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 17

            Vs.

     6

       THE TOWN OF SECAUCUS,

     7 Defendant.

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

     8

       HUDSON COUNTY COURTHOUSE

     9 595 Newark Avenue

       Jersey City, New Jersey  07306

    10 Thursday, June 5, 2008

       Commencing 9:50 a.m.

    11

       B E F O R E:

    12           HONORABLE BARBARA A. CURRAN

 

    13                     TRACEY R. SZCZUBELEK, CSR

                           LICENSE NO. XIO1983

    14

 

    15

 

    16

 

    17

 

    18

 

    19

 

    20          SCHULMAN, WIEGMANN & ASSOCIATES

 

    21           CERTIFIED SHORTHAND REPORTERS

 

    22                 216 STELTON ROAD

 

    23                     SUITE C-1

 

    24           PISCATAWAY, NEW JERSEY  08854

 

    25                (732) - 752 - 7800


 

 

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     1 A P P E A R A N C E S:

 

     2

 

     3

 

     4 SMITH MULLIN, ESQS.

 

     5 Attorneys for the Plaintiffs

 

     6      240 Claremont Avenue

 

     7      Montclair, New Jersey  07042

 

     8 BY:  NEIL MULLIN, ESQ.

 

     9      NANCY ERIKA SMITH, ESQ.

 

    10

 

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

 

    12 Attorneys for the Defendants

 

    13      360 Passaic Avenue

 

    14      Nutley, New Jersey  07110

 

    15 BY:  DANIEL R. BEVERE, ESQ.

 

    16      DAVID M. PARIS, ESQ.

 

    17

 

    18

 

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    25


 

 

                                                     3

 

 

     1                     I N D E X

 

     2 WITNESS      DIRECT VOIR CROSS REDIRECT RECROSS

 

     3                     DIRE

 

     4

 

     5 FRANK LEANZA, ESQ.

 

     6 By:  Mr. Paris   7             128, 158

 

     7 By:  Mr. Mullin             79              141

 

     8

 

     9                  E X H I B I T S

 

    10 NUMBER    DESCRIPTION                       PAGE

 

    11 P-406     Mr. Leanza's bill, dated 4/25/04    85

 

    12 D-314     May 2004 voucher and attached.

 

    13           document                           134

 

    14 P-407     Mr. Leanza's bill, dated August

 

    15           2004                               154

 

    16

 

    17

 

    18

 

    19

 

    20

 

    21

 

    22

 

    23

 

    24

 

    25


 

 

                                                     4

 

 

     1               JUDGE CURRAN:  I will note that

 

     2 counsel are in the courtroom, the jurors are

 

     3 not.

 

     4                Mr. Paris.

 

     5               MR. PARIS:  Right, Your Honor, we

 

     6 are going to continue with the direct testimony

 

     7 of Mr. Leanza.  At the conclusion of the direct

 

     8 testimony the last thing I intend to do is to

 

     9 play that tape.

 

    10                I just wanted to again state for

 

    11 the record that I intend to stop the tape where

 

    12 it talks about that consent judgment with the

 

    13 Department of Justice.  At that point maybe we

 

    14 will take a break or something.  We will just

 

    15 pass over that portion.  It's not a lengthy

 

    16 portion, but I really won't be able to do that

 

    17 in the presence of the jury.  And then we'll do

 

    18 that -- you know, we will play it right back,

 

    19 even if we can give the jury a five-minute or

 

    20 ten-minute break at that point.

 

    21               JUDGE CURRAN:  Any objection?

 

    22               MR. MULLIN:  No objection.

 

    23               JUDGE CURRAN:  Okay.  Anything

 

    24 else?

 

    25               MR. MULLIN:  Your Honor, it's


 

 

                                                     5

 

 

     1 possible -- I'm not sure this will be the case;

 

     2 but when Mr. Leanza finishes testifying, in

 

     3 light of the extremely late production of

 

     4 documents in this case, I may want a little

 

     5 break before I start cross-examining.

 

     6               JUDGE CURRAN:  That's no problem.

 

     7               MR. MULLIN:  I may not need it.

 

     8               JUDGE CURRAN:  No problem.  You

 

     9 just indicate whether you would like to proceed

 

    10 or not.

 

    11               MR. MULLIN:  Thank you.

 

    12               JUDGE CURRAN:  Anything else?  I

 

    13 think we will probably need to turn off the air

 

    14 conditioners when you're doing the tape.  Before

 

    15 that it's up to you one way or the other.  The

 

    16 jury will turn that one off if they want it off.

 

    17 Okay?

 

    18                Okay.  And not that we need to

 

    19 discuss it now; but I have just finished talking

 

    20 with the people in the other building, so I've

 

    21 arranged coverage for the court so that the

 

    22 staff can go to lunch tomorrow.  But they're

 

    23 going to send me over a -- another court clerk

 

    24 at 12:00 or whatever times you work out so that

 

    25 we can do what we did last Friday, which is work


 

 

                                                     6

 

 

     1 directly through.

 

     2               MR. PARIS:  So we would come back

 

     3 tomorrow what time?

 

     4               JUDGE CURRAN:  12.

 

     5               MR. PARIS:  Come back tomorrow at

 

     6 12 and continue to work through the day?

 

     7               JUDGE CURRAN:  Right.  Okay.  But

 

     8 normally we would have to take the lunch break.

 

     9 We are not going to do that.  They are going to

 

    10 send over someone after from the rest of the

 

    11 team.  I don't honestly know if we would have

 

    12 coverage for Miss Hawks, but we'll -- okay.  But

 

    13 I don't want you to have to work through lunch

 

    14 either, so, you know, we will work it out.  And

 

    15 frankly, with just the attorneys here, we won't

 

    16 have jurors, so that should be fine.

