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 4
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Tuesday, May 13, 2008
Commencing 9:10 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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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
2
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.
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1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 TIMOTHY CARTER
5 By: Mr. Mullin 93, 114
6 By: Mr. Paris 36 108
7
8 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
9 DIRE
10 DR. BURSZTAJN
11 By: Ms. Smith 128 289
12 By: Mr. Bevere 245 294
13
14 E X H I B I T S
15
16 NUMBER DESCRIPTION PAGE
17 D-310 Consent form from Dr. Goldwaser's
18 office 43
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4
1 JUDGE CURRAN: On the record,
2 please.
3 COURT CLERK: On the record.
4 JUDGE CURRAN: Thank you. Mr.
5 Mullin.
6 MR. MULLIN: Good morning, Your
7 Honor.
8 JUDGE CURRAN: Good morning.
9 MR. MULLIN: Yesterday Mr. Paris
10 essentially gave the jury a detailed road map
11 for how to get onto a log on NJ.com. In his
12 questions he was very careful to ask the witness
13 exactly how he logs on and what sub -- what
14 subclass -- what subtext to push in order to get
15 into the Secaucus line. He gave them a road
16 map.
17 I understand that on this log,
18 for example, someone has put the number -- a
19 number that we offered in settlement in chambers
20 to Your Honor. I haven't mentioned that number,
21 that we discussed a settlement number, Your
22 Honor, in chambers. This has nothing to do with
23 the Court. I'm not suggesting the Court has
24 anything to do with it.
25 JUDGE CURRAN: No, no, because you
5
1 can tell from seeing me on the computer how
2 really great I am at these electronic things.
3 MR. MULLIN: All I'm saying is we
4 were very private, Your Honor, about our
5 settlement proposals.
6 JUDGE CURRAN: Exactly.
7 MR. MULLIN: I was shocked to hear
8 that a number we just put out in your chambers
9 and only in your chambers and never in writing
10 has made its way to the web site Mr. Paris
11 directed the attorney -- the jury's attention
12 to.
13 I suspect -- I would like to know
14 how that happened. That -- that I -- that
15 number that we offered in settlement in chambers
16 was -- I never mentioned it before, and I only
17 mentioned it in that conversation. And also,
18 Nan -- Nan Smith mentioned it to Dave Paris.
19 So I'm very concerned about --
20 about the fact that Mr. Paris directed the
21 jury's attention to this site where, apparently,
22 now there is all kinds of conversations. Some
23 of it sounds like people in the Town purposely
24 trying to put out information, for example,
25 about whether or not they have insurance, about
6
1 settlement demand that I made.
2 I'm very disturbed by this and
3 especially by Mr. Paris's road map that he -- I
4 thought the question was odd because he -- he
5 went through exactly how to get precisely to
6 this blog or this log or this site. At first I
7 didn't understand it. Having spoken further
8 about it to others, I now realize there is a lot
9 of information on this jury that would prejudice
10 my -- lot of information on this site that would
11 prejudice my clients.
12 Number one, I would like the
13 Court to direct defense counsel never to mention
14 this again.
15 And number two, I -- I suppose --
16 I don't know what good warnings are in this
17 thing, but I suppose another advisement to the
18 jury at the end of each day would be important.
19 Now, I don't know what --
20 JUDGE CURRAN: I would certainly
21 agree to do that. And I would just ask all
22 counsel, if I forget, you know, please feel free
23 to remind me because I hoped we took care of it
24 yesterday. But I, frankly, did that yesterday
25 just as preventative, having no idea that there
7
1 was really anything that was a problem on the
2 web site --
3 MR. MULLIN: Someone actually --
4 JUDGE CURRAN: -- other than
5 some --
6 MR. MULLIN: Someone actually put
7 our settlement demand that we put in chambers
8 and Miss Smith made directly and openly to
9 defense counsel. I don't know how it got out
10 there.
11 JUDGE CURRAN: Have you seen this
12 site, Mr. Mullin?
13 MR. MULLIN: I haven't seen the
14 site.
15 JUDGE CURRAN: Is the -- do you
16 know enough about the site -- frankly, I can try
17 to go on from here, but we have a lot of
18 restrictions on the court computer. I may be
19 able to. But do you know how the web site
20 operates? In other words, even though we
21 wouldn't know who it was, is there a name that
22 you can associate with so that theoretically it
23 could be tracked back?
24 MR. MULLIN: I think we can --
25 yes, I have done this in other cases. We can
8
1 get what's called a "screen name."
2 JUDGE CURRAN: Right.
3 MR. MULLIN: Then, using the
4 internet service provider, we can track back
5 where -- I can have a private eye or something
6 track back where the screen name traces to.
7 JUDGE CURRAN: I believe that has
8 to be done on virtually all of these.
9 MR. MULLIN: Yes.
10 JUDGE CURRAN: Although I'm not
11 saying there aren't ways to get around it, but
12 it's my understanding that's the way it works.
13 MR. MULLIN: I will do that. I
14 will ask a private investigator to -- oh,
15 actually, my partner is reminding me that we
16 need a subpoena to get that information.
17 Subpoena would have to go to NJ.com to The Star
18 Ledger site.
19 JUDGE CURRAN: Right.
20 MR. MULLIN: So I suppose I can
21 issue -- with Your Honor's permission I will
22 issue a subpoena to The Star Ledger to the
23 NJ.com site and ask for all the information I
24 need to trace it back. I will see if there is
25 any effort by this Town to influence this jury
9
1 through that site.
2 In the meantime I would ask the
3 Court to direct counsel not to mention again. I
4 would ask the Court to ask counsel for the
5 defense to please advise all Town officials not
6 to do -- not to have these sort of
7 communications on this site because it's -- it's
8 from what I hear -- and I'll go print out the
9 material, and we'll dig deeper into it -- it
10 sounds like an attempt to influence this jury.
11 JUDGE CURRAN: Mr. Paris.
12 MR. PARIS: Sure, if I may.
13 Number one, I -- I am as upset -- I don't know
14 how upset Mr. Mullin is. I will just tell you
15 I'm very upset to hear this. I am familiar with
16 the site -- not the Secaucus site, but I am
17 familiar with this site generally because of
18 experiences that I have had in another town that
19 I represent. And, you know, I was as unhappy in
20 my representation of that town with the
21 discussion going on; and that's how I was
22 familiar with this particular site. I stopped
23 reading it a couple years ago. But I -- that's
24 how I understand this site.
25 I did not intend to even go into
10
1 the site. I had no idea that Mr. Carter
2 actually had gone on that site yesterday until
3 he mentioned it. He is the one who brought it
4 up in answer to a question that I asked. And
5 frankly, the question that I asked had nothing
6 to do with have you ever been --
7 JUDGE CURRAN: Okay.
8 MR. PARIS: -- you know, have you
9 ever been on the web site? I didn't even ask
10 that question. Next thing you know, he says,
11 yeah, I was on this web site and they're saying
12 this and this.
13 And then I asked him and -- and
14 frankly, there was a reason I was doing that in
15 terms of the detail. I wanted to make sure,
16 number one, that I knew which web site it was.
17 But number two, I also wanted to demonstrate to
18 the jury the effort that Mr. Carter had to make
19 in order to -- to see what people are chatting
20 about out there. Okay. And that will be --
21 will become more important later on as the case
22 proceeds.
23 But you know, I -- I am very disturbed
24 and unhappy that somebody would do that. And I
25 can assure you that it had absolutely nothing to
11
1 do with myself or Mr. Bevere. I had absolutely
2 no knowledge that any of this was going on
3 there.
4 Frankly, having heard this, I would
5 like to take a few minutes and call whoever I
6 can reach or whoever Mr. Bevere can reach over
7 at the Town, let them know about this
8 discussion. And that if it was somebody from
9 the Town who -- who did it, you know, I want --
10 I want to make sure that nobody does it again,
11 to the extent that we can prevent that from
12 happening, because the entries are -- are listed
13 anonymously. Everyone comes up with some sort
14 of wacky screen name. But I certainly want to
15 be sure that -- that we convey that message.
16 JUDGE CURRAN: If you would also
17 be kind enough, Mr. Paris, to convey -- I'm sure
18 you did, but to repeat to the Town officials --
19 I don't know and don't want to know with whom
20 you discussed any settlement discussions, but --
21 MR. PARIS: You know what, Your
22 Honor, maybe this should go to sidebar.
23 JUDGE CURRAN: Sure. Who is this
24 gentleman, Miss Castelli?
25 MR. BEVERE: I think he is
12
1 delivering the transcripts.
2 JUDGE CURRAN: Okay.
3 TRANSCRIPT DELIVERY: Sorry, Your
4 Honor.
5 JUDGE CURRAN: That's okay.
6 COURT CLERK: Thank you.
7 JUDGE CURRAN: Then we can go to
8 sidebar, thank you.
9 (Whereupon, the following sidebar
10 discussion is held.)
11 JUDGE CURRAN: I would just ask
12 you to reiterate, because I'm sure as officers
13 of court you both did discuss the matter with
14 Town representatives as far as settlement -- in
15 fact, at one point, as we were maybe starting
16 jury selection, I even talked to the two of you
17 and said, "Gee, would you go back and talk?"
18 Because I'm a big believer, if cases are going
19 to settle, they are going to settle at the
20 beginning. I never understand why cases
21 settle -- unless there is huge problem nobody
22 anticipated, I don't understand why they settle
23 in the middle.
24 So I know you did discuss it. I
25 don't even want to know necessarily with whom
13
1 you discussed it. But even if they're talking
2 about things like settlement or insurance or
3 things, it's just not a proper thing to do.
4 MR. PARIS: Again, I haven't seen
5 what counsel is referring to. Okay.
6 MR. MULLIN: I haven't seen it
7 either.
8 MR. PARIS: Yeah, and I don't
9 intend to.
10 MR. MULLIN: What I heard was two
11 things.
12 JUDGE CURRAN: Wait one minute.
13 This is The Star Ledger site; is that right?
14 MR. BEVERE: The last thing we
15 would want is a juror to see a number.
16 JUDGE CURRAN: I'm sorry?
17 MR. BEVERE: The last thing we
18 want is for a juror to see a number that was
19 discussed by any party.
20 MR. PARIS: Or discussion
21 regarding insurance.
22 MR. MULLIN: Well, my concern
23 is -- is that members of the Town might be --
24 I'm not talking about what you're doing. I am
25 talking what the Town is doing. And I want to
14
1 make sure they don't do this any further. It
2 might even hurt your cause.
3 MR. PARIS: Exactly.
4 MR. MULLIN: I don't like these
5 discussions.
6 JUDGE CURRAN: Because I -- let my
7 ability -- I read The Ledger and The Times
8 on-line every morning, so I know how to do that
9 at least; but this is a separate site. But it's
10 run by The Ledger?
11 MR. PARIS: It's www --
12 MR. MULLIN: NJ.com.
13 MR. PARIS: -- NJ.com.
14 JUDGE CURRAN: You have to get
15 into this -- wait. Wait. You have to get into
16 this century here, Mr. Paris. My daughter has
17 made clear to me you don't need to type "www"
18 anymore; the machine automatically does that for
19 you.
20 MR. MULLIN: This is true.
21 MR. PARIS: She is way ahead of
22 me, Judge.
23 JUDGE CURRAN: She is way ahead of
24 me too. Here we go. Probably -- and I'm pretty
25 sure -- my four-year-old grandson could do this.
15
1 MR. PARIS: One other thing does
2 come to mind, and that is the fact that I think
3 there were newspaper articles when this lawsuit
4 was started -- but that goes back a number of
5 years already -- that I think indicated that the
6 demand was like $5 million. That might have
7 been in a tort claim notice.
8 MR. MULLIN: Someone picked it up
9 from a tort claim notice.
10 MR. PARIS: So if that's out
11 there, may be someone with a good memory because
12 I think that was published out in a newspaper.
13 But this kind of stuff, you know, is just --
14 MS. SMITH: Yeah, I wanted to --
15 JUDGE CURRAN: You know, I will
16 also say, just so the record is complete, there
17 was a Ledger and photographer here from the -- I
18 mean there was a reporter and a photographer
19 here from The Ledger in. And other cases
20 reporters have even called or they have come in
21 ahead of time and they've asked questions like,
22 "Well, hey, were there settlement negotiations?
23 Are they ongoing?" whatever. That guy, you all
24 saw my entire conversation with him. He didn't
25 even hint --
16
1 MR. PARIS: He didn't ask us.
2 MR. MULLIN: He didn't discuss
3 with us later.
4 JUDGE CURRAN: He didn't call
5 later.
6 MS. SMITH: Right.
7 MR. MULLIN: He just took some
8 pictures.
9 MS. SMITH: Idea that people have
10 a lot to say and they can hide behind some
11 screen name, ultimate --
12 MR. PARIS: Frankly, I have been a
13 victim of it myself.
14 MS. SMITH: People are very tough
15 when you don't know who they are.
16 MR. BEVERE: Do you have my D-101?
17 I can't find it. It's the photograph.
18 MR. MULLIN: Photograph?
19 MS. SMITH: Do we have a
20 photograph of?
21 MR. BEVERE: Remember yesterday?
22 It was the photograph from the Secaucus Home
23 News, little -- do you have that? I can't
24 find --
25 MS. SMITH: I'll look.
17
1 MR. MULLIN: We have one.
2 MR. BEVERE: I have a copy of it.
3 We can use the copy, but I can't find one with
4 the original exhibit stamp on it. Not big deal.
5 MR. MULLIN: Newspaper photograph
6 of the firemen?
7 MR. BEVERE: Exactly, exactly. I
8 have been looking for it.
9 JUDGE CURRAN: Well, I've got to
10 say just quickly only local blogs I see do not
11 include anything from Secaucus -- I'm guessing
12 this is a blog.
13 MR. MULLIN: It's a Secaucus blog.
14 JUDGE CURRAN: There is none from
15 Secaucus. I typed in "Secaucus," and I'm
16 getting --
17 MR. PARIS: You know what we have
18 to do, Judge?
19 MS. SMITH: I don't know how to do
20 it.
21 MR. PARIS: I still remember.
22 What happens is when you get onto the site, it
23 talks about forums. There is --
24 JUDGE CURRAN: Right.
25 MR. PARIS: Then you hit "forums."
18
1 JUDGE CURRAN: You hit "forums"?
2 MR. PARIS: Yeah, hit "forums."
3 Then you go to the county.
4 JUDGE CURRAN: Oh.
5 MR. PARIS: And then, when you go
6 to the county, it comes up with the towns.
7 JUDGE CURRAN: Forums, rather than
8 blogs. I wonder what the difference is.
9 MR. PARIS: Yeah, the other thing
10 which we could do, which would be very helpful,
11 my recollection is that there is a box that
12 says, if you find this to be objectionable or
13 something like that, that you can ask to have
14 something removed. But I'm not sure whether you
15 can do that unless you've like been a registered
16 user kind of thing.
17 MR. MULLIN: Right, right.
18 JUDGE CURRAN: Okay. I have
19 gotten Hudson. I clicked on "Secaucus." Oh,
20 see, you have to go up to here. "Firehouse."
21 This is literally about the firehouse. "North
22 End Firehouse." There certainly is a blog here.
23 I don't see any -- I don't see -- that number
24 that's in there is 25,000, but there is --
25 certainly appears to be an individual -- there
19
1 are two individuals. One is called "mudgunner,"
2 who talks about insurance, talks about the Town
3 is self-insured. And then there is another
4 individual called "pmaxwell." You know, the
5 screen name is pmaxwell, all small letters,
6 pmaxwell. And mudgunner is also small letters,
7 you know, lower case. I think it would take
8 more time to go through these just to find them.
9 MR. MULLIN: The self-insurance
10 issue was very troubling to me, when I heard
11 about that. I didn't see it, but I heard
12 about --
13 JUDGE CURRAN: Yeah, says the
14 Town -- well, you know, in fairness to your
15 side, Mr. Mullin, it says -- only objection this
16 individual has is that the Town is self-insured.
17 MR. MULLIN: But that's enough
18 because if --
19 MS. SMITH: We have a Secaucus
20 resident sitting on this jury.
21 MR. MULLIN: That would incline a
22 juror to vote for a small number because they
23 don't want the Town residents to pay for it.
24 JUDGE CURRAN: Let's just say
25 this.
20
1 MR. PARIS: They shouldn't be
2 reading it.
3 JUDGE CURRAN: It is somewhat, you
4 know, tough for both sides. One of the,
5 whatever we will call this, blogs or entries,
6 says, "Elwell stinks."
7 MR. PARIS: Says what?
8 JUDGE CURRAN: "Elwell stinks."
9 MR. PARIS: Oh.
10 JUDGE CURRAN: And that's -- and
11 then it says, "At least mike is honest,"
12 whatever that means. So I guess it is sort of
13 two-sided.
14 MR. PARIS: The difficulty is that
15 people can even be putting stuff on there --
16 JUDGE CURRAN: Right.
17 MR. PARIS: -- that's kind of a
18 counter-intuitive. So you know, who knows if
19 they're going to just try to get a discussion
20 going, whatever. But the bottom line is the
21 jurors shouldn't be reading this, the same way
22 that they shouldn't be reading the newspapers.
23 JUDGE CURRAN: Exactly. There is
24 another one, Miss Smith. This screen name is
25 all -- again, all lower case, lowandbehold,
21
1 l-o-w-a-n-d-b-e-h-o-l-d. And that talks about
2 the case specifically. Again, I don't see any
3 reference to a -- a settlement number. It's
4 talking about an article in the Secaucus
5 Reporter.
6 And these are very current.
7 These are on 4/28/08. I know there is a trick
8 to reading these. I never went into -- what do
9 they call those things -- chat rooms; but I know
10 if we just did this carefully, you can tell
11 exactly -- you can read something that someone
12 says and then you can read the responses. I
13 just have to figure that out.
14 So I'm just basically, you know,
15 scrolling down now. But there certainly is a
16 fair amount on here about it.
17 Was there another lawsuit by
18 someone named Schwartz?
19 MR. PARIS: Not that I'm aware of.
20 MR. MULLIN: I'm not aware of.
21 JUDGE CURRAN: This says Mike
22 Schwartz is involved in some kind of lawsuit. I
23 don't know what that is; but certainly, I don't
24 see -- "North End Firehouse." This is another
25 person just asking, "Does anyone know how things
22
1 are going on?" And this screen name is thatkid,
2 t-h-a-t-k-i-d, 4664. Sometimes people use their
3 address -- the numbers of their addresses --
4 MR. MULLIN: Yeah.
5 JUDGE CURRAN: -- in the screen
6 names.
7 MR. PARIS: Judge, what was the
8 screen name of the person who said, "Mayor
9 Elwell stinks"? Maybe we should go both sides
10 here.
11 JUDGE CURRAN: I didn't take that
12 one down. Let's see here. I don't see it right
13 now. I'll look for it again. Oh, that's
14 lowandbehold.
15 MR. PARIS: Lowandbehold.
16 JUDGE CURRAN: And that was put on
17 last week.
18 MR. PARIS: I want to ask him if
19 he ever used that name, okay.
20 JUDGE CURRAN: Now, I think it's
21 only fair to allow one plaintiff only to take
22 the Fifth one time but then go back. All right.
23 I think it's only fair.
24 MS. SMITH: Judge, I wonder
25 whether specifically because there is this false
23
1 statement that the Town is self-insured and
2 there is a Secaucus resident sitting on our jury
3 if, when you instruct them to please stay off
4 these sites and if you could instruct them also
5 that there is information on the sites that's
6 specifically false. Thank you.
