it either.

 

    13               MR. MULLIN:  Bilowitz or something

 

    14 like that.

 

    15               JUDGE CURRAN:  Right.

 

    16               MR. MULLIN:  Which had that very

 

    17 important standard about acquiescence, about

 

    18 condonation, ratification, that concept so

 

    19 important to this case.  Not just actions but

 

    20 also omissions of high-level officials become

 

    21 important pieces of evidence in deliberate

 

    22 indifference.  This is a mis-precharge, making

 

    23 it a mischarge.

 

    24                I ask we follow all the normal

 

    25 process that we do in all charges, charge at the


 

 

                                                    74

 

 

     1 end of the trial.

 

     2                Again, I would like the

 

     3 opportunity to try to get you to charge the LAD

 

     4 standard.  I would like that opportunity.  If I

 

     5 persuade you, this might not even be the

 

     6 standard.  It is the standard we have to operate

 

     7 under.  That's your ruling, and we will.  But,

 

     8 Your Honor, I think it would be premature to

 

     9 give this charge and unfair because it's

 

    10 one-sided, doesn't cite precedent.

 

    11               JUDGE CURRAN:  Thank you.

 

    12                Mr. Paris, just give me a moment.

 

    13               MR. PARIS:  Sure.

 

    14               JUDGE CURRAN:  Go off the record

 

    15 for a moment.

 

    16               (Whereupon, a discussion is held

 

    17        off the record.)

 

    18               JUDGE CURRAN:  Anything that we

 

    19 haven't discussed otherwise?

 

    20               MR. PARIS:  No, other than the

 

    21 fact that precharge is not all that unusual.

 

    22 There are times when jury receives a precharge.

 

    23 And this happens to be -- even Mr. Mullin at

 

    24 sidebar during voir dire said this is very

 

    25 complex.  I am not trying to get into the


 

 

                                                    75

 

 

     1 overall law of the case.  I just think it's

 

     2 important that they understand as they begin

 

     3 that there are times a Town is responsible and

 

     4 times that the Town isn't responsible.  If this

 

     5 goes too far in that regard, so be it.  But at

 

     6 least the jury needs to know that at the outset

 

     7 of the case.

 

     8               JUDGE CURRAN:  Miss Castelli, if

 

     9 you would just check.  Thank you.  Back on the

 

    10 record.

 

    11               COURT CLERK:  We are on the

 

    12 record.

 

    13               JUDGE CURRAN:  Based on the

 

    14 record, based on -- I make the following

 

    15 findings.  I am not going to read the proposed

 

    16 precharge.  You're quite right, Mr. Paris,

 

    17 precharges are not that unusual.  But usually,

 

    18 as I indicated yesterday, the precharges are

 

    19 very short, things like, "We want to tell you

 

    20 people a corporation is considered a person

 

    21 under the law," that kind of thing that would

 

    22 not be controversial or would not be objected

 

    23 to.  Not always but usually those are the kinds

 

    24 of precharges that I tend to see and to give.

 

    25                My concern here is that your


 

 

                                                    76

 

 

     1 concern -- and I understand it -- is with

 

     2 question 39.  I was concerned with the arguments

 

     3 that you made.  Even though I found against your

 

     4 request, I was concerned about that.  That is

 

     5 why I went to pains to ask -- I'd say virtually

 

     6 every time because we all make mistakes or

 

     7 whatever.  But virtually every time.  It was my

 

     8 intention, certainly, to every time we went

 

     9 through that jury questionnaire, when we got to

 

    10 that question, I looked at you and asked you if

 

    11 you had a question.

 

    12                I did that because I wanted you

 

    13 to be able, you know -- and none of us here is

 

    14 unsophisticated.  You and Mr. Mullin, Miss

 

    15 Smith, Mr. Bevere are all very good at couching

 

    16 the questions in the language you prefer.  But I

 

    17 gave you first shot virtually every time --

 

    18 sometimes you took it -- on 39 -- sometimes you

 

    19 didn't.  But I find that we had an extensive

 

    20 amount of discussion on question 39.

 

    21                I find that to the best of my

 

    22 recollection and my judgment, everybody who is

 

    23 sitting on that jury now understands that issue

 

    24 after they went through the questioning.  And

 

    25 just to be openly fair, I just went through the


 

 

                                                    77

 

 

     1 original questionnaires of these jurors because

 

     2 we don't have a challenge argument here or

 

     3 whatever.  Of the ten jurors in the box now, the

 

     4 initial question was answered no by six and yes

 

     5 by four.  So not even the majority -- not that

 

     6 that should be definitive -- of the jurors in

 

     7 the box now answered the question yes.

 

     8                I have, obviously, no concern

 

     9 about your addressing the question because that

 

    10 is your responsibility in regard to your client;

 

    11 but I am not going to give the charge.

 

    12                And again, I would just ask that

 

    13 you be circumspect and just add, not for me

 

    14 personally, but just add at the end of the case,

 

    15 you know, you will be given the law because,

 

    16 frankly, as I see this going, this case going,

 

    17 if I'm still alive after the charge conference,

 

    18 you know, whatever we have to tell the jury

 

    19 should be fairly decent by way of what the law

 

    20 is.  So you certainly may address it, but I will

 

    21 deny your request.

 

    22                Anything else?

 

    23               MR. MULLIN:  Judge, there is one

 

    24 other minor matter.

 

    25               JUDGE CURRAN:  Thank you, Miss


 

 

                                                    78

 

 

     1 Hawks.

 

     2               MR. MULLIN:  I think that we asked

 

     3 you to prime the jury that there may be some bad

 

     4 language used and shouldn't require to do it --

 

     5 because it has to do with the case, hopefully

 

     6 won't take any offense at lawyers or witnesses.

 

     7                The other thing is I don't know

 

     8 that counsel intended to raise this in his

 

     9 opening; but I just want to deal with it, I

 

    10 guess a 403 issue.

 

    11                When Peter deVries was on the

 

    12 porch right after the incident, he was crying,

 

    13 he was upset and said something like, you know,

 

    14 "If this was" -- "If I was a minority, this

 

    15 place would be surrounded by police cars."

 

    16 That's a racially inflammatory statement that

 

    17 has no relevance to the case.  Mr. deVries is

 

    18 not going to testify about it.  And I hope that

 

    19 is not referred to at any time during the trial.

 

    20               MR. PARIS:  Your Honor, this

 

    21 absolutely goes to his state of mind right from

 

    22 the outset.  He felt that the police weren't

 

    23 responding appropriately right at the outset,

 

    24 before they did anything.  That absolutely goes

 

    25 to his state of mind.  Right on the porch he


 

 

                                                    79

 

 

     1 didn't think that the police response was

 

     2 appropriate, not even knowing how they would

 

     3 respond.  It's absolutely appropriate.

 

     4               MR. MULLIN:  Well, if he expressed

 

     5 some displeasure with how the police were

 

     6 responding, of course, he had reason to express

 

     7 some displeasure.  The -- that's one thing.

 

     8                But the fact that he is comparing

 

     9 it to how he imagined they would respond to

 

    10 minorities, that's designed to inflame the jury;

 

    11 and that's why -- it's really -- it's -- the

 

    12 whole thing is of no relevance.  Maybe that

 

    13 fragment is of tangential relevance.  Why is it

 

    14 relevant even that -- that Peter deVries

 

    15 imagined that the cops weren't responding with

 

    16 enough force?  That's -- that's barely an issue

 

    17 in the case, what Peter deVries thought at that

 

    18 moment.  The racial comment is what they want to

 

    19 get in, and that's what they should be barred

 

    20 from getting in.

 

    21               MR. PARIS:  This is an admission

 

    22 of a party.  It's not the racial comment as much

 

    23 as it's the fact right from the outset he didn't

 

    24 know what the police were going to do, he didn't

 

    25 know what the police response would be but right


 

 

                                                    80

 

 

     1 at the outset -- and that's what the thrust of

 

     2 the case is about -- that they're unhappy and

 

     3 dissatisfied with the way the police responded.

 

     4 They were unhappy and dissatisfied the moment

 

     5 the police showed up, before they knew anything

 

     6 about what the police were going to do; and

 

     7 that's an important part of our case.  He made

 

     8 the comment, and now somehow they want to make

 

     9 believe that it never happened.  Go through his

 

    10 deposition, he makes a lot of comments like

 

    11 that.  I don't mean racial comments, but he

 

    12 makes various other comments.

 

    13               MR. MULLIN:  He makes no other

 

    14 racial comments at all throughout.

 

    15               MR. PARIS:  He makes ethnic

 

    16 comments, these people are like this, these

 

    17 people are like that, at various times.  But

 

    18 that's not the point.  That's not the point.

 

    19 And, frankly, those comments probably we won't

 

    20 even use.  But for him to comment that he is

 

    21 unhappy with the police response that moment,

 

    22 that's absolutely essential to the case.  He has

 

    23 already commenting about -- about how the police

 

    24 aren't responding appropriately, how they -- you

 

    25 know, they would have had more people, they


 

 

                                                    81

 

 

     1 should have had more people, if this were some

 

     2 other type of situation.

 

     3                You know, this whole issue, the

 

     4 whole issue of this case, which is being lost

 

     5 here, frankly, Your Honor, is the fact that the

 

     6 plaintiff is required to some -- to prove that

 

     7 the actions of the municipality were done in a

 

     8 manner that was different because Mr. deVries

 

     9 and Mr. Carter are homosexuals.  Okay.  That's

 

    10 what the Constitutional issue is here, that

 

    11 they're a member of a protected class.  The

 

    12 problem is there is no proof in this case that

 

    13 somehow they would have been treated differently

 

    14 if they weren't homosexuals.  And that's -- and

 

    15 again, Your Honor, I would say this is the equal

 

    16 protection argument.  Equal protection.  That's

 

    17 what they're entitled to.  And yet what are you

 

    18 comparing it to?

 

    19                When you talk about racial

 

    20 profiling, you're comparing the fact that

 

    21 minorities are stopped at a greater percentage

 

    22 based upon their population as compared to

 

    23 non-minorities.  Well, where is the proof here

 

    24 that somehow they were treated differently

 

    25 because of their homosexuality?  And here, from


 

 

                                                    82

 

 

     1 moment one, they already had this notion, this

 

     2 notion that somehow the Town wasn't responding

 

     3 properly.  Now, why can't the Town use that in

 

     4 its defense?

 

     5               MR. MULLIN:  I would answer that

 

     6 question, say because it's completely

 

     7 irrelevant.  The issue of deliberate

 

     8 indifference is, by an objective standard, was

 

     9 the Town deliberately indifferent?  What Peter

 

    10 deVries thought one way or the other is not

 

    11 going to prove this case.  What he thought one

 

    12 way or the other is not relevant to whether the

 

    13 Town was under the legal standard deliberately

 

    14 indifferent.  So the answer to that question

 

    15 is it's just not relevant.  I -- I think that

 

    16 this -- this injection of race into the case is

 

    17 designed to inflame this jury.

 

    18                And let me also go back to

 

    19 this -- this topic that was raised as though

 

    20 there was another motion on the table.  Once

 

    21 again Mr. Paris goes back to summary judgment

 

    22 issues.  When somebody is yelling at you, "I'm

 

    23 going to kill you, you faggot," that's called

 

    24 "direct evidence."  I don't have to prove in a

 

    25 direct evidence discrimination case that that


 

 

                                                    83

 

 

     1 guy didn't go around yelling, "I'm going to kill

 

     2 you, you faggot" to heterosexuals.  That's

 

     3 nonsense.  In fact, that's preposterous.  I

 

     4 don't have to prove that.  When you have direct

 

     5 evidence of discrimination, you don't have to

 

     6 use equal protection differential treatment

 

     7 proofs.  There is a huge, vast body of law on

 

     8 that.

 

     9                But, once again, Mr. Paris is

 

    10 talking about something that has nothing to do

 

    11 with the issue before the Court.  The issue

 

    12 before the Court is narrow in limine motion.

 

    13 These defendants want to inject an inflammatory

 

    14 race issue in this case.

 

    15                Mr. deVries sat on the porch in a

 

    16 state of extreme emotional upset.  If this was

 

    17 an attack on minorities, the words -- I'm

 

    18 paraphrasing.  This was an attack on minorities,

 

    19 the place would be surrounded by police cars or

 

    20 words to that effect.  He was expressing upset

 

    21 and displeasure.  His home had just been

 

    22 attacked.  He was out of his mind with fear,

 

    23 terror and horror.  He was sobbing when he said

 

    24 this.  He wasn't expressing a measured opinion

 

    25 about the evidence in this case, the objective


 

 

                                                    84

 

 

     1 evidence.

 

     2                To inject that issue, the

 

     3 comparison to minorities, the claim that he is

 

     4 not being treated as well as minorities might

 

     5 have been treated, will inject a whole other

 

     6 issue in this case and will inflame the jury,

 

     7 perhaps the minority jury.  So it has no

 

     8 relevance to the case.

 

     9                But even if it has marginal

 

    10 relevance, under the relevance rule, under Rule

 

    11 403 on balance, it poses a grave danger of

 

    12 prejudice.  I think it was the Green case in the

 

    13 Supreme Court of New Jersey that dealt with the

 

    14 enormous potency of racial references in a jury

 

    15 trial.  And -- and in that case the Court said

 

    16 these racial references shouldn't have been

 

    17 allowed.

 

    18                This is not a race discrimination

 

    19 case.  Race has tremendous power to prejudice

 

    20 and inflame.  While Defense would like to play

 

    21 minorities on the jury against the gays, that's

 

    22 not what a trial should be about.  There is no

 

    23 basis for allowing this statement in.  My client

 

    24 is not going to testify about it.  There is no

 

    25 basis for allowing the racial component, his


 

 

                                                    85

 

 

     1 statement on the porch, in.  It will inflame the

 

     2 jury.

 

     3                Thank you, Your Honor.

 

     4               JUDGE CURRAN:  This is what I'm

 

     5 going to do, Mr. Paris, because otherwise we

 

     6 will argue the whole case all over again.  I

 

     7 apologize for interrupting you.

 

     8                I find that the statement is

 

     9 relevant, as the Town has pointed out, in regard

 

    10 to the state of mind of Mr. deVries in that

 

    11 Mr. deVries' state of mind is part of the damage

 

    12 issue here.

 

    13                I am going to ask, if you are

 

    14 going to bring this up on cross, Mr. Paris, if

 

    15 you feel that you can do so within the bounds of

 

    16 what court rules would allow, if you could

 

    17 rephrase that so that you don't even say the

 

    18 word "minorities."  Perhaps something like, "Did

 

    19 you feel because you were a gay man that the

 

    20 response of the police was not correct" or

 

    21 something of that nature because my concern is

 

    22 even if you use the word "minorities," that --

 

    23 certainly, that is a -- an inflammatory and,

 

    24 believe the plaintiff is arguing, overly

 

    25 prejudicial phrase.


 

 

                                                    86

 

 

     1               MR. PARIS:  But, Your Honor, if I

 

     2 rephrase that, I think I need to rephrase it --

 

     3 if you want me to take out the word -- I think

 

     4 the word he used was "blacks" or

 

     5 "African-Americans."  It was a reference to --

 

     6 to a racial minority.

 

     7               JUDGE CURRAN:  May I suggest this?

 

     8 Why don't you think about it --

 

     9               MR. PARIS:  Fine.

 

    10               JUDGE CURRAN:  -- and see -- I

 

    11 want you to be comfortable.  I'm asking you if

 

    12 you can --

 

    13               MR. PARIS:  I will.

 

    14               JUDGE CURRAN:  -- rephrase it

 

    15 because I -- I do think there is certainly that

 

    16 potential.  At this point I don't believe that

 

    17 is unduly prejudicial, if the -- if the quote

 

    18 can be rephrased, if you will.

 

    19               MR. PARIS:  I will work on that.

 

    20 Before we cross-examine Mr. deVries we will talk

 

    21 about it again.

 

    22               JUDGE CURRAN:  Sure.

 

    23               MR. MULLIN:  I will assume, Your

 

    24 Honor, they are not going to mention in opening.

 

    25               JUDGE CURRAN:  Absolutely not.  I


 

 

                                                    87

 

 

     1 don't think that was at all intended.

 

     2                Anything else?

 

     3               MR. PARIS:  I just --

 

     4               MR. MULLIN:  Judge, one other

 

     5 thing.  We don't necessarily have to resolve it

 

     6 today.  Maybe they agree with us.  But I would

 

     7 ask that the defendants' witnesses not be in

 

     8 uniform when they testify.

 

     9               JUDGE CURRAN:  Now, truly, you

 

    10 thought they were going to agree with you on

 

    11 that one, Mr. Mullin?  You said that with a

 

    12 straight face.

 

    13               MR. MULLIN:  I had a straight

 

    14 face.  Hope springs eternal, Your Honor.

 

    15               MR. PARIS:  Frankly, if they were

 

    16 going to make this and the prior motion in

 

    17 limine, I would have liked to have notice of

 

    18 that, as well, especially on the racial comment.

 

    19                But you know, to bar a policeman

 

    20 from coming into court in uniform, if he is a

 

    21 uniformed police officer, that's preposterous.

 

    22               JUDGE CURRAN:  Anybody wants to

 

    23 argue that in any further detail, we can do

 

    24 that.  We don't need to do that in opening --

 

    25 before openings.


 

 

                                                    88

 

 

     1               MR. BEVERE:  Judge, and just so

 

     2 the Court is aware, there will be police

 

     3 officers here at 12:30.  They may be in uniform.

 

     4               MR. PARIS:  We are not going to

 

     5 strip them down between now and 12:30, Your

 

     6 Honor.

 

     7               JUDGE CURRAN:  Not witnesses?

 

     8               MR. PARIS:  There are no witnesses

 

     9 today.

 

    10               MR. BEVERE:  They are going to be

 

    11 witnesses in the case.

 

    12               MR. MULLIN:  I am going to move

 

    13 for sequestration.

 

    14               JUDGE CURRAN:  I was just going to

 

    15 say that.  My concern is there will be, I'm

 

    16 guessing, sequestration requests maybe on both

 

    17 sides.  So if there are going to be officers

 

    18 here who are going to testify, I need to know

 

    19 that.  And the court clerk is responsible for

 

    20 making sure that I'm aware of everybody in the

 

    21 courtroom.  I -- A, I like to do that, anyway.