 

    17               MS. HAWKS:  Okay.

 

    18               MR. PARIS:  I am just going to set

 

    19 myself up at this table.

 

    20               JUDGE CURRAN:  Okay.  We will go

 

    21 off the record.

 

    22               (Whereupon, a discussion is held

 

    23        off the record.)

 

    24               MS. HAWKS:  Jurors are

 

    25 approaching.


 

 

                                                     7

 

 

     1               COURT CLERK:  On the record.

 

     2               JUDGE CURRAN:  Thank you.

 

     3               (Whereupon, the jury is brought

 

     4        into the courtroom.)

 

     5               JUDGE CURRAN:  Back on the record

 

     6 in the matter of deVries and Carter versus

 

     7 Secaucus, docket number L-3520 of the 2004 term.

 

     8                I will note that the jury is

 

     9 returning to the jury room.  Counsel and the

 

    10 parties are present.

 

    11                Thank you, Ladies and Gentlemen.

 

    12 We appreciate your being here.

 

    13                Mr. Leanza, I'm sure it's not

 

    14 necessary; but it's my obligation to remind you

 

    15 that you are still under oath.

 

    16               THE WITNESS:  Thank you.

 

    17               JUDGE CURRAN:  Thank you.

 

    18 Mr. Paris.

 

    19               MR. PARIS:  Thank you very much,

 

    20 Your Honor.

 

    21 CONTINUED DIRECT EXAMINATION BY MR. PARIS:

 

    22        Q      Mr. Leanza, I just want to state

 

    23 where we were and move forward.  You'd indicated

 

    24 that the Hudson County Prosecutor was to be

 

    25 called with regard to this matter, correct?


 

 

                                                     8

 

 

     1 A      That's correct.

 

     2        Q      Okay.  Can you tell us what your

 

     3 understanding was as to why the Hudson County

 

     4 Prosecutor was to be contacted?

 

     5 A      There are two reasons.  Number one,

 

     6 because of the nature of the crime, it comes up

 

     7 to a fourth degree crime because of the

 

     8 enhancement under the bias statute.  Only the

 

     9 Prosecutor has the power to deal with a fourth

 

    10 degree crime and determine whether to bring that

 

    11 to a Grand Jury and indict it.  That's number

 

    12 one.

 

    13          And number two, it is a bias crime in

 

    14 and of itself, the procedure is it has to be

 

    15 reported immediately to the County Prosecutor.

 

    16        Q      What was your understanding as to

 

    17 the significance of convening a Grand Jury?

 

    18 A      Well, the significance of convening a

 

    19 Grand Jury, because this wasn't an action that

 

    20 was taken in the presence of a law enforcement

 

    21 officer, that would be the only way that the

 

    22 potential perpetrators could be indicted and

 

    23 charged with a crime of the fourth degree or

 

    24 more, number one.

 

    25          And number two, in New Jersey under the


 

 

                                                     9

 

 

     1 criminal law a Grand Jury is investigatory body

 

     2 and it's vested with the power to both subpoena

 

     3 witnesses and -- and force their testimony.

 

     4        Q      What do you mean --

 

     5 A      The Police Department doesn't have that

 

     6 authority.

 

     7        Q      You said, "force their testimony."

 

     8 What did you mean by that?

 

     9 A      What I mean by "force their testimony" is

 

    10 what we alluded to yesterday.  Everybody in this

 

    11 country has the right not to incriminate

 

    12 themselves as guaranteed by the Fifth Amendment

 

    13 of the Constitution.  And the Prosecutor, in the

 

    14 context of a Grand Jury, if someone does decide

 

    15 to exercise its Fifth Amendment Constitutional

 

    16 rights, has the power under State statute to

 

    17 grant that individual use immunity for his

 

    18 testimony.  And that grant of use immunity means

 

    19 a person can't thereby incriminate himself; and

 

    20 therefore, he'd be required to testify.

 

    21 Effectively, to preclude people from taking the

 

    22 Fifth Amendment, if the Prosecutor so desires.

 

    23        Q      Now, when you say, "if the

 

    24 Prosecutor so desires," what do you mean by

 

    25 that?


 

 

                                                    10

 

 

     1 A      Well, it's his determination because he

 

     2 has the power to grant immunity.  So he can only

 

     3 force somebody to take immunity to testify if

 

     4 they are granted immunity.  And they call it,

 

     5 "use immunity," meaning that anything that he

 

     6 testifies to at that proceeding can't be used

 

     7 against him.

 

     8          And of course, there is an exception to

 

     9 that.  If the person lies during a proceeding,

 

    10 they can always prosecute him if he doesn't tell

 

    11 the truth.  But if he tells the truth, they

 

    12 can't prosecute him for anything that he says

 

    13 against himself at that proceeding.

 

    14        Q      Who makes that decision?

 

    15 A      That decision is made by the County

 

    16 Prosecutor or whomever he designates on his

 

    17 staff.

 

    18        Q      Now, I want to go back very

 

    19 briefly -- well, I want to go back to an issue

 

    20 that we touched on briefly yesterday.  That was

 

    21 the issue of publicity in the media.  And we

 

    22 were dealing with a point in time, I believe

 

    23 April 27th, immediately after the caucus

 

    24 meeting.  And I think you had spoken about a

 

    25 letter that you wrote on April 28th to the Mayor


 

 

                                                    11

 

 

     1 and Council?

 

     2 A      Correct.

 

     3        Q      And again, just to bring us

 

     4 up-to-date, you indicated the plan was you would

 

     5 deal with the media?