7 MR. PARIS: Judge, rather --
8 rather than -- rather than pique someone's
9 curiosity about the site, you know, to say that
10 there is information that's specifically false,
11 I -- I don't think -- I absolutely don't think
12 you should do that. I think you should say that
13 it is as wrong to -- to read anything on that
14 site as it would be to read anything either on
15 TV or in the newspapers about this case, that
16 there -- you could say there may be
17 misinformation, either in newspaper articles or
18 on web sites and -- and leave it at that.
19 MR. MULLIN: I don't think --
20 MR. PARIS: But rather -- rather
21 than pique someone's curiosity by saying there
22 is false information on it. What's that's
23 saying is either you have been on the site, we
24 have been on the site, that we have been
25 following this site. And frankly, I don't think
24
1 we should -- I don't think we should treat it
2 any differently than if it was a false newspaper
3 story.
4 MR. MULLIN: It's different
5 because you -- you went out of your way to pique
6 their curiosity.
7 MR. PARIS: I didn't --
8 MR. MULLIN: Yes, my client
9 mentioned it, then you cross-examined. And in
10 your cross-examination you went through this
11 road about how to get on this site.
12 MR. PARIS: Well --
13 MR. MULLIN: Well, that definitely
14 told them this is how you do it, Folks. Let's
15 go do it.
16 MR. PARIS: And the judge
17 specifically --
18 MR. MULLIN: She -- yes, she did.
19 MR. PARIS: -- instructed them not
20 to do that.
21 MR. MULLIN: Yes, yes, she did.
22 MR. PARIS: That instruction was
23 given yesterday. It was a good instruction,
24 absolutely. Frankly, if I knew there was this
25 much here, I wouldn't have gone through it. I
25
1 had no idea, but --
2 MS. SMITH: Wait a minute. We
3 agree that it's false that the Town is
4 self-insured, right?
5 MR. PARIS: Well, it's not --
6 MR. BEVERE: It's self-insured
7 through an insurance fund, but it's -- they pool
8 their funds.
9 MR. MULLIN: Let's put it this
10 way. The taxpayers do not have to pay the
11 judgment we get in this case.
12 MR. PARIS: You're seeking
13 punitives.
14 MR. MULLIN: Punitives are a
15 separate story. But the taxpayers do not have
16 to pay compensatory damage award. Look, this is
17 false information; and someone -- we're going to
18 find out who -- who put it out there.
19 MR. PARIS: That's fine.
20 MR. MULLIN: This was done
21 purposely in order to influence the jury to
22 bring in a low number. I am not naive about
23 this kind of stuff. If the witness blurted it
24 out, that would be the purpose of it. It's
25 happened before in trial. You blurt out that
26
1 the Town is self-insured, and all of a sudden
2 the taxpayers' money is in jeopardy. There is a
3 reason for these things.
4 So we will get to the bottom of
5 who put it on; but Your Honor, this -- the jury
6 needs to be told there is false information on
7 this. We don't have to specify what it is.
8 JUDGE CURRAN: What about even
9 indicating that there are -- I don't want to use
10 the word "investigations," I don't want to use
11 the word "subpoenas" but that there is --
12 MS. SMITH: Inquiry?
13 JUDGE CURRAN: -- something --
14 inquiries now in regard to the site.
15 MR. PARIS: Let me -- and again, I
16 didn't start this, okay. Mr. Carter mentioned
17 this site. He indicated that he was reviewing
18 it to see whether there were essentially any
19 threats being made --
20 JUDGE CURRAN: Right.
21 MR. PARIS: -- on the site --
22 MR. MULLIN: Yes.
23 MR. PARIS: -- against him.
24 JUDGE CURRAN: And he was going
25 back in regard to how long.
27
1 MR. PARIS: Right. But now to
2 give the site more publicity by saying that
3 we're investigating this site, we're
4 investigating comments, we're sending out
5 subpoenas for people who posted on the site,
6 that -- that gets into an area that I think
7 reflects back on Mr. Carter's testimony about
8 the site yesterday, which we don't necessarily
9 want to get into.
10 And number two, again, I think it
11 highlights something, that there is something
12 out there, it's really juicy, but you can't read
13 it. And I -- I think that your instruction
14 yesterday -- if you want to add the instruction
15 that says these -- you know, these -- these
16 sites may contain misinformation, that's fine.
17 But to say that there's specifically
18 misinformation on the site --
19 JUDGE CURRAN: Okay. I think I'll
20 try to do it wrapping it up with the newspapers
21 too, so that, as you say, we don't pique their
22 interest.
23 If you just wait one more second,
24 I think I've figured out how to read this.
25 There is another individual; and this person
28
1 appears to have information because mudgunner is
2 asking, "Who is paying the lawyers for the
3 firemen?" This guy is answering. So that is
4 cartridge, c-a-r-t-r-i-d-g-e, 161. And -- yeah,
5 that's the way it goes. There is a blog, and
6 then the answers all clip under it. But that
7 individual seems to be answering questions, not
8 asking questions.
9 All right. Unless there is an
10 objection, I won't do this until the end of the
11 day --
12 MR. PARIS: Exactly.
13 JUDGE CURRAN: -- because that's
14 the way we usually do it.
15 MR. PARIS: Yeah, exactly.
16 Especially considering we are not going to be
17 here tomorrow too.
18 JUDGE CURRAN: Yes, please do not
19 go home and play on your computer.
20 MS. SMITH: Exactly.
21 JUDGE CURRAN: But people should
22 be sophisticated enough, but they're not --
23 MS. SMITH: No.
24 JUDGE CURRAN: -- in regard to
25 this because there is that encyclopedia on-line
29
1 now.
2 MR. BEVERE: Wickipedia.
3 JUDGE CURRAN: I used to look
4 things up on that, and I found out I can go in
5 and change things. That makes no sense. So
6 people should know better than to pay attention
7 to what's on there. Although, I have to say,
8 having just read a book about Frank Lloyd
9 Wright, they had excellent information about --
10 if you guys haven't read "Loving Frank" -- have
11 you?
12 MS. SMITH: No.
13 JUDGE CURRAN: It's all -- it's
14 about Frank Lloyd Wright and his second wife,
15 not necessarily married wife. I just simply --
16 I had heard of Taliesin and read about Taliesin,
17 but I never knew all of the background.
18 MS. SMITH: Yeah, wasn't that
19 shock?
20 JUDGE CURRAN: Yes. I don't want
21 to say it, in case you want to read the book.
22 MR. PARIS: No, I do.
23 JUDGE CURRAN: I probably spent
24 two hours after that, after I finished the book
25 on-line. It's amazing the -- you know, I knew
30
1 Falling Water and went out to see it. And I
2 don't know how I missed all that, but I
3 certainly did.
4 MS. SMITH: I need a good book
5 right now.
6 MR. PARIS: Do you? There are
7 some transcripts that Neil could --
8 MS. SMITH: That's why I need a
9 good book.
10 JUDGE CURRAN: Anything else?
11 MR. PARIS: Can we take about ten
12 minutes --
13 JUDGE CURRAN: Of course.
14 MR. PARIS: -- because I really
15 do --
16 JUDGE CURRAN: Sure.
17 MR. PARIS: -- want to make some
18 phone calls.
19 JUDGE CURRAN: Absolutely.
20 MS. SMITH: I'm sorry, Judge.
21 JUDGE CURRAN: Could you tell the
22 person is who is representing the Town --
23 MR. BEVERE: I am going to get his
24 name right now.
25 JUDGE CURRAN: You don't have to
31
1 do it. I don't want you to make it clear --
2 MR. PARIS: This is number three,
3 right? This is the last --
4 JUDGE CURRAN: We will get it
5 later, so it's not obvious you have to ask.
6 MR. BEVERE: It's Alan something.
7 I don't remember the last name, but it's Alan
8 something.
9 MR. PARIS: Judge, in addition to
10 when you granted the sequestration request, you
11 indicated that you were going to let the jury
12 know that the witnesses for the Town have been
13 sequestered and that's why you haven't seen any
14 of them here.
15 JUDGE CURRAN: And I didn't do
16 that.
17 MR. PARIS: No, you didn't.
18 MS. SMITH: All witnesses, not
19 just the Town's.
20 MR. PARIS: All witnesses other
21 than the two plaintiffs.
22 JUDGE CURRAN: Yes.
23 MS. SMITH: Well, they're parties.
24 JUDGE CURRAN: I will do that now,
25 thank you.
32
1 MR. PARIS: But if we can just
2 take a few minutes to --
3 MS. SMITH: You are going to tell
4 us who the three reps are?
5 MR. PARIS: Yes.
6 MS. SMITH: All right, great.
7 JUDGE CURRAN: Thank you. Thank
8 you, Tracey.
9 (Whereupon, sidebar discussion is
10 concluded.)
11 COURT CLERK: Off the record?
12 JUDGE CURRAN: Yes.
13 (Whereupon, the following sidebar
14 discussion is held.)
15 MR. PARIS: What's the issue?
16 MR. BEVERE: The issue is the
17 consent form. When Mr. Carter submitted himself
18 to a forensic defense examination in this case
19 with my neuropsych, Dr. Goldwaser, he signed a
20 consent form. We wanted to use this consent
21 form in cross-examination of Mr. Carter today.
22 The consent form was not in my binder of
23 documents as a marked exhibit. It was provided
24 to the plaintiffs in discovery, and it was
25 marked as Goldwaser-1 at Goldwaser's --
33
1 Dr. Goldwaser's deposition by Kelly Smith from
2 Smith Mullin. My understanding is that there is
3 an objection.
4 MR. MULLIN: If it was marked at a
5 deposition -- you didn't tell me that.
6 MR. BEVERE: You know --
7 MR. MULLIN: I didn't see a Bates
8 stamp number, and I wasn't aware of the
9 document. If I could have a copy of it?
10 JUDGE CURRAN: We will make
11 copies.
12 MR. BEVERE: Can we make a copy of
13 this, Judge; and I will give it to Mr. Mullin.
14 MR. MULLIN: If this was marked at
15 a deposition --
16 JUDGE CURRAN: Miss Castelli.
17 Miss Castelli, would you be -- is she on the
18 phone?
19 COURT CLERK: Listening.
20 JUDGE CURRAN: I'm sorry, Miss
21 Hawks, I didn't see you. Would you take this
22 document; and could you make us four copies,
23 please.
24 MS. HAWKS: Yeah.
25 JUDGE CURRAN: Four or five.
34
1 MS. HAWKS: You said, "four or
2 five"?
3 JUDGE CURRAN: Yes.
4 MR. BEVERE: We're trying to get
5 to the bottom of this.
6 MR. PARIS: Your Honor.
7 JUDGE CURRAN: I'm sorry.
8 MR. PARIS: Never mind, it's okay.
9 Thank you.
10 JUDGE CURRAN: Thank you.
11 COURT CLERK: Off the record.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, sidebar discussion is
14 concluded.)
15 (Whereupon, a discussion is held
16 off the record.)
17 COURT CLERK: On the record.
18 MS. SMITH: I just wanted to --
19 because it was a subject of some conversation, I
20 wonder if we can put on the record the names of
21 the three representatives for the Town which Mr.
22 Bevere has been kind enough to give me.
23 JUDGE CURRAN: Mr. Bevere.
24 MR. BEVERE: Okay. Your Honor,
25 first and primary is David Drummeler,
35
1 D-r-u-m-m-e-l-e-r. Town Administrator. Linda,
2 L-i-n-d-a, Carpenter, purchasing agent. And the
3 name I just provided to you, Mr. Alan
4 Bartolozzi, tax collector.
5 JUDGE CURRAN: Thank you.
6 Anything else?
7 MS. SMITH: No, thank you, Your
8 Honor.
9 JUDGE CURRAN: Thank you.
10 We can bring out the jury,
11 please. We can remain on the record.
12 MS. HAWKS: Jurors are
13 approaching.
14 COURT CLERK: On the record.
15 JUDGE CURRAN: Thank you.
16 (Whereupon, the jury is brought
17 into the courtroom.)
18 JUDGE CURRAN: Good morning,
19 Ladies and Gentlemen. We're back on the record.
20 Those are -- the cards and pencils are for the
21 questions, if there are any questions, okay.
22 Thank you. Thank you very much
23 for being here is promptly. We appreciate it.
24 We are going to continue with the
25 plaintiffs' case. We are still in the middle of
36
1 the questioning under cross-examination of the
2 plaintiff, Mr. Carter, by Mr. Paris.
3 Mr. Paris.
4 MR. PARIS: Thank you very much,
5 Your Honor. Good morning.
6 JUDGE CURRAN: Good morning.
7 CONTINUED CROSS EXAMINATION BY MR. PARIS:
8 Q Mr. Carter, I just want to touch
9 base on one thing quickly that we went over
10 yesterday. This is the photograph that you had
11 seen in the newspaper, dated June 10th, of the
12 firemen taken at the dinner, correct?
13 A It is.
14 Q Okay. Do you remember we had
15 discussed this photograph yesterday?
16 A I do.
17 Q Okay. And do you remember I had
18 asked you whether you thought it was important
19 that that photograph be in the hands of the
20 Attorney General in view of the fact it was a
21 photograph of firemen?
22 MR. MULLIN: Objection, asked and
23 answered, done yesterday.
24 MR. PARIS: Your Honor, I am just
25 trying to lay a foundation, essentially.
37
1 JUDGE CURRAN: As a foundation,
2 that is not the question, so I will overrule the
3 objection.
4 BY MR. PARIS:
5 Q Okay. Mr. Carter, do you remember
6 our discussing whether you thought this
7 photograph was important to be in the hands of
8 the Attorney General?
9 A I certainly do not.
10 Q You don't remember what I said
11 yesterday? You don't remember being asked
12 whether you thought that it was important that
13 this photograph be in the hands of the Attorney
14 General, as it was a picture of firemen who were
15 at the dinner, including Charles Snyder, Sr.,
16 Charles Snyder, Jr.?
17 MR. MULLIN: Your Honor, I object
18 to this speech. I think a question should be
19 asked.
20 JUDGE CURRAN: Sustained.
21 Sir, the question is -- I
22 apologize -- do you remember the discussion
23 yesterday? That's the only question. The
24 discussion about the picture.
25 THE WITNESS: If that's the only
38
1 question, yes. But this question was asked
2 theoretically, and it is now being contrived
3 into a direct question in which I was actually
4 planning or plotting somehow to do this. And --
5 and it was -- it was a merely a theoretical
6 question yesterday.
7 BY MR. PARIS:
8 Q That's how you perceived it?
9 A Well, that's how I answered it.
10 Q Okay.
11 A And I would think you would want me to be
12 clear. And if you ask clearer questions, I
13 would be able to -- to answer them better.
14 Q Okay. Mr. Carter, do you remember
15 testifying before this jury yesterday that when
16 the photograph came back on June -- came out on
17 June 10th that you were not aware as of
18 June 10th that the Attorney General was
19 conducting the investigation?
20 MR. MULLIN: Objection. Asked and
21 answered yesterday.
22 JUDGE CURRAN: Sustained. But
23 given the answer of the plaintiff, I'm going to
24 allow the question.
25 MR. PARIS: Thank you.
39
1 BY MR. PARIS:
2 Q Do you recall giving that
3 testimony yesterday?
4 A I do. And the answer was that the -- we
5 were never quite certain for some weeks who
6 would have the responsibility of the case.
7 Q Mr. Carter, I want to show you a
8 document which was marked Plaintiff's Exhibit
9 66, which was an e-mail -- showing you right
10 here -- from Timothy Carter. Do you see that?
11 A I do.
12 Q Okay. And to whom did you send
13 this e-mail?
14 A To Troyanski.
15 Q And Troyanski is whom?
16 A Troyanski is an investigator for the
17 Attorney General's Office.
18 Q And you worked with Troyanski
19 throughout the investigation by the Attorney
20 General, didn't you?
21 A I wouldn't say throughout.
22 Q It was --
23 A Until the time of the Grand Jury.
24 Q Okay. So up until the time of the
25 Grand Jury appearance you worked with Troyanski
40
1 from the Attorney General's Office, correct?
2 A How do you mean "worked"?
3 Q Well, you met with Troyanski. You
4 provided Troyanski with information. You
5 e-mailed Troyanski. Mr. deVries e-mailed
6 Troyanski. That was at least a contact that you
7 had with the Attorney General's Office, correct?
8 A That was one of the contacts we had, yes,
9 sir.
10 Q Okay. Let's go back to the
11 e-mail. When did you send this I mail to
12 Troyanski of the Attorney General's Office?
13 A May 7, Friday.
14 Q And the subject of the e-mail was,
15 "What happened to the empty bottles confiscated
16 by Sergeant McCarsky at the Ladder 2 Fire
17 Station" at 1:30 a.m. on Sunday, April 25th,
18 correct?
19 A That is correct.
20 Q And the first sentence of this
21 was, "We will not call your cell phone number.
22 We will try not to bother you and communicate by
23 e-mail," correct?
24 A Correct.
25 Q Now --
41
1 A That --
2 MR. MULLIN: Wait for the next
3 question.
4 Q Mr. Carter, you continued to see
5 Dr. Almeleh in April -- at least including April
6 of 2005, correct?
7 A Correct.
8 Q And that was your treating
9 psychiatrist, correct?
10 A Correct.
11 Q On April 4th of 2005, okay,
12 April 4th, 2005, do you recall reporting to Dr.
13 Almeleh that you were mugged in Jersey City?
14 A Yes.
15 Q Did you recall telling Dr. Almeleh
16 that you were mugged by an apparent drug dealer
17 or dealers?
18 A They are alleged to be. I'm not certain.
19 Q How many -- how many drug dealers
20 mugged you?
21 A Well --
22 Q Assuming that they were drug
23 dealers, but how many people mugged you?
24 A Yeah, assuming they're drug dealers
25 because I don't know. There at the end of
42
1 Clinton Road that leads onto West Side Avenue on
2 the evening of Good Friday.
3 Q How many were there?
4 A There were maybe three.
5 Q Three?
6 A Uh-huh.
7 Q Did they make physical contact
8 with you?
9 A They tried to.
10 Q I'm sorry?
11 A They tried to.
12 Q And what -- what prevented them
13 from making physical contact with you?
14 A I started running, and they ripped my
15 shirt in half.
16 Q And that was on the street of
17 Jersey City?
18 A Uh-huh.
19 Q Pardon me?
20 A Yes.
21 Q Now, I want to show you --
22 MR. PARIS: Your Honor, should we
23 have this marked for Identification?
24 JUDGE CURRAN: Yes. Are you
25 talking about the consent?
43
1 MR. PARIS: Let me give it to the
2 clerk, yes.
3 JUDGE CURRAN: Thank you.
4 (Whereupon, consent form from Dr.
5 Goldwaser's office is received and marked
6 as Defendant's Exhibit D-310 for
7 Identification.)
8 JUDGE CURRAN: 310.
9 MR. PARIS: Yes, thank you.
10 COURT CLERK: 310 marked for
11 Identification.
12 MR. PARIS: Thank you.
13 BY MR. PARIS:
14 A Thank you.
15 Q Mr. Carter, I'm showing you a
16 document which is marked Defendant's Exhibit
17 310. And this is a form from Forensic
18 Psychiatric Associates, Alberto M. Goldwaser,
19 M.D., correct?
20 A Yes.
21 Q And this is a consent for a
22 forensic examination by Dr. Goldwaser, correct?
23 A Yes.
24 Q Now, you went to see Dr. Goldwaser
25 for a psychological evaluation at our request,
44
1 correct, the defense's request?
2 A I don't know if you'd call it an
3 "evaluation."