 

    22               MR. BEVERE:  I don't know who is

 

    23 coming, Judge.  And when they got here, I would

 

    24 advise Your Honor.

 

    25               JUDGE CURRAN:  If you all can talk


 

 

                                                    89

 

 

     1 among yourselves because you know what these

 

     2 individuals look like, I don't.  So if there are

 

     3 any witnesses, then I will hear sequestration

 

     4 motion.  I am not deciding it now, but I'm

 

     5 certainly anticipating it.

 

     6               MR. PARIS:  I would --

 

     7               JUDGE CURRAN:  If you are talking

 

     8 about individuals who are members of the Police

 

     9 or Fire Department who are here to observe,

 

    10 separate issue.

 

    11               MR. MULLIN:  I'm worried about the

 

    12 issue of intimidation of the jury.

 

    13               JUDGE CURRAN:  I got that.  I got

 

    14 that.

 

    15               MR. MULLIN:  I am very concerned

 

    16 about that today during openings they could come

 

    17 in here and show of force.

 

    18               JUDGE CURRAN:  He will decide that

 

    19 the --

 

    20               MR. PARIS:  We are talking about

 

    21 opening statements.  If -- people who are going

 

    22 to be witnesses or people going to assist us in

 

    23 defense of the Town, will you sequester them for

 

    24 opening statements?  That's not even testimony.

 

    25               JUDGE CURRAN:  I don't know.  I


 

 

                                                    90

 

 

     1 don't have a request yet.  I don't know what

 

     2 the -- what the arguments will be.  But

 

     3 certainly in regard to witnesses, that's at

 

     4 least a fair argument.  In regard to individuals

 

     5 who are assisting you on behalf of the Town and

 

     6 they're not witnesses, separate argument.

 

     7               MR. MULLIN:  We make that argument

 

     8 on the eve of when we see who's here, Judge?

 

     9               JUDGE CURRAN:  Yes, because I

 

    10 don't know who's going to be here.

 

    11               MR. MULLIN:  Judge, by the way,

 

    12 this is Lynn Centonze, former chief of police of

 

    13 Fairfield.  I know you like to know who is in

 

    14 your courtroom.

 

    15               JUDGE CURRAN:  Thank you very

 

    16 much.

 

    17               MR. MULLIN:  So I will introduce

 

    18 you.

 

    19               JUDGE CURRAN:  Thank you.

 

    20               COURT CLERK:  Off the record.

 

    21               JUDGE CURRAN:  Thank you.  Off the

 

    22 record.

 

    23               (Whereupon, a luncheon recess is

 

    24        taken.)

 

    25         A F T E R N O O N  S E S S I O N


 

 

                                                    91

 

 

     1               COURT CLERK:  All rise.

 

     2               JUDGE CURRAN:  Thank you.  Please

 

     3 be seated.

 

     4                Ladies and Gentlemen, if I might

 

     5 have you at sidebar, please.

 

     6               (Whereupon, the following sidebar

 

     7        discussion is held.)

 

     8               JUDGE CURRAN:  I just wanted to

 

     9 talk with you in regard to the photographers.

 

    10 The Star Ledger photographers are here, and they

 

    11 want to know where they can set up.  What I

 

    12 think would be helpful is if we bring them up to

 

    13 sidebar and see what their request is.  I don't

 

    14 know what request you might have other than,

 

    15 obviously, they can't photograph the jurors.

 

    16                Mr. Bevere.

 

    17               MR. BEVERE:  Want to let you know

 

    18 that, while we're here, witnesses are present.

 

    19 You want to do it on the record, or do you want

 

    20 to do it here?  I mean, we're on the record.

 

    21               JUDGE CURRAN:  Okay.  I have to

 

    22 tell you, Mr. Bevere, I appreciate your being

 

    23 very circumspect; but I have trouble hearing you

 

    24 sometimes --

 

    25               MR. BEVERE:  Oh.


 

 

                                                    92

 

 

     1               JUDGE CURRAN:  -- when you're

 

     2 speaking so low.

 

     3               MR. BEVERE:  No one has ever

 

     4 accused me of being soft spoken, I have to tell

 

     5 you, Judge.

 

     6               JUDGE CURRAN:  Okay.  So if you

 

     7 could tell me.

 

     8               MR. BEVERE:  I could tell you who.

 

     9 Starting with the end --

 

    10               JUDGE CURRAN:  White?

 

    11               MR. BEVERE:  -- that is Police

 

    12 Chief Dennis Corcoran.

 

    13               JUDGE CURRAN:  Chief?

 

    14               MR. BEVERE:  Chief, Police Chief

 

    15 Dennis Corcoran.  The individual next to him is

 

    16 Detective Captain John Buckley.

 

    17               JUDGE CURRAN:  Just give me his

 

    18 last name.

 

    19               MR. BEVERE:  B-u-c-k-l-e-y.

 

    20               JUDGE CURRAN:  Thank you.

 

    21               MR. BEVERE:  The man next to

 

    22 him --

 

    23               JUDGE CURRAN:  Excuse me.  Thank

 

    24 you very much.  Thank you.  Okay.  They have got

 

    25 a list, okay, good.


 

 

                                                    93

 

 

     1               MR. BEVERE:  The person next to

 

     2 him --

 

     3               JUDGE CURRAN:  Corcoran, Buckley,

 

     4 okay.

 

     5               MR. BEVERE:  Person next to him is

 

     6 Detective Captain Reinke, R-e-i-n-k-e.

 

     7               JUDGE CURRAN:  Thank you.

 

     8               MR. BEVERE:  Person next to him is

 

     9 Detective Captain Thomas Malanka, M-a-l-a-n-k-a.

 

    10               JUDGE CURRAN:  Okay.

 

    11               MR. BEVERE:  Person next to him is

 

    12 Patrol Officer Robert Ulrich.  And then on the

 

    13 end of the row, kind of sitting separately from

 

    14 them is Secaucus Police Lieutenant Glenn Amodeo.

 

    15                My understanding is that David

 

    16 Drumeler, the individual, I'm sorry, sitting

 

    17 behind us at counsel table, snuck in; I didn't

 

    18 see him.

 

    19               JUDGE CURRAN:  Do me favor.  Don't

 

    20 point at them because it will make them nervous.

 

    21 David Drum?

 

    22               MR. MULLIN:  Who is that?

 

    23               MR. BEVERE:  David Drumeler.  He

 

    24 is the Secaucus Town administrator.

 

    25               JUDGE CURRAN:  How does he spell


 

 

                                                    94

 

 

     1 his last name?  Never could get it the other

 

     2 day.

 

     3               MR. BEVERE:  D-r-u-m-m-l-e-r -- or

 

     4 e-l-e-r.  Drumeler.

 

     5                And the person next to him is the

 

     6 Mayor of Secaucus, Dennis Elwell, E-l-w-e-l-l.

 

     7 And that's all I have, Judge.

 

     8               JUDGE CURRAN:  I hope person

 

     9 doesn't know him by sight, but that's a good

 

    10 reason not to sit in the county where you live.

 

    11                Okay.  Are there going to be

 

    12 sequestration motions.

 

    13               MR. PARIS:  We will seek

 

    14 sequestration, Your Honor; but hopefully without

 

    15 waiving it I will allow -- I will not object to

 

    16 these gentlemen sitting here during the

 

    17 openings, as long as it's understood I am not

 

    18 waiving my request for sequestration.

 

    19               JUDGE CURRAN:  As long as it's

 

    20 understood you are not waiving it, there is no

 

    21 objection?

 

    22               MR. PARIS:  That's correct.

 

    23               MR. BEVERE:  That's understood,

 

    24 Judge.

 

    25               JUDGE CURRAN:  I appreciate that.


 

 

                                                    95

 

 

     1 Anything else before we bring up the

 

     2 photographers?

 

     3               MR. BEVERE:  No.

 

     4               MR. MULLIN:  The reporter now?

 

     5               JUDGE CURRAN:  Yeah.

 

     6               MR. MULLIN:  Okay.

 

     7               JUDGE CURRAN:  If the individual

 

     8 from The Star Ledger would please come up to

 

     9 sidebar.

 

    10               MR. PARIS:  Hi.  How are you?

 

    11               JUDGE CURRAN:  Good afternoon,

 

    12 sir.

 

    13               MR. BEN-ALI:  Good afternoon.

 

    14               JUDGE CURRAN:  If you would be

 

    15 kind enough to give me your name.

 

    16               MR. BEN-ALI:  Sure, sorry.  Card

 

    17 be okay?

 

    18               JUDGE CURRAN:  Sure.  Excuse my

 

    19 left hand.  Thank you.  Russell Ben-Ali; is that

 

    20 correct?

 

    21               MR. BEN-ALI:  Yes.

 

    22               JUDGE CURRAN:  And you're the

 

    23 writer?

 

    24               MR. BEN-ALI:  Yeah, this is me.

 

    25 Ya Song, the photographer.


 

 

                                                    96

 

 

     1               JUDGE CURRAN:  Okay.  And you

 

     2 spell your last name S-o-n-g, correct?

 

     3               MS. SONG:  Yes.

 

     4               JUDGE CURRAN:  I am going to give

 

     5 this -- excuse my left hand.  I am going to give

 

     6 back your copy of Judge Gallipoli's, you know,

 

     7 agreement that pictures can be taken.  You had

 

     8 asked where to set up, but the attorneys were

 

     9 out of the room and I indicated I wanted to talk

 

    10 with them.  Can you tell me what you're

 

    11 requesting?  Are you going to be here all

 

    12 afternoon?  Do you just want to take some

 

    13 pictures?  What's your request.

 

    14               MS. SONG:  It won't take long.

 

    15 Probably it's like -- I'm shooting probably --

 

    16 how long?

 

    17               MR. BEN-ALI:  I don't know.  Do

 

    18 you anticipate --

 

    19               JUDGE CURRAN:  Let me tell you

 

    20 what's going to happen; that might help.  What

 

    21 we're going to do this afternoon are opening

 

    22 arguments.  So the plaintiff will open, and then

 

    23 the defense will open.  There will be no

 

    24 witnesses this afternoon.

 

    25               MR. BEN-ALI:  Do you anticipate


 

 

                                                    97

 

 

     1 both sides will open --

 

     2               JUDGE CURRAN:  Yes, sir.

 

     3               MR. BEN-ALI:  -- in the afternoon?

 

     4               JUDGE CURRAN:  They both will.

 

     5               MR. BEN-ALI:  May want to stay for

 

     6 most of the afternoon, then.

 

     7               JUDGE CURRAN:  I'm not -- all I

 

     8 really want to do is know where you would be.

 

     9 You can see what the courtroom looks like.  The

 

    10 attorneys will be facing the jury.  As you know,

 

    11 you cannot take pictures of the jurors.

 

    12               MS. SONG:  Right, right.

 

    13               JUDGE CURRAN:  So if counsel

 

    14 doesn't object, if you want -- see where the

 

    15 gentleman is standing up there right now?  If

 

    16 you want to be over in that area, so that you

 

    17 could take a picture of the attorneys facing the

 

    18 jury, would any attorney have any objection to

 

    19 that?

 

    20               MR. MULLIN:  No.

 

    21               MR. BEVERE:  No.

 

    22               MR. PARIS:  There will be no

 

    23 flash, I assume?

 

    24               MS. SONG:  No flash.

 

    25               JUDGE CURRAN:  The two attorneys


 

 

                                                    98

 

 

     1 will be first, Mr. Mullin and then Mr. Bevere.

 

     2               MR. BEVERE:  Thank you, Judge.

 

     3               JUDGE CURRAN:  These two gentlemen

 

     4 right here.

 

     5               MR. MULLIN:  Thank you.

 

     6               JUDGE CURRAN:  I don't have any

 

     7 objection if you move around a bit, as long as,

 

     8 number one, you don't photograph the jurors and,

 

     9 number two, you don't interfere with whoever is

 

    10 speaking.

 

    11                I will tell you, you know, I'm

 

    12 Hudson County judge who never wants my picture

 

    13 taken.  So if you don't take my picture, nothing

 

    14 you do will disturb me; I have no problems

 

    15 whatsoever.  But I would ask you to be courteous

 

    16 to counsel.  I am sure you will be.

 

    17               MS. SONG:  Okay.  Thank you.  I

 

    18 appreciate it.

 

    19               JUDGE CURRAN:  Anything else?

 

    20               MS. SMITH:  Judge, I want a filter

 

    21 to get rid of any of the wrinkles, if there are

 

    22 any pictures of me, please.

 

    23               MR. MULLIN:  Please take 20 pounds

 

    24 off me.

 

    25               MR. BEN-ALI:  Keep me out of the


 

 

                                                    99

 

 

     1 shot.

 

     2               JUDGE CURRAN:  Thank you very

 

     3 much.  Thank you.

 

     4               (Whereupon, sidebar discussion is

 

     5        concluded.)

 

     6               JUDGE CURRAN:  Thank you.  We will

 

     7 bring out the jury.  Thank you.

 

     8               MS. HAWKS:  Jurors are

 

     9 approaching.

 

    10               JUDGE CURRAN:  Thank you.

 

    11               COURT CLERK:  On the record.

 

    12               JUDGE CURRAN:  Thank you.

 

    13               (Whereupon, the jury is brought

 

    14        into the courtroom.)

 

    15               JUDGE CURRAN:  You may be seated.

 

    16 Thank you, Ladies and Gentlemen.  Please be

 

    17 seated.

 

    18                Other than counsel -- if counsel

 

    19 will please be kind enough to put your

 

    20 appearances on the record again for the jury.

 

    21 On behalf of the plaintiffs.

 

    22               MR. MULLIN:  Good afternoon,

 

    23 everybody.  Neil Mullin and Nancy Erika Smith

 

    24 for the plaintiffs.

 

    25               JUDGE CURRAN:  Thank you.


 

 

                                                   100

 

 

     1               MR. BEVERE:  Good afternoon,

 

     2 Ladies and Gentlemen.  I am Daniel Bevere, this

 

     3 is David Paris on behalf of Town of Secaucus.

 

     4               JUDGE CURRAN:  Thank you.

 

     5                Good afternoon, Ladies and

 

     6 Gentlemen.  We appreciate your being back here

 

     7 so promptly.  I am going to talk with you just

 

     8 very briefly.  As you know, this is the matter

 

     9 of Peter deVries and Timothy Carter versus the

 

    10 Town of Secaucus, Docket Number 3520 of the 2004

 

    11 term.

 

    12                I'm going to give to you now what

 

    13 we call the model opening jury charge.  And what

 

    14 that means is that if you were listening to this

 

    15 case north of us, up in Bergen County or south

 

    16 of us, down in Burlington County, in some cases

 

    17 you would hear the judge say the exact same

 

    18 words that I'm going to say to you.  I'm going

 

    19 to read certain portions of this opening charge

 

    20 to you, but before I do that let me talk about a

 

    21 few other things.

 

    22                First of all, I want to thank

 

    23 you.  I am sure the attorneys will thank you

 

    24 too.  You have been through a very long, very

 

    25 difficult voir dire process.  We appreciate your


 

 

                                                   101

 

 

     1 patience, and we appreciate your honesty.  And I

 

     2 believe that all of you understand, because of

 

     3 that situation and because of the questioning,

 

     4 how important it is that the jurors be fair and

 

     5 impartial.  And we believe that you are because

 

     6 you have told us that you will be.  That is very

 

     7 important for a number of reasons.  And I'm

 

     8 going to go through some of those with you.

 

     9                First of all, though, let me ask

 

    10 you a question.  Is there anybody on the jury

 

    11 now who wants to take a shot at telling me how

 

    12 many judges there are in this case?  Is

 

    13 everybody nervous?  Usually at least one person

 

    14 will raise a hand.  No?  Nobody?  Okay.  I'm

 

    15 going to call on somebody, just like they used

 

    16 to do in school.  Juror Number One, how many

 

    17 judges do you think there are.

 

    18               JUROR NUMBER 1:  Eleven.

 

    19               JUDGE CURRAN:  Eleven, that's very

 

    20 good.  Okay, you get an A.

 

    21                There are basically two kinds of

 

    22 judges in this case.  I am the judge of the law.

 

    23 It is my responsibility to, as we go through the

 

    24 case, explain the law to you, first of all, at

 

    25 the beginning and then again at the end.


 

 

                                                   102

 

 

     1                Also, on an individual daily

 

     2 basis as we go through the trial you will see me

 

     3 make some determinations.  An attorney will say

 

     4 something.  I will sustain the objection or

 

     5 overrule it right there and then, no question

 

     6 about it.  Sometimes, because these attorneys

 

     7 are all very professional, we will go to sidebar

 

     8 because they know that it's an issue that should

 

     9 not be discussed in front of the jury until

 

    10 there is a determination.  And if it's a long

 

    11 argument that has to be given, such as when you

 

    12 were excused yesterday, we will excuse you

 

    13 because we do try to be very respectful of your

 

    14 time.

 

    15                To the best of my ability I am

 

    16 making these determinations based on the law as

 

    17 I understand the law.  I do not have a feeling

 

    18 as to which side should receive the jury --

 

    19 jury's verdict in this case.  But even if you

 

    20 felt that I did, even if you felt that you could

 

    21 figure out what I had by way of an intention, it

 

    22 would not be proper for you to consider that.

 

    23 And the reason for that is that the deliberating

 

    24 jurors are also jurors -- judges in the exact

 

    25 same way as I am.  You are the judges of the


 

 

                                                   103

 

 

     1 facts.  You are the sole judges of the facts.  I

 

     2 don't decide what the facts in this case are.

 

     3 The attorneys don't decide what the facts in

 

     4 this case are.  The deliberating jurors decide

 

     5 what the facts in this case are.  And therefore,

 

     6 it is very important that you listen very

 

     7 carefully to all of the evidence in this case.

 

     8                It is very important that you

 

     9 make careful evaluations and determinations in

 

    10 regard to the evidence in this case.  And I

 

    11 would go through at the end of the case all of

 

    12 the evidence in the case.  But basically, you

 

    13 will need to decide in this case whether the

 

    14 witness is a layperson or whether the witness is

 

    15 an expert.  You will need to decide on that

 

    16 witness' credibility.  In regard to a fact

 

    17 witness or a layperson, you may decide to

 

    18 believe all of what the witness says, some of

 

    19 what the witness says or nothing at all of what

 

    20 the witness says.  That is your determination.