 

     6 A      Correct.

 

     7        Q      Okay.  Now, let's focus on that

 

     8 for a second.  During that first week, starting

 

     9 on -- after the caucus meeting of the 27th, did

 

    10 you have contact with the media?

 

    11 A      I believe -- I had much contact with the

 

    12 media for the next two or several weeks.  And

 

    13 by, "the media" I could name the local

 

    14 newspapers, The Jersey Journal, The Bergen

 

    15 Record.  There is a Secaucus Reporter, which is

 

    16 part of the Hudson Reporter series.  And then

 

    17 there is also the Secaucus Home News.

 

    18          In addition to that, I met with and I

 

    19 know footage was taken by Channel 9 and Channel

 

    20 11 of the news bureaus.  And I believe I may

 

    21 have spoken with people from Channel 5 and

 

    22 Channel 7, as well.

 

    23        Q      Did the -- did you contact the

 

    24 media, or did you respond to contacts that they

 

    25 made to you?


 

 

                                                    12

 

 

     1 A      Well, I was -- I responded to contacts

 

     2 that were made to the Town of Secaucus.  And

 

     3 sometimes the Town of Secaucus gave the media my

 

     4 name and phone number and they contacted me

 

     5 directly.  Other times I returned calls that

 

     6 were made to the Mayor's Office by various

 

     7 reporters.

 

     8        Q      And did you respond to the media?

 

     9 A      Yes.

 

    10        Q      Now, in -- in -- to your

 

    11 recollection do you recall Mr. Carter or

 

    12 Mr. deVries making statements to the media?

 

    13 A      Well, I recall statements attributed to

 

    14 them in the media, quotes that so-and-so said

 

    15 this and so-and-so said that.

 

    16        Q      Okay.  Mr. Leanza, did you have

 

    17 any involvement in the decision to reopen the

 

    18 North End Firehouse?

 

    19 A      Yes.

 

    20        Q      In what respect were you involved

 

    21 in that?

 

    22 A      On the morning of the 29th of April I

 

    23 attended a meeting at Town Hall at which Mayor

 

    24 Elwell was present, Police Chief Corcoran,

 

    25 Detective Captain Buckley and Deputy Mayor John


 

 

                                                    13

 

 

     1 Reilly.  Deputy Mayor John Reilly also happens

 

     2 to be the Town's liaison with the Fire

 

     3 Department, and that was the reason for his

 

     4 presence there.

 

     5        Q      Now, at that meeting -- at that

 

     6 meeting did you express any concerns with regard

 

     7 to reopening the firehouse?

 

     8 A      Yes.  And --

 

     9        Q      What were the concerns that you

 

    10 raised?

 

    11 A      Okay.  I had a number of concerns.  My

 

    12 first concern was the reason that it had been

 

    13 shut down in the first place was to keep peace

 

    14 and order in the neighborhood and security for

 

    15 the alleged victims.  And I wanted to assure

 

    16 myself that no matter what happened that that

 

    17 would continue.

 

    18          My second concern was to maintain the

 

    19 integrity of the investigation, which was still

 

    20 going on.  I wanted to make sure that there was

 

    21 no evidence potentially that could be tampered

 

    22 with or that this so-called fraternization

 

    23 wouldn't impede the investigation.

 

    24          And thirdly, I wanted to -- I had

 

    25 received inquiries from people representing the


 

 

                                                    14

 

 

     1 Fire Department, primarily the liaison,

 

     2 Mr. Reilly, who indicated, in effect, you know,

 

     3 if we have like 70 or 80 firemen in the Town and

 

     4 20 or 30 there, why should -- if three people

 

     5 were bad apples, why should everybody else be

 

     6 punished?

 

     7          So those were the issues that were

 

     8 addressed and discussed in detail at that

 

     9 meeting.

 

    10        Q      Now, were your concerns, were your

 

    11 three concerns addressed at that meeting?

 

    12 A      My three concerns were addressed.  Police

 

    13 Chief Corcoran and Detective Captain Buckley

 

    14 indicated that it was their intention for the

 

    15 foreseeable future, depending how circumstances

 

    16 turned out, to make the location -- the location

 

    17 being the parking lot and the adjacent

 

    18 resident -- a police post, meaning that there

 

    19 would be a marked or unmarked car there that

 

    20 would continue surveillance 24 hours.

 

    21          In addition to that -- the Town is

 

    22 broken down into zones for police patrol

 

    23 purposes.  Whatever group and whatever police

 

    24 cars were in that zone would be required to

 

    25 check on the location in addition, at least on


 

 

                                                    15

 

 

     1 an hourly basis.

 

     2          And in addition, Detective Captain

 

     3 Buckley indicated to me that the opening of the

 

     4 firehouse and the presence there of the firemen

 

     5 would not in any way impede his ongoing

 

     6 investigation.

 

     7        Q      Now, did you take any notes of

 

     8 this discussion?

 

     9 A      No.

 

    10        Q      Any particular reason why?

 

    11 A      Well, I had no particular reason to take

 

    12 notes or not to take notes.  I was there.  We

 

    13 all talked.  And we made the decision based upon

 

    14 the input from the individuals who attended the

 

    15 meeting, and our determination that the opening

 

    16 of the firehouse would not result in any adverse

 

    17 consequences to the victim, the Town or the

 

    18 investigation.

 

    19        Q      Now, are you aware as to whether

 

    20 or not Mr. Iacono communicated that information

 

    21 to Chief Walters?

 

    22 A      Yes.  And it's kind of circuitous.  I

 

    23 conveyed the results and determination of that

 

    24 meeting to Mr. Iacono by telephone.  He was not

 

    25 present in the State at that time.  I think he


 

 

                                                    16

 

 

     1 was on a family vacation.  And he is the Town

 

     2 Administrator, so he is the one who does manage

 

     3 the Town from day-to-day.