4 Q Whatever you call it, you were
5 asked to go see Dr. Goldwaser at the request of
6 the defense in this case, correct?
7 A Well, whatever you call it is important.
8 Q Pardon me?
9 A Whatever you call it is important.
10 Q Okay. Well, what I'm calling it
11 is you going to see Dr. Goldwaser. I'm not
12 categorizing it. You were asked to go see Dr.
13 Goldwaser, correct?
14 A I was asked to go see him. But how you
15 categorize it is important.
16 Q Okay. And that request came
17 through your attorneys, didn't it?
18 A I don't recall that.
19 Q Well, for example, I didn't call
20 you on the phone, I didn't send you a letter and
21 say, "Go see Dr. Goldwaser." Mr. Bevere didn't
22 call you or tell you to go see Dr. Goldwaser.
23 You were told to go see Dr. Goldwaser through
24 your attorneys in this case, correct?
25 A You know, I can't say yes because Peter
45
1 handles my correspondence.
2 Q So it could be that Mr. deVries
3 asked you to go see Dr. Goldwaser; is that it?
4 A Well, in fact, that is what happened.
5 Q Okay. Did Mr. deVries tell you
6 that, "Our attorneys have asked us to go see Dr.
7 Goldwaser because you're required to see Dr.
8 Goldwaser"?
9 A I simply can't recall.
10 MR. MULLIN: Objection, Your
11 Honor. This is seeking a privileged
12 communication between us, the attorneys, and our
13 clients.
14 JUDGE CURRAN: All right. I'll
15 sustain that. If you will rephrase it.
16 BY MR. PARIS:
17 Q Mr. deVries told you you had to go
18 see Dr. Goldwaser; is that correct?
19 A That's correct.
20 Q Mr. Carter, you didn't want to go
21 see Dr. Goldwaser, did you?
22 A I thought it was necessary.
23 Q Pardon me?
24 A I thought it was necessary.
25 Q You understood that it was
46
1 necessary because you were making a claim for
2 money damages against the Town for a
3 psychological injury, correct?
4 A I didn't know that was the reason.
5 Q Okay. But you understood that it
6 was necessary that you'd go see Dr. Goldwaser,
7 correct?
8 A I've already said that.
9 Q Okay. Now, you were asked to
10 complete an informed consent form at Dr.
11 Goldwaser's office, correct?
12 A I was.
13 Q Okay. And you took the form when
14 it was given to you, D-310, correct?
15 A I did.
16 MR. PARIS: I don't want to block
17 you.
18 MR. MULLIN: That's all right. Is
19 it just the blowup?
20 MR. PARIS: Yeah.
21 MR. MULLIN: That's okay.
22 MR. PARIS: Thanks.
23 JUDGE CURRAN: Is the blowup
24 marked?
25 MR. PARIS: The blowup is not
47
1 marked, Your Honor.
2 JUDGE CURRAN: Okay.
3 BY MR. PARIS:
4 Q Okay. And this was the first page
5 of the form that you were given, right? This is
6 the first page of the form, correct?
7 A It appears to be.
8 Q Okay. And it was a consent for a
9 forensic examination, correct?
10 A Correct.
11 Q Okay. And you read this form,
12 didn't you?
13 A I did.
14 Q Okay. You understood that
15 Dr. Goldwaser was not acting as your physician
16 or psychiatrist in doing this interview or
17 interviews, correct?
18 A I did that.
19 Q And you also understood that he
20 was not -- that you were not his patient, right?
21 A Right.
22 Q You understood that he wasn't
23 going to be giving you any medical or
24 psychiatric treatment, correct?
25 A Yes, sir.
48
1 Q Okay. And you read the whole
2 first page of the form, correct?
3 A I did.
4 Q Okay. And then you read the
5 entire second page of the form, correct?
6 A I did.
7 Q Now, you understood that
8 Dr. Goldwaser -- or that you were being
9 interviewed by Dr. Goldwaser in a legal matter,
10 correct?
11 A I did.
12 Q And you understood what you were
13 going to tell Dr. Goldwaser was not going to be
14 kept a secret? "I give up my rights to have
15 Dr. Goldwaser kept secret what I tell him,"
16 right?
17 A Yes, that's true.
18 Q Okay. And he had your permission
19 to talk to people involved in the legal case
20 about what you had discussed with him, right?
21 A He had my permission?
22 Q Well, it says, "This means that
23 Dr. Goldwaser has my permission to talk to
24 people involved in my legal case about the
25 things that he and I discuss and anything he
49
1 thinks or decides about what we discuss," right?
2 A Right.
3 Q You also agreed to give up any
4 rights you may have by law, "to keep him from
5 saying in court what I tell him or what we
6 discuss," right?
7 A That is correct.
8 Q Okay. Now, in paragraph three you
9 read that, right?
10 A Uh-huh.
11 Q Correct?
12 A That's correct.
13 Q And then, in paragraph three, is
14 this your handwriting on the left-hand side?
15 A It is, indeed.
16 Q Okay. And you underlined certain
17 things. Where Dr. -- where it says on the form,
18 "Dr. Goldwaser has explained to me and I
19 understand that Dr. Goldwaser's written report
20 or out loud statements for court may help my
21 case, hurt my case or have no effect on my claim
22 that I can see." Okay. "And I understand that
23 no one can know which one it will be in
24 advance." Right?
25 A Right.
50
1 Q That's what the form says, right?
2 A Right.
3 Q Now, Mr. Carter, in reading this
4 form and you thinking about it and analyzing it,
5 you decided you needed to write something on the
6 form, correct?
7 A I was invited to write any notations that
8 I wanted that were above my signature or, if
9 not, on the first page, to initial them.
10 Q Okay. So Dr. Goldwaser told you
11 if you have a problem with the form, if there is
12 something you want to write on it, go right
13 ahead, correct?
14 A Knock yourself out, yeah.
15 Q Okay. And you did write something
16 on the form, correct?
17 A I did.
18 Q Okay. Can you read to the jury
19 what you wrote on the form?
20 A I said, "I do not believe that this
21 session is intended to help me in any way. It
22 is a re-victimization of an outrageous
23 antiAmerican, amazingly bias attack."
24 Q Did you put your initials there?
25 A As I said, he said if you write it above
51
1 your name --
2 Q Oh, okay.
3 A -- you don't have to initial it.
4 Q Okay. Now, you wrote that because
5 you believed that Dr. Goldwaser would be biased
6 against you, correct?
7 A No, I wrote this because apart from Dr.
8 Goldwaser, completely separating him from this
9 whole process, I wrote this because even the --
10 the trauma of going through expert witnesses,
11 were they on our side, is very, very hard. And
12 the perpetrators of the event had never been --
13 had their feet held to the fire in this way.
14 And I simply wanted to make note that this was
15 hurtful to me.
16 And if you look in the third paragraph,
17 third line, "help my case, hurt my case, have no
18 effect on my claim." And although I realize
19 that is referring to the legal case, I was
20 making a point I am a human person, after all,
21 and it did hurt me.
22 Q You indicated, "I do not believe
23 this session is intended to help me in any way,"
24 correct?
25 A Well, it wasn't.
52
1 Q But that's -- that's what was in
2 your mind as you sat down to be interviewed by
3 Dr. Goldwaser, correct?
4 A Yes.
5 Q Okay. You thought you were being
6 made a victim by the Town because it was doing
7 what it was permitted to do in defending itself
8 against your claim for money damages, correct?
9 A I understood it as necessary.
10 Q Okay. And as you went through the
11 evaluation that was the attitude that you had in
12 your mind, correct?
13 A No, as I went through the evaluation I --
14 he had -- well, the trauma -- that man, he even
15 got me to sort of warm up to him.
16 Q Okay. Now, at the same time your
17 attorneys hired Dr. Goldstein for a
18 psychological evaluation of you and Mr. deVries,
19 correct?
20 MR. MULLIN: Objection, Your
21 Honor. Wrong name.
22 JUDGE CURRAN: Sustained.
23 BY MR. PARIS:
24 Q I'm sorry, Bursztajn. You hired
25 Dr. Bursztajn -- your attorneys hired Dr.
53
1 Bursztajn for a psychological psychiatric
2 evaluation of both you and Mr. deVries, correct?
3 A I wouldn't say at the same time. They
4 had done this much earlier.
5 Q But let's go back. We're not
6 talking about the timing. Your --
7 A You said, "at the same time."
8 Q I'm sorry. Mr. Carter, your
9 attorneys hired Dr. Bursztajn to do a
10 psychological evaluation of you and Mr. deVries,
11 correct?
12 A Correct.
13 Q And you understood that you
14 weren't being treated by Dr. Bursztajn; you were
15 being seen by him for the purpose of coming to
16 testify for -- for your case in court, correct?
17 A Correct.
18 Q So when you were talking to Dr.
19 Bursztajn, that is the attitude that you had in
20 your head, correct?
21 A Say -- say what attitude I had in my
22 head.
23 Q In other words, you understood
24 while you were being seen by Dr. Bursztajn that
25 the purpose of your being seen by him was to
54
1 testify in court for your case?
2 A Actually, that was more painful than --
3 than Goldwaser.
4 Q Okay. But my question, again,
5 Mr. Carter, my question is that when you were
6 being seen by Dr. Bursztajn, you understood that
7 the -- the purpose of that or the necessity of
8 that was for him to come to court and testify in
9 your case, correct?
10 A Yes, unless I'm missing some nuance.
11 What you're saying seems so obvious.
12 Q If it's obvious, then just answer
13 the question, Mr. Carter.
14 A Okay. I was afraid I was missing
15 something.
16 Q No.
17 MR. MULLIN: Objection, Your
18 Honor. He did answer the question.
19 JUDGE CURRAN: Overruled. You can
20 answer the question.
21 MR. MULLIN: Your Honor, can we
22 have the question read back? It's the question
23 that appears on line 3 on our screens, where it
24 says, "Okay. But my question is."
25 (Whereupon, the requested portion
55
1 is read back by the reporter as follows:
2 "QUESTION: Okay. But my
3 question, again, Mr. Carter, my question
4 is that when you were being seen by Dr.
5 Bursztajn, you understood that the -- the
6 purpose of that or the necessity of that
7 was for him to come to court and testify
8 in your case, correct?
9 ANSWER: Yes, unless I'm missing
10 some nuance. What you're saying seems so
11 obvious.")
12 MR. MULLIN: Your Honor, he did
13 answer.
14 JUDGE CURRAN: In fairness, I will
15 change the decision. The objection is
16 sustained.
17 BY MR. PARIS:
18 Q Okay. And Mr. -- Mr. Carter, you
19 and Mr. deVries traveled all the way up to
20 Massachusetts to see Dr. Bursztajn, correct?
21 A Correct.
22 Q Okay. When you saw Dr. Bursztajn,
23 did you feel the necessity to say to him, "I
24 understand that the reason I'm here is to help
25 my case"?
56
1 A The -- I find my -- you're asking me
2 questions about my attitude.
3 Q I'm asking you --
4 A It's very obtuse. I don't get -- I can't
5 quite get a hold of the question.
6 Q Let me ask the question for a
7 second. Did you -- did you sign anything? Did
8 you make a written statement with Dr. Bursztajn
9 where you indicated that you thought he was
10 going to be biased in your favor?
11 A I don't remember signing anything like
12 that. I -- I can't remember.
13 Q Now, Mr. Carter, regardless of
14 whether you wrote a statement for Dr. Bursztajn
15 or not, when you were seen by Dr. Goldwaser, you
16 thought he was going to be biased against you,
17 right?
18 A Not necessarily.
19 Q Okay. And did you think, when you
20 saw Dr. Bursztajn, that he was going to be
21 biased for you?
22 A Not necessarily because they have their
23 professional integrity, like a judge.
24 Q Mr. Carter, right before you left
25 Secaucus in early October do you recall an
57
1 incident that occurred at the public library in
2 Secaucus?
3 A Yes, I do.
4 Q Okay. Someone had called you and
5 indicated to you that there was a display case
6 at the library regarding the Fire Department,
7 correct?
8 A No.
9 Q How did you find out that there
10 was a display case regarding the Fire Department
11 at the library in October?
12 A On October 25th, right as we were getting
13 ready to leave, I made -- this is how I met
14 them. I made a large arrangement of flowers to
15 take to the library. I used to do this all the
16 time. Walking down the street, two -- two
17 friends, Indian friends stopped me. And Hina
18 said, "Where are you going with those flowers?"
19 And I said, "I'm taking them to the
20 library to say good-bye because I was very close
21 to these librarians."
22 And Hina said, "When you get to the
23 library" --
24 Q I'm listening, Mr. Carter, I am.
25 A Okay. Okay. "When you get to the
58
1 library, Timothy, you're not going to be very
2 happy."
3 And I said, "Why?"
4 And she said, "Because the lobby of the
5 library has been set up as sort of a shrine to
6 the Fire Department, in particular Fire Engine
7 Hose Number 2." Noreen -- and she said, "It's
8 full" -- "filled with pictures of their families
9 and so forth."
10 Chucky Snyder, Sr.'s wife is an
11 assistant at the library. She works there
12 full-time.
13 So I came in and I looked at all of
14 this. I took my flowers in. And one -- Vivian,
15 one of the librarians, said, "Take them upstairs
16 and fill them with water in our kitchen." So I
17 did.
18 While I was there --
19 MR. PARIS: Your Honor, can I --
20 can I interject? Do you remember my original
21 question, Mr. Carter?
22 MR. MULLIN: Can we check and see
23 what the original question was, Your Honor?
24 MR. PARIS: I would appreciate it.
25 JUDGE CURRAN: Thank you.
59
1 MR. PARIS: The original question,
2 Your Honor -- I'm looking over Mr. Mullin's
3 shoulder -- How did you find out there was a
4 display case regarding the Fire Department at
5 the library in October?
6 MR. MULLIN: The next question is,
7 "I am listening, Mr. Carter, I am."
8 MR. PARIS: Because he stopped
9 answering. I wanted to make sure he knew I was
10 listening. But he answered the question.
11 BY MR. PARIS:
12 Q You found out from some friends as
13 you were walking to the library there was a
14 display case there, right?
15 A Yes, sir.
16 Q At some point in time did you
17 leave a voice mail message for the librarian?
18 A Katherine Steffens.
19 Q Did you leave a voice mail message
20 for the librarian?
21 A Yes.
22 Q And in the voice mail message
23 isn't it true that you repeated the words that
24 the firemen, the people in the parking lot had
25 yelled at you on April 25th, that you repeated
60
1 many of the same words and phrases on the voice
2 mail message of Miss Steffens, the librarian?
3 A Completely out of context.
4 Q I'm asking you if you left a voice
5 mail message for the librarian using all or part
6 of those words?
7 A I do not recall.
8 Q You don't recall that?
9 A I don't recall using those words again.
10 Q You recall coming to the library?
11 A Yes, I do.
12 Q And meeting with Miss Steffens?
13 A I ran into her. I didn't go there to see
14 her.
15 Q Okay. You ran into her at the
16 library?
17 A Yes.
18 Q Okay. And at the time that you
19 ran into her at the library you expressed your
20 displeasure about the fact that the library had
21 a display with regard to the Fire Department,
22 correct?
23 A First I gave her the flowers.
24 Q And then you expressed --
25 A She hugged me and said, "I'm so sorry
61
1 you're leaving."
2 Q I'm asking --
3 A And then I said -- displeasure -- I said
4 I -- no, that's not really true. I left it
5 open. I said, "I don't understand the display
6 downstairs in the library."
7 Q And didn't -- weren't -- wasn't it
8 explained to you that the reason for the display
9 was because it was Fire Prevention Week or
10 month?
11 A Right.
12 Q Okay.
13 A And I said --
14 MR. PARIS: Your Honor.
15 A And I said --
16 JUDGE CURRAN: Sir, with all due
17 respect, that's his question; and you answered
18 it. As far as what you then said, maybe Mr.
19 Mullin will follow up on that later on. Okay.
20 Thank you.
21 Q You asked Miss Steffens to
22 replace -- to at least replace one half of the
23 Fire Department display with a display
24 supporting gay and lesbian causes, correct?
25 A That is incorrect.
62
1 Q Incorrect. Okay. When you spoke
2 to Miss Steffens did -- Miss Steffens or anyone
3 else at the library did you ask to have part of
4 the Fire Department display removed and replaced
5 with a display supporting gay and lesbian
6 causes?
7 A Absolutely not.
8 Q Okay. Now, did you ever say to
9 anyone at the library that perhaps you would
10 call your lawyer and add the library to the
11 pending case against the firemen?
12 A Absolutely not.
13 Q And while you were at the library
14 in person did you repeat the same language that
15 you found offensive when it was said to you on
16 April 25th and repeat that language to one of
17 the librarians?
18 MR. MULLIN: Your Honor, can we
19 have a sidebar?
20 (Whereupon, the following sidebar
21 discussion is held.)
22 MR. MULLIN: I don't recall
23 Miss Steffens being listed as a witness by
24 defendants. If she is, correct me, then, if I'm
25 wrong. But if Miss Steffens is not going to be
63
1 called, there is no good faith basis for this
2 entire line of questioning. A lawyer cannot ask
3 a question on cross-examination that he does not
4 intend to offer evidence to prove. So maybe
5 there's a good faith basis. I don't recall.
6 There is a lot of evidence in this case.
7 MR. PARIS: Your Honor, number
8 one, whether we call Miss Steffens or not, the
9 fact is on cross-examination I can ask him
10 whether this occurred. We provide them as D-303
11 a report that was prepared of this entire
12 matter. My recollection -- was this in the AG's
13 file? Not sure.
14 MR. BEVERE: It was forwarded by
15 Iacono.
16 MR. PARIS: It was forwarded to
17 the Attorney General's Office.
18 MR. MULLIN: By whom?
19 MR. PARIS: It was a report by
20 Katherine Steffens, and we don't have to offer
21 her testimony in order for me to cross-examine
22 him on this.
23 MR. MULLIN: Your Honor, that's a
24 hearsay document. Can't be offered into
25 Evidence.
64
1 MR. PARIS: He can -- he can
2 answer yes or no as to whether or not this
3 occurred.
4 JUDGE CURRAN: If she is not going
5 to testify and if the document is not going into
6 Evidence --
7 MR. PARIS: Pardon me?
8 JUDGE CURRAN: If she is not going
9 to testify -- and I don't remember her name. I
10 could be mistaken; but frankly, I would have had
11 no trouble pronouncing it. It would have been
12 one of the few I didn't. But if she is not
13 going to testify and if the document can't go
14 into Evidence, how can you proceed? What's the
15 good faith basis?
16 MR. PARIS: But it's a question as
17 to whether or not the event occurred.
18 JUDGE CURRAN: I know that.
19 MR. PARIS: Does he deny that it
20 occurred?
21 JUDGE CURRAN: But -- I know you
22 wouldn't do this; but in all due respect, you
23 could make up something. If there was no
24 witness and there was no way to get a document
25 into Evidence, and therefore there would have to
65
1 be a foundation. You could ask him if he had an
2 argument with someone in the deli he referred
3 to.
4 MR. PARIS: Well, I also have an
5 e-mail that he wrote.
6 MS. SMITH: Where he threatens to
7 sue the library?
8 MR. PARIS: No, no.
9 MS. SMITH: Well --
10 MR. PARIS: He said it didn't
11 happen.
12 JUDGE CURRAN: But --
13 MR. MULLIN: I don't see Bates
14 stamp numbers.
15 JUDGE CURRAN: He said he didn't
16 do the -- he said he didn't e-mail her.