 

    21 And in order to do that, there were certain

 

    22 issues that you may want to consider.

 

    23                You may want to consider, for

 

    24 example, in judging the credibility of the

 

    25 witnesses the witness' interest, if any, in the


 

 

                                                   104

 

 

     1 outcome of the case, the witness' forthrightness

 

     2 or lack of forthrightness, the witness' demeanor

 

     3 on the stand, how the witness acts or reacts to

 

     4 certain questions, the inherent reasonableness

 

     5 of the testimony that the witness gives, any

 

     6 contradictory statements or inconsistencies, if

 

     7 you find they exist, in the testimony of the

 

     8 witness.  And then again, everything else that

 

     9 is in Evidence is yours to consider as

 

    10 deliberating jurors.

 

    11                I will ask you to take that

 

    12 responsibility very seriously, and I would also

 

    13 ask you to keep an open mind.  Because I will

 

    14 indicate to you again -- you've already heard me

 

    15 say it -- please don't discuss the case among

 

    16 yourselves.  Please don't discuss the case with

 

    17 anyone else.

 

    18                Also, it is not proper for you to

 

    19 make up your mind until you are a deliberating

 

    20 juror in that jury room with the evidence and

 

    21 with the other deliberating jurors.

 

    22                So we ask you to consider that

 

    23 very carefully.  As you know, I told you a

 

    24 little about this case the other day.  And I am

 

    25 going to remind you by reading, again, for you


 

 

                                                   105

 

 

     1 the contentions of the parties.  And I've

 

     2 already indicated to you that the burden of

 

     3 proof is on any party to establish any claim

 

     4 that party makes by a preponderance of the

 

     5 credible evidence.  In other words, if a party

 

     6 makes an allegation, then that party must prove

 

     7 the allegation.

 

     8                In this case the plaintiffs

 

     9 contend that this is a case involving the Civil

 

    10 Rights of two gay men, the plaintiffs,

 

    11 Mr. deVries and Mr. Carter, who claim they were

 

    12 harassed and attacked by a group of Secaucus

 

    13 firemen whose firehouse was next door to the

 

    14 plaintiffs' rented home.  Case will involve

 

    15 testimony by the plaintiffs, Mr. Carter and

 

    16 Mr. deVries and various others, including

 

    17 Secaucus firemen, police, Town officials and

 

    18 various expert witnesses, including psychiatric

 

    19 doctors and an economist.

 

    20                The Town, Town of Secaucus,

 

    21 denies that it violated the plaintiffs'

 

    22 Constitutional rights.  It denies that the

 

    23 Police Department or municipal officials

 

    24 discriminated against the plaintiffs because of

 

    25 their sexual orientation.  The Town also denies


 

 

                                                   106

 

 

     1 that it is legally responsible to the plaintiffs

 

     2 for money damages for the alleged acts of

 

     3 harassment complained of by the plaintiffs

 

     4 because those acts were not committed by Town

 

     5 employees or volunteers while performing their

 

     6 duties for the Town.

 

     7                You have heard me indicate -- I'm

 

     8 going to repeat it -- that the standard in this

 

     9 case is that the burden of proof must be proven

 

    10 by a party making an allegation or contending an

 

    11 issue by a preponderance of the credible

 

    12 evidence.  Term "preponderance of the evidence"

 

    13 is that amount of evidence that causes you to

 

    14 conclude that the allegation is probably true.

 

    15 To prove an allegation by the preponderance of

 

    16 the evidence a party must convince you that the

 

    17 allegation is more likely true than not true.

 

    18                In considering all of the

 

    19 evidence you will be asked to consider both

 

    20 direct and circumstantial evidence.  Direct

 

    21 evidence is direct proof of a fact, such as, for

 

    22 instance, testimony of an eyewitness.

 

    23 Circumstantial evidence, sometimes called an

 

    24 "inference," consists of a chain of

 

    25 circumstances pointing to the existence of


 

 

                                                   107

 

 

     1 certain facts.  Circumstantial evidence is based

 

     2 upon deductions or logical conclusions that you

 

     3 may reach from the direct evidence.

 

     4                Doesn't that sound like it was

 

     5 written by a lawyer?  Let me just briefly

 

     6 explain to you the difference between direct and

 

     7 circumstantial evidence.  If you went home

 

     8 tonight and everything was as it is outside now,

 

     9 dry, and you went to bed and if during the night

 

    10 you were awakened by a -- a howling blizzard and

 

    11 you looked out the window and that blizzard was

 

    12 blowing in every direction, you would have

 

    13 direct evidence that it had snowed during the

 

    14 night.  You would see it snowing during the

 

    15 night.

 

    16                If, on the other hand, you went

 

    17 home, everything was dry outside, you went to

 

    18 bed, didn't wake up until the morning; but if,

 

    19 when you awakened in the morning, everything was

 

    20 covered with snow, you would have circumstantial

 

    21 evidence that it had snowed during the night.

 

    22 You could reach the logical conclusion or

 

    23 deduction or you could infer that it had snowed

 

    24 during the night.  It's the only difference

 

    25 between direct and circumstantial evidence.


 

 

                                                   108

 

 

     1 There is really nothing legalistic about it.

 

     2 You make decisions every day in regard to direct

 

     3 and circumstantial evidence.  And that's what

 

     4 we're asking you to do in this case during this

 

     5 trial.  Use your own good common sense in

 

     6 evaluating both the direct and the

 

     7 circumstantial evidence.

 

     8                In regard to this case let me

 

     9 just talk with you for a few minutes about

 

    10 housekeeping issues.  I already talked yesterday

 

    11 about, please, once you come in that door back

 

    12 there, turn off any electronic gadgets or

 

    13 devices that you have.  Do not turn those on in

 

    14 the courtroom, and do not turn those on when you

 

    15 are in the jury room.  And I explained yesterday

 

    16 our reasons for that.  We are concerned that,

 

    17 first of all, there should be no interruptions;

 

    18 but also, we want to make sure that someone

 

    19 doesn't text message a friend and get a message

 

    20 that distracts you or text messages a friend to

 

    21 ask a question about the trial because your

 

    22 decisions as deliberating jurors must be based

 

    23 solely on the evidence that you receive in this

 

    24 courtroom, as well as the law as I will present

 

    25 the law to you after conferring with the


 

 

                                                   109

 

 

     1 attorneys at the end of the case.  So, please,

 

     2 no electronic gadgets.

 

     3                Also, please do not talk about

 

     4 the case among yourselves.  Please do not talk

 

     5 with anyone else about the case.  If anyone does

 

     6 talk with you about the case or ask a question,

 

     7 please bring that to my attention as soon as you

 

     8 possibly can.

 

     9                Additionally, I'm going to remind

 

    10 you, please do not do any research.  If, for

 

    11 some reason, you have to be in, for instance,

 

    12 the Town of Secaucus, if you hear an address

 

    13 during the trial or anything of that nature,

 

    14 don't drive by that place, don't take a look at

 

    15 what that facility looks like.

 

    16                If there is a question that comes

 

    17 up, maybe you didn't understand the word or

 

    18 maybe you don't understand a concept or maybe

 

    19 there is a difference of opinion on it, do not

 

    20 do any research yourself.  It is improper to do

 

    21 so.  So don't do any research on the internet or

 

    22 anything like that.

 

    23                I also will ask you for the

 

    24 duration of this case not to read any stories

 

    25 that you might see in a newspaper about the


 

 

                                                   110

 

 

     1 case.  Please don't listen to any radio or TV

 

     2 stories, if they happen to come on the air,

 

     3 about the case.

 

     4                And also, I would ask you just to

 

     5 be sure, if you see or come across anything of a

 

     6 similar nature, please don't read that.

 

     7 Certainly, you know, please don't talk with

 

     8 anyone about that.  Because, again, we want to

 

     9 make sure that what you hear right here in this

 

    10 witness box and then the exhibits are the only

 

    11 evidence that is in your mind when you are a

 

    12 deliberating juror.

 

    13                At the -- as the case progresses

 

    14 there will be a number of witnesses called by

 

    15 the plaintiff and the defense.  When the

 

    16 witnesses are completely finished with their

 

    17 testimony, when the party presenting them has

 

    18 completed all the direct and redirect and the

 

    19 opposing party has gone through all of the

 

    20 cross-examination, maybe recross, we are going

 

    21 to ask the jurors if you have any questions.

 

    22                Starting tomorrow you will see on

 

    23 the jury box pencils and note cards.  If by any

 

    24 chance I forget to ask you if you have any

 

    25 questions, please do not hesitate to interrupt,


 

 

                                                   111

 

 

     1 raise your hand and to indicate that you have a

 

     2 question.  We will ask you then to write your

 

     3 question or questions down on the card.

 

     4                I will take those cards over to

 

     5 sidebar with counsel, and we will go over all of

 

     6 the questions.  If a question would not be

 

     7 allowed under the rules for an attorney to ask,

 

     8 then it's not a proper question and it cannot be

 

     9 asked.  But we don't expect you to know the

 

    10 rules.  If you have a question or questions, you

 

    11 write them down, we will discuss them at

 

    12 sidebar; and then we will come back and I will

 

    13 read your questions without identifying the

 

    14 jurors to the witness.  The witness will then

 

    15 answer the questions one by one.

 

    16                After the first question I will

 

    17 ask first the attorney presenting that witness

 

    18 if that attorney has any follow-up.  And then I

 

    19 will give the other side the opportunity for

 

    20 follow-up.  And we will continue on those

 

    21 questions until all of the follow-up questions

 

    22 are completed.  And then we'll move on to the

 

    23 other jury questions, if there are some and if

 

    24 it's appropriate to do so.

 

    25                I will ask you -- and I will now


 

 

                                                   112

 

 

     1 and I will repeat later on, please consider the

 

     2 questions and answers to the questions of jurors

 

     3 the same way you consider all the other

 

     4 evidence.  Don't overemphasize them and don't

 

     5 under -- under-emphasize them.

 

     6                Okay.  The last thing I'm going

 

     7 to say is that we realize this is not the Taj

 

     8 Mahal.  I know it gets warm in here.  We have

 

     9 kind of two choices in this courtroom, too hot

 

    10 or too cold.  If -- because this is a long

 

    11 trial, we are asking you, because of the trial,

 

    12 not to take any notes.

 

    13                And normally we would ask you not

 

    14 to have anything in the jury box by way of

 

    15 something to drink.  But frankly, we're going to

 

    16 break that rule a little bit.  If you want to

 

    17 bring a water bottle or something to drink and

 

    18 you want to have it in the jury box, I believe

 

    19 counsel, because we have talked it over, has no

 

    20 objection; and therefore, I don't have any

 

    21 objection.

 

    22                I will also say to you that there

 

    23 is an air conditioner to the left of Jurors

 

    24 Number 1 and 6.

 

    25                And I am going to ask the two of


 

 

                                                   113

 

 

     1 you to keep an eye on it.  If you feel that

 

     2 the -- and your fellow jurors feel you want the

 

     3 air conditioner on, fine.  If you want it off,

 

     4 that's fine too.

 

     5                I am also going to ask Juror

 

     6 Number 10, Mr. Mumford, if he would be -- nice

 

     7 that you're tall.  If you would be in charge of

 

     8 the fan, Mr. Mumford.  You can consult with the

 

     9 jurors.  If they feel that the fan is preventing

 

    10 them from hearing properly or preventing them

 

    11 from concentrating, if you'd be kind enough just

 

    12 to pull the chain and turn it off, we'd

 

    13 appreciate it.  Same thing is true if you want

 

    14 it to be turned on.  You don't have to ask for

 

    15 permission.

 

    16                I will also indicate to you that

 

    17 if there is any reason that you feel you need to

 

    18 take a break -- I'm sure you will all be very

 

    19 gracious to the professionals who are running

 

    20 the trial; but if you feel that a break is

 

    21 necessary, please raise your hand.  And we'll do

 

    22 our best to accommodate you.

 

    23                The other thing is during the

 

    24 testimony if there is a witness talking or if

 

    25 there is a witness using an exhibit and you


 

 

                                                   114

 

 

     1 can't see or you can't hear or you couldn't

 

     2 understand, you know, what the person was

 

     3 saying, not by way of the content but just

 

     4 couldn't hear the words, please feel free to

 

     5 raise your hand and let us know that.

 

     6                To the best of our ability it's

 

     7 our job to make sure that you can concentrate on

 

     8 this case and that nothing interferes with that.

 

     9 Anything going on in the courtroom that

 

    10 interferes with your ability to concentrate,

 

    11 please raise your hand and let us know that.

 

    12 You are not being rude; you are not

 

    13 interrupting.

 

    14                Okay.  Last, but certainly not

 

    15 least, we're going to get to the opening

 

    16 statements for today.  You have heard me say

 

    17 that I don't decide what the facts are and that

 

    18 the attorneys do not decide what the facts are.

 

    19 Also, I will tell you that what I say is not

 

    20 evidence and what the attorneys say is not

 

    21 evidence.  But it is very important.  Each

 

    22 attorney for each party is going to give to you

 

    23 now their opening case, their opening address to

 

    24 the jury.  They are going to explain the case

 

    25 from the viewpoint of their clients.  They are


 

 

                                                   115

 

 

     1 advocates for their clients, so it is very

 

     2 important that you concentrate on what they say,

 

     3 even though it is not evidence.  I am going to

 

     4 ask you, therefore, to absolutely give your

 

     5 attention first to the -- to counsel for the

 

     6 plaintiff.

 

     7                Before I do that let me just

 

     8 explain to you things because some of you said

 

     9 that you watch TV and watch some trial shows.

 

    10 Sometimes in trial shows you see the attorneys

 

    11 get up and one makes a very important point and

 

    12 then the other one reflects that and then the

 

    13 first one comes back with another argument.

 

    14 Doesn't happen in New Jersey.  In New Jersey

 

    15 under the rules there are -- there is only one

 

    16 opening statement for the plaintiffs.  And under

 

    17 the rules, the plaintiffs go first.  And then

 

    18 there is only one opening statement for the

 

    19 defendants in this case.  And those -- that

 

    20 statement is second.

 

    21                I will warn you, just by way of a

 

    22 caveat, during maybe the summation, maybe the

 

    23 introductory remarks, certainly during the

 

    24 trial, there may be certain language -- I think,

 

    25 honestly, there will be language used that is


 

 

                                                   116

 

 

     1 very difficult, perhaps, for you to hear.  It is

 

     2 not polite language.  It is not the kind of

 

     3 language that you use or hear, I'm sure, in

 

     4 everyday conversation; but I will ask that you

 

     5 understand in regard to the plaintiffs and the

 

     6 defendants, they will use only whatever language

 

     7 is necessary in regard to the rules as they

 

     8 apply to this case.

 

     9                Would ask you please, then, to

 

    10 give your very careful attention to the attorney

 

    11 for the plaintiffs, Mr. Mullin.

 

    12                Counsel.

 

    13               MR. MULLIN:  Thank you.  Thank

 

    14 you, Your Honor.  Good afternoon, Ladies and

 

    15 Gentlemen.  It's been a long haul.  Thank you

 

    16 for your patience.  It's been a long jury

 

    17 selection.

 

    18                You know this is a Civil Rights

 

    19 case.  What's more precious than our Civil

 

    20 Rights?  This is a Civil Rights case brought

 

    21 under the State Constitution, the State of New

 

    22 Jersey.  And we can be proud of this document.

 

    23 The Supreme Court of New Jersey has interpreted

 

    24 our State Constitution to protect many, many

 

    25 rights not protected under the Federal


 

 

                                                   117

 

 

     1 Constitution.

 

     2                Among those rights the Supreme

 

     3 Court of New Jersey has found that gay people

 

     4 have a right to be treated equally.  Should be

 

     5 proud of our State Constitution.  Should be

 

     6 proud of our State.  What is more precious than

 

     7 our right to be treated equally and our right

 

     8 not to be discriminated against and our right to

 

     9 live in peace and safety and not have that peace

 

    10 and safety compromised because of who we are,

 

    11 because of how we're born, what we are made of?

 

    12                And you know, it's another great

 

    13 aspect of this State, jurors are so carefully

 

    14 selected.  I like to say in this State we leave

 

    15 prejudice at the courthouse door.  We all have

 

    16 biases and prejudices.  But when you come into

 

    17 this room, bias and prejudice is left out there

 

    18 because if it isn't and I'm representing two gay

 

    19 men, well, I lose now.  I lose now in many cases

 

    20 because what's the point of listening to the

 

    21 evidence if there is bias and prejudice in the

 

    22 jury box?  But you have given us your oath and

 

    23 your commitment that you will be unbiased in

 

    24 hearing this evidence.

 

    25                There is bias against gay men.


 

 

                                                   118

 

 

     1 And you will hear evidence of the most awful

 

     2 bias in this case.

 

     3                My clients, I'm proud to

 

     4 represent.  That's Timothy Carter, here, Peter

 

     5 deVries.  They are gay men.  They have had a

 

     6 loving relationship, 22 years.  They have lived

 

     7 together as spouses, sleep together, they eat

 

     8 together, they travel together.  When Tim goes

 

     9 up to Peter's family, Peter's nephews and nieces

 

    10 call Tim "uncle."  This means a lot to Tim.

 

    11 This means a lot to Peter.  Unfortunately, Tim's

 

    12 family is not welcoming in the same way; and Tim

 

    13 has suffered because of that.  As you know, not

 

    14 everyone accepts a gay son.

 

    15                So they come as human beings,

 

    16 imperfect with frailties.  And you'll see

 

    17 they're victimized in the most ugly way

 

    18 possible.

 

    19                Just because folks are

 

    20 victimized, they're attacked, doesn't mean

 

    21 they're going to be smooth witnesses like you

 

    22 see on TV.  Just because you're a victim doesn't

 

    23 mean it's easy to tell your story.

 

    24                Tim has suffered all his life

 

    25 from ADD, attention deficit disorder.  I'm sure


 

 

                                                   119

 

 

     1 most of you are familiar with.  Incredibly, he

 

     2 has overcome this.  He has compensated for it

 

     3 and gotten an advanced degree in theology,

 

     4 religion and has even preached at a major church

 

     5 in Minneapolis, where he was living before he

 

     6 moved here.