 

     4          So I told him who was at the meeting,

 

     5 this is our determination with respect to the

 

     6 firehouse.  That was on the 29th.

 

     7          I think on the next day I received a

 

     8 copy of a letter that Mr. Iacono had probably

 

     9 dictated from wherever he was on convention with

 

    10 respect to opening up the firehouse.

 

    11        Q      Now, did you ever see a document

 

    12 from the Police Department regarding the

 

    13 surveillance or the hourly checks?

 

    14 A      No, I never -- well, it -- yes, in a way

 

    15 I did.  Didn't specifically mention this is what

 

    16 we're doing; but in all the police reports there

 

    17 were police cars who were stationed right there

 

    18 when he made the reports, number one.

 

    19          Number two, this location is on

 

    20 Paterson Plank Road.  The Town Hall is on

 

    21 Paterson Plank Road.  And quite frankly, during

 

    22 that time with all the press, et cetera, I was

 

    23 in Secaucus almost on a daily basis and I made

 

    24 it my business to pass by the location.  And

 

    25 every time I passed there, there was either a


 

 

                                                    17

 

 

     1 marked, an unmarked police car or both within

 

     2 view of both the residence and the firehouse.

 

     3        Q      Now, did there come a point in

 

     4 time when you became aware that Mr. Carter had

 

     5 left a voice mail for the Mayor?

 

     6 A      Yes.

 

     7        Q      Okay.  How did you become aware of

 

     8 that?

 

     9 A      I believe I received a telephone call

 

    10 from the Mayor.  And my recollection now is that

 

    11 he was quite upset about it because the tenor of

 

    12 the message was, oh, I don't know, I'd say

 

    13 accusatory; and it had some epithets in it.

 

    14        Q      Do you know what happened to

 

    15 that -- to the voice mail message, itself?

 

    16 A      I suggested that the Mayor advise the

 

    17 Police Department so they can keep it as part of

 

    18 their investigation.

 

    19        Q      As a result of your discussion

 

    20 with the Mayor what did you do?

 

    21 A      I told the Mayor --

 

    22        Q      Go ahead, I'm sorry.

 

    23 A      Can I continue?

 

    24        Q      Yeah, I'm sorry.  I didn't mean to

 

    25 interrupt.


 

 

                                                    18

 

 

     1 A      I told the Mayor, "I think -- under the

 

     2 circumstances, I think it best if I return the

 

     3 phone call, rather than yourself."  And I

 

     4 returned the phone call.

 

     5        Q      Did you actually return the phone

 

     6 call?

 

     7 A      Yes.

 

     8        Q      Do you recall having a discussion

 

     9 with Mr. Carter?

 

    10 A      Yeah.  And again, as I said yesterday, I

 

    11 don't remember whether it was Mr. Carter or

 

    12 Mr. deVries.  I, you know, just called the

 

    13 number.

 

    14        Q      Okay.  And do you recall the

 

    15 conversation, itself?

 

    16 A      Yeah.  Again, he -- very, very agitated,

 

    17 very distrustful of the Police Department.  How

 

    18 could we conduct the investigation?  There were

 

    19 guys on the Fire Department who worked for the

 

    20 Town who knew the police officers and -- as I

 

    21 testified yesterday, I tried to, you know,

 

    22 explain to them that the Police Department was

 

    23 just doing the -- what I assumed was going to be

 

    24 a preliminary investigation, and then everything

 

    25 was going to be turned over to the Prosecutor's


 

 

                                                    19

 

 

     1 Office.  Then the Prosecutor's Office had no

 

     2 connection to the Town, and I had all the faith

 

     3 and confidence in the world in them.

 

     4          And he didn't seem to be paying

 

     5 attention or listening to anything I said.  And

 

     6 you know, as we discussed about yesterday, I

 

     7 think it was the same thing, he was moving out.

 

     8        Q      Now, you were deposed in this

 

     9 matter earlier this week, correct?

 

    10 A      Yes, I think it was Monday.

 

    11        Q      And how many conversations did you

 

    12 recall when you were deposed?

 

    13 A      When I was deposed I recalled one

 

    14 conversation.  However, on Tuesday I had the

 

    15 opportunity to go through all of my billing

 

    16 records.  I charged the Town of Secaucus by the

 

    17 hour; and so I could keep track of what I do and

 

    18 what I charge and so they could keep track of

 

    19 what's going on, I keep billing records.  And my

 

    20 billing records indicated the call on the

 

    21 morning of the 28th and then also the call on

 

    22 March 1st.  And that -- and that refreshed my

 

    23 recollection that there were two distinct and

 

    24 separate calls.

 

    25        Q      Did you have a chance to review


 

 

                                                    20

 

 

     1 your billing records before your deposition?

 

     2 A      No, I didn't.

 

     3        Q      And during your deposition were

 

     4 you given an opportunity to review your billing

 

     5 records?

 

     6               MR. MULLIN:  Objection.

 

     7               MS. SMITH:  Objection, Your Honor,

 

     8 on many grounds.

 

     9               JUDGE CURRAN:  Sustained.  I am

 

    10 going to strike the question.

 

    11 BY MR. PARIS:

 

    12        Q      After -- after May 1st did you

 

    13 become aware as to whether or not the Attorney

 

    14 General's Office was going to become involved in

 

    15 the matter and take over the investigation?