17 MR. PARIS: Pardon me?
18 JUDGE CURRAN: He said, when you
19 asked him did you do an e-mail -- no, if you
20 left a message for her and if there is no
21 recorded message and she is not going to testify
22 and he denies it, then it really should be
23 stricken. It's not -- it's not proper unless at
24 this point you're asking to amend your witness
25 list.
66
1 MR. PARIS: It's possible that we
2 may call Miss Steffens, I guess, as a potential
3 rebuttal witness.
4 JUDGE CURRAN: I told you -- if
5 you are going to go on with this line of
6 questioning, you have to tell me now you are
7 going to call her. I will note that there will
8 probably be objections, but I've got to know
9 that now, in fairness; otherwise, this line of
10 questioning, there is no foundation for it.
11 MR. MULLIN: Can I also add I
12 don't see a Bates stamp number on his documents
13 he is holding? Of course, I don't remember
14 every document that was turned over; but every
15 document had a Bates number.
16 MR. BEVERE: He was questioned on
17 this at his deposition.
18 JUDGE CURRAN: I'm sorry?
19 MR. PARIS: He was questioned
20 about this at his deposition.
21 MR. MULLIN: Was he questioned
22 about this report by the librarian? I don't
23 recall.
24 MR. BEVERE: I don't recall the
25 event in question.
67
1 MR. MULLIN: I'm talking about --
2 MR. BEVERE: I think this document
3 is in their binder, as well. Let me see if I
4 can find it.
5 MR. MULLIN: Which document?
6 MR. BEVERE: I think this document
7 was in your blinder, as well.
8 MR. MULLIN: May be. But the
9 other objection stands, Your Honor. I haven't
10 seen it, but that probably just means I forgot.
11 JUDGE CURRAN: Was he questioned
12 about the two-page report, or was he questioned
13 about the top page right there?
14 MR. BEVERE: He was questioned
15 about the incident at the library, and he gave a
16 version at his deposition of the incident at the
17 library.
18 MR. MULLIN: That I don't recall.
19 I don't recall this document.
20 MR. BEVERE: He was questioned
21 about that. But e-mail is certainly his. The
22 e-mail about the incident is his. It's his
23 e-mail.
24 JUDGE CURRAN: And who did it go
25 to?
68
1 MR. PARIS: Pardon me?
2 JUDGE CURRAN: Who did the e-mail
3 go to?
4 MR. PARIS: He e-mailed it to Tim
5 Carter, to Peter deVries and also a -- excuse
6 me, to Mr. deVries and also to her. He sent it
7 to her.
8 MR. MULLIN: He doesn't threaten
9 to sue in that e-mail?
10 MR. PARIS: He does not.
11 MR. MULLIN: What is the basis for
12 the allegation? You are presenting him as a
13 litigious person.
14 MR. PARIS: It is a report in
15 discovery.
16 JUDGE CURRAN: Okay. If you want
17 to ask him one last question only about the
18 e-mail, did he write the e-mail or whatever,
19 that's fair game. If he was questioned about
20 that, if it was in his deposition and if it goes
21 to her, you can ask that. But other than --
22 that's the last question, unless you want to
23 tell me that you want to add her to your witness
24 list. I need to know that now before this goes
25 on.
69
1 MR. PARIS: I will question him
2 about his e-mail.
3 MR. MULLIN: You can answer the
4 question, Judge's question.
5 MR. PARIS: I have to talk to Mr.
6 Bevere.
7 JUDGE CURRAN: Okay. If you are
8 going to talk to Mr. Bevere about that, we are
9 not going to any questions -- any further
10 questions about the library at this point. We
11 can probably take a break before you're finished
12 with him, anyway. I don't mean to say -- before
13 the cross-examination is complete. And then, if
14 you two want to talk and let me know after that.
15 MR. PARIS: I actually may be done
16 with my cross right now.
17 MR. MULLIN: I would like a
18 curative instruction right now that there is no
19 evidence nor will there be any evidence offered
20 in this case that my client, that Mr. Carter
21 ever threatened to sue the library. There is no
22 evidence of that. None will be offered in this
23 case.
24 MR. PARIS: Well, we may call
25 Miss Steffens.
70
1 MS. SMITH: You may ask to call
2 Miss Steffens.
3 MR. PARIS: I may ask to call. We
4 may ask to call.
5 JUDGE CURRAN: Are you going to
6 tell me you are going to request --
7 MR. PARIS: No, I need to discuss
8 that for a minute.
9 MR. MULLIN: We need to know that
10 now. So you can take a minute.
11 JUDGE CURRAN: I will give the
12 jury a break, if you two want to talk.
13 MR. PARIS: Thanks.
14 (Whereupon, sidebar discussion is
15 concluded.)
16 JUDGE CURRAN: Ladies and
17 Gentlemen, we are going to give you the morning
18 break. If you would come back at 10:45, I would
19 appreciate it. Okay. Thank you.
20 (Whereupon, the jury is excused.)
21 COURT CLERK: Off the record.
22 JUDGE CURRAN: Thank you.
23 (Whereupon, a brief recess is
24 taken.)
25 COURT CLERK: On the record.
71
1 JUDGE CURRAN: Mr. Mullin.
2 MR. MULLIN: Yes, Your Honor, can
3 I have -- can I have the benefit of Counsel's
4 decision on whether or not they're going to ask
5 to call Miss Steffens to the stand?
6 JUDGE CURRAN: Are you -- have you
7 completed your discussion, Mr. Paris?
8 MR. PARIS: Yeah, we're not going
9 to call Miss Steffens.
10 MR. MULLIN: Then, Your Honor, my
11 application for a curative instruction stands as
12 I -- as I expressed it.
13 JUDGE CURRAN: Thank you.
14 MS. HAWKS: Your Honor, are you on
15 the record?
16 JUDGE CURRAN: Yes.
17 MS. HAWKS: There is a juror that
18 wants to come.
19 JUDGE CURRAN: You can bring the
20 juror in. Thank you very much.
21 COURT CLERK: Off the record?
22 JUDGE CURRAN: No.
23 COURT CLERK: Jurors are
24 approaching.
25 JUDGE CURRAN: Thank you.
72
1 (Whereupon, a juror enters the
2 courtroom.)
3 MR. PARIS: Your Honor.
4 COURT CLERK: On the record.
5 MR. PARIS: I would like to know
6 what curative instruction counsel is seeking.
7 MR. MULLIN: The one I requested.
8 MR. PARIS: Which is?
9 JUDGE CURRAN: He requested a
10 curative instruction to indicate that there is
11 no basis in the record -- come on in.
12 MR. MULLIN: There will be --
13 COURT CLERK: Juror.
14 (Whereupon, two jurors enter the
15 courtroom.)
16 COURT CLERK: Are we back on the
17 record?
18 JUDGE CURRAN: We are still on the
19 record, yeah.
20 MR. MULLIN: There will be no
21 evidence offered by the Town of Secaucus that
22 Mr. Carter ever threatened to sue the library
23 and it was inappropriate for counsel to raise
24 that issue and the jury should disregard any
25 reference to it.
73
1 MR. PARIS: Your Honor, if I may.
2 Number one, there was a good faith basis to ask
3 the question amongst the documents and we have
4 done this -- I guess this is about the third
5 time during the course of this case -- where
6 plaintiffs have alleged.
7 MS. HAWKS: Your Honor.
8 (Whereupon, a juror enters the
9 courtroom.)
10 MR. PARIS: This is about the
11 third time during the case where Plaintiffs'
12 counsel has alleged that we didn't provide
13 something in discovery, they had never seen it.
14 This morning it was the consent form. Before it
15 was a tape. Now it's this document.
16 MR. MULLIN: What is the Bates
17 number of that document, Mr. Paris?
18 MR. PARIS: This document is part
19 of your exhibits.
20 MR. MULLIN: What is the Bates
21 stamp?
22 MR. PARIS: AG 68 through 71.
23 MR. MULLIN: I'm not offering it
24 into Evidence.
25 MR. PARIS: I understand. But you
74
1 know, the applications are made as -- as though
2 these documents hadn't been provided and this is
3 the first time you're seeing them. This
4 document is in your notebook. It's marked as
5 Plaintiff's Exhibit 201. It is started with a
6 letter by Anthony Iacono, the administrator of
7 the Town -- of the Town. He is sending this
8 report, which I was utilizing, sending this
9 report to the Attorney General's Office; and it
10 included an e-mail from Mr. Carter.
11 MR. MULLIN: Your Honor.
12 MR. PARIS: Excuse me. So to say
13 I had no good faith basis to ask the question,
14 the question came right out of the report.
15 They've had the report from the librarian. He
16 answered the question, "No," so I didn't get an
17 answer that I wanted. He answered the question,
18 "No." And I don't really understand why that
19 isn't just fair cross-examination. It's not
20 like I made this up out of my head.
21 JUDGE CURRAN: Does that report
22 that Mr. Iacono sent to the Attorney General's
23 Office talk about a lawsuit?
24 MR. PARIS: Yes.
25 JUDGE CURRAN: What does it say?
75
1 MR. PARIS: "Mr. Carter said that,
2 quote, perhaps I will call my lawyer and add the
3 library to the pending case against the
4 firemen."
5 MR. MULLIN: How -- Your Honor,
6 how is this evidence getting in? RPC 3.4,
7 fairness to opposing counsel, subparagraph E,
8 says, "A lawyer shall not in trial allude to any
9 matter that the lawyer does not reasonably
10 believe is relevant or that will not be
11 supported by admissible evidence." And it goes
12 on. And that's always been my understanding.
13 This is not admissible evidence.
14 This is a hearsay document and -- and
15 Miss Steffens is not going to be called. So,
16 first of all, let me note that counsel has gone
17 very far already with this line of questioning.
18 But I don't know how they're going to prove the
19 truth of the matters asserted in a blatant
20 hearsay document. I don't -- I don't hear how
21 it's coming in.
22 MR. PARIS: This was a report that
23 was filed with Mr. Iacono, the Town
24 Administrator, by one of the employees in the
25 Town, the director of the library. She reported
76
1 on an incident that occurred with Mr. Carter the
2 morning of October 6th. And this document was
3 then forwarded to the Attorney General as
4 part -- in furtherance of their investigation.
5 So to say that there was no good faith basis at
6 all even ask the question is -- is not the case.
7 This is not a surprise. This is
8 a document that was produced in discovery.
9 Plaintiffs included it amongst their potential
10 documents, exhibits, whatever you want to call
11 it. So to say now that there was no basis for
12 asking these questions and that Mr. Carter's
13 answer and the question now should be stricken
14 is not the case. He answered the question no,
15 it didn't occur. I would have liked him to
16 answer in accordance with what Miss Steffens
17 said; but he didn't do that.
18 MR. MULLIN: Let me refine my
19 request to take the good faith issue out of
20 this. Okay. Let me say that the Court should
21 tell the jury that the Town of Secaucus will not
22 offer any evidence to support --
23 (Whereupon, a juror enters the
24 courtroom.)
25 JUDGE CURRAN: Okay.
77
1 MR. MULLIN: The Town of Secaucus
2 will not offer any evidence to support their
3 claim that my client threatened to sue the
4 library, without criticizing counsel for -- for
5 raising the issue because that's a true
6 statement.
7 JUDGE CURRAN: I think we have
8 admitted 17 or 18 jurors so far.
9 (Whereupon, two jurors enter the
10 courtroom.)
11 JUDGE CURRAN: Thank you.
12 If you are not going to call the
13 librarian, that seems to me a fair curative
14 instruction. What is unfair about it from the
15 defense side?
16 MR. PARIS: Well, the only thing
17 that's unfair about it is we are going to call
18 Mr. Iacono and he is going to indicate that he
19 received a report from one of the directors of
20 the library. That's all.
21 MR. MULLIN: That will be hearsay.
22 That would be just blatant hearsay.
23 JUDGE CURRAN: I don't see how
24 that will be admissible that way.
25 MR. PARIS: Your Honor, you know,
78
1 again, I object. He answered the question,
2 "No." And there was good faith basis for asking
3 the question.
4 JUDGE CURRAN: Good faith is out.
5 No question about good faith at this point.
6 Do you want to go off the record
7 so the two of you can --
8 MR. PARIS: Yeah, just for a
9 second.
10 JUDGE CURRAN: Why don't we go off
11 the record.
12 COURT CLERK: Off the record.
13 (Whereupon, a discussion is held
14 off the record.)
15 JUDGE CURRAN: Back on the record.
16 MR. PARIS: You know what, at this
17 point I would ask that, if you're going to do
18 anything, that you just ask the jury to
19 disregard the last question and answer. And
20 that's been done before. That the question with
21 regard to the threatened suit against the Town
22 is stricken and they are to disregard the
23 answer.
24 MR. MULLIN: Your Honor, that
25 won't do it. The jury won't remember the last
79
1 question. There is great prejudice. And
2 counsel has attempted in his cross-examination
3 to portray my client as litigious, and it's very
4 potent. And there has been damage done. And
5 there is not going to be evidence offered that
6 my client was litigious.
7 Again, I am not going to ask the
8 Court to condemn counsel for asking the
9 question. I am not going to good faith issue.
10 But the jury should be told the Town of Secaucus
11 will present no evidence demonstrating that my
12 client ever threatened to sue the library. That
13 way they will remember the question. The
14 factual implication of the question sounds like
15 he has some evidence in his pocket he is going
16 to offer, and that's not -- that's not fair
17 play.
18 MR. PARIS: Your Honor, you know
19 what, I would ask our witness list be amended to
20 add Miss Steffens.
21 JUDGE CURRAN: Objection noted.
22 MR. MULLIN: I stren -- the middle
23 of the trial? I strenuously object. I never
24 anticipated her as a witness. I haven't taken
25 her deposition. My client has finished
80
1 testifying on direct, and I didn't put into his
2 testimony that which would deal with the issues
3 raised by Miss Steffens. I will be profoundly
4 prejudiced by such -- the grant of such an
5 application.
6 MR. PARIS: We would call her as a
7 rebuttal witness, Your Honor.
8 JUDGE CURRAN: They have every
9 right to do that.
10 MR. MULLIN: What?
11 JUDGE CURRAN: They have a right
12 to call her as a rebuttal witness, considering
13 your client's answer.
14 MR. MULLIN: They don't have a
15 right to rebuttal, Your Honor; I have a right to
16 rebuttal.
17 JUDGE CURRAN: Right. But if you
18 do --
19 MR. MULLIN: They have to right to
20 rebuttal?
21 JUDGE CURRAN: I understand that,
22 but it's not a right with the capital R. But
23 it's a fairness --
24 MR. MULLIN: Well, first of all --
25 JUDGE CURRAN: -- issue.
81
1 MR. MULLIN: -- rebuttal to what?
2 They asked an improper question; and now they
3 are going to call a witness to rebut the answer
4 they elicited based on an improper question,
5 based on a document that can't be admitted into
6 Evidence and -- and a hearsay -- and a witness
7 that isn't a witness.
8 JUDGE CURRAN: They call -- I'm
9 sorry. If they call her, it's not improper, if
10 they call her.
11 MR. MULLIN: But it is improper
12 because she is not on the witness list, she --
13 she -- therefore, I did not prepare my clients'
14 testimony with the -- with the fact that she was
15 coming in their defense case. I am profoundly
16 prejudiced. They had -- they didn't have the
17 right to suggest to the jury that they were
18 going to prove this fact, that my client
19 threatened to sue.
20 MR. PARIS: Frankly --
21 JUDGE CURRAN: You are right.
22 Mr. Mullin is certainly right technically
23 because she -- when the offer -- when the
24 question was asked, there was no indication that
25 the librarian was on the -- in fact, the
82
1 librarian was not on the witness list at that
2 point.
3 MR. PARIS: Your Honor, honestly,
4 if it's just -- if it's just about -- this isn't
5 all about a threat to sue. Believe it or not,
6 there are other -- there are other ways that
7 this gets tied into the case. But I will
8 withdraw the question with regard to did you
9 threaten to sue the Town. I would withdraw that
10 question. And I think that that's more
11 appropriate, to say that that last question was
12 withdrawn and the answer is stricken and the
13 jury is to disregard any comment with regard to
14 any threat to sue.
15 JUDGE CURRAN: But with all due
16 respect, as many times as we say to them
17 something is withdrawn, is stricken, that means
18 it can't be part of your deliberations -- in
19 fairness, I think this is a sensitive issue; and
20 I think there had -- in fairness, I'm not sure
21 they would remember the last question because
22 there has been so much back and forth and
23 nuancing in regard to answers of questions. So
24 just to say you withdraw the last question, I
25 think, in fairness, there has to be an
83
1 identification of the question.
2 Are you saying that you're
3 withdrawing the question and therefore you are
4 not going to bring in the witness?
5 MR. PARIS: No.
6 JUDGE CURRAN: No?
7 MR. PARIS: What I'm saying is I
8 would withdraw the question with regard to the
9 threatened litigation.
10 JUDGE CURRAN: But are you going
11 to bring in the witness?
12 MR. PARIS: We may. Well, if --
13 if we withdraw that -- if we withdraw that, I
14 would then withdraw the request to bring in the
15 witness.
16 JUDGE CURRAN: Okay.
17 MR. MULLIN: Your Honor, I just
18 want to add --
19 JUDGE CURRAN: I'm sorry,
20 Mr. Mullin.
21 MR. MULLIN: I want to add to the
22 record. I'm sorry, go ahead.
23 JUDGE CURRAN: As I see the two
24 choices, they are I would give a curative
25 instruction to the jury indicating that the Town
84
1 will provide no evidence in regard to
2 Mr. Carter's threatening to sue the library and
3 therefore I am striking that question and
4 answer; or you can call the witness as a
5 rebuttal witness. I don't see the withdrawing
6 and no mention to the jury as an option.
7 Mr. Mullin.
8 MR. MULLIN: Yes, I just want to
9 add I have had my staff check through all the
10 rogg answers, Interrogatory answers while I'm
11 standing here. I am told Miss Steffens is not
12 listed as a person with knowledge in the
13 Defendant's Answers to Interrogatories. I can
14 tell you that -- that she was not listed.
15 Clearly, she was not listed as a witness for
16 this trial. And while we have a whole lot of
17 rogs, our -- our pass on it right now doesn't
18 turn up a reference to Miss Steffens as a person
19 with knowledge.
20 Also, at sidebar counsel for
21 the -- for Secaucus mentioned that the document
22 that has the so-called threat to sue the museum
23 seemed -- I'm not sure they said this; they may
24 have said it -- my client was shown that in his
25 deposition. Perhaps they haven't said that. We
85
1 checked the deposition. My client was not shown
2 that in his deposition. So Miss Steffens has
3 not been named as a person with knowledge in
4 answers to discovery. Miss Steffens is not on
5 the witness list. I did not, in preparing my
6 client for -- Mr. Carter for direct and cross,
7 anticipate that she would play a roll, that she
8 would testify, that this hearsay document would
9 come into play.
10 I will be profoundly prejudiced
11 if the curative is not given and if they're
12 allowed to suddenly bring in Miss Steffens, who
13 I have never deposed, bring in discovery on.
14 MR. PARIS: There certainly is
15 document discovery because the document we are
16 relying upon is part of everyone's record.
17 MR. MULLIN: I would have -- I
18 would have sought discovery of all of
19 Miss Steffens' e-mail communications. I would
20 have done a thorough job exploring all of her
21 contacts, apparently, which Miss Snyder, Sr.
22 worked with her or for her. I would have
23 explored all communications with Miss Snyder,
24 Sr. to show that she is not an impartial person.
25 I am prejudiced. I haven't done any of that. I
86
1 wouldn't be able to do any of that.