 

     7                But he has ADD.  You ask him a

 

     8 question -- and you may see this here -- you may

 

     9 see him wander.  And the judge will bring him

 

    10 in, and I'll bring him in.  And he is going to

 

    11 do his best to focus.

 

    12                Peter is a very successful -- or

 

    13 was a very successful managing editor in the

 

    14 field of medical publishing.  He had a great

 

    15 career until the incidents in this case disabled

 

    16 him psychologically.  You may notice when Peter

 

    17 is on the stand that sometimes he is looking at

 

    18 you cross-eyed.  Don't take it personally.

 

    19 Peter was born with a birth defect, a lack of a

 

    20 muscle in this eye.

 

    21                And the other thing that will

 

    22 make it hard for them to testify is because they

 

    23 are damaged by the ugly events that occurred

 

    24 that lie at the heart of this case.

 

    25                You will hear member of Harvard


 

 

                                                   120

 

 

     1 Medical faculty, expert witness come in, tell

 

     2 you the damage they've suffered.  Something so

 

     3 ugly and horrible happened to them that they

 

     4 suffer posttraumatic stress disorder, where the

 

     5 horrible events keep looping around and looping

 

     6 around and looping around and visiting them in

 

     7 their dreams.

 

     8                And I would say the last thing on

 

     9 earth Peter deVries and Tim Carter want to do is

 

    10 get up in a public room and talk about this

 

    11 ugliness.  And it will be hard.

 

    12                So my clients were living in

 

    13 Minneapolis when Peter got a good job in

 

    14 Secaucus, lined a good job up in medical

 

    15 publishing.  So they figure, well, let's move to

 

    16 Secaucus.  And they did.  They rented a house

 

    17 owned by a family named the Hjelms, spelled

 

    18 H-j-e-l-m-s.  The Hjelms, Patricia Hjelm, the

 

    19 mother, Pat Hjelm, the son.  They rented this

 

    20 house, Peter and Tim, from the Hjelms Family.

 

    21                This house was right next door to

 

    22 what Secaucus folks call the "North End

 

    23 Firehouse."  Had an engine company in it and a

 

    24 rescue company in it.  I believe there are five

 

    25 firehouses in Secaucus.  The other side will


 

 

                                                   121

 

 

     1 correct me, if I'm wrong.  And they're housed

 

     2 by -- they're inhabited by and large by

 

     3 volunteer firemen.  But these firemen get a

 

     4 stipend.  They get some money according to how

 

     5 many fires they respond to.  And these firemen

 

     6 are completely under the control, by the laws of

 

     7 Secaucus, of the Fire Chief, the Town Council

 

     8 and the Mayor; and even the Town Administrator

 

     9 has some power over them.

 

    10                Let's take a look at that house,

 

    11 and let's take a look at that firehouse.

 

    12               MR. BEVERE:  Your Honor,

 

    13 permission to observe?  Thank you.

 

    14               MR. MULLIN:  Show you a document

 

    15 that is marked P-163.

 

    16               JUDGE CURRAN:  I'm sorry, did you

 

    17 say, "163"?

 

    18               MR. MULLIN:  163, Your Honor.

 

    19                This is one shot of the house.

 

    20 This is a very small, modest house that they

 

    21 rented on Schopmann Street, called "Schopmann"

 

    22 in Secaucus.  And this is their front porch you

 

    23 see here.  This is the firehouse parking lot.

 

    24                And here you see the side door of

 

    25 the firehouse.  In here is a social quarters


 

 

                                                   122

 

 

     1 where, for some reason, the Town of Secaucus

 

     2 let's these firemen have parties with alcohol.

 

     3 Sometimes the parties spill out onto the parking

 

     4 lot.

 

     5                You see my clients' windows, the

 

     6 plaintiffs' windows face right out into this

 

     7 lot.  You see they're totally exposed to the

 

     8 goings on in the parking lot, except for some

 

     9 bushes.

 

    10                This is my clients' house.  This

 

    11 is the North End Firehouse parking lot.  This is

 

    12 the side of the North End Firehouse.  This is

 

    13 all from the group of photographs called P-163.

 

    14                Another photograph.  Just shows a

 

    15 different angle.  There is the house.  There is

 

    16 the parking lot.  There is the side of the

 

    17 firehouse.  But here it has photo of fence.

 

    18 This becomes important later.  See, there is a

 

    19 fence here.  And the fence separates the parking

 

    20 lot of the Fire Department from a porch on the

 

    21 back of my clients' house.  So when I talk about

 

    22 that, you will have a visual image of that.

 

    23                Now, for some time after my

 

    24 clients, Peter and Tim, moved in, they'd walk

 

    25 down the street going about their life, two gay


 

 

                                                   123

 

 

     1 men walking together, going to the store.  And

 

     2 they'd notice some hostility coming from these

 

     3 firemen.  These firemen wore distinct T-shirts,

 

     4 shorts.  These firemen had cars with firemen's

 

     5 license plates on them.  These men would glare

 

     6 at them, stare at them, seem surly.  Peter and

 

     7 Tim, as gay men, well, they were used to that;

 

     8 and they certainly were going to let that pass.

 

     9                Around December 2001 the evidence

 

    10 will show Tim wanted to make for better

 

    11 relations with the firemen.  Went across the

 

    12 street and ordered 5 gallons of ice cream for

 

    13 them.  He noticed they were out in the parking

 

    14 lot.  This was at Christmastime 2001.  They're

 

    15 out in the parking lot selling Christmas trees

 

    16 and he presumed, you know, for a good cause.  So

 

    17 he ordered 5 gallons of ice cream for them.

 

    18                Came over, Tim did, and he spoke

 

    19 to a gentleman who he later learned was fella

 

    20 named Chuck Snyder, Sr., captain of the Fire

 

    21 Department.  Told him, "Hey, I'm going to get

 

    22 you some ice cream."  Conversation went okay.

 

    23 And Tim said, "Look, I'm decorating my house.  I

 

    24 see you are trimming these trees.  Can I have

 

    25 some of those evergreen branches?"


 

 

                                                   124

 

 

     1                "Okay, okay," he said.

 

     2                Later that night Tim is out to

 

     3 collect some of these branches.  He is out in

 

     4 the lot.  He sees a car.  He hears screeching

 

     5 tires.  Car comes racing up to him, headlights

 

     6 blasting, right at him and stops so close to him

 

     7 he has to jump out of the way of the headlight.

 

     8 And the brakes squeal.  Inside Peter hears the

 

     9 squealing brakes.  A man rolls down the window.

 

    10 You will later learn that this man is Chuck

 

    11 Snyder, Jr., fire captain, North End Firehouse,

 

    12 son of Chuck Snyder, Sr.

 

    13                "What the hell are you doing?"

 

    14                "Well, I'm just gathering some

 

    15 branches.  You know, Mr. Snyder said I could."

 

    16                Said, "What?  You have no

 

    17 business being here."

 

    18                "Well, I live here."

 

    19                "You don't live here.  You rent

 

    20 here."

 

    21                First sign of hostility from

 

    22 Chuck Snyder, Sr., a chance for my client to

 

    23 hear what that voice sounds like.

 

    24                And they drive away.

 

    25                Some time goes by.  Doorbell


 

 

                                                   125

 

 

     1 keeps ringing.  Tim and Peter check.  Nobody is

 

     2 there.  Doorbell rings.  Doorbell rings.

 

     3 Doorbell rings.  Peter, Tim checks.  Nobody is

 

     4 there.

 

     5                Finally, Tim figures I'm not

 

     6 going to go to the front door when it rings; I'm

 

     7 going to run to the back, see if someone is

 

     8 running around the sides of the house.  He does.

 

     9 What does he see?  He sees this grown man, Chuck

 

    10 Snyder, Sr., fire captain, running as fast as he

 

    11 can to a bunch of firemen laughing.

 

    12                All right.  We have hostility.

 

    13 Now we can add to that some stupidity.  We have

 

    14 some form of harassment going somewhere, but

 

    15 where and why?

 

    16                We're in January, February,

 

    17 March 2004.  Tim let's his dogs out the back,

 

    18 the back porch, separated from the firehouse

 

    19 parking lot by that fence I showed you.  Starts

 

    20 to notice there are used condoms there on the

 

    21 porch.  Wouldn't be easy to get it there by just

 

    22 throwing it over the fence because there is a

 

    23 roof overhanging.  Someone wanted to get that to

 

    24 the porch would have to go to the end of the

 

    25 fence, aim it and throw it.  He let's it go.  He


 

 

                                                   126

 

 

     1 is disgusted, but he let's it go.

 

     2                It happens again.  He is

 

     3 disgusted and let's it go.

 

     4                Now he sees firemen in cars with

 

     5 firehouse plates on it having sex with some

 

     6 women out there.  He sees that when he looks out

 

     7 his kitchen window from time to time.

 

     8                This one night he sees a car out

 

     9 there with a man and a woman in it.  He needs to

 

    10 let his dog out.  He turns the light on to the

 

    11 back porch, which would have been visible to the

 

    12 people in the car.  He goes out, lets the dog

 

    13 out.  He doesn't notice anything on the porch.

 

    14 Brings the dog back in.

 

    15                Other dog has to go out.  Lets it

 

    16 out.  Now he comes out and there is a hot,

 

    17 steaming wet condom.  To get it there someone

 

    18 would have had to almost be aiming for him and

 

    19 knew he was there.  The light came on, and he

 

    20 heard his presence.  It's right there where he

 

    21 was standing.

 

    22                This disgusts him.  This is an

 

    23 aggressive act.  This is a crude, sexual

 

    24 harassment.  He decides to do something about

 

    25 it.  He has kept his silence.  They're quiet


 

 

                                                   127

 

 

     1 men.  They just want to live in peace.  He has

 

     2 kept his silence, but this is too disgusting.

 

     3                So he calls down to the Police

 

     4 Chief.  Calls down to City Hall.  Can I speak to

 

     5 the Police Chief?

 

     6                "What do you want?"

 

     7                "Well, it's private."

 

     8                "No, what do you want?"

 

     9                "Well, firemen are throwing

 

    10 condoms on my back porch.  I want to speak to

 

    11 the chief."

 

    12                "He is not here."

 

    13                "Well, does he have an office?"

 

    14                "No."

 

    15                "I want to speak to someone about

 

    16 this."

 

    17                Finally they direct him to

 

    18 someone at the Department of Public Works who

 

    19 identifies himself as Chuck Snyder, Sr.

 

    20                Chuck Snyder, Sr., "What do you

 

    21 want?"

 

    22                "Well, firemen are throwing

 

    23 condoms on my back porch; and I want it to

 

    24 stop."

 

    25                Guy is rude, and you will hear


 

 

                                                   128

 

 

     1 Tim testify about it.  The guy is dismissive.

 

     2                "I am the guy who lives next door

 

     3 with the dogs."

 

     4                "Yeah, your dogs are smelly."

 

     5                Tim gives up.  Forget it.

 

     6                Now, unknown to Tim, his

 

     7 complaint worked its way up to the Fire Chief,

 

     8 himself, a man named Frank Walters.  Frank

 

     9 Walters never comes to Tim or Peter and says,

 

    10 "Look, I'm going to investigate this.  Tell me

 

    11 what happened.  How many times has it happened?

 

    12 Let's try to find some of these condoms.  Let's

 

    13 do some search back here.  Let me talk to my

 

    14 firemen."

 

    15                No, Frank Walters does a phony,

 

    16 bogus, fake investigation.  Here is what he

 

    17 does.  He claims that he heard that the condoms

 

    18 were being thrown from the building -- I showed

 

    19 you the firehouse building -- over to the porch.

 

    20 He said, "Well, I had my deputy, Ciecuch, check

 

    21 it out; and it was physically impossible."

 

    22                Of course it's physically

 

    23 impossible.  That's never what my clients said.

 

    24 That's a fake investigation.  That's make

 

    25 believe.  This is the chief of the Fire


 

 

                                                   129

 

 

     1 Department of Secaucus doing a phony, fake

 

     2 investigation, just so he could say, well, that

 

     3 wasn't physically possible.  Doesn't write a

 

     4 report on it.  Never talks to my client and say,

 

     5 "What happens?"  Never asks to see the condoms.

 

     6                My client had the license plates

 

     7 of one of the cars that was there when they were

 

     8 having sex when they threw these condoms over.

 

     9 Turns out he got it right.  Went back to a guy

 

    10 named Kickey, who has a relative named Kickey in

 

    11 the North End Firehouse.  He never gets that.

 

    12                You know, this is a problem.

 

    13 You're the Fire Chief, and your firemen are

 

    14 throwing condoms over at a house occupied by gay

 

    15 men.  That could be a problem.  That's probably

 

    16 something, unless you're going to show

 

    17 deliberate indifference, ignore it.  That could

 

    18 be a train coming at someone.  That could be a

 

    19 serious problem building up.

 

    20                Here is what he does also.  Does

 

    21 a phony investigation.  There is a party coming

 

    22 up.  April 24th that fire company has been

 

    23 approved at the highest levels on an approval

 

    24 form to have a party that is going to involve a

 

    25 whole lot of drinking.  It's an official party.


 

 

                                                   130

 

 

     1 It's a company function.  It's a company night

 

     2 out.  It has to be approved by a captain and by

 

     3 the chief, himself.  And needs insurance

 

     4 approval at the bottom.

 

     5                Chief knows his fire company

 

     6 party is coming up.  He has just heard this

 

     7 complaint about the condoms.  There is going to

 

     8 be a lot of drinking at -- off-site.  They are

 

     9 going to a place off-site, then they're going to

 

    10 come back and they are going to be allowed to

 

    11 serve booze at the firehouse.  Going to be hours

 

    12 and hours and hours of drinking.

 

    13                Think the chief might say, "Hey,

 

    14 look, before you guys go out, get drunk and come

 

    15 back, we are going to get to the bottom of who

 

    16 is throwing these condoms over here, who is

 

    17 throwing this attitude toward these gay men

 

    18 living next door.  I don't want any trouble."

 

    19                He doesn't do that.  He goes to

 

    20 that party.  They have that party.  The people

 

    21 from that party get in a bus.  They party for

 

    22 hours, drink and drink and drinking.  Open bar.

 

    23 And they get into a big bus, and they come back

 

    24 to the firehouse.

 

    25                They get back to the firehouse


 

 

                                                   131

 

 

     1 sometime shortly before 12 midnight on

 

     2 April 24th, 2004.  Tim Carter is coming home

 

     3 from work.  He turns the corner in his car and

 

     4 sees the parking lot filled with 40, 50 firemen.

 

     5 He knows; he has seen their faces.  He goes

 

     6 inside.

 

     7                Peter deVries is upstairs

 

     8 sleeping.  Sleep is important to Peter deVries

 

     9 because Peter deVries had just had heart

 

    10 procedures.  Peter deVries is frail and healing.

 

    11 Tim is downstairs.  And he hears this noise,

 

    12 this party going on and on and on; but then the

 

    13 noise takes on an odd quality.  Starts having a

 

    14 sexual sound.  "Ooh, ooh," he hears these

 

    15 firemen moaning and yelling near his house.

 

    16 Goes on and on and on.

 

    17                He figures, look, I am going to

 

    18 wait for an hour.  I am just going to live with

 

    19 these people.  I'm going to wait an hour.  But

 

    20 he is worried about it waking up his partner,

 

    21 who is recovering.

 

    22                So, finally, he can't take it

 

    23 anymore.  He goes out to the back porch.  Turns

 

    24 the light on.  "Hello.  Hello.  Hello."  Nobody

 

    25 answers him.  Through the slats he sees many,


 

 

                                                   132

 

 

     1 many people milling around.  He looks around the

 

     2 end.  He sees Chuck Snyder, Sr. is there, some

 

     3 sort of blazer.  He pulls back.  He says, "Look,

 

     4 would you please shut the hell up?  It's 1:00 in

 

     5 the morning."

 

     6                Voices start.  "You want us to

 

     7 shut the hell up?  You faggot asshole, you want

 

     8 us to shut the hell up?"  All of a sudden he

 

     9 hears an incredible bang.  Feels it in his body.

 

    10                Shortly after that an eyewitness

 

    11 completely unrelated to them, named Dee Bardini,

 

    12 calls 911.  "There is some kind of disturbance

 

    13 going on on Paterson Plank Road off Schopmann

 

    14 Drive.  There is -- it sounded like gunshots or

 

    15 something."

 

    16                My client is terrified.  Grabs

 

    17 his dog, who had run out.  Runs inside.  What

 

    18 happens next is a physical attack upon this

 

    19 house.  These men are attempting to climb over

 

    20 the fence, and he sees their hands on top.

 

    21 They're rocking it back and forth, and it sounds

 

    22 like its going to snap.  There is pounding on

 

    23 the walls.

 

    24                Let me read from the police

 

    25 reports some of the language because it is so


 

 

                                                   133

 

 

     1 offensive I think I need to read it.  And

 

     2 forgive me for this language.

 

     3                "He heard voices yelling, 'Want

 

     4 some cum, faggots?  Want to lick the cum out of

 

     5 our condoms?  You want to suck our dicks?  You

 

     6 like our cum, faggots?  We will kill you and

 

     7 your faggot dogs.  You want to report us,

 

     8 faggot?  Come out, faggots, we will kill you and

 

     9 your dogs.'  A man is running around the house,

 

    10 pounding on it, yelling, 'Homo, homo, homo,

 

    11 homo.  We don't want your kind here.  We've been

 

    12 here long, and you get the fuck out of our Town.

 

    13 Want to give them more of our condoms?  Did you

 

    14 like our dirty condoms?  We don't want you here,

 

    15 you village dick-lickers.  Get out of our Town.

 

    16 Show your faggot face, we will kill you.  We

 

    17 will kill you, faggots and your faggot dogs.'"

 

    18                Now, reading it doesn't quite

 

    19 capture it.  They're in a house.  It's dark.

 

    20 Someone is racing around the house and pounding

 

    21 on it.  They've heard this enormous bang.  There

 

    22 is a large mob out there.  Windows are rattling.

 

    23 Walls are being hit.  And this goes on, Tim will

 

    24 testify, for 12 minutes.

 

    25                Another caller calls in 911.


 

 

                                                   134

 

 

     1 Language coming from that firehouse, she says,

 

     2 is unbelievable.  That's Patricia Hjelm.