 

    16 A      Yes.  And I know I have in my files a

 

    17 subpoena from the State Grand Jury signed by a

 

    18 deputy Attorney General, dated, I believe,

 

    19 May 10th of 2004, directing the Town to provide

 

    20 certain information to the Attorney General in

 

    21 connection with its investigation of this

 

    22 matter.  And the due date to have the

 

    23 information over to the Attorney General was

 

    24 June 1st.

 

    25        Q      Mr. Leanza, I'm showing you a


 

 

                                                    21

 

 

     1 document which has been marked as Defendant's

 

     2 Exhibit 230, dated May 10th.  Can you tell us

 

     3 what that is?

 

     4 A      This is a letter from Hester Agudosi, who

 

     5 was the same person who signed the subpoena

 

     6 advising the Police Chief that the Attorney

 

     7 General's Office was going to assume the

 

     8 investigation.

 

     9        Q      Did you -- had you seen this

 

    10 letter back in May?

 

    11 A      Yes.  I don't know -- I didn't see it May

 

    12 10th.  I think I saw the subpoena before I saw

 

    13 the letter.

 

    14        Q      Now, on -- on the second page of

 

    15 the letter there is a reference to

 

    16 administrative action.  Do you see that?

 

    17 A      Yes.

 

    18        Q      Okay.  What was your understanding

 

    19 at the time as to what that meant?

 

    20 A      The understanding -- and quite frankly, I

 

    21 didn't even need this letter to tell me -- was

 

    22 that we were to halt any administrative

 

    23 proceedings pending the conclusion of the

 

    24 Attorney General's investigation.

 

    25          And in a criminal investigation that


 

 

                                                    22

 

 

     1 would be normal.  You wouldn't want two separate

 

     2 people inquiring, asking questions of -- you

 

     3 know, for the reasons we talked about yesterday.

 

     4 You want to maintain the integrity and have one

 

     5 criminal investigation because, in terms of

 

     6 priority, the criminal proceeding was most

 

     7 important.

 

     8        Q      Now, during the course of the

 

     9 Attorney General's investigation what was your

 

    10 involvement?

 

    11 A      During the course of that investigation

 

    12 my involvement was, as I discussed before, for

 

    13 the next several weeks I had much contact with

 

    14 the media, both by telephone, some at Town Hall.

 

    15 There was some film shot at Town Hall.

 

    16          I also had some legal involvement with

 

    17 the media because there were certain demands and

 

    18 requests for some of the reports and

 

    19 investigations by the Police Department.  And I

 

    20 advised them, after research, after looking at

 

    21 the reports, that they were considered

 

    22 investigatory reports and, according to

 

    23 executive orders promulgated by the governor,

 

    24 they were outside the scope of the Open Public

 

    25 Records Act and those investigation reports


 

 

                                                    23

 

 

     1 could not be disclosed.

 

     2          I also was involved shortly thereafter

 

     3 on whether some of these reports should be

 

     4 disseminated to the Plaintiffs' counsel.

 

     5          And I also helped the Town in terms of

 

     6 complying with the requests of the Attorney

 

     7 General with regard to the records that were

 

     8 requested.  And the records went above and

 

     9 beyond the police reports.  They wanted copies

 

    10 of some of our ordinances and resolutions,

 

    11 things of that nature.

 

    12        Q      Now, did you become aware of an

 

    13 allegation by Mr. Carter that a DPW truck had

 

    14 been sighted in Jersey City?

 

    15 A      Yes, I did.  I believe that was sometime

 

    16 in February of 2005.

 

    17               MR. MULLIN:  Could we have a

 

    18 sidebar on this, Your Honor?

 

    19               JUDGE CURRAN:  Sure.

 

    20               (Whereupon, the following sidebar

 

    21        discussion is held.)

 

    22               MR. MULLIN:  Your Honor, when I

 

    23 was moving in limine to try to get in the Jersey

 

    24 City matter, counsel for the City made it very

 

    25 clear on record that the Town didn't know about


 

 

                                                    24

 

 

     1 any of the Jersey City events.  I did my best to

 

     2 try to suggest ways they learned of it.  I had

 

     3 pointed out that I had delivered these documents

 

     4 to counsel in the course of documents

 

     5 production.  And they stood by silently, and

 

     6 they didn't say anything.

 

     7                Now I read in this deposition

 

     8 that was taken just a couple days ago of Mr.

 

     9 Leanza that they pretend or claim that they did

 

    10 an investigation of the whole DPW thing.  This

 

    11 was not given to me in the course of discovery.

 

    12 I have conducted no re -- no discovery in

 

    13 connection with this issue.  They stood by

 

    14 quietly while I was straining to say the bloody

 

    15 tissues should come in because they were on

 

    16 notice of the bloody tissue issue through my

 

    17 complaint, through my serving documents about

 

    18 it.

 

    19                They stood silently while I made

 

    20 this effort.  They never said to the Court, "You

 

    21 know, actually, we did know about it, Your

 

    22 Honor."  So they violated their duty of candor

 

    23 to this tribunal to put it mildly.

 

    24                Now they want to compound that

 

    25 error by having testimony about some sort of


 

 

                                                    25

 

 

     1 investigation that was never given to me in

 

     2 Answers to Interrogatories or in depositions.

 

     3                They should be barred.  As it is,

 

     4 you know my position on this witness.  This

 

     5 witness should be barred.  He is already going

 

     6 beyond -- he is going beyond Interrogatory 50

 

     7 and 51 and this testimony should be barred.

 

     8 This is not the way to do it, Your Honor.

 

     9                If they stood there even at that

 

    10 late date and said, "You know what, there was an

 

    11 investigation.  We are going to give Mr. Mullin

 

    12 details," I might take a different position.

 

    13 But I think it's just -- it's just unacceptable.

 

    14               JUDGE CURRAN:  As I indicated

 

    15 yesterday, the objection to Mr. Leanza as a

 

    16 witness is preserved for the record.