2 JUDGE CURRAN: Mr. Paris, you
3 mentioned or argued that this goes beyond just
4 whether or not the plaintiff threatened to sue.
5 Presumably, then, there are other issues in this
6 regard. Why, then, would she not be even
7 mentioned in the rogs? You know, I mean, they
8 can -- those answers can always be amended. And
9 I can understand maybe as things went on you
10 discovered --
11 MR. PARIS: I am sure there was
12 probably a catchall and she was referred to and
13 there was -- you know, certainly part of the
14 Attorney General's records included this report.
15 So that's probably why she wasn't mentioned
16 specifically. But there is nothing I can say
17 about that at this point.
18 JUDGE CURRAN: Any other
19 arguments?
20 MR. PARIS: No, Your Honor.
21 JUDGE CURRAN: Okay. I am going
22 to give the curative instruction without any
23 reference of bad faith. I will indicate that
24 the Town will provide no evidence that
25 Mr. Carter threatened to sue the library and
87
1 that question and answer are stricken. Thank
2 you.
3 Anything else?
4 MR. MULLIN: Nothing else, Your
5 Honor.
6 JUDGE CURRAN: Thank you. We will
7 bring back the jury.
8 MS. HAWKS: Jurors are
9 approaching.
10 JUDGE CURRAN: Thank you.
11 (Whereupon, the jury is brought
12 into the courtroom.)
13 JUDGE CURRAN: You may be seated,
14 Mr. Carter.
15 Thank you, Ladies and Gentlemen.
16 We are going to continue with the
17 cross-examining in a moment -- cross-examination
18 in a moment; but if you would let me just
19 indicate one thing to you.
20 I don't know if we remembered the
21 last question, but it was addressed by Mr. Paris
22 to Mr. Carter in regard to the library. I am
23 indicating to you and instructing you that the
24 Town is not going to present any evidence that
25 Mr. Carter threatened to sue the library.
88
1 Therefore, that question and that answer are
2 stricken. Again, that can have no part in your
3 deliberations. And we'll talk about questions
4 and answers being stricken at the end.
5 Thank you we'll continue with the
6 cross-examination, Mr. Paris.
7 BY MR. PARIS:
8 Q Mr. Carter, you indicated in --
9 the event I was talking about, it occurred on
10 October 25th; is that correct?
11 A That's correct.
12 Q Why do you remember the date
13 October 25th?
14 A I don't remember it exactly.
15 Q Are you sure this didn't happen in
16 early October?
17 A I'm not certain, sir.
18 Q Okay. And you -- you had asked
19 that the display be taken down, didn't you?
20 A I did not ask that the display be taken
21 down.
22 Q After -- after -- at some point in
23 time you had a discussion about the display
24 coming down, then you wanted to compromise where
25 there would be a sign up near the display,
89
1 correct?
2 A I -- I think maybe it's written down. I
3 just -- I'm not sure how it all ended, except
4 that Katherine said, "Can I give you a hug" and
5 I hugged her. And that's the last I saw of her.
6 Q Okay. And that's how it ended.
7 And I just want to understand, do you recall
8 requesting that a sign go up next to the Fire
9 Department display?
10 A I remember saying -- she said, "It's Fire
11 Prevention Week" and Chucky Snyder, Sr.'s wife,
12 who was an assistant, had put up the display.
13 And I said, "There's a perception among
14 some people."
15 And she said, "It wasn't meant that
16 way. It's for Fire Prevention Week for the
17 children."
18 And I said, "I have a teacher's
19 license, Katherine. And there is no educational
20 component to this."
21 And so she said, "Tim, what can we do?
22 What would make you happy?" Because she is a
23 warm friend of mine.
24 Q And you never shared with her any
25 of the language that occurred on the evening of
90
1 April 25th; is that correct?
2 A That is not correct. What she did was
3 she said, "Tim, what really happened that
4 night?"
5 And as I did here in Court, I backed it
6 up about four ways with saying, "You don't want
7 to hear this," et cetera. And I told her
8 generally a couple of things, spelling out some
9 words, whatever.
10 And she said, "Okay. I get the idea."
11 Q And you did that personally, not
12 by way of a voice mail, correct?
13 A If I left a voice mail, it would have
14 been after that conversation.
15 Q You didn't use any of that
16 language in a voice mail, did you?
17 A I didn't say that.
18 MR. MULLIN: Objection. Can we be
19 heard sidebar, Your Honor?
20 JUDGE CURRAN: Sure.
21 MR. PARIS: I have no further
22 questions.
23 MR. MULLIN: I want to be heard
24 sidebar.
25 THE WITNESS: We're very good
91
1 friends.
2 JUDGE CURRAN: No question.
3 (Whereupon, the following sidebar
4 discussion is held.)
5 MR. MULLIN: Your Honor, again,
6 there is a lot of material in this record. And
7 I'll stand corrected, but I don't recall a voice
8 mail of -- of Mr. Carter being turned over to me
9 in discovery where he is leaving curses and
10 crude language. I don't recall that. I don't
11 believe they're going to -- maybe I'm mistaken
12 and it is there and I overlooked it and you are
13 going to offer it into Evidence. But if you're
14 not, well, I want a curative instruction on that
15 where the jury has now heard this promise about
16 four times.
17 MR. PARIS: Your Honor, he says he
18 didn't leave any such message. I don't have a
19 voice mail message. Okay. I don't --
20 JUDGE CURRAN: What was the basis
21 for the question?
22 MR. PARIS: Again, it's referred
23 to in the report.
24 MR. MULLIN: What report?
25 MR. PARIS: In the report from the
92
1 librarian.
2 JUDGE CURRAN: Okay. In fairness,
3 if we were over here for the first time,
4 Mr. Paris, maybe I'd listen to arguments. But
5 at this point you have got -- you had to know
6 that objection was coming, and you had to know I
7 was going to sustain it. And you had to know
8 I'm going to give them a curative instruction
9 saying the Town will provide no evidence that
10 there were any improper or obscene words in --
11 you didn't use the word "obscene."
12 MR. PARIS: No, I didn't say --
13 JUDGE CURRAN: Improper words or
14 no graphic description of words that were used
15 left in a voice mail for the librarian.
16 MR. MULLIN: Thank you, Your
17 Honor.
18 JUDGE CURRAN: In fairness, I
19 mean, as I said, if this was the first time, we
20 could argue it; but I don't see a point in
21 arguing it.
22 MR. PARIS: Okay.
23 JUDGE CURRAN: I will note your
24 objection. It's preserved.
25 (Whereupon, sidebar discussion is
93
1 concluded.)
2 JUDGE CURRAN: Ladies and
3 Gentlemen, before we -- oh, Tracey, I'm sorry.
4 Ladies and Gentlemen, before we
5 proceed I'm going to give you another -- we call
6 them "curative instructions." The Town will
7 prevent -- will present no evidence that
8 Mr. Carter left a voice mail for the librarian
9 with any of the graphic language that you have
10 already heard repeated in the voice mail.
11 So, again, I am going to ask you
12 to -- I'm going to strike that question and
13 answer, and I'm going to just instruct you that
14 it can be no part of your deliberations. Thank
15 you.
16 Now we are going to move back to
17 redirect by Plaintiffs' counsel. Mr. Mullin.
18 MR. MULLIN: Thank you, Your
19 Honor.
20 REDIRECT EXAMINATION BY MR. MULLIN:
21 Q Tim --
22 A Yes, sir.
23 Q -- are you the kind of person that
24 goes around suing people and threatening to sue
25 people all the time?
94
1 A No, sir, I'm not.
2 Q How old are you, sir?
3 A I just turned 50.
4 Q You're 50. And in your 50 years
5 how many lawsuits have you filed?
6 A I have filed no lawsuits, sir.
7 Q Other than this one?
8 A Other than this one, which we had to.
9 Q How about Mr. deVries; you have
10 known Mr. deVries how long?
11 A I have known him for 22 years. He is 60
12 years old on June 24.
13 Q Has he ever filed any lawsuits
14 other than this one?
15 A Absolutely not.
16 Q Did you -- did you sue the
17 library?
18 A I made --
19 Q Yes or no?
20 A -- arrangement -- no, I made arrangement,
21 a floral arrangement, Williamsburg.
22 Q And I don't want to go into much
23 more detail on that; but when you left
24 Miss Steffens, what gesture did she make towards
25 you and you towards her?
95
1 A She said, "Tim, we've loved having you.
2 Will you give me a big hug?" And I hugged her.
3 Q And you hugged her.
4 A Yes, I did. And I still like her.
5 Q Did you love the library of
6 Secaucus?
7 A Yes, because that was a concern. We had
8 gone to Secaucus with the intention that I would
9 have time to sort of find myself. Admittedly, I
10 had been lost quite a while. And so I used that
11 library every day. I knew all the librarians by
12 name. I knew Katherine by name and face. And I
13 used it extensively. They were very good to me
14 because we have a very good New Jersey library
15 system.
16 Q Do you miss that library today?
17 A That is one of the only things I miss;
18 but yeah, I do.
19 Q It's the only thing --
20 A I miss them a lot. They were my friends,
21 Vivian and the whole -- all the librarians.
22 Q Okay. Mr. Paris asked you some
23 questions implying that you were threatening to
24 sue your employer at Kohl's. Do you recall that
25 line of questioning?
96
1 MR. PARIS: Objection, Your Honor.
2 JUDGE CURRAN: Basis?
3 MR. PARIS: Again, it's not --
4 it's not a direct question. He is asking what I
5 was implying. I only asked questions, Your
6 Honor.
7 JUDGE CURRAN: Sustained. If you
8 will please rephrase.
9 MR. MULLIN: I will rephrase, Your
10 Honor.
11 BY MR. MULLIN:
12 Q Do you remember being asked
13 certain questions about your employment at
14 Kohl's and how that employment ended? Do you
15 recall being asked those questions?
16 A Yes.
17 Q And you mentioned that you were
18 being harassed by certain employees who worked
19 at the loading dock, right?
20 A Very much so.
21 Q Okay. Do you know where those
22 employees were also employed in addition to
23 Kohl's or working for Kohl's?
24 A They were employed by the Department of
25 Public Works.
97
1 Q Okay. And were any of them
2 volunteer firemen?
3 A Yes, sir, they were.
4 Q How many of the employees or
5 people working for Kohl's that you described
6 before that were calling you names, like
7 "faggot," were volunteer firemen?
8 A I would say probably 15.
9 Q Okay. And then at some point you
10 resigned from Kohl's; is that right?
11 A Yes, sir, I did.
12 Q When did you resign from Kohl's?
13 A I resigned on Monday. Maybe it's May the
14 20th. I'm not sure exactly.
15 Q Towards the end of May 2004?
16 A Yes, sir.
17 Q About a month after the incident
18 of April 24th?
19 A Yes, sir.
20 Q And then your attorney
21 communicated with Kohl's about -- about the
22 conditions they allowed to exist; is that what
23 happened?
24 A Yes, sir.
25 Q Okay. Now, just so we make it
98
1 clear for the jury, this is a letter that
2 Mr. Paris showed you marked Plaintiff's Exhibit
3 24 from a Kelly Smith. And -- and just briefly,
4 who is Miss Kelly Smith?
5 A Miss Kelly Smith is an attorney at law.
6 Q And whose office does she work
7 for, for the record?
8 A She works for Smith Mullin.
9 Q Okay. And that's not Kelly Smith;
10 that's Nancy Smith, right?
11 A That's Nancy Smith.
12 Q And she works for our firm?
13 A She is a partner.
14 Q Okay. Now, you were asked a
15 question that emphasized that this letter was
16 written six months after the incident of
17 April 25th, that it's dated December 3, 2004,
18 right?
19 A That's right.
20 Q Do you recall that questioning?
21 Okay. But is that when Miss Smith started to
22 attempt to negotiate a resolution with -- with
23 this company for firing you --
24 A No.
25 Q -- from Kohl's?
99
1 A She -- she -- that -- most of that
2 activity, I would say, took place late May,
3 early June.
4 Q Of 2004?
5 A It happened very quickly.
6 Q In fact, in this letter Miss Kelly
7 Smith referred -- is writing to a lawyer and a
8 vice president at Kohl's and says, "I" --
9 Miss Kelly Smith, your lawyer, says, "I spoke to
10 you," the lawyer for Kohl's, "last weak
11 regarding your letter to me dated October 19th,
12 2004." Do you recall correspondence --
13 A Yes.
14 Q -- back in October and even in
15 earlier than that?
16 A Right.
17 Q Okay. And -- and by the way, did
18 Kohl's settle with you? Did they give you some
19 money?
20 A Never, never, never.
21 Q And when they didn't give you
22 money, did you file a lawsuit against them?
23 A No.
24 Q You chose not to?
25 A No, I didn't get unemployment or
100
1 anything.
2 Q Okay. And you didn't sue them?
3 A I never sued anybody in my life.
4 Q Okay. Other than --
5 A Other than --
6 Q -- this lawsuit?
7 A -- these guys.
8 Q Now, you were asked a series of
9 questions about whether or not you transmitted
10 information about what -- what was happening to
11 you after the big April 25th incident; do you
12 remember that? In other words, first there is
13 that big riot, that mob attack; and then things
14 happened afterwards. Do you remember that?
15 A Yes, sir.
16 Q And do you remember being asked
17 questions about, well, did you tell the Attorney
18 General's Office which, on May 10th, took over
19 the investigation, did you tell them about those
20 instances? Do you remember that?
21 A Yes, sir.
22 Q Okay. Let me show you this
23 letter, which is copied to you. This is P-89,
24 plaintiff's Exhibit 89. You see this is copied
25 to you; is it not, sir?
101
1 A Uh-huh.
2 Q Do you recall getting this letter?
3 A Yes.
4 Q Let's look at the information.
5 The letter is written to whom?
6 A To Chief Corcoran.
7 Q And Chief Corcoran is Chief of
8 which department?
9 A Police Department.
10 Q Which Police Department, of which
11 Town?
12 A Of Secaucus --
13 Q Okay.
14 A -- New Jersey.
15 Q And who is writing the letter?
16 A It is written by the DAG.
17 Q Does DAG stand for?
18 A Deputy attorney general.
19 Q And who does the deputy attorney
20 general work for? Is that the Attorney
21 General's Office?
22 A Yeah, broadly speaking.
23 Q Okay. And who is the DAG or
24 deputy attorney general that's writing this
25 letter?
102
1 A Hester Agudosi.
2 Q Agudosi?
3 A Agudosi.
4 Q And is that someone you came to
5 know in the course of your dealings with the
6 State Attorney General's Office?
7 A Yes.
8 Q Now, the first sentence of this
9 letter is, "Dear Chief Corcoran," Miss Agudosi
10 writes, "I have been advised by Timothy Carter
11 and Peter deVries that they have reported a
12 number of criminal incidents that have occurred
13 on or near their premises subsequent," after,
14 "April 25th, 2004." Do you see that sentence?
15 A Uh-huh.
16 Q Was that a true statement? Had
17 you and Peter, in fact, told the Attorney
18 General's Office of these incidents that were
19 happening after April 25th? Were you doing your
20 best to communicate that?
21 A We were doing our best to communicate
22 that, and I believe that the person -- but --
23 although, I believe, except for just writing on
24 their web site where you can write in, I believe
25 that the real contact was made through a third
103
1 party.
2 Q State Trooper -- State Officer
3 Troyanski?
4 A No, I believe that the real contact to
5 the -- first went to the Attorney General
6 through Senator Corzine's office.
7 Q Okay. But did you communicate --
8 as this sentence says, did you and Peter
9 communicate information to the Attorney
10 General's Office about these incidents after
11 April 25th?
12 A Yes.
13 Q Okay. When Miss Agudosi wrote
14 that was that a true statement?
15 A Yes.
16 Q That was, okay. Now she says,
17 right after that, "They," referring to you and
18 deVries, "have further requested copies of
19 reports on file in your office," referring to
20 Chief Corcoran's office, "pertaining to these
21 incidents and were denied a copy of the same, as
22 they were informed that those matters were being
23 handled by the office of the Attorney General."
24 Just very narrowly, had you and Peter,
25 indeed, asked the Police Department of Secaucus
104
1 to give you the police reports that reflected
2 all your complaints to the Secaucus Police about
3 all these incidents, the shining of lights,
4 driving by and yelling "faggot," things like
5 that? Had you requested that?
6 A Yes, we had.
7 Q And had you been denied them by
8 Secaucus?
9 A We had.
10 Q Okay. And let's go question by
11 question. Miss Agudosi writes, "Please be
12 advised that the Office of Bias Crime and
13 Community Relations' pending case investigation
14 is limited to the reported bias incident that
15 occurred on April 25th, 2004 in the vicinity of
16 988 Schopmann Drive, Secaucus, New Jersey. Any
17 subsequent reports filed by Mr. Carter and
18 deVries that are unrelated to the April 25th,
19 2004 incidents should be handled pursuant to the
20 standard operating procedures of your
21 department."
22 Let me ask you this. Did you
23 understand, as Miss Agudosi says here, that all
24 the incidents that happened after the April 25th
25 incident were not being handled by the State
105
1 Attorney General's Office --
2 MR. PARIS: Objection.
3 Q -- but, in fact, were being
4 handled by the Secaucus Police Department?
5 MR. PARIS: Objection.
6 Q Was that your understanding?
7 MR. PARIS: Objection, Your Honor.
8 A That's correct.
9 MR. PARIS: This whole line of
10 questions is leading.
11 MR. MULLIN: I had to --
12 incorporating --
13 JUDGE CURRAN: It is leading, but
14 there was no objection as the line progressed.
15 And there was a question, and the answer is
16 already on the record. But the objection is
17 noted.
18 MR. PARIS: Thank you, Your Honor.
19 MR. MULLIN: Your Honor, I may be
20 finished. Just give me a moment --
21 JUDGE CURRAN: Sure.
22 MR. MULLIN: -- let me check my
23 notes.
24 BY MR. MULLIN:
25 Q You know, I think Mr. Paris may
106
1 have referred to this letter, D-305, during his
2 questioning of you.
3 A All right.
4 Q Did you, in fact, write an e-mail
5 on October 6, 2004 to Peter deVries concerning
6 the subject matter of Mr. Paris'
7 cross-examination on the library incident? Did
8 you write this e-mail?
9 A I did, indeed.
10 Q Okay.
11 A And I remember it.
12 MR. MULLIN: It's a short e-mail.
13 Your Honor, can I -- with the Court's
14 permission, can I have him read this e-mail?
15 MR. PARIS: I don't know what the
16 question is. What's the question?
17 JUDGE CURRAN: What is the
18 question, Mr. Mullin?
19 MR. MULLIN: The question this
20 deals with -- well, I'll try to make it a little
21 more specific.
22 BY MR. MULLIN:
23 Q In this --
24 JUDGE CURRAN: Need some
25 foundation.
107
1 MR. MULLIN: Yes.
2 BY MR. MULLIN:
3 Q In this e-mail did you describe
4 the poster that Mr. Paris questioned you about
5 that you wished the library to hang up near the
6 fire prevention display? Did you?
7 THE WITNESS: Yes, ma'am.
8 Q Yes? And can you please just read
9 this -- just read that text to the jury in which
10 you -- we can start at the beginning.
11 JUDGE CURRAN: The answer -- the
12 question is: Did you describe the poster? The
13 answer was: Yes.