 

     3                People are calling 911.

 

     4 Something is going crazy.

 

     5                I could stop and say, "Can you

 

     6 picture that for 12 minutes?"  I would never

 

     7 make you sit here for 12 minutes because it

 

     8 would be way too long, but we can sit here for

 

     9 30 seconds.

 

    10                It went on 24 times longer than

 

    11 that interval that they were in there feeling

 

    12 that a mob was about to come into the house and

 

    13 do what they say, "We're going to come in and

 

    14 kill you."

 

    15                At some point Peter is awoken.

 

    16 He comes downstairs, groggy, confused.  He hears

 

    17 all the horrible things that are being said and

 

    18 at first can't understand it, thinks maybe there

 

    19 is some gang fight going on out there.  Then he

 

    20 realizes, "Tim, they're coming for us."  He

 

    21 tells him, "Get down on the floor," when he

 

    22 hears the walls rattling, banging.  "They might

 

    23 shoot.  There might be a rock coming through.

 

    24 Get down on the floor."

 

    25                They're terrified.  They're


 

 

                                                   135

 

 

     1 paralyzed with fear.  Grabbing the phone, Peter

 

     2 drops the phone.  Try to get through to 911.

 

     3 Finally they do get through to 911.  Peter calls

 

     4 the 911 operator.  We have that tape.  And twice

 

     5 he says, "You want to hear what they're saying?"

 

     6 He has the cell phone.  He could have held it

 

     7 up, and they would have had it on their 911

 

     8 reel.  They have no interest in that.  They have

 

     9 no -- "We will have someone out there."  They

 

    10 send the police out.

 

    11                Now, you know, a lot of this case

 

    12 is going to be about the Fire Department and its

 

    13 failure to protect these guys, my clients, their

 

    14 failure to fire the guys that did this, their

 

    15 failure to prevent this with a serious

 

    16 investigation and the Town leaders, their

 

    17 failure to take care of this problem, their

 

    18 deliberate indifference.

 

    19                The police, well, that's going to

 

    20 be more of a mixed matter.  I will say this for

 

    21 the police.  They came out there promptly when

 

    22 they got the call, they did.  But you'll see how

 

    23 it's mixed.

 

    24                Officer Ulrich responds, and he

 

    25 is on the porch with my client.  And my


 

 

                                                   136

 

 

     1 clients -- the three men who were leading the

 

     2 yelling, they're still out there.  The

 

     3 perpetrators are still out there.  They're

 

     4 yelling.  My client is trying to see, to get a

 

     5 look at them.  Ulrich stands there and blocks my

 

     6 client's view with his body.

 

     7                And when my client tries to tell

 

     8 Ulrich the details of these awful things that

 

     9 were being said, Ulrich doesn't even get that

 

    10 it's a bias crime.  He goes, "Whoa, whoa, whoa.

 

    11 I don't want to hear that kind of language."  He

 

    12 is not taking notes.

 

    13                But to Ulrich's credit, Ulrich

 

    14 goes down into the parking lot and identifies

 

    15 the three men who were yelling.  Chuck Snyder,

 

    16 Sr., Chuck Snyder, Jr., Charles Mutschler, two

 

    17 ex-captains and the current captain, Chuck,

 

    18 Chuck Snyder, Jr.  So there they are identified.

 

    19 He even takes a note of what they said where

 

    20 they admitted they were the ones yelling and

 

    21 screaming.  You'll see his report.  You'll hear

 

    22 his testimony.  That was a good thing.

 

    23                He arrests no one.  No one gets

 

    24 arrested.  Where does Chuck Snyder, Jr. work?

 

    25 Chuck Snyder, Jr., the fire captain, works as a


 

 

                                                   137

 

 

     1 Police dispatcher also, the Secaucus Police

 

     2 Department.  There is no way they're going to

 

     3 arrest Chuck Snyder, Jr., not for standing there

 

     4 and acting like a drunk in the public, not for

 

     5 disorderly conduct, not for yelling.  No one is

 

     6 getting arrested in Secaucus that night.

 

     7                And a sergeant comes on the

 

     8 scene, Sergeant Amodeo.  Sergeant Amodeo, to his

 

     9 credit, goes into the firehouse -- they're

 

    10 having the party -- make sure that the names of

 

    11 everyone there are taken down, to his credit.

 

    12 Gets a big barrel that's filled with empty

 

    13 liquor bottles to prove how they were drinking,

 

    14 make sure that's taken into Evidence, to his

 

    15 credit.

 

    16                Charles Mutschler is now in the

 

    17 firehouse.  He charges at Amodeo.  As Amodeo is

 

    18 telling them to all go home, disburse, he comes

 

    19 charging at him, has to be restrained.  What

 

    20 happens when a citizen charges at a cop?  Not

 

    21 firefighters.  Not only does Sergeant Amodeo not

 

    22 arrest Mutschler for attempting to assault him,

 

    23 he doesn't write in his report that that

 

    24 incident happened.

 

    25                Chuck Snyder, Sr. is there.  He


 

 

                                                   138

 

 

     1 says to Amodeo, "Who are you going to believe,

 

     2 those faggot cock-suckers or us?"  Well, there's

 

     3 some evidence that this is the guy that's using

 

     4 this language.  Does that end up in the report

 

     5 of Sergeant Amodeo?  Not the first time he

 

     6 writes it.  It's not there.  It's important to

 

     7 protect the firemen.  And they do.

 

     8                Two or three times Sergeant

 

     9 Amodeo tells the crowd to disburse.  And they,

 

    10 all these firefighters, disobey that order.

 

    11 What happens when a citizen disobeys a police

 

    12 officer's order?  They get arrested.  Not that

 

    13 day.  Volunteer firemen of the North End, well,

 

    14 they get a free pass.  Nobody is arrested that

 

    15 night.  Nobody is ever arrested.

 

    16                Next day there is a meeting, the

 

    17 Mayor and some of these firemen.  And at that

 

    18 meeting Chuck Snyder says, "Who are you going to

 

    19 believe, those faggot cock-suckers or us?"  Says

 

    20 that in front of the Mayor.  No problem.  Chuck

 

    21 Snyder, Sr. doesn't get fired.  No problem.

 

    22                But they did one thing good.  And

 

    23 again, I am going to credit the Police

 

    24 Department for this.  That night Police

 

    25 Department shut down the social wing of the


 

 

                                                   139

 

 

     1 firehouse.  They shut it down, said no more

 

     2 parties this week, you're shut down.  Good.  And

 

     3 during the next few days, while my clients were

 

     4 living in a state of terror, they felt like

 

     5 prisoners in their own house, scared to go out

 

     6 and God forbid they should run into one of these

 

     7 firemen, but at least there were no more

 

     8 incidents that week.

 

     9                What did these firefighters do

 

    10 when their -- their party headquarters is shut

 

    11 down?  These firefighters write a letter -- this

 

    12 is four days after the incident, April 29th,

 

    13 2004 -- to Chief Walters.

 

    14                "The alleged incident of 4/25

 

    15 that is being investigated has yet to be proven,

 

    16 and no charges have been filed."

 

    17                Now, mind you, what's going on?

 

    18 Charles Snyder, Sr. and Jr. and Charles

 

    19 Mutschler are refusing to talk to the police.

 

    20 They're refusing to talk to them and help with

 

    21 the investigation.  And now they're saying, hey,

 

    22 you haven't proved anything.

 

    23                What are all these other firemen

 

    24 doing?  They're talking to the police, but what

 

    25 are they saying?  We didn't see anything.  We


 

 

                                                   140

 

 

     1 didn't hear anything.

 

     2                Wait a minute.  Dee Bardini heard

 

     3 a gunshot.  Patricia Hjelm, a couple houses

 

     4 down, heard unspeakable language screamed.

 

     5 You're right there.

 

     6                We didn't hear anything.  We

 

     7 didn't see anything.

 

     8                Snyder is not talking.  Snyder,

 

     9 Sr. is not talking.  Snyder, Jr. is not talking.

 

    10 Mutschler is not talking.

 

    11                Now, they say, hey, you haven't

 

    12 proved anything.  Our company quarters have been

 

    13 closed for five days.  They feel this is unjust.

 

    14 "We, the members of Rescue 1 and Engine 2,

 

    15 hereby resign our membership, unless you reopen

 

    16 our firehouse by Sunday, May 2nd."

 

    17                The unbelievable arrogance of

 

    18 these firemen.  Here they all sign it.  Charles

 

    19 T. Snyder, Captain.  Matthew Kickey.  Chris

 

    20 Snyder.  Charles Mutschler.  Charles F. Snyder.

 

    21                What does the Fire Chief do?

 

    22 What does the Town do?  Here is a golden

 

    23 opportunity, isn't it?  They should have fired

 

    24 these guys for not cooperating with the

 

    25 investigation.


 

 

                                                   141

 

 

     1                Again, the Police Department, to

 

     2 its credit, to its credit, fired Chuck Snyder,

 

     3 Jr. from his dispatch role, saying you didn't

 

     4 cooperate with our investigation and it's clear

 

     5 you were at the scene of this incident.  To

 

     6 their credit, they showed the Fire Department

 

     7 what could have and should have been done.

 

     8                Not Frank Walters, Chief.  So

 

     9 what if they're not cooperating with the

 

    10 investigation?  He has the power to fire them.

 

    11 The Town Council and the Mayor have the power to

 

    12 fire them.  They don't fire them.  And now

 

    13 they're being told, hey, you don't reopen our

 

    14 party quarters, we're going to quit.

 

    15                And what should Frank Walters

 

    16 have done then?  "Here is your hat.  What's your

 

    17 hurry?  Yeah, go ahead and resign.  You're a

 

    18 bunch of thugs.  You're a mob.  You're lying to

 

    19 the cops.  Yes, thank you, good-bye."

 

    20                No.  The highest levels of Town

 

    21 government, showing deliberate indifference to

 

    22 the rights of two gay men, did something

 

    23 despicable.  This is April 30th, 2004, five days

 

    24 after the incident, one day after the firemen's

 

    25 letter.  He is writing to Chief Walters.  He is


 

 

                                                   142

 

 

     1 describing himself as the Town's Equal

 

     2 Employment Opportunity officer.  He says in that

 

     3 capacity he is required to review the incident

 

     4 which took place on the 25th.

 

     5                "Please be advised, as the EEO

 

     6 officer, I can't comment on the ongoing police

 

     7 investigation.  However, my initial review does

 

     8 not preclude, from a municipal compliance

 

     9 position of the Town, full use of this house

 

    10 without any restrictions."

 

    11                Copy to the Mayor Elwell; members

 

    12 of the Council; Frank Leanza, Town attorney;

 

    13 Police Chief Corcoran.  All these Town leaders

 

    14 are aware of this.  All these Town leaders

 

    15 approve of this.  They are about to reopen the

 

    16 social wing of this firehouse and let this mob

 

    17 back in, back in right next door to where my

 

    18 clients are living in terror, showing deliberate

 

    19 and callus disregard for the rights of these

 

    20 human beings.

 

    21                What happens next?  Well, it's

 

    22 inevitable.  Don't have to be a rocket

 

    23 scientist.  What happens next?  What happens the

 

    24 day after it opens, May 1st?  My clients call in

 

    25 down to the Mayor in a message that we have and


 

 

                                                   143

 

 

     1 we'll play for you, saying "Somebody is running

 

     2 around saying, 'The homos are home.  The homos

 

     3 are home.'"

 

     4                Now, the firemen have a new

 

     5 thing.  They park their cars with the nose

 

     6 facing into my clients' windows at night,

 

     7 shining the light for hours.  They drive by and

 

     8 say, "Faggot.  Hey, fag."

 

     9                Finally, one day my clients look

 

    10 out their window; and right across the street

 

    11 from the firehouse they have just seen two cars,

 

    12 one of which they recognize as having come from

 

    13 the firehouse parking lot.  Someone has sprayed,

 

    14 sprayed in big letters, "El Homo."

 

    15                Police investigate.  Chief

 

    16 Corcoran, who has done some good things, is

 

    17 reported in the police report to have said

 

    18 that's not a bias incident.  It's not treated as

 

    19 a bias incident.  The evidence isn't preserved;

 

    20 it's washed away.  There is no further

 

    21 investigation.

 

    22                My clients are sickened by all

 

    23 this.  And it goes on and on.  And they're

 

    24 desperately trying to find a place to move.

 

    25 Finally, after a bunch of months, sometime in


 

 

                                                   144

 

 

     1 November they move to Jersey City.  Goes on and

 

     2 on.  And you know, even without "El Homo" and

 

     3 the lights and the screaming, just the fact that

 

     4 these firemen who attacked them and attacked

 

     5 their home is scaring the hell out of these men,

 

     6 who were already fragile in many ways.  And it

 

     7 breaks them down, and it cracks them up.  And it

 

     8 brings home to roost all the ghosts and fears

 

     9 that a gay man has.

 

    10                In other words, manifested in

 

    11 crying jags or Tim not being able to sleep for

 

    12 literally days on end, weight gain, weight loss,

 

    13 horrible nightmares, Peter noticing that Tim to

 

    14 this day is always checking out the window, see

 

    15 if someone is coming, Peter paralyzed by

 

    16 depression, unable to get out of bed, can't get

 

    17 out of bed, loses his job, loses his career.

 

    18                They seek treatment.  They seek

 

    19 medical treatment.  They want to get up.  They

 

    20 want to get on their feet.  They are here today.

 

    21 They take medication.  When you have a pot on

 

    22 your head and someone bangs on it with hatred

 

    23 for 12 minutes and then months follow where you

 

    24 are being attacked and attacked and attacked and

 

    25 the Fire Chief can't seem to do anything to


 

 

                                                   145

 

 

     1 protect you, well, you know, it takes a toll.

 

     2                Did the Fire Chief even

 

     3 investigate this incident after it happened?

 

     4 Forget what the police are doing on their side

 

     5 of the fence.  You'll hear us -- you'll hear --

 

     6 I will put the chief on the stand, but you will

 

     7 hear us read his sworn testimony.

 

     8                Chief, can you tell me everything

 

     9 you did to investigate the incidents which took

 

    10 place during the early morning hours of April

 

    11 25th, 2004?

 

    12                "I had a very informal

 

    13 conversation with Captain Chuck Snyder and

 

    14 Lieutenant Johnson."

 

    15                "Chuck Snyder, Sr. or Jr.?"

 

    16                He says, "Junior."

 

    17                "Did you talk to Chuck Snyder,

 

    18 Sr.?"

 

    19                "No".

 

    20                "When you spoke with Chuck

 

    21 Snyder, Jr., what did he tell you?"

 

    22                "Basically, as I already said, it

 

    23 was just a general shouting match."

 

    24                "He admits he was yelling in the

 

    25 parking lot during the early morning hours of


 

 

                                                   146

 

 

     1 April 25th, 2004?"

 

     2                "Yes, I believe he was one of the

 

     3 yellers."

 

     4                Did he indicate who else was

 

     5 yelling in the parking lot that morning?

 

     6                "No."

 

     7                "Did you ask him?"

 

     8                "No."

 

     9                "Did you ask him whether he said

 

    10 anything gay or homophobic?"

 

    11                "No."

 

    12                Referring to his talk with

 

    13 Richard Johnson, "Chief, was he able to identify

 

    14 anyone who was standing in the parking lot

 

    15 yelling?"

 

    16                "I didn't ask him specifically

 

    17 who was there."

 

    18                Did you ask either one of these

 

    19 individuals anything about what happened that

 

    20 night?

 

    21                "No."

 

    22                "Not a single thing?"

 

    23                "No, other than I said an

 

    24 informal question of what took place."

 

    25                "Was there ever any kind of


 

 

                                                   147

 

 

     1 internal administrative investigation done

 

     2 within the Fire Department?"

 

     3                "We were waiting until the police

 

     4 investigation was completed.  And to my

 

     5 knowledge, it still hadn't been completed

 

     6 because we were never notified by them of the

 

     7 ends of its completion."

 

     8                "So the correct answer is no?"

 

     9                "Correct."

 

    10                "Did the Police Department ever

 

    11 tell you not to do your own investigation until

 

    12 after the police investigation was complete?"

 

    13                "No."

 

    14                Waiting until the police

 

    15 investigation ended to do an investigation, but

 

    16 the Police Department never told them to wait.

 

    17 He talks to these people, and he doesn't ask

 

    18 them who was there and what was said.  That's as

 

    19 phony as his investigation into the condoms.

 

    20 That's the chief of police, the policy-maker,

 

    21 high-level official showing deliberate

 

    22 indifference.

 

    23                Excuse me, if I misspoke.  Fire,

 

    24 Fire Chief, pardon me.

 

    25                And why, aside from just common


 

 

                                                   148

 

 

     1 decency?  One of the reasons he never did

 

     2 anything -- and I won't read you this

 

     3 transcript, but you will hear me read it during

 

     4 the trial -- this Fire Chief was never trained.

 

     5 Here we are in the 21st century, this guy was

 

     6 never trained.  The volunteer Fire Department

 

     7 was never trained before this incident about

 

     8 discrimination, harassment.  No training.

 

     9                What will the Town say?  I don't

 

    10 know exactly what my friend Mr. Bevere is going

 

    11 to say.  And he is a good lawyer.  One thing

 

    12 they're going to say or have to say at some

 

    13 point in the trial is they're going to have to

 

    14 refer to the law in the case.  The law -- one of

 

    15 the aspects is, well, was what these guys were

 

    16 doing under what's called "color of State law"

 

    17 or "color of law"?  They'll say, perhaps, "Hey,

 

    18 why should the Town be responsible?  This was

 

    19 just a bunch of firemen off on a fling after

 

    20 hours."  The judge will give you the law on

 

    21 this.

 

    22                One aspect you're going to look

 

    23 at is was it under color of law?  This was an

 

    24 official Town-sponsored party, authorized in

 

    25 writing by the highest levels of the Town.


 

 

                                                   149

 

 

     1                The attack on my clients took

 

     2 place on Town property, Town -- the firehouse

 

     3 parking lot and spilled out from the firehouse

 

     4 building, itself.

 

     5                The men who led the attack,

 

     6 Mutschler and the two Snyders, were the leaders

 

     7 of the mob because of the power and authority

 

     8 vested in them as captains by the Town of

 

     9 Secaucus.  This is not some incident that

 

    10 happened in a party, say, up in the Bronx, bunch

 

    11 of Secaucus firemen go up to the Bronx, have a

 

    12 party, do something stupid.