 

    17               MR. MULLIN:  Thank you, Your

 

    18 Honor, appreciate that.

 

    19               JUDGE CURRAN:  Mr. Paris, as to

 

    20 the question of the investigation.

 

    21               MR. PARIS:  This issue -- this

 

    22 issue has nothing to do with the tissues.  This

 

    23 has nothing to do --

 

    24               JUDGE CURRAN:  No, it's got to do

 

    25 with the investigation --


 

 

                                                    26

 

 

     1               MR. PARIS:  Well --

 

     2               JUDGE CURRAN:  -- of the truck.

 

     3               MR. MULLIN:  Has to do with the

 

     4 truck.

 

     5               MS. SMITH:  Exactly.

 

     6               MR. PARIS:  Well, Mr. Carter

 

     7 testified about the truck, okay.  He testified

 

     8 about the truck.  That's not the issue.  Okay.

 

     9 That's all I'm saying.

 

    10               JUDGE CURRAN:  He was even limited

 

    11 in that regard because the Town never indicated

 

    12 that it did any investigation.  In fact, the

 

    13 opposite, the -- when, if I remember

 

    14 correctly -- and I could certainly stand to be

 

    15 corrected.  When the arguments were made by the

 

    16 plaintiff at the beginning, it took me a minute

 

    17 or two to figure out that they were saying,

 

    18 okay, at the very least during the litigation

 

    19 the municipality became aware.

 

    20                The argument from the

 

    21 municipality was you can't possibly hold us --

 

    22 basically, you cannot possibly hold us

 

    23 responsible for something that -- that was in a

 

    24 document pile of hundreds of documents is the

 

    25 way I remember it.


 

 

                                                    27

 

 

     1                And therefore, he was really

 

     2 limited not just -- assume that the bloody

 

     3 tissue incident was out.  But frankly, I might

 

     4 not have, with all due respect -- I'm not going

 

     5 to change the decision; but I might have even

 

     6 looked at the bloody tissues differently, if

 

     7 there was an acknowledgment by the Township that

 

     8 they knew about the incident and that they did

 

     9 an investigation because then it will be a

 

    10 logical question as to did they or did they not

 

    11 investigate the bloody tissues that were -- or

 

    12 bloody elements that were reported a few days

 

    13 later.

 

    14                I found that that was just too

 

    15 remote and, you know, there was no nexus because

 

    16 there was no investigation done by the

 

    17 municipality; and so I allowed him to testify

 

    18 just to as to what he saw in regard to the

 

    19 truck.

 

    20               MR. PARIS:  I don't want to --

 

    21               JUDGE CURRAN:  Hang on one second.

 

    22                You knew about his testimony the

 

    23 other day.

 

    24               MS. SMITH:  Just Monday.

 

    25               JUDGE CURRAN:  Why didn't you


 

 

                                                    28

 

 

     1 raise the issue before he -- Mr. Paris --

 

     2               MR. MULLIN:  I assumed --

 

     3               MR. PARIS:  We don't know what he

 

     4 is going into.  We -- we thought -- I thought

 

     5 Your Honor ruled no conversations.

 

     6               MR. MULLIN:  I --

 

     7               MR. PARIS:  I thought if there was

 

     8 going to be an objection, there should be an

 

     9 objection.

 

    10               JUDGE CURRAN:  No, but I see their

 

    11 point.

 

    12               MR. PARIS:  I am not talking about

 

    13 this, but I am talking about prior to the

 

    14 testimony.  I don't intend to go into this --

 

    15               JUDGE CURRAN:  I'm sorry?

 

    16               MR. PARIS:  I don't really intend

 

    17 to go into this.  I was going to ask him like

 

    18 one more question; but if Your Honor says no,

 

    19 no.

 

    20               JUDGE CURRAN:  But I am

 

    21 concerned -- I'm sorry to interrupt you.  Did

 

    22 the Town know about the investigation or not?

 

    23               MS. SMITH:  Yes.

 

    24               MR. PARIS:  All that I -- all that

 

    25 he indicated -- and the bloody tissue


 

 

                                                    29

 

 

     1 incident --

 

     2               JUDGE CURRAN:  Forget the bloody

 

     3 tissues.

 

     4               MR. PARIS:  There are a lot of

 

     5 reasons for that.

 

     6               JUDGE CURRAN:  As to a Jersey City

 

     7 allegation in regard to the Township at all made

 

     8 by Mr. Carter?

 

     9               MR. PARIS:  About the truck, yeah,

 

    10 he -- he only -- he only spoke about the truck

 

    11 being sighted in Jersey City.

 

    12               MS. SMITH:  He testified -- tell

 

    13 the truth.

 

    14               MR. PARIS:  Excuse me.  You

 

    15 know -- excuse me.

 

    16               JUDGE CURRAN:  Don't -- don't --

 

    17 don't -- please don't do that.

 

    18               MR. PARIS:  That's not right.  She

 

    19 is saying it loud enough for the jury to hear.

 

    20               MR. MULLIN:  I don't think so.

 

    21               MS. SMITH:  The jury didn't hear

 

    22 me.

 

    23               JUDGE CURRAN:  I don't know if

 

    24 they did or they didn't, but I doubt that they

 

    25 would be paying attention to us at this point.


 

 

                                                    30

 

 

     1 But --

 

     2               MR. PARIS:  You know what, Your

 

     3 Honor --

 

     4               JUDGE CURRAN:  What was it you

 

     5 were going to say?

 

     6               MR. PARIS:  You know what, rather

 

     7 than having aspersions cast, take a look at his

 

     8 deposition from Monday, that's all.