14 MR. PARIS: Yes.
15 BY MR. MULLIN:
16 A "Peter, I had to go to the library today.
17 I ran into Hina, who said they have a tribute to
18 the Fire Department. Hina was very angry about
19 it and said it was a disgrace. She said
20 Katherine Steffens did it, as she is one of the
21 Town honchos. I went to Katherine Steffens, who
22 was just as sweet as she could be. You know I
23 love the library staff, anyway. She explained
24 that it is a Fire Prevention Month. So I said,
25 'Well, Katherine, you need to be realistic and
108
1 realize that it is already been seen by others
2 as your having taken sides and we object to it.'
3 I said 'Can we compromise? What I want is a
4 sign poster size which reads: This display is
5 for Fire Prevention Month. It is not intended
6 to reflect the library or the Town's bias toward
7 the criminal investigation against the Fire
8 Department by the Attorney General's Office or
9 the civil suit pending against these parties.'
10 I don't see a thing unreasonable about this
11 request."
12 MR. MULLIN: Thank you. I have no
13 further questions.
14 MR. PARIS: Just a couple, Your
15 Honor.
16 JUDGE CURRAN: Mr. Paris.
17 RECROSS EXAMINATION BY MR. PARIS:
18 Q Mr. Carter --
19 A Yes, sir.
20 Q -- you were copied -- you were
21 copied on the letter that was written by Kelly
22 Smith to Kohl's corporate headquarters on
23 December 3rd, 2004, correct?
24 A Yes, sir.
25 Q Okay. So you read this letter at
109
1 that point in time?
2 A Yes, sir.
3 Q And at that point in time
4 Miss Smith indicated -- let's --
5 JUDGE CURRAN: What is the number?
6 MR. PARIS: This is Plaintiff's
7 Exhibit 24.
8 JUDGE CURRAN: Thank you.
9 BY MR. PARIS:
10 Q So December 3rd, 2004 you got a
11 copy of this letter. And what does the last
12 paragraph of the letter indicate?
13 A "We would prefer to resolve this matter
14 through negotiation, rather than litigation.
15 Toward that end, kindly contact me no later than
16 December 17, 2004; or we shall amend the
17 complaint accordingly."
18 Q Thank you. And as of
19 December 2004 that was your position, wasn't it?
20 A I suppose.
21 Q Mr. deVries, with regard to the
22 library --
23 A I'm Mr. Carter.
24 MR. MULLIN: Mr. Carter.
25 Q I'm sorry, Mr. Carter. With
110
1 regard to the compromise where you had requested
2 a poster-size sign, your initial position was
3 that you wanted the display taken down entirely,
4 correct?
5 A That is incorrect.
6 Q Okay. So what was the compromise?
7 What did you want the library to do with regard
8 to the display for Fire Prevention Month?
9 A What I said was, okay, if we have Fire
10 Prevention Month, maybe to send a signal that
11 the library is open to all, you could, next year
12 during gay pride month, have a display for -- a
13 similar display for us.
14 Q And the compromise was the poster?
15 A The compromise was a poster, which she
16 did.
17 Q Okay. Now, I just want to ask you
18 a couple more questions. Mr. Mullin showed you
19 a letter that was dated in October to the
20 Secaucus Fire Department -- excuse me, the
21 Police Department from the Attorney General,
22 correct?
23 A That is correct.
24 Q October 18th, right? Do you
25 recall calling the Secaucus Police Department
111
1 on -- in May of 2004 and advising the Police
2 Department that -- and this was in an
3 afternoon -- that an hour ago there was a very
4 heavy white male with a mustache in a vehicle
5 sitting parked next to 986 Schopmann Drive? Do
6 you recall calling the police because there was
7 a heavy white male with a mustache parked next
8 to 986 Schopmann?
9 A I do, indeed.
10 Q And do you remember that you told
11 the police that you thought that the reason that
12 the man was parked there was to get a good look
13 at you?
14 A Yes, I do.
15 MR. MULLIN: Your Honor.
16 Q Can you recall --
17 MR. MULLIN: Objection. This is
18 beyond the scope of my redirect. He is raising
19 a whole new topic.
20 MR. PARIS: Absolutely not.
21 JUDGE CURRAN: Why don't we go to
22 sidebar.
23 (Whereupon, the following sidebar
24 discussion is held.)
25 MR. PARIS: The next -- the next
112
1 sentence that I was going to read was that the
2 policeman asked Mr. Carter why he waited an hour
3 to call after the suspect departed. And the
4 answer he gave was -- and I'm going to ask him,
5 "Didn't you tell the police officer that you
6 were advised by the Attorney General's Office
7 not to call the Secaucus Police Department but
8 to call them directly?"
9 MR. MULLIN: What's the date of
10 that report?
11 MR. PARIS: 5/24. And that's the
12 only -- that's the only reason that I'm asking
13 the questions about that.
14 MR. MULLIN: I will withdraw the
15 objection, Your Honor.
16 MR. PARIS: Because it relates
17 back to that.
18 JUDGE CURRAN: Okay. No problem.
19
20 MR. MULLIN: Your Honor, I
21 withdraw my objection.
22 JUDGE CURRAN: Thank you.
23 (Whereupon, sidebar discussion is
24 concluded.)
25 BY MR. PARIS:
113
1 Q And do you recall being asked by
2 the police officer why you waited an hour to
3 call them after the person had left?
4 A I talked to Mrs. Hjelm.
5 Q Mr. Carter, I'm only asking you do
6 you recall telling the police officer -- or the
7 police officer asking you, "Why did you wait an
8 hour after the person you're complaining about
9 left the scene before you called the Secaucus
10 Police?" Do you recall being asked that
11 question?
12 MR. MULLIN: Is that a yes or no?
13 MR. PARIS: I hope.
14 BY MR. PARIS:
15 A There is no need to be sarcastic. I have
16 ADD.
17 Q Mr. Carter, do you recall having
18 been asked the question from the police officer?
19 A No, I recall another part of it.
20 Q Pardon me?
21 A No, I recall another part of it.
22 Q Do you recall telling the police
23 officer that the reason you waited an hour to
24 call the Secaucus Police was because you were
25 advised by the Attorney General's Office not to
114
1 call the Secaucus Police but to call them
2 directly?
3 A Yes, I do recall that now.
4 Q Okay. I have no further
5 questions.
6 MR. MULLIN: Can we have the
7 exhibit number of that, please?
8 MR. PARIS: D-159. I have no
9 further questions.
10 MR. MULLIN: I have a couple
11 follow-up.
12 JUDGE CURRAN: Any recross?
13 MR. MULLIN: Yes, Your Honor, just
14 on that issue.
15 FURTHER REDIRECT EXAMINATION BY MR. MULLIN:
16 Q Let me show you the report that
17 Mr. Paris was just holding in his hand, D-159.
18 Tim, would you look over here. And there is an
19 incident where you looked outside and you saw a
20 very heavy male sitting in a car; is that right.
21 A That's right.
22 Q And were you frightened of him?
23 A Yes, I was.
24 Q And it says that you --
25 JUDGE CURRAN: I'm sorry, can
115
1 Juror Number 1 hear?
2 MR. MULLIN: I'm sorry, are you
3 okay?
4 JUROR NUMBER 1: Yeah.
5 BY MR. MULLIN:
6 A Yes, I do. Yes, I was.
7 Q Okay. And the passage that
8 Mr. Paris just read you is, "Mr. Carter
9 explained that he will call the Secaucus Police
10 Department sparingly, as we are involved and we
11 would never catch the people responsible."
12 Did you -- was that your view at the
13 time, that the Secaucus Police would not catch
14 the people responsible?
15 A Yes, they had -- they were -- they had
16 really trailed off on it.
17 Q They trailed off? Look what is
18 the date of this report?
19 A May 24.
20 Q By May 24th had they arrested
21 anybody the Secaucus Police? What is the
22 answer?
23 A No, sir.
24 Q No? But then Mr. Paris referred
25 to this sentence. "I asked Mr. Carter why he
116
1 waited an hour to call after the suspect
2 departed. He said he was advised by the
3 Attorney General's Office not to call the
4 Secaucus Police Department but to call them,"
5 meaning the Attorney General's Office,
6 "directly." And was that the case?
7 A That was the case. Troyanski told me
8 that.
9 Q This date when you made this
10 statement is May 24th, '04, right?
11 A Right.
12 Q Now, at some point I showed you a
13 letter just before where finally the Attorney
14 General said, look, we, the Attorney General's
15 Office, have jurisdiction over the April 25th
16 event, right? But you, Secaucus, you have
17 jurisdiction over everything that happened after
18 April 25th. Remember you got that letter?
19 A Yes.
20 Q The statement that Mr. Paris
21 focused you on, that was a statement you made
22 around May 24th, correct?
23 A Right.
24 Q When did you get the letter from
25 Miss Agudosi of the Attorney General's Office
117
1 clearing up who had jurisdiction over what?
2 A It's dated October 18.
3 Q October 18, 2004. So you didn't
4 get this letter from the Attorney General
5 explaining who had jurisdiction over what until
6 how many months after you made that statement
7 April 24th?
8 A That would be --
9 Q June, July, August, September --
10 A Five months.
11 Q -- October, is that five months?
12 A Yes, sir.
13 MR. MULLIN: No further
14 questions -- oh, hold on one sec. Hold on one
15 sec.
16 Q But on May 24th you did call the
17 Secaucus Police Department, right?
18 A I did.
19 Q Because you were scared?
20 A Because I was scared and Mrs. Hjelm was
21 scared too.
22 MR. MULLIN: Thank you. No
23 further questions.
24 MR. PARIS: I have no further
25 questions, thank you, Your Honor.
118
1 JUDGE CURRAN: Thank you.
2 Is there anyone on the jury who
3 has a question for this witness? If so, please
4 write down the question on one of those cards.
5 Is there anyone on the jury who has a question?
6 Anyone need a card? No? No questions. Thank
7 you very much.
8 The witness may step down.
9 MR. MULLIN: You can step down.
10 (Whereupon, the witness is
11 excused.)
12 MR. MULLIN: Your Honor, can we
13 see you sidebar?
14 JUDGE CURRAN: Sure.
15 MR. MULLIN: Scheduling witnesses.
16 JUDGE CURRAN: You know, we could
17 fold up that easel, then we wouldn't have to
18 worry about knocking it over.
19 Mr. Mullin. Miss Smith.
20 MS. SMITH: Judge, my expert
21 witness is here. And I don't want to be
22 disrespectful, but I wonder if I can leave the
23 courtroom --
24 JUDGE CURRAN: Of course.
25 MS. SMITH: -- and go meet with
119
1 him in the attorneys conference room. He came
2 down from Boston.
3 JUDGE CURRAN: No problem.
4 MR. PARIS: Can I just raise one
5 question? It's 11:25, whatever, now. The
6 expert is supposed to, I guess, take the stand
7 around 1:30. Your Honor indicated that there
8 was going to be a Rule 104 hearing first, unless
9 there is an agreement he is only going to
10 testify as a psychiatrist.
11 If there is going to be a Rule
12 104 hearing, then -- he has rendered separate
13 opinions with regard to two different
14 plaintiffs. I don't know how long the direct is
15 going to go, but I'm really concerned about
16 whether or not we're going to be able to finish
17 up with this witness by 4 or 4:30, 5:00, 5:30,
18 you know, how long this is going to go today.
19 So I mean, I don't know who's doing the direct,
20 but --
21 MS. SMITH: I am. So what's
22 the -- what's your point?
23 MR. PARIS: My point is that if we
24 start a Rule 104 hearing at 1:30, I don't know
25 that we are going to be done today. And is
120
1 there a possibility that we can get him started
2 earlier than 1:30?
3 MR. MULLIN: Can I confer with
4 Miss Smith, Your Honor?
5 MR. PARIS: May we take lunch,
6 come back at 12:30?
7 MR. MULLIN: Because I was
8 prepared --
9 MS. SMITH: Could you confer with
10 me, since I'm putting him on, just for a second?
11 JUDGE CURRAN: Okay. I understand
12 there is at least a request that we let the jury
13 go to lunch early.
14 MS. SMITH: Yes.
15 JUDGE CURRAN: So that's one
16 possibility. Thank you. Off the record.
17 (Whereupon, a discussion is held
18 off the record.)
19 MS. SMITH: Okay.
20 JUDGE CURRAN: Go back on the
21 record.
22 MS. SMITH: Judge, one thing is I
23 don't believe we are going to need a 104
24 hearing. Dr. Bursztajn is not going to testify
25 as an expert in the organizational response to
121
1 discrimination.
2 JUDGE CURRAN: That answers that
3 question. Time to cross that off my yellow pad.
4 MS. SMITH: He certainly is going
5 to testify about the effect on the plaintiffs of
6 continuing to live next door.
7 JUDGE CURRAN: That's already on
8 the record.
9 MR. BEVERE: We have no --
10 JUDGE CURRAN: That was proffered.
11 MS. SMITH: So we can put that
12 aside.
13 With regard to the request that
14 we take a break now and maybe come back at 1,
15 instead of 1:30, we have no objection to that.
16 MR. PARIS: I was thinking 12:30,
17 but I don't care.
18 MR. BEVERE: Let's --
19 JUDGE CURRAN: I'm sorry?
20 MR. BEVERE: If we are not going
21 to go into the organizational issues, then I
22 think that if we -- as opposed to starting
23 Mr. deVries now and getting in a half-an-hour of
24 testimony --
25 JUDGE CURRAN: We will use this --
122
1 MR. BEVERE: Getting in a
2 half-an-hour of testimony, it might make sense
3 to break now and maybe bring the jury back at
4 1:00.
5 JUDGE CURRAN: Okay. So you want
6 to do Mr. deVries for half-an-hour?
7 MR. BEVERE: No, no, no. What I'm
8 saying is I don't think it makes sense to start
9 Mr. deVries for a half-an-hour.
10 MR. MULLIN: I'm fine with that.
11 I don't see the point in putting Mr. deVries on
12 for half hour.
13 JUDGE CURRAN: If -- I'm sorry, if
14 I -- I just need to clarify before we get
15 everybody's comment. If we don't finish by 4 or
16 4:30, he comes back tomorrow, right?
17 MR. PARIS: We are not -- I can't
18 be here tomorrow.
19 MS. SMITH: He will definitely
20 have to come back, if we don't finish. I will
21 have to work with him around that, Your Honor.
22 MR. PARIS: That's fine.
23 JUDGE CURRAN: So we'll do that.
24 Is everybody agreed now that we should --
25 MR. PARIS: Take an hour, 12:30?
123
1 MR. MULLIN: What time is it?
2 JUDGE CURRAN: It's 11:30.
3 MR. MULLIN: An hour is fine with
4 me, sure.
5 JUDGE CURRAN: Okay.
6 MR. BEVERE: That's fine, Judge,
7 thank you.
8 JUDGE CURRAN: Thank you.
9 (Whereupon, sidebar discussion is
10 concluded.)
11 JUDGE CURRAN: Ladies and
12 Gentlemen -- I'm sorry, Tracey.
13 Ladies and Gentlemen, as we
14 indicated, counsel are very concerned about your
15 schedule; and we do try not to delay you. We do
16 have another witness, and the witness is here.
17 But it doesn't really make any sense at this
18 point to get started with that witness. So what
19 we're going to do, in order to keep things more
20 cohesive and not interrupt in the middle, is
21 give you the lunch break now, okay.
22 So we will -- that gives you, you
23 know, an up on getting a place at some of the
24 many fine restaurants we have in this area.
25 Little truck outside is about as good as any, if
124
1 they still have that truck out there.
2 So we will give you a lunch break
3 for the hour. We will ask that you come back at
4 12:30, okay. Thank you.
5 Again, please don't discuss the
6 case among yourselves, nor with anyone else.
7 Off the record.
8 COURT CLERK: Off the record.
9 JUDGE CURRAN: Thank you.
10 (Whereupon, the jury is excused
11 for lunch.)
12 (Whereupon, a luncheon recess is
13 taken.)
14 A F T E R N O O N S E S S I O N
15 JUDGE CURRAN: On the record,
16 please.
17 COURT CLERK: On the record.
18 JUDGE CURRAN: Thank you, Mr.
19 Bevere.
20 MR. BEVERE: Your Honor made
21 certain rulings over the last couple of days
22 with regard to the Jersey City incident and what
23 can and what cannot be said about the Jersey
24 City incident. In reviewing Dr. Bursztajn's
25 report I notice that his report makes mention of
125
1 bloody towels in Jersey City. I would just ask
2 that the witness not make reference to bloody
3 towels in Jersey City, in light of Your Honor's
4 ruling.
5 MS. SMITH: I have advised him of
6 that, Your Honor.
7 JUDGE CURRAN: Thank you.
8 MR. BEVERE: Thank you, Your
9 Honor.
10 JUDGE CURRAN: Thank you.
11 MR. PARIS: Your Honor, can we
12 give the instruction to the jury regarding
13 sequestration?
14 JUDGE CURRAN: Absolutely.
15 MR. BEVERE: For both sides, Your
16 Honor.
17 JUDGE CURRAN: Thank you. I have
18 put my note right up here. Planning to do it,
19 thank you.
20 MR. PARIS: Thank you, Judge.
21 JUDGE CURRAN: I will just ask,
22 Bartolozzi, sir, is that the correct
23 pronunciation?
24 MR. BARTOLOZZI: Very good.
25 JUDGE CURRAN: And your first name
126
1 as given to me is Al. Is it Alfred --
2 MR. BARTOLOZZI: Alan, A-l-a-n.
3 JUDGE CURRAN: Thank you. Bring
4 out the jury, please.
5 MS. HAWKS: Jurors are
6 approaching.
7 JUDGE CURRAN: Thank you.
8 MS. HAWKS: You're welcome.
9 (Whereupon, the jury is brought
10 into the courtroom.)
11 COURT CLERK: On the record.
12 JUDGE CURRAN: Thank you. We are
13 back on the record. I will note that the jury
14 is returning to the jury box.
15 Thank you, Ladies and Gentlemen.
16 I appreciate your being back promptly. I hope
17 you all had a good lunch. And we are going to
18 continue with the plaintiffs' case.
19 Please call your next witness. I
20 believe Miss Smith is calling the next witness.
21 Is that correct?
22 MS. SMITH: Yes.
23 JUDGE CURRAN: Thank you.
24 MS. SMITH: Thank you, Your Honor.
25 Plaintiffs call Dr. Harold Bursztajn.
127
1 JUDGE CURRAN: Thank you.
2 THE WITNESS: Good afternoon.
3 JUDGE CURRAN: Good afternoon.
4 MS. HAWKS: Please remain
5 standing. Raise your right hand, put your left
6 hand on the Bible, please.
7 H A R O L D J. B U R S Z T A J N, M.D. is duly
8 sworn by a Notary Public of the State of New
9 Jersey and testifies under oath as follows:
10 MS. HAWKS: Thank you. For the
11 record, please state your full name and spell
12 your last name, please.
13 THE WITNESS: It's Harold J.
14 Bursztajn, which is spelled the original way,
15 B-u-r-s-z-t-a-j-n. And when my daughter says,
16 "Why didn't you change it, Dad, your name, when
17 you came to the United States," I said, "We came
18 here in 1959. We didn't have to change our name
19 by then."
20 MS. HAWKS: Thank you.
21 JUDGE CURRAN: Thank you. Please
22 be seated.
23 THE WITNESS: Thank you, Your
24 Honor.
25 JUDGE CURRAN: Thank you. Will
128
1 you please give us your professional address for
2 the record.
3 THE WITNESS: It's 96 Larchwood,
4 L-a-r-c-h-w-o-o-d, Drive in Cambridge,
5 Massachusetts.
6 JUDGE CURRAN: Thank you. Your
7 witness.