 

    13                And when Sergeant Amodeo went

 

    14 into the firehouse and told Snyder to get out,

 

    15 here is something Snyder insisted.  Snyder

 

    16 insisted, "Hey, I'm on-duty here.  I'm on-call."

 

    17 So if somebody comes here and says to you that

 

    18 these men were off-duty, I promise you, I will

 

    19 produce the testimony of Sergeant Amodeo under

 

    20 oath saying that Snyder insisted to him that he

 

    21 was on-duty.  These actions happened while

 

    22 on-duty under color of State law.

 

    23                You may hear reference to our

 

    24 obligation to prove that what these firemen did

 

    25 flowed somehow from the high-level Town policies


 

 

                                                   150

 

 

     1 and practices.  And of course, it did.  If the

 

     2 chief of the Fire Department had done what he

 

     3 ought to have done about those condoms, he

 

     4 probably would have fired a bunch of the guys

 

     5 that ended up leading this mob.  Any reasonable

 

     6 employer would have done that; but he did a

 

     7 phony, sham investigation designed to cover it

 

     8 up.  He didn't want to get to the bottom of it.

 

     9 Then he let this party happen, in the face of

 

    10 condoms being thrown on a neighbor's property.

 

    11                So, yeah, when a high-level

 

    12 policy-making official acts, that is a Town

 

    13 policy.  Town policies don't have to be written.

 

    14 And when the high -- when the Fire Chief chose

 

    15 not to fire these firemen, when they were

 

    16 refusing to cooperate with the cops and he left

 

    17 them in place, when they allowed the firehouse

 

    18 to reopen, that was Town policy from -- from the

 

    19 top.

 

    20                You may hear the Town say, look,

 

    21 the police, in the course of doing some good

 

    22 work, ultimately brought in the State to

 

    23 investigate this bias crime.  And they did.  And

 

    24 you know, they brought them in.  And when they

 

    25 did, to the credit of the Police Department,


 

 

                                                   151

 

 

     1 they kept in touch with the State Police.  If

 

     2 another incident happened, they would forward a

 

     3 report up there.

 

     4                But here is the thing.  So they

 

     5 would say, well, how could -- how could we have

 

     6 taken any action against these guys because the

 

     7 State had?  We have to pay attention to detail

 

     8 here.  The incident happened on April 25th,

 

     9 2004.  The State did not take over until May

 

    10 10th or 11th, 2004.  That's 15 days.

 

    11                During those 15 days the police

 

    12 were wise enough to fire Chuck Snyder, Jr.

 

    13 Okay.  During -- they had the right to do it

 

    14 because the State hadn't taken over yet.  It was

 

    15 in Secaucus' hands still.  But did the Fire

 

    16 Department fire anyone for having participated

 

    17 in this mob, for refusing to cooperate, for

 

    18 threatening to resign?  They fired no one during

 

    19 that period.

 

    20                Then the State took over the

 

    21 investigation.  They took it over from, as I

 

    22 say, May 10th, '04 until they finished it up on

 

    23 July '05.  And of course, they're working under

 

    24 criminal justice standards, can we prove the

 

    25 identity of these guys beyond a reasonable


 

 

                                                   152

 

 

     1 doubt, which is not your standard here.  Here

 

     2 it's a lower standard.  Is it more likely than

 

     3 not that these men did this?

 

     4                Well, what did the police have to

 

     5 work with, the State Police?  They had the file

 

     6 of Secaucus, and also they did their own

 

     7 investigation.  What did they face?  A blue wall

 

     8 of silence, right?  Just look at the State

 

     9 Police -- look at the police reports.  None of

 

    10 these firemen saw anything.  None of them heard

 

    11 anything.  Mutschler and the Snyders, they ain't

 

    12 talking.

 

    13                Of course, by July 10th, 2005 the

 

    14 State writes and say, look, we haven't developed

 

    15 sufficient evidence to identify these men; but

 

    16 anything else arises, let us know.  So then it

 

    17 was back in Secaucus' hands.

 

    18                From July of 2005 to the present,

 

    19 three years, Secaucus has had this case.  Have

 

    20 they fired any of these firemen?  No.  Have they

 

    21 brought charges against any of these firemen?

 

    22 No.

 

    23                Tell you what they did.  Number

 

    24 one of the ring leaders, one of the mob leaders

 

    25 was Chuck Snyder, Jr.  He is identified as such


 

 

                                                   153

 

 

     1 in several places, including Officer Patrolman

 

     2 Ulrich's report.  He is there on the scene,

 

     3 caught red-handed.

 

     4                At the end of 2006 Secaucus Town

 

     5 Council and Mayor took Chuck Snyder, Jr. and

 

     6 promoted him to one of the highest positions in

 

     7 the Fire Department.  They made him battalion

 

     8 chief.  That puts him automatically in line to

 

     9 become the full chief of an entire Fire

 

    10 Department.  That's the Town Council and the

 

    11 Mayor saying, "You're fine.  You led a mob of

 

    12 drunken, homophobic thugs to attack people; and

 

    13 you drove them out of their home.  We say you're

 

    14 fine.  Some day you can be our chief."

 

    15                Ladies and Gentlemen of the Jury,

 

    16 I will have to show you that high-level Town

 

    17 officials acted with deliberate indifference of

 

    18 the Civil Rights of my clients.  I will prove

 

    19 everything I have told you.  And the evidence

 

    20 will be overwhelming.  Secaucus should be

 

    21 ashamed of itself that it violated the Civil

 

    22 Rights of two quiet and honorable gay men.

 

    23 Thank you.

 

    24               JUDGE CURRAN:  Thank you.

 

    25                Mr. Bevere.


 

 

                                                   154

 

 

     1               MR. BEVERE:  Thank you, Your

 

     2 Honor.  Ladies and Gentlemen, before I start I

 

     3 want to make one thing clear.  If what happened

 

     4 in the parking lot that morning is what the

 

     5 plaintiffs say, then it was terrible, it was

 

     6 hateful, it was bigoted, it was inexcusable.

 

     7 And if you think that Mr. Paris and I are here

 

     8 to defend that conduct, we are not.  That is not

 

     9 what this case is about because if that's what

 

    10 this case was about, the plaintiffs would be

 

    11 suing the people who they say did -- did these

 

    12 things.  But they haven't sued them.  They have

 

    13 not brought them before you to judge them or to

 

    14 hold them accountable for their actions.

 

    15                We are here, Mr. Paris and I, to

 

    16 defend the Town of Secaucus because the

 

    17 plaintiffs want the Town of Secaucus to be

 

    18 responsible for what happened in the parking lot

 

    19 that morning.  And they want the Town of

 

    20 Secaucus to pay them money for it.

 

    21                Well, the Town of Secaucus is not

 

    22 responsible for what happened in the parking lot

 

    23 that morning, and the Town of Secaucus should

 

    24 not be paying them money.  A Town is not

 

    25 responsible for every act that is committed by


 

 

                                                   155

 

 

     1 an employee or a volunteer simply because they

 

     2 happen to work for the Town.  And that's

 

     3 particularly true when that act occurs on the

 

     4 employee's own time, like after a party on a

 

     5 Saturday night.

 

     6                The Town of Secaucus is

 

     7 responsible for the Town of Secaucus' action.

 

     8 And as the evidence in this case will show, the

 

     9 Town of Secaucus did not violate Mr. deVries or

 

    10 Mr. Carter's Civil Rights.

 

    11                Now, Ladies and Gentlemen, trials

 

    12 are about facts and evidence.  Mr. Mullin's job

 

    13 in his opening statement was to get your

 

    14 attention right away, to make you feel sympathy

 

    15 for his clients and contempt for the Town of

 

    16 Secaucus.  But that doesn't make one word of

 

    17 what he said in this opening statement fact.

 

    18 Facts come from the evidence in the case.  And

 

    19 the evidence in the case comes from the

 

    20 testimony of the witnesses you see on the stand,

 

    21 from the documents and the photographs and the

 

    22 other hard evidence that is put in in this case

 

    23 from either side.

 

    24                Again, the plaintiffs have told

 

    25 you what they would like you to believe the


 

 

                                                   156

 

 

     1 facts will be.  But it is your job, your job to

 

     2 determine the facts based solely upon the

 

     3 evidence that you hear coming from this witness

 

     4 stand.

 

     5                Now, Ladies and Gentlemen, when

 

     6 you hear the testimony of the witnesses in this

 

     7 case, when you see the documents and the other

 

     8 physical evidence, there will be certain truths,

 

     9 certain facts that will be inescapable.

 

    10                First, that no act of harassment

 

    11 was ever committed by a Secaucus employee or a

 

    12 volunteer firefighter for the purpose of

 

    13 carrying out their job or while performing their

 

    14 job for the Town.  And that's vital.  That's a

 

    15 vital aspect of this case.

 

    16                Second, that it was certainly

 

    17 not -- well, first of all, that the Town of

 

    18 Secaucus did not condone, did not authorize, did

 

    19 not sanction any act of harassment.  The Town of

 

    20 Secaucus in no way assisted in its commission;

 

    21 and it certainly was not the municipal custom,

 

    22 practice or policy of the Town of Secaucus to

 

    23 allow its employees to engage in acts of

 

    24 harassment, bias or otherwise against any

 

    25 citizen.


 

 

                                                   157

 

 

     1                And third, the Town of Secaucus

 

     2 did not discriminate against the plaintiffs.

 

     3                Now, Ladies and Gentlemen, there

 

     4 are certain facts, other facts that the evidence

 

     5 will show.  That for two-and-a-half years that

 

     6 Mr. deVries and Mr. Carter lived next to this

 

     7 firehouse prior to April 25th, 2004, no one from

 

     8 that firehouse made any derogatory remark or

 

     9 comment to them at all, let alone a derogatory

 

    10 remark or comment based upon their sexuality.

 

    11 There is absolutely no evidence of any antigay

 

    12 or bias comments coming out of any fireman's

 

    13 mouth to them prior to that night.

 

    14                Now, with regard to this

 

    15 complaint about the condom, Mr. Carter made a

 

    16 phone call to the Town to complain that one

 

    17 morning he got up and he found a condom in his

 

    18 yard.  He believed that the condom had come

 

    19 there from the Fire Department parking lot.

 

    20 Now, Mr. Carter at the time -- even Mr. Carter

 

    21 didn't consider the finding of that condom to be

 

    22 an act of antigay harassment.  And he certainly

 

    23 didn't think that it was serious enough to file

 

    24 a police report or even call the police.

 

    25                The complaint made its way to the


 

 

                                                   158

 

 

     1 deputy chief of the Fire Department.  He will

 

     2 testify for you in this trial.  He will tell you

 

     3 from his mouth how he dealt with the complaint

 

     4 and how he believed that he had resolved it and

 

     5 that he was comfortable and confident in that

 

     6 belief because, guess what, there was not one

 

     7 report of a condom being thrown thereafter.

 

     8                Now, I want to talk about the

 

     9 night or the morning of April 25th, 2004.  The

 

    10 evidence will show that the firemen were not

 

    11 working that night.  They were having a party.

 

    12 That party had been started at a restaurant in

 

    13 Cliffside Park.  The Town did not organize the

 

    14 party.  The Town did not pay for the party.

 

    15 This was their party.  This was their private

 

    16 party.

 

    17                What happened in the parking lot

 

    18 that morning happened as firefighters and their

 

    19 dates were walking from the vehicles they had

 

    20 gone to the restaurant in and back into the

 

    21 firehouse to continue their party.  Not working,

 

    22 having a party, a party for which they had to

 

    23 get written permission to use the firehouse that

 

    24 night.  They had to get written permission the

 

    25 same as any private citizen in Secaucus would


 

 

                                                   159

 

 

     1 have to get if they wanted to use the firehouse

 

     2 for a wedding or a christening or a birthday

 

     3 party.

 

     4                What happened in the parking lot

 

     5 that morning, Ladies and Gentlemen, was not an

 

     6 organized or planned mob attack, as the

 

     7 plaintiff said.  What happened in the parking

 

     8 lot that morning was a spontaneous reaction of a

 

     9 person or persons very badly behaved and most

 

    10 likely drunk to Mr. Carter's question that they

 

    11 keep the noise level down.

 

    12                Now, the police -- and I credit

 

    13 Mr. Mullin for acknowledging this -- responded

 

    14 immediately upon receipt of the 911 calls.  Not

 

    15 one but two officers were dispatched to the

 

    16 scene, plus a supervisor.  Whatever had been

 

    17 going on in the parking lot was no longer going

 

    18 on when the police officers arrived, so they

 

    19 personally did not witness any such conduct.

 

    20 Didn't personally witness any acts of bias,

 

    21 harassment, which is vital when you judge the

 

    22 police officers' conduct in this matter.

 

    23                Now, upon arrival at the scene

 

    24 the police officers went to Mr. deVries and

 

    25 Mr. Carter's home to get information about the


 

 

                                                   160

 

 

     1 complaint and to make sure that they didn't need

 

     2 medical attention, which they didn't.  No person

 

     3 had been physically injured.  No property was

 

     4 damaged.  There had been no physical contact

 

     5 between anyone in the parking lot and

 

     6 Mr. deVries or Mr. Carter.

 

     7                The plaintiffs were asked if they

 

     8 could identify anyone involved, and they said

 

     9 no.

 

    10                Now, the responding -- and they

 

    11 certainly, Ladies and Gentlemen, Mr. deVries and

 

    12 Mr. Carter certainly didn't report that a gun

 

    13 had been fired or that they had heard a gunshot.

 

    14                The responding supervisor,

 

    15 Lieutenant Amodeo, he spent a significant time

 

    16 with Mr. deVries and Mr. Carter in their home by

 

    17 all accounts, between a half-an-hour and an

 

    18 hour, getting information from them about their

 

    19 complaint and trying to make them feel

 

    20 comfortable.

 

    21                Now, Sergeant Amodeo prepared a

 

    22 detailed report reciting all of the language and

 

    23 all of the behavior that Mr. deVries and

 

    24 Mr. Carter said occurred that night.  Now, is

 

    25 this an officer who is trying to cover up?


 

 

                                                   161

 

 

     1                The initial responding officer,

 

     2 Officer Ulrich, he puts the names of the three

 

     3 individuals that he saw in the parking lot in

 

     4 his report.  Now, does that sound like an

 

     5 officer who is trying to -- to cover something

 

     6 up and make sure that somebody doesn't get in

 

     7 any kind of trouble?

 

     8                Now, when Sergeant Amodeo left

 

     9 the plaintiffs' home to go to the firehouse, he

 

    10 gave the plaintiffs his cell phone number, his

 

    11 personal cell phone number.  He said, "If you

 

    12 have any problems, any issues, give me a call on

 

    13 the cell phone.  It will be on all night long."

 

    14 And guess what, they took him up on it.  They

 

    15 called him on that cell phone later on in the

 

    16 night just to talk about what had happened.

 

    17                Now, Sergeant Amodeo and the

 

    18 responding officers went to the firehouse.  They

 

    19 got the names and addresses of every person in

 

    20 that firehouse, so that the Detective Bureau,

 

    21 the department of the Secaucus Police Department

 

    22 with the most experience in investigating

 

    23 crimes, could do their job.

 

    24                But most importantly, the reason

 

    25 that lieutenant -- then sergeant, now Lieutenant


 

 

                                                   162

 

 

     1 Amodeo got everyone's names and cleared that

 

     2 house was because he knew that the plaintiffs

 

     3 were uncomfortable.  He wanted to remove any

 

     4 potential source of friction between people in

 

     5 that firehouse that night and the plaintiffs.

 

     6 So even though the people using the firehouse

 

     7 that night had had a written permit, as any

 

     8 private citizen would have, to stay there and

 

     9 have a party, Sergeant Amodeo said, "I don't

 

    10 care.  You're all getting out, and you're going

 

    11 home.  I don't want to hear anything about it."

 

    12                And was there some resistance

 

    13 initially from people who had been drinking to

 

    14 leaving the firehouse?  Yeah, there was some

 

    15 resistance at that.  But did everybody go?

 

    16 Everybody went.  Even Mr. Snyder, who said, "Oh,

 

    17 I can't go, I'm on-duty" after he had been

 

    18 drinking.  Well, he certainly wasn't on-duty.

 

    19 And I can tell you category clear here, no one

 

    20 in that firehouse was on-duty that night.  They

 

    21 were at a party.

 

    22                Now, Ladies and Gentlemen -- oh,

 

    23 another vital and important fact.  Just to make

 

    24 sure, just to make sure that nothing else would

 

    25 happen that night, do you know what Lieutenant


 

 

                                                   163

 

 

     1 Amodeo did?  He posted a guard.  He posted a

 

     2 guard outside the plaintiffs' house in the

 

     3 parking lot.  Posted a guard so that they would

 

     4 be protected from any potential further incident

 

     5 of harassment, comment, whatever.  He made sure

 

     6 they were protected.

 

     7                Does this sound like a man who

 

     8 was deliberately indifferent?  Does this sound

 

     9 like a man who didn't care about Mr. deVries and

 

    10 Carter?  Does this sound like a man who was

 

    11 biased or prejudiced against gay people?  He did

 

    12 everything in his power that night to make sure

 

    13 they were comfortable and that they were

 

    14 protected.

 

    15                Now, Ladies and Gentlemen -- oh,

 

    16 another thing Lieutenant Amodeo did was he put

 

    17 the plaintiffs' house on what's called "priority

 

    18 check," which meant that every hour a zone

 

    19 officer was supposed to drive by and make sure

 

    20 that the plaintiffs' house was okay, that there

 

    21 was nothing going on.  And guess what; the very

 

    22 next morning -- the very next morning the Chief

 

    23 of Police of Secaucus issued a memo to its

 

    24 officers renewing that priority check.  And the

 

    25 plaintiffs' house stayed on priority check for


 

 

                                                   164

 

 

     1 the rest of the time that they were living in

 

     2 Secaucus.

 

     3                Does this sound like a man who

 

     4 was deliberately indifferent to the rights of

 

     5 Mr. deVries and Mr. Carter?  Does this sound

 

     6 like a man who wanted them to get hurt, who

 

     7 wanted to drive them out of the community?