 

     9               JUDGE CURRAN:  Okay.

 

    10               MR. PARIS:  Your Honor, frankly --

 

    11 I don't even want to get off track here.  I have

 

    12 no problem withdrawing this.

 

    13               MR. MULLIN:  I think we are on

 

    14 track because I think you may have opened the

 

    15 door for all of this.

 

    16               MR. PARIS:  It wasn't just --

 

    17 there were two parts of the -- of the issue.

 

    18 One issue was the -- nobody was brought in.  It

 

    19 was a Jersey City investigation with regard

 

    20 to -- the tissue, it was a Jersey City Police

 

    21 investigation, okay.  That was number one.

 

    22          Number two, it was the fact that it

 

    23 was -- it was prejudicial under Rule 403 to be

 

    24 talking about that when nobody was tied to it.

 

    25 What page are we on?


 

 

                                                    31

 

 

     1               MR. MULLIN:  This is the

 

     2 unofficial transcript.  Let me find it.

 

     3               MS. SMITH:  You can have my copy,

 

     4 Your Honor.

 

     5               JUDGE CURRAN:  Excuse me, Tracey.

 

     6                I will note for the record the

 

     7 unofficial transcript was prepared how?

 

     8               MS. SMITH:  It was like we get

 

     9 dailies, Your Honor.  It was the -- it's the

 

    10 same court reporter; it's just in a daily

 

    11 format.

 

    12               (Whereupon, sidebar discussion is

 

    13        put on hold.)

 

    14               JUDGE CURRAN:  I am going to ask

 

    15 the witness to step down, please, Mr. Leanza.

 

    16               (Whereupon, the witness steps

 

    17        down.)

 

    18               (Whereupon, the following sidebar

 

    19        discussion continues.)

 

    20               MR. MULLIN:  On page 73 of the

 

    21 official transcript, Your Honor, may I read into

 

    22 the -- what's --

 

    23               JUDGE CURRAN:  Is that similar to

 

    24 page 39?

 

    25               MR. MULLIN:  May be.  It begins


 

 

                                                    32

 

 

     1 with, "There was also an incident -- there was

 

     2 also an indent maybe little bit subsequent to

 

     3 that that was advised where your clients may

 

     4 have filed a complaint with the -- with the

 

     5 Jersey City Police Department about a Secaucus

 

     6 DPW truck being in Jersey City.  It was being

 

     7 investigated by the Jersey City Police

 

     8 Department.  I" -- this is Mr. Leanza.  "I

 

     9 followed up both through Mr. Iacono and through

 

    10 Captain Buckley to see if we had anything in the

 

    11 Town records with respect to any Town vehicle or

 

    12 special DPW truck having business in or near

 

    13 Jersey City.  They were picking up something

 

    14 from a vendor or dropping something off in

 

    15 Jersey City, and there were no records or

 

    16 indication from that and never received any

 

    17 results of investigation was conducted by the

 

    18 Jersey City Police Department."

 

    19                "So Captain" -- Question:  So

 

    20 Captain Buckley conducted an investigation with

 

    21 regard to the Jersey City incident?

 

    22                Answer:  No, I believe that was

 

    23 handled by Jersey City Police Department; but he

 

    24 was aware of it.  I believe Mr. Iacono checked

 

    25 through Town records and DPW personnel and


 

 

                                                    33

 

 

     1 supervisors to find out if anybody was near or

 

     2 could have been in Jersey City in the time

 

     3 frame.  And there was no indication that there

 

     4 was any DPW truck from Secaucus in Jersey City

 

     5 at that time.

 

     6                Question:  So Mr. Iacono

 

     7 conducted an investigation with regard to the

 

     8 Jersey City incident?

 

     9                Answer:  I don't know.  But I

 

    10 assume he spoke with the various DPW

 

    11 supervisors, checked their time sheet, their

 

    12 pickups and stuff like that.  And the result was

 

    13 nobody was near Jersey City at the time of the

 

    14 alleged incident.

 

    15                Then there is a read back.

 

    16                Then the question is:  He

 

    17 reported back to you with that regard, Mr.

 

    18 Iacono?

 

    19                Answer:  It wasn't an official

 

    20 report.  He told me he couldn't find anything

 

    21 about anybody being near Jersey City with the

 

    22 DPW truck on that day.

 

    23                Question:  So that was an

 

    24 unofficial report?

 

    25                Answer:  Right, because we were


 

 

                                                    34

 

 

     1 not doing the investigation.  The official

 

     2 investigation was from the Jersey City Police

 

     3 Department.

 

     4                Question:  How did you learn

 

     5 about the Jersey City event?

 

     6                Answer:  I don't recall whether I

 

     7 was told by Captain Buckley or told by Mr.

 

     8 Iacono.

 

     9                Question:  You discussed it with

 

    10 Captain Buckley?

 

    11                Answer:  I believe we did discuss

 

    12 it.

 

    13               MR. PARIS:  That's the end of it.

 

    14               MR. MULLIN:  That's the end of it.

 

    15 And you know something, I took Mr. Buckley -- my

 

    16 office --

 

    17               JUDGE CURRAN:  Excuse me, Tracey.

 

    18               MR. MULLIN:  My office took

 

    19 Mr. Buckley's deposition, and we took Mr.

 

    20 Iacono's deposition.  And it never dawned on us

 

    21 that we should explore this.  I don't know what

 

    22 Buckley knew or didn't know.  I would be shocked

 

    23 and surprise, based on this, if Mr. Buckley

 

    24 didn't have the actual police reports from

 

    25 Jersey City because that's the way detectives


 

 

                                                    35

 

 

     1 work.