8 MS. SMITH: Thank you, Your Honor.
9 DIRECT EXAMINATION BY MS. SMITH:
10 Q When you came from where, Dr.
11 Bursztajn?
12 A Oh, I came from town in Poland called
13 Lodz. And I came to Paterson, New Jersey. So
14 I'm back home.
15 Q How old were you when you came?
16 A I was nine years old.
17 Q And what is your profession,
18 Doctor?
19 A I practice as a psychiatrist and as a
20 forensic psychiatrist and as a psychoanalyst.
21 Q What is psychiatry?
22 A Psychiatry is seeking to understand human
23 beings using a biopsychosocial model. You use
24 biology, what we know from biology, we use what
25 we know from psychology and we use what we know
129
1 from sociology to try to understand individual
2 human beings and how human beings think, feel,
3 behave, live, as deeply as we possibly can.
4 Q And what is forensic psychiatry,
5 Doctor?
6 A Forensic psychiatry is a special interest
7 area of psychiatry, just the way in which
8 forensic pathology is a special interest area of
9 pathology where you look at events which have
10 occurred in the past, where there was a legal
11 question; and you try to provide the deepest
12 possible biopsychosocial understanding that you
13 can for the finders of fact, be they judges or
14 juries.
15 Q Doctor, you -- in the record is
16 your curriculum vitae. It's marked P-108 and
17 updated P-108A. If you can refer to it with me
18 as we go along, because it's extensive. I am
19 going to ask you to start with please tell the
20 jury what your educational background is.
21 A When I came to United States in Paterson
22 I went to elementary school, PS 28, and then
23 East Side High School, which some of you may
24 know for its basketball team. Great basketball
25 teams in Paterson.
130
1 Then I applied to the best school in
2 New Jersey that I knew of, with all due
3 deference to Rutgers, where most of my friends
4 went. And surprisingly, I got accepted to
5 Princeton through a scholarship. I went to
6 Princeton.
7 And then I journeyed to Harvard Medical
8 School in 1972. And I have never left. They
9 say the difference between the students and the
10 teachers is the students learn enough to
11 graduate and leave.
12 Q Describe your residences --
13 residencies. First, what's a residency, Doctor?
14 A A residency is a period of apprenticeship
15 subsequent to graduating from medical school
16 where you learn how to take care of patients,
17 which is the essence of being a doctor. It's
18 not prescribing. It's not diagnosing. It's
19 taking care of patients. And that's what you
20 learn in the course of a residency.
21 I first did a pediatric internship at
22 Children's Hospital in Boston. And then I went
23 on to do a residency in psychiatry at another
24 Harvard teaching hospital, but it was also a
25 state hospital, the Massachusetts Mental Health
131
1 Center, where we saw those people who are
2 socially, economically disadvantaged and
3 provided free care, basically, to two people.
4 While there I was also doing a senior
5 fellowship in internal medicine at another
6 Harvard teaching hospital, the Massachusetts
7 General Hospital because I have always been
8 interested in the interaction between medical
9 problems and psychosocial problems, how -- how
10 they interact.
11 In 1982 I was appointed as the first
12 chief resident of a program which I co-founded,
13 called the Program in Psychiatry and the Law,
14 which I directed for 25 years. And now I have
15 been elevated to the status of co-founder,
16 which -- of the program. And it's the longest
17 running volunteer think tank in Harvard Medical
18 School history. We have now had 26, 27 years
19 of -- of ongoing productive research, helping
20 young psychiatrists learn about intersection
21 between psychiatry, ethics and the law.
22 Q Are you board certified, Doctor?
23 A I am board certified by the American
24 Board of Psychiatry & Neurology and a specialty
25 of psychiatry, and I have been for 20-some-odd
132
1 years.
2 Q What does it mean to be board
3 certified?
4 A It means that you need to pass a
5 two-stage -- after finishing through training as
6 a resident you need to pass a two-stage
7 examination. There is a written part, and then
8 you are asked to do an interview with a patient.
9 And you are observed by your colleagues to make
10 sure that you are conducting the interview
11 properly and that you can formulate an
12 appropriate differential diagnosis and an
13 appropriate treatment plan for that particular
14 patient.
15 Q Can you please describe to the
16 jury your academic appointments?
17 A I began at the longest run with Harvard
18 in 1979. I was named a clinical instructor.
19 And subsequently, as I continued to teach, I
20 was -- continued to be promoted where I'm
21 currently at a level of an associate clinical
22 professor of psychiatry at Harvard Medical
23 School.
24 Q And do you have any hospital
25 appointments, Your Honor -- Your Honor? Sorry,
133
1 Dr. Bursztajn?
2 A I defer to --
3 Q I just elevated you.
4 JUDGE CURRAN: You are insulting
5 the witness.
6 A But by no stretch of the imagination, my
7 17-year-old daughter keeps reminding me I am not
8 a judge.
9 The -- I am on the consulting staff of
10 a number of Harvard teaching hospitals,
11 including the Mount Auburn Hospital. And I
12 continue to be on the staff of the Massachusetts
13 Mental Health Center, whose mission it is to
14 take care of people who don't have the funds to
15 be otherwise taken care of by private hospitals.
16 So I have continued to do that.
17 Q And do you belong to any
18 professional associations?
19 A I do. Those range from the American
20 Academy of Psychoanalytic Physicians to the
21 American Academy of Forensic Sciences, which
22 reflects my range of interest in medicine,
23 psychiatry and the law.
24 Q Have you held any other
25 professional positions or major visiting
134
1 appointments?
2 A Over the years I have been invited to
3 give grand rounds in a variety of hospitals
4 across the United States. And I also have been
5 invited to sit on a variety of commissions,
6 including the American Bar Association
7 Commission on Mental Health and Disability Law,
8 where I have been in -- both a member of that
9 commission, and I have also been on the
10 Editorial Board of the American Bar Association
11 Journal, which deals with mental health and
12 disability law.
13 Q Have you received any awards or
14 honors?
15 A Yes. To mention three different
16 categories, as far as patient care is concerned,
17 I've been elected and named to a list called,
18 "The Best Doctors in America." You are named to
19 it by your colleagues and elected to it by your
20 colleagues.
21 I have also by my colleagues at the
22 medical school have been -- have served as the
23 Harvard Medical School representative to the
24 Harvard Alumni Council, representing -- by the
25 medical school alumni.
135
1 As far as research is concerned, I have
2 been awarded the Solomon prize in research,
3 which is the highest prize for research that the
4 Massachusetts Mental Health Center, Harvard
5 Medical School Department of Psychiatry gave for
6 doing research.
7 And finally, next Tuesday at this time
8 I will be awarded the Harvard Medical School
9 Excellence in Mentoring Clifford A. Barger
10 Award, which is an award for teaching and
11 mentoring and teaching and mentoring across a
12 diversified student and collegial body with
13 special emphasis on promoting the academic
14 advancement of minorities and otherwise
15 under-represented people in the health
16 professions. And I think I will be the only
17 psychiatrist receiving that award that
18 particular day.
19 Q And you were elected by the
20 faculty of Harvard?
21 A I was elected by the faculty of Harvard;
22 and I was nominated by my students, my
23 colleagues, my mentees.
24 Q How many faculty at Harvard are
25 there?
136
1 A 10,000. We have the largest faculty of
2 any medical school in the United States. I
3 think probably the world, actually.
4 Q Have you worked as an editor at
5 any major journals?
6 A I have been a peer reviewer in a variety
7 of journals. And these have ranged from the
8 Journal of the American Academy of Psychiatry
9 and the Law to being a book reviewer for the
10 American Psychiatric Association Journal, the
11 Journal of the American Medical Association and
12 so on.
13 Q What does it mean to be a peer
14 reviewed journal?
15 A When -- when acting as a peer reviewer,
16 one gets papers, research papers; but one
17 doesn't know who has written them. They're
18 being blindly reviewed. And your job is to go
19 ahead and to talk about the strengths and the
20 weaknesses of a research paper and how it may
21 need to be revised, to be accepted or why it
22 needs to be rejected, depending on what the
23 strengths and weaknesses are. The process is
24 blind, which means that I -- I don't know who
25 has written the paper when I read it.
137
1 Q Have you published in any peer
2 reviewed journals?
3 A Yes, I think my most recent count is I
4 have -- over the past 25 years I have published
5 in over -- over 65 peer reviewed journals.
6 Q Let's talk about a couple of them.
7 We're not going to go through all 65.
8 A Thank you.
9 Q Let's talk about number 54 --
10 A Okay.
11 Q -- on your CV. Can you please
12 tell us what that article is about?
13 A Number 54 talks about the importance,
14 when new data comes in and you have been
15 retained by an attorney to do an independent
16 evaluation, of letting the attorney know if the
17 data does not support the initial hypotheses or
18 things have changed, that you need to withdraw
19 from the case, that you can cannot continue to
20 be helpful because irrespective of who's
21 retained you, your job is to provide an
22 objective opinion. And if you are given one set
23 of information, a few months later there is
24 additional information which washes out that
25 information, then you need to go ahead and let
138
1 the attorney know I -- I can't be of help to
2 you.
3 Q What is the name of that article,
4 Doctor?
5 A It's called, "Just Say No, Experts Late
6 Withdrawal from Cases to Preserve Independence
7 and Objectivity."
8 Q And where was that published?
9 A That was published in the Journal of the
10 American Academy of Psychiatry and the Law in
11 2004.
12 Q How about can we talk about number
13 64?
14 A Okay.
15 Q Can you describe that publication?
16 A Number 64 is published just this
17 September with one of my extraordinarily bright
18 mentees, Abilash Gopal, one of the best students
19 I ever had. He deserves much of the credit.
20 But it's about how the Diagnostic and
21 Statistical Manual is misused very often in both
22 clinical training and in cultural testimony
23 because people start looking at checklists,
24 which is a little bit like mistaking the menu
25 for the meal. You know, just because you can
139
1 go -- you -- you can't paint by the numbers in
2 psychiatry or in art, and you -- you can't
3 diagnose by using a checklist either. It's.
4 Meant to be a training manual, rather than a way
5 of understanding people deeply or formulating a
6 differential diagnosis.
7 And that was published in the
8 Psychiatric Annals which is one of the
9 psychiatric journals with an extraordinarily
10 wide circulation and readership, both in the
11 United States and internationally.
12 Q And I think we might refer to that
13 as DSM, the --
14 A Yes.
15 Q -- Diagnostic and Statistical
16 Manual. Can you describe for the jury briefly
17 what that is?
18 A The Diagnostic and Statistical Manual was
19 put together by a committee of the American
20 Psychiatric Association to try to get some
21 standardized way of including people in research
22 trials. It was never meant to be a substitute
23 for clinical judgment.
24 And if one reads the preface of -- of
25 the manual, a preface which, by the way, both
140
1 first-year residents and, all too often,
2 attorneys ignore, it says it should only be used
3 for forensic purposes with the greatest of
4 cautions. You read it -- you know, it should
5 not be used per se as a substitute for clinical
6 judgment or understanding.
7 Unfortunately, again, the constraints
8 of time, given the fact that insurance companies
9 demand a DSM number to -- to give reimbursement,
10 it all too often becomes a substitute for a
11 diagnosis with any deep understanding of what
12 the human being's life is like and what they're
13 suffering from.
14 Q How about number 65, Doctor; can
15 you describe number 65 for the jury, please?
16 A Yes, number 65 includes both a -- two of
17 my esteemed colleagues and also one of my,
18 again, really superb students, Robin Kosh Paul,
19 who has just finished a forensic fellowship, now
20 will be going to private practice. And that
21 article is called "Knocking At the Wrong Door:
22 Insured Workers' Inadequate Psychiatric Care and
23 Workers' Compensation Claims."
24 And that talks about a new phenomena
25 that we're beginning to see with health care
141
1 insurance being generally fairly limited and
2 with organizations all too often turning a blind
3 eye or blind ear to sexual and racial and other
4 forms of harassment on the job.
5 What happens is people who have either
6 had bad experiences with inadequate health care
7 insurance or people who have been harassed on
8 the job, their only recourse is to file workers'
9 compensation claim, to say that their impairment
10 is work-related, when it may be work-related but
11 may be work-related because of inadequate health
12 care or because of sexual, racial harassment on
13 the job. So, again, that has to be part of the
14 consideration whenever one is evaluating a
15 workers' compensation claim, is it the job or is
16 it the organization that's the cause of the
17 claim?
18 Q Have you published any books,
19 Doctor?
20 A I have published four books, which have
21 been favorably reviewed in a variety of
22 journals. The most recent one came out either
23 late last year or this year. I better check to
24 see what's the date on that. But it can be
25 found, if you go to the United Nations web site.
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1 It's a book which I actually wrote based --
2 international group, based on the promise which
3 was made to me it would be freely distributed to
4 people, so people don't have to buy the book,
5 especially physicians in developing countries,
6 so it can be downloaded. It's available in hard
7 cover, if you want to buy it; but the United
8 Nations has also made it available to be
9 downloaded internationally.
10 And it's a book which has to do with
11 the mental -- mental health rights of people who
12 suffer from mental health impairments and
13 disabilities. It's -- it focuses on the ethics.
14 And again, among my -- my co-authors, there is
15 Michael Perlin, who some of you may be familiar
16 with in this room. He was originally New
17 Jersey law professor who is now professor at NYU
18 and one of the leading national advocates for
19 the rights of mentally impaired and mentally
20 disabled people.
21 Q How about chapters in books; have
22 you published any chapters in books?
23 A Yes, I think I have listed over 25 or so.
24 I guess it's now up to --
25 Q Twenty-six.
143
1 A -- twenty-six. I think there is a number
2 I haven't listed there just because I try to go
3 ahead and -- you know, book chapters are
4 something which you write regularly with
5 students. And since my CV is up to 25 pages and
6 I promised myself to keep it at 25 pages, so
7 things begin to go out after a while.
8 Q Can you tell us about the chapter
9 that you have described as number 24, please?
10 A Yes, that chapter is called, "The Role of
11 the Mental Health Professional In Employment
12 Litigation." And it was published in, "Mental
13 and Emotional Injuries in Employment Litigation"
14 by the Bureau of National Affairs. It was a
15 book which was edited by a leading defense
16 attorney in the field. And at the same time
17 what he asked me to do is to write about what
18 are the standards for doing an objective
19 evaluation when there are employment-related
20 claims, such as sexual harassment, racial
21 harassment, sexual discrimination, racial
22 discrimination.
23 Q Have you done any presentations,
24 Doctor?
25 A I think I have listed over a hundred, but
144
1 I'm sure the number was probably twice as many.
2 Again, I try to, after a while, not have the
3 same presentation given in different places be
4 mentioned more than one or try not to have
5 overlapping presentations be mentioned.
6 Q We are going to talk about just a
7 few of them, please. Let's talk about number
8 three on your list.
9 A Yeah, that was a presentation regarding
10 posttraumatic stress disorder in the courtroom,
11 which was presented at an American Psychiatric
12 Association meeting. Post -- my focus there was
13 to talk about the importance of understanding
14 what a particular trauma means to an individual
15 in the context of that individual's life and why
16 some people are more vulnerable and why -- how
17 it's not just the trauma but how the trauma is
18 responded to, which makes a great deal of
19 deference as far as the outcome is concerned.
20 If the trauma is responded to in a
21 manner empowered to the patient, patient often
22 will do very well. Even complicated patients,
23 if the trauma is not responded to in a humane,
24 thoughtful and decent manner, if the person is
25 not only traumatized but helpless, then the
145
1 helpless makes whatever the trauma is that much
2 worse. It's one thing to feel pain. It's one
3 thing to feel -- it's another thing to feel pain
4 and fear when you are feeling absolutely
5 helpless. That's a huge dividing line right
6 there.
7 Q How about number five, Your
8 Honor -- Dr. Bursztajn.
9 A I am going to have to mention this to my
10 daughter.
11 This was called, "Liability for Sexual
12 Misconduct of Government Providers"; and it was
13 the Office of Legal Education of the Executive
14 Office for United States Attorneys. They asked
15 me to talk about this. The reason being that
16 there was sexual harassment and sexual
17 discrimination within the government, as well
18 as -- and within government organizations. And
19 also government organizations, there were times,
20 asked to respond to charges of sexual harassment
21 and sexual discrimination.
22 What I was asked to talk about is what
23 is a helpful response when that happens? There
24 was a part of it which was about prevention, but
25 a good part of it was also a response.
146
1 Q How about number -- number 34?
2 A Okay.
3 Q Please tell us where you gave this
4 presentation.
5 A This was the Harvard School of Public
6 Health conference, which was called "Leadership
7 in Evolving Health Care Systems." And the
8 people who were there were people like the vice
9 president for human relations in this major firm
10 or that major firm, people who would ordinarily
11 be handling potential claims of sexual
12 harassment, racial harassment.
13 And the issue was how do you take --
14 how do you respond to those claims? How do you
15 conduct an investigation? Why you can't just
16 leave it up to the EEO. Why you can't just
17 leave it up to the police. Why you have to take
18 steps within the organization to clean your
19 house, you can't ask someone else to do it for
20 you. And why that makes a difference to people
21 who have been harassed and discriminated.
22 Q How about number 36; can you
23 please describe that presentation?
24 A That was at the American Academy of
25 Forensic Sciences. And it was called, "Sexual
147
1 Harassment Post Daubert." Daubert is a legal
2 case which set the standard for how to do a
3 proper evaluation, how to make sure that,
4 irrespective of whichever side retains you, you
5 can go ahead and do an objective forensic
6 evaluation, how to use different kinds of
7 methods to make sure that you get all sides of
8 the story when you are doing evaluation.
9 Q Can you please describe for the
10 jury the presentation on your CV marked number
11 45, Doctor?
12 A Number 45 was a follow-up to my initial
13 presentation at the Harvard School of Public
14 Health for executives dealing with sexual and
15 racial harassment and discrimination in terms of
16 effective organizational responses or meaningful
17 organizational responses when such claims come
18 up.
19 Q Number 49, please, Doctor.
20 A Number 49 was a presentation I did at
21 Lawrence General Hospital, Lawrence,
22 Massachusetts, which focused on what happens
23 when racial or sexual harassment claims come up
24 by employees of the hospital or patients --
25 patient feels, you know, wait a minute, I went
148
1 to the emergency room and no one would see me
2 for hours and hours; whereas, people of a
3 different skin color would be seen ahead of me.
4 What was going on here? How to respond when
5 these kinds of issues come up.
6 Q How about number 109, Doctor?
7 A Number 109 was a presentation I did last
8 year in the international meeting, the Congress
9 of the International Academy of Law and Mental
10 Health. This took place in Italy. And this
11 involved presenting an analysis regarding the
12 effects of work -- workplace racial
13 discrimination and harassment on intimate
14 relationships and sexual function.
15 And what that talked about is, again,
16 how the organizational response to racial
17 harassment or nonresponse to racial harassment
18 can either aggravate or mitigate what happens
19 and how, in terms of how individual people
20 respond to racial harassment. That response
21 doesn't necessarily have to be via a DSM
22 checklist but can involve such traumatic
23 responses as if there was already some small
24 problem in -- or some problem, sexual problem in
25 an intimate relationship, that that could get
149
1 much worse, that can be aggravated, that just
2 because something happens on the job doesn't
3 mean it doesn't have effects on the home, that
4 there is a carryover effect. And that is
5 especially true when there is helplessness, when
6 the organization doesn't respond in fact to the
7 form of racial harassment and racial
8 discrimination.
9 Q Number 113, please, Doctor.
10 Please describe that for the jury.
11 A Number 113 was a talk I gave in Montreal
12 in November of this year at a international
13 meeting which focused on social policy and
14 ethics in the workplace. And that, again,
15 focused on risk factors regarding sexual
16 harassment, racial harassment and -- on the job
17 and how those impact on intimate relationships
18 between people at home.