 

     8 Absolutely not, Ladies and Gentlemen.

 

     9                Now, the evidence will also show

 

    10 that on the very morning of the incident, Sunday

 

    11 morning, a meeting was held at Town Hall.  The

 

    12 purpose -- the Mayor was there.  The deputy

 

    13 Mayor was there.  A Police Chief was there.  The

 

    14 three fire chiefs were there.  Chief, deputy

 

    15 chief, battalion chief, they were all there.

 

    16 And the officers of Engine 2 were there.

 

    17                And the purpose of the meeting,

 

    18 the purpose of the meeting was to inform the

 

    19 members of Engine 2 that whatever had happened

 

    20 in the parking lot that night -- there had been

 

    21 a report, a complaint by Mr. deVries and

 

    22 Mr. Carter -- it was going to be investigated as

 

    23 a bias crime and that the Hudson County

 

    24 Prosecutor's Office was going to be notified and

 

    25 their involvement in the investigation was going


 

 

                                                   165

 

 

     1 to be requested.

 

     2                Now, does that sound like a group

 

     3 of people that were deliberately indifferent,

 

     4 that were biased or prejudiced or wanted to have

 

     5 harm come to Mr. deVries and Mr. Carter?  Ladies

 

     6 and Gentlemen, absolutely not.

 

     7                After that meeting was over the

 

     8 Mayor, the Police Chief and the Fire Chief went

 

     9 to Mr. deVries and Carter's home for the purpose

 

    10 of telling them that the Town was taking the

 

    11 matter seriously, that it was going to be the

 

    12 subject of a criminal investigation; and

 

    13 Mr. deVries and Mr. Carter refused to speak to

 

    14 them.

 

    15                That very morning before they

 

    16 knew anything that the police were doing or

 

    17 anything the Town was going to do, they refused

 

    18 to speak to the Town officials that went there

 

    19 to try to tell them that, yes, this matter is

 

    20 going to be investigated as a criminal act.  And

 

    21 we are even going to seek the intervention of a

 

    22 higher authority to get to the bottom of this.

 

    23                Now, Ladies and Gentlemen, the

 

    24 Secaucus Detective Bureau, this is the

 

    25 department, the agency within Secaucus within


 

 

                                                   166

 

 

     1 the entire Town of Secaucus who is best suited

 

     2 to conducting criminal investigations.  And

 

     3 guess what; they launched a criminal

 

     4 investigation into this matter.  They

 

     5 interviewed every single person at that

 

     6 firehouse who agreed to speak to them.

 

     7                They don't interview -- they

 

     8 couldn't make people give statements who didn't

 

     9 want to speak to them.  That's the law.  If

 

    10 someone says, "I don't want to speak to the

 

    11 police," there is nothing the police can do

 

    12 about that.  However, they certainly interviewed

 

    13 everybody who agreed to speak to them.

 

    14                They interviewed people who

 

    15 weren't at the firehouse that night.  They

 

    16 canvassed the neighborhood to see if any of

 

    17 the -- the other persons in the community had

 

    18 any information about the incident.  And no one

 

    19 did.

 

    20                They photographed the scene.

 

    21 Those photographs got logged into Evidence.

 

    22                The alcohol bottles that

 

    23 Sergeant -- that Lieutenant Amodeo seized when

 

    24 he left the firehouse that morning got

 

    25 photographed and logged into Evidence.


 

 

                                                   167

 

 

     1                Now, does this look like a

 

     2 department who is trying to cover up a blue wall

 

     3 of silence?  Everything is in those reports.

 

     4 And I'll tell you about the importance of that

 

     5 in a few minutes.

 

     6                The evidence will show that at

 

     7 least twice during the brief period of time that

 

     8 the Secaucus Police Department had this

 

     9 investigation the Secaucus Police Department

 

    10 requested the intervention of the Hudson County

 

    11 Prosecutor's Office.  They asked the Hudson

 

    12 County Prosecutor's Office to convene a Grand

 

    13 Jury.  And why?  Because the Secaucus Police

 

    14 Department knows that they can't compel

 

    15 witnesses to speak.  But the Hudson County

 

    16 Prosecutor's Office can convene a Grand Jury,

 

    17 and they can make people come down and give

 

    18 testimony.

 

    19                They tried twice during the

 

    20 course of the investigation to get the

 

    21 Prosecutor's Office to do that.  The Attorney

 

    22 General's Office advised the Secaucus Police

 

    23 Department on May 10th or May 11th, 2004 that

 

    24 they were taking over the criminal investigation

 

    25 and that the Town of Secaucus was not to do any


 

 

                                                   168

 

 

     1 further investigation with regard to the

 

     2 incident.

 

     3                Now, vitally and crucially, the

 

     4 Secaucus Police Department gave to the Attorney

 

     5 General's Office their entire file.  Every

 

     6 report, every piece of evidence, every witness

 

     7 statement went to the Attorney General for use

 

     8 in their investigation.  The Attorney General's

 

     9 Office conducted an investigation.  The Grand --

 

    10 the Attorney General's Office convened a Grand

 

    11 Jury.  The Attorney General's Office closed

 

    12 their investigation for insufficient evidence to

 

    13 show who did or said what that evening.  The

 

    14 Attorney General's Office had every piece of

 

    15 information that was generated by the Secaucus

 

    16 Police Department.

 

    17                And Ladies and Gentlemen, that

 

    18 doesn't stop with the incident of April 25th.

 

    19 Every time that Mr. deVries and Mr. Carter

 

    20 contacted the Police Department thereafter and

 

    21 complained that -- well, let me say this.  After

 

    22 Mr. deVries and Mr. Carter were in the

 

    23 newspapers talking about the incident,

 

    24 Mr. deVries and Mr. Carter reported that cars

 

    25 drove past them and people yelled from those


 

 

                                                   169

 

 

     1 cars antigay remarks to them.

 

     2                Every time Mr. deVries and

 

     3 Mr. Carter contacted the Secaucus Police to

 

     4 report what they believed to be an incident of

 

     5 harassment that took place after April 25th,

 

     6 2004, the Secaucus Police sent an officer who

 

     7 prepared a detailed report.  A follow-up

 

     8 investigation was performed by the Secaucus

 

     9 Detective Bureau.  And all documentation was

 

    10 sent to the Attorney General's Office.

 

    11                In fact, you will hear evidence

 

    12 that when Mr. deVries and Mr. Carter --

 

    13 Mr. deVries or Mr. Carter reported one of those

 

    14 vehicles, the physical description of that

 

    15 vehicle each time was recorded.  And not only

 

    16 was it put in a report, but members of the

 

    17 Secaucus Detective Bureau ran Motor Vehicle

 

    18 checks of Town employees and volunteer

 

    19 firefighters to see if any of those vehicles

 

    20 matched the description of any vehicles owned by

 

    21 these individuals.  And none did.

 

    22                They made checks of Secaucus Fire

 

    23 Department parking lots and Town DPW parking

 

    24 lots to see if they could identify any of these

 

    25 vehicles that Mr. Carter, Mr. deVries claimed


 

 

                                                   170

 

 

     1 people yelled from on the street.  And there

 

     2 were no vehicles matching any of these

 

     3 descriptions.

 

     4                The one time that Mr. deVries and

 

     5 Mr. Carter provided a license plate number, it

 

     6 came back as not even on file with the DMV.

 

     7 Now, Ladies and Gentlemen, the point of all this

 

     8 is that does this sound like a Police Department

 

     9 that doesn't care?  Does this sound like a Town

 

    10 that is deliberately indifferent, that is trying

 

    11 to cause harm to Mr. deVries and Mr. Carter?

 

    12                Now, Ladies and Gentlemen, the

 

    13 plaintiffs have claimed in this case that they

 

    14 have been singled out for unfair or unequal

 

    15 treatment by the Town of Secaucus because they

 

    16 are gay.  Nothing could be further from the

 

    17 truth.  And quite frankly, the Town of Secaucus,

 

    18 we're offended at that allegation.

 

    19                The plaintiffs will not come to

 

    20 you with any evidence as to how any other

 

    21 criminal act was handled by police and law

 

    22 enforcement authorities at all, let alone that

 

    23 they were somehow treated differently because

 

    24 they were gay.  And that's because they weren't

 

    25 treated differently.  It wasn't treated


 

 

                                                   171

 

 

     1 differently because they were gay.

 

     2                They will not present you with

 

     3 testimony of any law enforcement officer who

 

     4 will come before you and say that anything that

 

     5 the police did or failed to do that morning of

 

     6 the 25th or any subsequent day was somehow

 

     7 improper under the given circumstances, and

 

     8 that's because it wasn't.

 

     9                They argue the Town conducted no

 

    10 investigation in the matter and did not bring

 

    11 any discipline against anyone.  Ladies and

 

    12 Gentlemen, the Town conducted investigation.

 

    13 The Police Department, the department of the

 

    14 Town, once again, with the most experience, the

 

    15 best suited to handle investigating and

 

    16 allegation of criminal conduct, handled the

 

    17 investigation.  The Attorney General's Office,

 

    18 using all of its skill and resources, conducted

 

    19 an investigation.

 

    20                And as far as failure to bring

 

    21 discipline, we will present to you evidence that

 

    22 the Town, the Fire Chief, Town Administrator's

 

    23 Office, everyone was instructed first by their

 

    24 Town attorney and then by the Attorney General's

 

    25 Office that they were not to conduct any


 

 

                                                   172

 

 

     1 investigations, they were not to take any

 

     2 discipline or administrative action against

 

     3 anyone because there was a pending criminal

 

     4 investigation and anything that the Town did in

 

     5 addition or aside or complimentary to the police

 

     6 investigation could have the ability to impede

 

     7 and contaminate that investigation.

 

     8                So the directive came -- want to

 

     9 talk about high-level policy decisions?  The

 

    10 decisions that were made at high -- at the

 

    11 highest levels, including the highest levels of

 

    12 the State of New Jersey, said you are to do

 

    13 nothing.  This matter is to proceed solely as a

 

    14 criminal investigation.

 

    15                Now, Ladies and Gentlemen, the

 

    16 evidence will also show that the Town of

 

    17 Secaucus did take the plaintiffs' complaint

 

    18 seriously.  In addition to all of the things

 

    19 that the Police Department did, not only to

 

    20 investigate but to protect Mr. deVries and

 

    21 Carter, in addition to those things and keeping

 

    22 in mind the fact that the Town was told that

 

    23 they could not conduct any separate

 

    24 investigation, could not bring any discipline

 

    25 because of the pending criminal investigation,


 

 

                                                   173

 

 

     1 notwithstanding those things the Town did do,

 

     2 Town did do what it can do, it did take the

 

     3 complaint seriously.

 

     4                Number one, that firehouse was

 

     5 shut down for five days after the incident.

 

     6 That firehouse was shut down the morning of the

 

     7 incident and it stayed closed for five days.

 

     8 Now the plaintiffs complain it was reopened, and

 

     9 they will tell you it was some willy-nilly

 

    10 knee-jerk decision by the Town to --

 

    11 deliberately indifferent to their client.

 

    12 Nothing could be farther from the truth.

 

    13                The Town at the -- the decision

 

    14 to reopen that firehouse -- oh, and -- I'm

 

    15 sorry.  And one thing that the plaintiffs will

 

    16 not be able to show -- and that's because it's

 

    17 not true -- is that the decision to reopen that

 

    18 firehouse was in any way designed or intended to

 

    19 cause Mr. deVries and Mr. Carter harm.  In fact,

 

    20 the evidence will show that the decision to

 

    21 reopen the firehouse was one that was made after

 

    22 careful consideration and the balancing of the

 

    23 interests of everyone involved, including the

 

    24 plaintiffs, but also of the volunteer firemen,

 

    25 innocent until proven guilty, investigation


 

 

                                                   174

 

 

     1 going on.  But certainly had to consider the

 

     2 fact that not every fireman was involved, not

 

     3 every fireman was even there that night.  And

 

     4 quite frankly, Town had to make a decision.

 

     5                And in addition to considering

 

     6 the rights of the Mr. deVries and Mr. Carter and

 

     7 in addition to considering the fact that, yes,

 

     8 no one had been charged with a crime, it was

 

     9 still under investigation, not everyone who was

 

    10 a member of that company was involved or was

 

    11 even there that night.  But in addition to that,

 

    12 the Town had to take into consideration the fact

 

    13 these guys are volunteers.  They donate their

 

    14 time.  They put their lives on the line.  They

 

    15 sacrifice themselves and their families every

 

    16 time an emergency call comes in.  They put their

 

    17 lives on the line.  And the Town had to factor

 

    18 that into its decision too, as well as the

 

    19 interests of the department and the community as

 

    20 a whole.

 

    21                So no, it was -- it was not a

 

    22 knee-jerk reaction to reopen the firehouse.  And

 

    23 it certainly wasn't a decision that was made to

 

    24 cause Mr. deVries and Mr. Carter harm.

 

    25                In addition the firehouse being


 

 

                                                   175

 

 

     1 closed for that period of time, the Town -- Mr.

 

     2 Mullin complains about the fact that there was

 

     3 no harassment or discrimination training for

 

     4 volunteer firefighters prior to April 25th.

 

     5 Well, Ladies and Gentlemen, when this incident

 

     6 happened -- when this incident happened the Town

 

     7 made it mandatory for every volunteer

 

     8 firefighter to attend harassment discrimination

 

     9 now you -- training.  Made it mandatory.

 

    10                Now, does that sound like a Town

 

    11 that doesn't care, that is deliberately

 

    12 indifferent, that is not taking what happened in

 

    13 the parking lot that night seriously or

 

    14 Mr. deVries and Mr. Carter's complaint

 

    15 seriously?  Does that sound like deliberate

 

    16 indifference to you?

 

    17                Ladies and Gentlemen, perhaps

 

    18 most significantly, the plaintiffs will not

 

    19 present to you one iota of proof that this

 

    20 incident received any less of a response from

 

    21 police or municipal perspective to -- excuse me,

 

    22 that this incident did not really -- my mouth

 

    23 got a little dry.  If you don't mind, I am going

 

    24 to get a little water.  I apologize.

 

    25                The plaintiffs will not present


 

 

                                                   176

 

 

     1 to you one iota of proof that this incident

 

     2 received any less of a municipal response by the

 

     3 Police Department or the Town to any other

 

     4 report of criminal conduct, let alone that

 

     5 Mr. deVries and Mr. Carter were singled out

 

     6 because they were gay.  It's just not true.

 

     7 You -- this is not a Town that didn't care.

 

     8 This is not a Town that was deliberately

 

     9 indifferent.  This is not a Town that washed its

 

    10 hands of the -- of the situation.

 

    11                Now, while I don't believe that

 

    12 you are going to need to reach the issue of

 

    13 damages or injury to this case because the Town

 

    14 of Secaucus is not liable, the Town of Secaucus

 

    15 did not violate Mr. deVries and Mr. Carter's

 

    16 Constitutional rights, you will hear testimony

 

    17 in this case about depression and posttraumatic

 

    18 stress disorder.  And Mr. deVries and Mr. Carter

 

    19 are both claiming that they suffered

 

    20 posttraumatic stress disorder from what happened

 

    21 in the parking lot that morning.  In fact,

 

    22 Mr. deVries is claiming that about a year after

 

    23 the incident he had to leave his job, no longer

 

    24 able to work.  And he is blaming the Town for

 

    25 that, and he wants the Town to compensate him


 

 

                                                   177

 

 

     1 for that.

 

     2                Ladies and Gentlemen, I would ask

 

     3 that you listen to the medical testimony on

 

     4 depression, posttraumatic stress disorder.  Then

 

     5 I ask you to evaluate the statements and the

 

     6 conduct of Mr. deVries and Mr. Carter following

 

     7 this incident and determine for yourselves

 

     8 whether their statements and their conduct are

 

     9 consistent with people who suffer from

 

    10 posttraumatic stress disorder.  Ladies and

 

    11 Gentlemen, I respectfully submit to you that

 

    12 that diagnosis will not be supported by the

 

    13 evidence.

 

    14                Now, at the end of the testimony

 

    15 in this case, after hearing all of the evidence,

 

    16 no matter what you think or believe happened in

 

    17 the parking lot that morning, no matter how you

 

    18 feel about what happened in the parking lot that

 

    19 morning, there are certain conclusions and

 

    20 certain facts that will be manifest, they will

 

    21 be clear.

 

    22                Again, no act of harassment was

 

    23 committed by any Secaucus volunteer firefighter,

 

    24 employee, whatever in -- while performing their

 

    25 job for the Town or for the purpose of carrying


 

 

                                                   178

 

 

     1 out their job for the Town.  That no act of

 

     2 harassment was in any way sanctioned, authorized

 

     3 or condoned by the Town.  The Town did not

 

     4 assist in its commission.  And it certainly was

 

     5 not the municipal custom and policy of the Town

 

     6 to allow its employees to commit acts of

 

     7 harassment.  That the Town was not deliberately

 

     8 indifferent.  In fact, the Town responded more

 

     9 than appropriately to the complaints that

 

    10 Mr. deVries and Mr. Carter had that morning.

 

    11 That the Town -- the plaintiffs were not the

 

    12 subject of any unequal treatment directed

 

    13 against them by the Town either in the manner in

 

    14 which the police investigated the incident or

 

    15 the manner in which the Town responded to it and

 

    16 that nothing that was done or not done in this

 

    17 case was in any way designed to hurt Mr. deVries

 

    18 or Mr. Carter and certainly wasn't -- wasn't

 

    19 designed or intended to discriminate against

 

    20 them in any way.

 

    21                Now, in cases like this -- and

 

    22 I'm going to put my notes down because now I

 

    23 feel like I'm reading too much to you.  In cases

 

    24 like this, where someone is claiming to be the

 

    25 victim of harassment, it is natural to feel


 

 

                                                   179

 

 

     1 sympathy.  And one thing that Mr. Mullin said,

 

     2 which was very telling and I agreed with, is

 

     3 that when you walk through that door, you have

 

     4 to leave your biases and your prejudices and

 

     5 your sympathies at that door.

 

     6                You are the judges of the facts

 

     7 in this case.  And in order to judge the facts

 

     8 in this case, in order to determine the truth

 

     9 you need to look at the evidence in this case

 

    10 fairly, unbiased, without prejudice, without

 

    11 anger or emotion because to decide this case

 

    12 based upon anything else but the facts as you

 

    13 determine them to be would not be fair.  And it

 

    14 certainly would not be justice for any party in

 

    15 this case.