19 Q Can you please describe to the
20 jury briefly the presentation number 116 on your
21 CV?
22 A Number 116 occurred this May, just a few
23 weeks ago, at the American Psychiatric
24 Association meeting, where I joined a panel of
25 students and colleagues in talking about
150
1 interviewing, how one can do a good interview of
2 people that have been traumatized, be that
3 interview for teaching purposes or be that
4 interview for forensic purposes.
5 What's similar between the two is that
6 interview for forensic purposes and teaching
7 purposes are public, basically, so they are not
8 the usual kind of private interviews in a
9 doctor-patient relationship.
10 So the question was if you are
11 interviewing someone in a public setting who has
12 been traumatized or potentially public setting,
13 how do you put that person at ease enough so
14 they don't have to go ahead and put on your best
15 face or let a smile be their umbrella, how they
16 can actually be themselves, even in the context
17 of a public setting.
18 Q And are you scheduled to do a
19 presentation this month, Doctor?
20 A Yes, on Thursday, May 22nd, I will be in
21 Columbia, South Carolina. And I have been asked
22 by the National Advocacy College, which is the
23 teaching arm of the Justice Department, to do a
24 presentation on how to detect faking,
25 exaggerating and malingering when there are
151
1 claims being made in the context of litigation.
2 Q Okay. So we've talked about your
3 books, your book chapters, your editing, your
4 articles and your book reviews. Then I see
5 there is still another category called,
6 "Professional and General Education
7 Publications"?
8 A Yes.
9 Q Can you tell me what those are?
10 A Those are publications for the general
11 public. I have always had an interest in public
12 education and trying to make this jargon-free
13 and straightforward some of the knowledge that
14 we have acquired over the years in psychiatry
15 for the education of the general public. So my
16 work has included everything from teaching
17 teachers of fifth graders on how to talk about
18 9/11 after 9/11 to a variety of other kinds of
19 public education programs.
20 Q Of the ones you have listed here,
21 Doctor, let's discuss just a couple of them.
22 Can you discuss number four, please?
23 A Okay. This was a paper published in a
24 journal for attorneys which talked about new
25 developments in posttraumatic stress disorder in
152
1 civil and criminal law. And the emphasis of the
2 paper was how to be objective, irrespective of
3 whichever side retains you and how to be able to
4 hear the bad news from your expert when your
5 expert tells you, "Listen, I don't think I can
6 help you here. These are the reasons why."
7 Q How about number six, Doctor?
8 A This was a paper published in a
9 presentation which I did for the New Hampshire
10 Bar Association. And again, this was regarding
11 what should you expect from a forensic
12 psychiatric evaluation.
13 Q Number eight?
14 A Number eight was a paper which, again,
15 was basically a presentation. It was published
16 in Crime Victims Litigation Quarterly. Talked
17 about how people who represent victims of crime
18 need to be sensitive to very often these victims
19 may be very frightened, they may be trying to --
20 they may be using denial to minimize trauma,
21 they may seem to be very disorganized, how to go
22 ahead and work with people who are very
23 frightened, who have been victims of a crime.
24 Q Number 11?
25 A Number 11 was a paper published for
153
1 primary care physicians in that journal called
2 Patient Care to talk about how -- how the
3 general practitioner, the non-psychiatrist among
4 physicians, can recognize posttraumatic stress
5 disorder, which is often overlooked. Because we
6 are often presented stuff, for example, as a
7 claim of sexual dysfunction; and primary care
8 physician focuses on the sexual dysfunction.
9 They don't focus on the trauma, which may be --
10 may have caused the dysfunction in the first
11 place or may have aggravated the dysfunction.
12 Q How about number 20, Doctor?
13 A Number 20 was -- and that was published,
14 "Preventing Neo-Nazi Cult Violence In Our
15 Schools." Among my mentees was a superb nurse
16 who went on to become a professor of nursing at
17 University of Colorado and a reserve Army
18 colonel. So I don't know how many of you
19 remember the high school shootings in Littleton,
20 Colorado, which happened a few years ago. But
21 she was sent in to do the debriefing of this --
22 of the surviving students to try to figure out
23 what happened.
24 So based on my talking with her, based
25 on some of the analyses that I have done, based
154
1 on some of the treatment that I have done I
2 published an article which focused on the
3 importance of schools having a zero tolerance
4 policy regarding bullying, that it's important
5 to respond to bullying in a straightforward
6 manner, in a manner which empowers, rather than
7 disempowers, the victims, that you can't just
8 leave it up to the police. That's not what the
9 school principal's job is. That's not what the
10 school's administration -- it has to be done in
11 the school, rather than saying "Hey, man, not my
12 job here, you know. Let the police deal with
13 it."
14 Q Doctor, have you consulted with
15 any institutions regarding prevention and the --
16 prevention and response to discrimination and/or
17 harassment?
18 A I have consulted with a variety of
19 institutions, including health care
20 institutions, including law firms, including a
21 variety of educational institutions. For
22 example, we do see at times in educational
23 institutions both racial and sexual harassment,
24 racial and sexual discrimination. That's been
25 one of the areas that consult on a fairly
155
1 regular basis when such issues come up.
2 Q Have you been qualified, Doctor,
3 as a forensic psychologist -- as a an expert in
4 forensic psychiatry and clinical psychiatry by
5 other courts?
6 A Yes, I have.
7 Q Have you represented both
8 plaintiffs, the people who are suing, and
9 defendants?
10 A I have been retained both by plaintiffs'
11 attorneys and defendants, as well as by
12 individuals and institutions.
13 Q Have I missed any major
14 accomplishments or publications or awards or --
15 A Well, my major accomplishment is being
16 the father of a 17-year-old, so --
17 JUDGE CURRAN: And the toughest
18 job.
19 MS. SMITH: Your Honor, I move to
20 qualify Dr. Bursztajn as a clinical psychiatrist
21 and a forensic psychiatrist --
22 JUDGE CURRAN: Thank you.
23 Any questions?
24 MS. SMITH: -- expert.
25 MR. BEVERE: I will reserve any
156
1 questions for cross, Your Honor.
2 JUDGE CURRAN: No objections?
3 MR. BEVERE: No objections.
4 JUDGE CURRAN: Based on the
5 information put on the record, based on the
6 doctor's extensive CV, as well as all of the
7 information he has given to you by way of his
8 education and experience, I find that it is
9 appropriate to qualify him as an expert in
10 psychiatry, both clinical psychiatry and
11 forensic psychiatry.
12 Ladies and Gentlemen, the major
13 difference between the kinds of witnesses that
14 you will hear is that most witnesses are fact
15 witnesses. They may only testify as to what was
16 said, what they saw, what they did, fact
17 witnesses.
18 An expert witness may be asked a
19 hypothetical question and may give an opinion.
20 And that is the major difference, that the
21 doctor's expertise will be help to you in
22 understanding the issues in this case.
23 Miss Smith.
24 MS. SMITH: Thank you, Your Honor.
25 BY MS. SMITH:
157
1 Q Did there come a time, Doctor,
2 where you met Peter deVries and Timothy Carter?
3 A Yes. May I refer to my report?
4 Q Do you need to refresh your
5 recollection?
6 A To be precise, yes.
7 MS. SMITH: The reports, for the
8 record, for Mr. Carter is P-107 and for
9 Mr. deVries is P-106?
10 JUDGE CURRAN: Thank you.
11 MS. SMITH: Thank you, Judge.
12 BY MS. SMITH::
13 A I met both Tim and Peter on two days,
14 May 22nd and May 23rd, 2006. I met the two of
15 them over the course of two days for a total of
16 12 hours.
17 Q And did you meet with them in
18 order to provide an expert opinion regarding
19 their -- any psychiatric harm they had suffered?
20 A I met with them in order to be able to do
21 an objective forensic psychiatric evaluation as
22 to the nature of their suffering and what had
23 caused it.
24 Q Did you review any medical records
25 in preparation of conducting -- in conducting
158
1 your evaluation?
2 A Yes, I did. Those records included the
3 records of their treating psychiatrist since the
4 mid-1980s, Dr. Almeleh.
5 Q Can you please tell the doctor
6 what other documents or records you reviewed in
7 preparing -- doing an evaluation of Mr. Carter
8 and Mr. deVries?
9 A I reviewed a variety of forms, forms
10 filled out by their friends which talked about
11 the kinds of changes they have seen in both Pete
12 and Tim subsequent to the assaults of the night
13 of April 24th, April 25, 2004 and the months
14 that followed as both Pete and Tim became
15 increasingly -- began to feel increasingly
16 helpless due to what they perceived to be the
17 fact that no one was taking -- they were
18 suffering seriously and no one was doing
19 anything to go ahead and remove the people who
20 had caused their suffering from continuing to
21 harass and threaten them, to continue to be
22 right next door to their home.
23 Q Can you please refer to page three
24 of your report, Doctor, and tell the jury all
25 the other documents that you reviewed in
159
1 conducting your evaluation?
2 A Yes, I reviewed and analyzed a variety of
3 psychological tests which I administered, a
4 variety of structured interviews which I
5 administered.
6 I also sent away two of the tests which
7 I administered to be blindly analyzed and
8 reviewed by a computer protocol, which means no
9 one knew which side had retained me and their
10 responses were going to be compared with the
11 responses of other people who have been followed
12 over many years.
13 I reviewed a variety of legal
14 pleadings. I reviewed a variety of notes which
15 had been made, especially by Peter. I reviewed
16 variety of statements made by Peter to the
17 Police Department, by their landlord, Patricia
18 Hjelm is I think the way you pronounce.
19 Q Hjelm.
20 A Hjelm to the Police Department. I
21 reviewed Tim's statement. I reviewed the report
22 of the investigation. I have already mentioned
23 that I reviewed the medical records of Dr.
24 Almeleh, including a letter by him in January of
25 2005 which summarized his opinion as a treating
160
1 clinician.
2 I reviewed the medical records of
3 Barbara Hines, of Dr. Pumill. I reviewed a
4 variety of a number of symptoms which Peter
5 deVries had reported. I reviewed the short-term
6 disability forms for Peter. I reviewed the
7 documents put to use by the Attorney General's
8 Office. I reviewed some photographs.
9 I reviewed some police reports which
10 were made after April. I reviewed the motion to
11 dismiss by the defendants. I reviewed other
12 similar cases in New Jersey which had been --
13 were sent to me by the attorneys for the purpose
14 of my being able to understand what -- what
15 questions they wanted me to go ahead and analyze
16 and answer as objectively as I could.
17 I also undertook an extensive review of
18 the relevant literature regarding what the
19 nature and the causes of suffering by people who
20 have experienced the kind of harassment and
21 indifference that Peter and Tim did, what's
22 their natural course, what happens to these
23 people as time goes on and how people who are
24 vulnerable to begin with will go ahead and
25 experience not only the harassment but the
161
1 indifference in a way which magnifies their
2 helplessness and to the extent that they were
3 helplessness has magnified how their suffering
4 can become -- can go beyond something which is
5 treatable to something which becomes a matter
6 of -- of -- a lifelong problem.
7 Q You mentioned a structured and
8 unstructured interview. Let's talk about the
9 two days that you spent with Mr. Carter and
10 Mr. deVries. Please tell the jury about your
11 meetings with them and how you conducted those
12 interviews.
13 A Yes, I began by doing my best to
14 ascertain in what condition they each were when
15 they came to see me. They both apparently had
16 had tremendous difficulty sleeping before coming
17 to see me and had driven most of the night from
18 New Jersey to -- since very early morning from
19 New Jersey to -- to Cambridge, Massachusetts.
20 So the first thing which I did was I
21 tried to go ahead and set them at ease and
22 create an atmosphere of safety as much as
23 possible. That meant, to me, meeting with both
24 of them because as I had reviewed the medical
25 records, it's clear to me that even though each
162
1 of these people is a fragile person in some way,
2 together they have formed a very stable and very
3 safe, functioning relationship which helps them.
4 So I wanted to have a chance to talk with the
5 two of them to begin with.
6 After I did that and after I told them
7 that there would not be any confidentiality
8 because anything they would tell me I might --
9 I -- I would have to go ahead and use to
10 formulate my opinion and that I might need to
11 testify about. They both agreed to proceed as
12 best as they could.
13 They each were having a great deal of
14 difficulty. We began with doing the Minnesota
15 Multiphasic Personality Inventory, which is a
16 structured test, which is 567 questions.
17 However, as they proceeded to take this test, it
18 seemed apparent to me, especially with Tim, who
19 has ADD, attention deficit disorder, that
20 between the fatigue, between being frightened of
21 the exam because he would have to remember
22 things which he didn't want to remember,
23 basically, which are frightening to remember,
24 between -- with the ADA and with how exhausted
25 he was, he was just having a tremendous amount
163
1 of difficulty concentrating.
2 So I decided to postpone the second
3 part of the testing until the end of the
4 examination because, meanwhile -- I have two
5 offices -- Tim could both rest while I was
6 interviewing Peter and he could go ahead and
7 respond to some of the easier self-report forms,
8 which I wanted to give him. He wasn't able to
9 do that very well, but we were -- he was
10 still -- his attention was wandering. He was
11 feeling frightened.
12 Tim is -- you know, he is a very bright
13 man. I mean, he has a number of degrees. He is
14 extraordinarily thoughtful. But he was just --
15 between his ADD and fatigue and being scared to
16 death, it was clear to me he just couldn't take
17 the next part of the test.
18 So I spoke with Peter. Then I did my
19 best, after Tim got some rest, to talk with --
20 with Tim.
21 And then I administered -- I -- towards
22 the end of the interview the PAI, the
23 Personality Assessment Inventory, to both of
24 them. And this time we were able to get more
25 valid results.
164
1 The next day they were both more
2 comfortable. We were able to complete the
3 interviews. They both felt safer with me,
4 basically. They knew that I wouldn't shame
5 them, I wouldn't humiliate them. I wasn't there
6 to sit in judgment of -- of them or their
7 life-style. I wasn't there to criticize them.
8 I was there to understand them as individuals,
9 as -- as human beings and as a couple, as a
10 couple that's had a loving relationship since
11 the mid-1980s.
12 So I think the second day they were
13 able to speak with me more freely, although,
14 again, I think Tim still can get very, very
15 anxious and frightened. And Peter also gets
16 very frightened, but what happens with Peter is
17 he -- when Peter gets very frightened, he --
18 where Tim gets very distracted and goes into
19 denial and tries to put on his best face, Peter
20 tries to put on his medical editor face.
21 Peter is a medical editor; and he
22 proceeds to disassociate from emotion. You
23 know, he tries to go ahead and be as
24 professional as he can when talking about his
25 suffering, which is, of course, very difficult
165
1 to do when you're remembering things which are
2 very painful. But they each will cope in their
3 characteristic style.
4 Q Doctor, did you take a medical and
5 psychological history?
6 A I did. I took a medical history. I took
7 a developmental history. I took a psychological
8 history. And not only was I taking a history,
9 but the idea of taking a history isn't just to
10 listen to what the patient has to say to you but
11 to really listen deeply, which means observing
12 not only what a person says but how they say it.
13 What's their expression? What's their manner?
14 Regarding what areas can they talk about freely?
15 Which areas do they become defensive? When does
16 Tim begin to distract? When does he begin to go
17 off on a tangent? When does Peter stop talking
18 like a medical editor? When can he speak like
19 himself?
20 Q You described doing some testing.
21 Can you describe in general for the jury the
22 tests that you administered to Mr. Carter and
23 Mr. deVries, please?
24 A I administered two tests. Generally,
25 they each have been well validated. They each
166
1 are generally used. They are each part of my
2 standard battery of testing. And the reason why
3 I use the two tests is to go ahead and make sure
4 that the response I get on the test isn't
5 because the person is too frightened or too
6 tired or too disorganized; but rather, it
7 reflects their inner life.
8 So it's good to give, very often, one
9 test at the beginning and one test at the end
10 after the person has become more comfortable and
11 see what the progression is from one to the
12 other. Someone who's faking, exaggerating or
13 malingering will get -- will show that on both
14 tests, not just one test. Someone who is
15 disorganized or tired, they will show it on the
16 test where they are very fatigued, for example,
17 but not on the test they are well rested. So
18 that is one way to discriminate between the two.
19 Q Just like I gave my adversary my
20 copy of your CV, I think I have taken your
21 copies of the reports.
22 A Oh, thank you.
23 Q Can I take mine back?
24 A Okay.
25 Q Thank you.
167
1 A Thanks a lot.
2 Q Let me start with you've described
3 ADD. You said Mr. Carter suffers from ADD?
4 A Yes.
5 Q Tell us what ADD is, please.
6 A ADD is attention deficit disorder. It's
7 a disorder which was first diagnosed in children
8 and was a special area of my interests when I
9 was doing pediatrics. But reality is it's
10 not -- not just children who have it. It can be
11 a lifelong disorder. It doesn't mean that Tim
12 isn't intelligent. It doesn't mean that Tim
13 isn't thoughtful. But it does mean that,
14 especially under stress, he has difficulty
15 concentrating and not beginning to think about
16 25 things at once and going off on a tangent.
17 Q Did you -- were you able during
18 the two days that you spent with them and
19 reviewing all the documents reviewed and his
20 medical history and the other information you
21 sought -- did you say you sought information
22 from coworkers or friends or --
23 A Yes, I asked that at least two of the
24 people who have known -- two different people
25 each, so four people total, who have known Tim
168
1 and Peter, that each of them comment on what
2 changes they saw from before April 24, 25th,
3 2004 to what happened in the months subsequent.
4 Q Were you able to -- to form an
5 opinion about the severity of Mr. Carter's ADD
6 prior to April 24th, 2004?
7 A Although Tim Carter has had ADD and I --
8 it's been ADD, which, although serious, has been
9 responsive to treatment. So his prior to 2004
10 ADD has been responsive to treatment, which has
11 included medications.
12 Subsequent to April 2004 it's become
13 complicated because you have the problem of
14 concentration with ADD; and that's compounded by
15 the fear that he experiences due to his PTSD
16 spectrum suffering posttraumatic stress
17 disorder, which also has to do with disorder of
18 concentration.
19 So when you have one disorder of
20 concentrating compounding another disorder of
21 concentration, that becomes a complicated
22 version of PTSD or becomes -- it becomes -- it
23 changes from being a disorder to being -- to
24 actually what the international classification
25 of disorders, which is the United Nations
169
1 classification -- it's used internationally --
2 calls an "enduring personality change subsequent
3 to catastrophic experience."
4 So given his ADD to begin with, which
5 needed treatment and which had received
6 treatment and he was continuing, that became
7 much worse and much more complicated by the
8 problems with concentration and helplessness
9 that he experienced subsequent to April 24 and
10 the months that followed and the years that
11 followed as he -- as he continued to have
12 reminders of what happened, such as finding out
13 that one of the people that he saw as the ring
14 leaders, Chucky Snyder, Jr., was -- is someone
15 who wound up getting elected to being battalion
16 chief and now is in line -- and this was
17 approved by the Town government and now the guy
18 is to be in line to be the Fire Chief of the
19 Town of Secaucus. So, you know, those kinds of
20 reminders have certainly re-traumatized them,
21 have certainly made both Tim and Peter, but each
22 in their own individual ways.
23 Q Did Mr. Carter have any other
24 significant mental health history?
25 A Mr. Carter also has a history of periods
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1 of depression. And again, the bad news is he is
2 vulnerable to depression. He is fragile. The
3 good news in the past it has been responsive to
4 tre