 

    16                And Ladies and Gentlemen, I

 

    17 respectfully submit to you that after you have

 

    18 had the opportunity to hear all of the evidence

 

    19 in the case, to judge that evidence without

 

    20 passion, without bias, without prejudice, you

 

    21 will come to the conclusion that the Town of

 

    22 Secaucus -- the Town of Secaucus did not violate

 

    23 Mr. deVries or Mr. Carter's Constitutional

 

    24 rights.  Thank you.

 

    25               MS. SMITH:  Sidebar, Your Honor.


 

 

                                                   180

 

 

     1               JUDGE CURRAN:  Pardon me?

 

     2               MS. SMITH:  Sidebar?

 

     3               JUDGE CURRAN:  Why don't you come

 

     4 up here, so Tracey can stay right there, then?

 

     5               (Whereupon, the following sidebar

 

     6        discussion is held.)

 

     7               JUDGE CURRAN:  What is this about?

 

     8               MR. MULLIN:  I am going to ask for

 

     9 jury instruction.

 

    10               JUDGE CURRAN:  At this point?

 

    11               MR. MULLIN:  Yeah.

 

    12               JUDGE CURRAN:  What's the

 

    13 request --

 

    14               (Whereupon, sidebar discussion is

 

    15        concluded.)

 

    16               JUDGE CURRAN:  Ladies and

 

    17 Gentlemen, why don't you go into the jury room

 

    18 for a moment.

 

    19               (Whereupon, the jury is excused.)

 

    20               JUDGE CURRAN:  Are we all set,

 

    21 Tracey?  I think we may do this to you.  I think

 

    22 we may have to do this at sidebar.  I'm really

 

    23 sorry to drag you up here again.  Sorry.

 

    24               (Whereupon, the following sidebar

 

    25        discussion is held.)


 

 

                                                   181

 

 

     1               JUDGE CURRAN:  What is the

 

     2 request?

 

     3               MR. MULLIN:  Judge, two curatives.

 

     4 We entered into an agreement with the defendants

 

     5 when we dismissed the individuals that there

 

     6 would be absolutely no mention in front of a

 

     7 jury or suggestion about our dismissing

 

     8 individuals.  And Mr. Bevere went on at great

 

     9 length about how we -- if we really had a claim

 

    10 here, we would be suing individuals.  That is

 

    11 directly violative of that agreement.  And,

 

    12 also, it's a blankety wrong statement of the

 

    13 law.

 

    14                I don't necessarily say we have

 

    15 to -- well, what I'm saying is the jury should

 

    16 be told that it's absolutely not essential for

 

    17 the plaintiffs to have sued individuals in order

 

    18 to prove this case and any suggestion to the

 

    19 contrary should be disregarded.

 

    20                The other thing is Mr. Bevere

 

    21 made reference to my job was to make you feel

 

    22 sympathy for his clients and contempt for the

 

    23 Town of Secaucus.  That's not my job.  Nobody

 

    24 raised any objections during my opening

 

    25 argument.  It is my job to present the facts as


 

 

                                                   182

 

 

     1 the plaintiffs view them.  It's not to make the

 

     2 jury feel sympathy, and it's not to make them

 

     3 feel contempt.  Those are inflammatory and

 

     4 inappropriate remarks, and I would like you to

 

     5 point out to jury that those were inappropriate

 

     6 remarks and they should disregard them.

 

     7               JUDGE CURRAN:  Mr. Bevere.

 

     8               MR. PARIS:  Can I be heard on

 

     9 this?

 

    10               MR. BEVERE:  Doesn't matter to me.

 

    11               JUDGE CURRAN:  Hold on one second.

 

    12 Mr. Bevere.

 

    13               MR. BEVERE:  Thank you, Judge.

 

    14 Judge, first of all, with regard to the

 

    15 agreement, I certainly never said to the jury

 

    16 that they had brought claims against individuals

 

    17 and then dismissed them.

 

    18               JUDGE CURRAN:  No, I don't think

 

    19 Mr. Mullin argued that.

 

    20               MR. MULLIN:  I'm not saying that.

 

    21               MR. BEVERE:  But he said it was

 

    22 violative of an agreement that we made to

 

    23 dismiss certain individuals.  The three

 

    24 individuals who were dismissed were the Town

 

    25 administrator, the Police Chief and the Fire


 

 

                                                   183

 

 

     1 Chief.  They were dismissed.  I made no

 

     2 reference to the fact that they were dismissed.

 

     3 The reference that I made was to the fact that

 

     4 the alleged perpetrators of this incident were

 

     5 not brought before these people to have them

 

     6 held accountable or to have justice done to them

 

     7 in this case.  And I don't see why that's an

 

     8 inappropriate comment for me --

 

     9               MR. MULLIN:  Totally

 

    10 inappropriate.  I'm sorry.  It's totally

 

    11 inappropriate because it gives the jury the

 

    12 impression I have to sue individuals to state a

 

    13 Civil Rights case, and that's not true.  That's

 

    14 misstatement of the law.  I think this jury

 

    15 should be told there is no requirement that I

 

    16 name individuals.

 

    17               JUDGE CURRAN:  Excuse me,

 

    18 Miss Catapano, can you hear?  Can you hear?  Do

 

    19 you want to come over here?

 

    20               MS. CATAPANO:  I can hear them.

 

    21 It's not you very well.

 

    22               JUDGE CURRAN:  You can hear?  I

 

    23 just want to make sure my law clerk heard the

 

    24 argument.

 

    25               MR. MULLIN:  Your Honor, I would


 

 

                                                   184

 

 

     1 like the jury to be told there is no requirement

 

     2 that we sue individuals in order to state a

 

     3 claim under the Civil Rights laws and that any

 

     4 suggestion to the contrary should be

 

     5 disregarded.

 

     6                And I certainly did not get up

 

     7 there with -- it's improper to say that I was

 

     8 trying to make the jury feel sympathy for my

 

     9 clients and contempt for the Town of Secaucus.

 

    10 That's not fair.  That's -- there were no

 

    11 objections to my statements.  I was just a

 

    12 lawyer commenting on the evidence in a light

 

    13 most favorable to my client.  That's a very

 

    14 strong and inflammatory statement to say, and

 

    15 it's improper statement.

 

    16               JUDGE CURRAN:  Mr. Paris.

 

    17               MR. PARIS:  Yes, number one, I'm

 

    18 not sure what agreement Mr. Mullin is referring

 

    19 to because, number one, the people who were

 

    20 dismissed were not the people who Mr. Bevere

 

    21 referred to.  Again, I don't want to repeat what

 

    22 he said; but he referred to the perpetrators.

 

    23                In addition, he never said that

 

    24 in order to bring a case, they had to bring it

 

    25 against them.  He was really talking about


 

 

                                                   185

 

 

     1 identification and trying to differentiate

 

     2 between -- he said the individuals who allegedly

 

     3 committed the harassment are not the people

 

     4 being judged here; the Town is who is being

 

     5 judged.  That's, I think, context of what he

 

     6 said.

 

     7                In addition -- in addition, look,

 

     8 you know, Mr. Mullin is a great advocate.  He

 

     9 talks about phony investigations.  He laughed

 

    10 about -- you know, divisively during the opening

 

    11 with regard to the actions that were taken by

 

    12 the Town, et cetera.  I don't think it's

 

    13 inappropriate for Mr. Bevere to say that it's

 

    14 his job to sway you to gain sympathy for his

 

    15 clients' case and to -- to hold -- hold Secaucus

 

    16 in contempt.  That's exactly what Mr. Mullin

 

    17 tried to do.  I don't think it's inflammatory.

 

    18 And that's why we didn't object.  But that's --

 

    19               MR. MULLIN:  You know it's

 

    20 inflammatory to -- I don't -- it's inflammatory

 

    21 to cast dispersions on a lawyer.

 

    22               MR. PARIS:  I don't --

 

    23               MR. MULLIN:  I don't have any

 

    24 problem with strong language.  And indeed, Dan

 

    25 Bevere used some strong language.  He implied my


 

 

                                                   186

 

 

     1 clients were less than truthful or exaggerate.

 

     2 And I think that's fair.  But I don't think we

 

     3 should be commenting on each other.  I don't

 

     4 think I should comment on Dan, and I don't think

 

     5 Dan should comment on me and talk about my

 

     6 motives.

 

     7                You don't know my motives, and my

 

     8 motives are not at issue in this case.  My

 

     9 intent to make the jury feel sympathy and feel

 

    10 contempt for Town of Secaucus, actually, when

 

    11 you look at my opening, was praising the police

 

    12 to a considerable degree; it wasn't to show

 

    13 contempt.  I think Mr. -- it was to show

 

    14 deliberate indifference.  I think that's an

 

    15 inappropriate comment.  But the quote that Nan

 

    16 wrote down is, "Plaintiffs haven't sued the

 

    17 individuals."  That's just wrong.

 

    18               JUDGE CURRAN:  Okay.  Separate --

 

    19 I didn't mean to cut you off, but I am aware

 

    20 jury is waiting in there.  In regard to suing

 

    21 individuals Mr. Mullin did refer to the

 

    22 agreement that you had.  Honestly, I don't see

 

    23 the argument that way, as far as whether there

 

    24 was an agreement or there wasn't.  I don't see

 

    25 the agreement being germane here, but I do think


 

 

                                                   187

 

 

     1 that it is appropriate to indicate that there

 

     2 was comment in regard to suing the individuals

 

     3 and that I am simply indicating to them that it

 

     4 is not essential, in a case like this it is not

 

     5 essential to sue individuals, that it is

 

     6 perfectly appropriate to sue a Town, that's it.

 

     7 I am not going to say any more.

 

     8               MR. MULLIN:  That's fine.

 

     9               JUDGE CURRAN:  And then -- I'm

 

    10 writing that down because sometimes you make a

 

    11 decision -- and what I'd really like to do then

 

    12 is now say, "Tracey will read to you what I'm

 

    13 going to tell you."

 

    14                Okay.  Okay.  In regard to the

 

    15 comments about sympathy or contempt, I think

 

    16 what I will indicate to the jury is that I'm

 

    17 going to remind them that each side is an

 

    18 advocate for his client and that any comments

 

    19 that they made in regard to any motives of -- of

 

    20 the other attorney or any valuations that were

 

    21 made are just that, therefore argument says they

 

    22 are not evidence, period.  I will not get into

 

    23 details because then we could have --

 

    24               MR. MULLIN:  That's fine.

 

    25               JUDGE CURRAN:  I am going to send


 

 

                                                   188

 

 

     1 the jury back out.  I am going to send the jury

 

     2 home and ask them to come back at 9.  Anything?

 

     3               MR. MULLIN:  Come back at 9

 

     4 tomorrow?

 

     5               JUDGE CURRAN:  Yeah, is there

 

     6 anything?  I am aware we are getting close to 3.

 

     7               MR. BEVERE:  Can I just -- I don't

 

     8 know if my -- that looks like they're staying,

 

     9 okay.  Looks like they're staying.

 

    10               JUDGE CURRAN:  Okay.  Thank you.

 

    11                Miss Hawks, if I might see you at

 

    12 sidebar.

 

    13               (Whereupon, sidebar discussion is

 

    14        concluded.)

 

    15               JUDGE CURRAN:  Okay.  We'll bring

 

    16 the jury back out.

 

    17               MS. HAWKS:  Jurors are

 

    18 approaching.

 

    19               JUDGE CURRAN:  Thank you.

 

    20               (Whereupon, the jury is brought

 

    21        into the courtroom.)

 

    22               COURT CLERK:  On the record.

 

    23               JUDGE CURRAN:  Thank you.  We're

 

    24 back on the record.

 

    25               COURT CLERK:  On the record.


 

 

                                                   189

 

 

     1               JUDGE CURRAN:  Juror Number 4,

 

     2 come on up, if you will, please.

 

     3                If I might see counsel at

 

     4 sidebar.

 

     5               (Whereupon, the following sidebar

 

     6        discussion is held.)

 

     7               JUDGE CURRAN:  What is your

 

     8 question?

 

     9               JUROR NUMBER 4:  I was just

 

    10 wondering what happens if we get emotional.

 

    11               JUDGE CURRAN:  I really -- the

 

    12 only answer I can give you for that --

 

    13               JUROR NUMBER 4:  Do we have to

 

    14 just try and -- just try and hold it in?

 

    15               JUDGE CURRAN:  Yeah.

 

    16               JUROR NUMBER 4:  Okay.

 

    17               JUDGE CURRAN:  You know, because

 

    18 it -- it is difficult and it may be difficult --

 

    19 I shouldn't say it is difficult, but I -- you

 

    20 know, we're going to advise you very strongly,

 

    21 which we did, you know, informally.  Sympathy,

 

    22 bias, prejudice, even though, you know, emotions

 

    23 are certainly a part of this case, it is up to

 

    24 each juror to make sure to the best of their

 

    25 ability that you do not let your emotions in any


 

 

                                                   190

 

 

     1 way affect your decisions or your evaluations in

 

     2 this case.

 

     3                The other thing is that there

 

     4 is -- this is not time for decision or

 

     5 evaluation.  That comes at the end of the case.

 

     6               JUROR NUMBER 4:  Yeah.

 

     7               JUDGE CURRAN:  But I would ask

 

     8 every juror to be very circumspect, to make sure

 

     9 that if something does or could elicit an

 

    10 emotional response from you, to try your best

 

    11 not to reveal that to other people.

 

    12               JUROR NUMBER 4:  I wasn't

 

    13 referring so much as it having -- affecting my

 

    14 judgment but just, you know, at the time.

 

    15               JUDGE CURRAN:  Okay.

 

    16               JUROR NUMBER 4:  That's all.

 

    17               JUDGE CURRAN:  I understand that,

 

    18 but I would appreciate it if you -- you could

 

    19 deal with some very difficult questions in your

 

    20 line of work.  And I'm sure you're cognizant of

 

    21 the fact that -- let's just say that something

 

    22 that is said maybe, to use an extreme example,

 

    23 you think is really funny.  A witness is

 

    24 speaking theoretically factually; but you think

 

    25 it's funny, you don't believe at all.  Wouldn't


 

 

                                                   191

 

 

     1 be proper to laugh or to snicker, anything like

 

     2 that.

 

     3               JUROR NUMBER 4:  That's exactly

 

     4 what I --

 

     5               JUDGE CURRAN:  I realize it's --

 

     6 other end of the spectrum is probably area

 

     7 you're talking about, but it wouldn't be proper.

 

     8 And it could adversely affect someone else on

 

     9 the jury.

 

    10               JUROR NUMBER 4:  Okay.  All right.

 

    11               JUDGE CURRAN:  Any other questions

 

    12 counsel wishes to make?

 

    13               MR. MULLIN:  No.

 

    14               MR. BEVERE:  No, Judge.  Thanks.

 

    15               JUDGE CURRAN:  Thank you.

 

    16               (Whereupon, sidebar discussion is

 

    17        concluded.)

 

    18               JUDGE CURRAN:  Ladies and

 

    19 Gentlemen, I just wanted to clarify two issues

 

    20 for you before I excuse you for the day.  I will

 

    21 remind you, as I said earlier, that the opening

 

    22 statements are statements by counsel as

 

    23 advocates for their clients.  So any comments as

 

    24 to motives of adversaries or any comments as to

 

    25 how either counsel evaluates things or any terms


 

 

                                                   192

 

 

     1 that might be used to describe something is

 

     2 basically argument on behalf of the client of

 

     3 that attorney.  It's not fact, and it's not

 

     4 evidence.

 

     5                So I just would ask you to take

 

     6 that into account.  Advocates are supposed to

 

     7 argue strongly for their clients, and in this

 

     8 case both Mr. Mullin and Mr. Bevere did.

 

     9                The other thing I would indicate

 

    10 to you is that there was an issue raised in

 

    11 regard to the plaintiff in this case suing the

 

    12 Town of Secaucus, not suing individuals.  And I

 

    13 will just tell you that in a case like this it

 

    14 is perfectly appropriate for a plaintiff to sue

 

    15 a Town.  It is not necessary to sue individuals.

 

    16                Okay.  All right.  We are going

 

    17 to excuse -- are there any other comments or any

 

    18 other issues at sidebar?  Thank you.

 

    19                I will excuse you for the day.  I

 

    20 want you to obviously keep what was said in the

 

    21 back of your mind; but again, I will remind you,

 

    22 as I will most days, please understand this is

 

    23 just the first day.  And it is not proper to

 

    24 make any decisions at all or any evaluations

 

    25 until basically you have heard all of the


 

 

                                                   193

 

 

     1 evidence and you know the law.  So I would just

 

     2 remind you to keep an open mind.

 

     3                You will be excused until 9:00

 

     4 tomorrow morning.  Again, please don't discuss

 

     5 the case among yourselves.  Don't discuss the

 

     6 case with anyone else.

 

     7                I am going to ask Miss Hawks if

 

     8 she would be kind enough, please, to escort the

 

     9 jurors to the elevators.  And I would ask anyone

 

    10 else who's in the courtroom to remain in the

 

    11 courtroom for a short time.  Thank you.

 

    12                Thank you, Miss Hawks.

 

    13               COURT CLERK:  Off the record.

 

    14               JUDGE CURRAN:  Thank you.  Off the

 

    15 record.

 

    16               (Whereupon, the jury is excused.)

 

    17               (Whereupon, the proceeding is

 

    18        adjourned at 2:50 p.m.)

 

    19

 

    20

 

    21

 

    22

 

    23

 

    24

 

    25


 

 

                                                   194

 

 

     1               C E R T I F I C A T E

 

     2

 

     3      I, TRACEY R. SZCZUBELEK, a Certified Court

 

     4 Reporter and Notary Public of the State of New

 

     5 Jersey, do hereby certify that the foregoing is

 

     6 a true and accurate transcript of the

 

     7 stenographic notes as taken by and before me, on

 

     8 the date and place hereinbefore set forth.

 

     9

 

    10

 

    11

 

    12

 

    13

 

    14

 

    15

 

    16

 

    17

 

    18           ________________________________

 

    19           TRACEY R. SZCZUBELEK, C.C.R.

 

    20           LICENSE NO. XIO1983

 

    21

 

    22

 

    23

 

    24

 

    25


 


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