 

     2                And I think it's just -- it's

 

     3 very improper and a violation of, again, the

 

     4 obligation of candor to the Court and also a

 

     5 violation of discovery rules that I wasn't told

 

     6 any of it.  I should have been told this in --

 

     7 back then, in 2005, when this was going on.  I

 

     8 was never ever told this.

 

     9                I have asked very broad questions

 

    10 in discovery about any efforts they made any

 

    11 investigative efforts they made, and I never

 

    12 received anything about this.  And I didn't even

 

    13 cross-examine witnesses in this trial about

 

    14 this.  Now Iacono and Buckley are off the stand.

 

    15 I have no documents concerning this.  This is

 

    16 just grossly improper.  The question about the

 

    17 DPW that was just asked is grossly improper.

 

    18               MR. PARIS:  Your Honor, I think

 

    19 this is absolutely consistent.  He just said

 

    20 there was no official police investigation.

 

    21               JUDGE CURRAN:  Oh, Mr. --

 

    22 Mr. Paris, I really don't -- with all due

 

    23 respect to both of you, I'm going to assume, as

 

    24 officers of the court, that you didn't know what

 

    25 your client just testified to, testified to on


 

 

                                                    36

 

 

     1 Monday because -- the record will speak for

 

     2 itself when we had these discussions -- it was

 

     3 clear and unequivocal that there was no

 

     4 knowledge.

 

     5               MR. BEVERE:  I can tell you, Your

 

     6 Honor, categorically I did not know.

 

     7               JUDGE CURRAN:  I believe that.

 

     8               MR. BEVERE:  I did not know.

 

     9               JUDGE CURRAN:  As an officer of

 

    10 the court I am sure you wouldn't make the

 

    11 representation.  But this just -- this is just

 

    12 totally improper.  As far as whether the Town

 

    13 did or didn't know, I don't have the

 

    14 Interrogatories in front of me, but my guess is

 

    15 that the answers to the Interrogatories on

 

    16 probably more than one question were signed off

 

    17 on with information that was either lacking,

 

    18 incomplete or deliberately false on behalf of

 

    19 the municipality.

 

    20                I'm not saying either one of you

 

    21 had any knowledge of that.

 

    22                The fact that the Jersey City

 

    23 Police did the investigation, nobody disputes

 

    24 it; but that's not the issue here.  Personally,

 

    25 if we had been back -- if we were back a couple


 

 

                                                    37

 

 

     1 of days ago and someone was saying, gee, it's

 

     2 not logical that the Jersey City Police would

 

     3 have investigated this and never given any

 

     4 information to -- to Secaucus, I would have

 

     5 tended to believe that and would have asked,

 

     6 hey, let's get somebody in here, let's get

 

     7 someone from Jersey City to say did you or did

 

     8 you not get reports or get somebody from

 

     9 Secaucus to say did you or did you not receive

 

    10 them.  We're beyond that now.

 

    11                At this point, though,

 

    12 anticipating what the next issue is going to be,

 

    13 I am not opening up the door.  I will note your

 

    14 strong objection to that on the record.

 

    15                I am going to strike that last

 

    16 question.  And this issue will remain for

 

    17 whatever other purposes in regard to those

 

    18 answers and the certification by the Town

 

    19 attorney.

 

    20                Again, none of my comments is

 

    21 directed to Mr. Bevere, nor to Mr. Paris as an

 

    22 individual.  And I want that on the record.

 

    23               MR. PARIS:  Thank you.

 

    24               JUDGE CURRAN:  Thank you.

 

    25               MR. MULLIN:  Your Honor.


 

 

                                                    38

 

 

     1               JUDGE CURRAN:  Mr. Mullin.

 

     2               MR. MULLIN:  May I please have a

 

     3 proffer as to what areas we're going to?

 

     4               JUDGE CURRAN:  Thank you.  I think

 

     5 that's a good idea.

 

     6               MR. PARIS:  That's fine.

 

     7               JUDGE CURRAN:  Thank you.

 

     8               MR. PARIS:  The next area is with

 

     9 regard to Mr. Carter appearing at Town Hall in

 

    10 December -- I think it was December 10th of

 

    11 '04 -- requesting records and his involvement

 

    12 when there was a complaint made about the

 

    13 conduct of the civilian employee.

 

    14                And then the questioning is going

 

    15 to be in terms of what -- when he became aware

 

    16 that the Attorney General's investigation was

 

    17 complete, what -- what his involvement was at

 

    18 that point in time in terms of any follow-up

 

    19 disciplinary action.

 

    20                And then I was going to ask him

 

    21 questions with regard to Town ordinances and

 

    22 harassment policies.

 

    23               MR. MULLIN:  Let me take -- the

 

    24 last category is a little vague; but let me take

 

    25 issue with the incident at Town Hall, if it's


 

 

                                                    39

 

 

     1 the incident I think.

 

     2               MR. PARIS:  Probably is.

 

     3               MR. MULLIN:  When Tim Carter went

 

     4 and sought records and the man behind the desk

 

     5 used some expletive, Michael Mercurio.  Here is

 

     6 why that should be barred.  In the recent

 

     7 production of documents that we got Saturday at

 

     8 5 p.m., just this last Saturday, there was a

 

     9 report I have never seen in my life by an

 

    10 Officer Keeffe.

 

    11               MR. PARIS:  O'Keeffe.

 

    12               MR. MULLIN:  That was never turned

 

    13 over to me in discovery.  It's about that

 

    14 incident, and it -- and it talks about my client

 

    15 breaking down and crying there.  And I -- if I

 

    16 had it, I would have put Keeffe on the stand.  I

 

    17 would have had my client testify about it.  But

 

    18 the Town hid this document.  Again, I am not

 

    19 talking about counsel.  The Town hid this

 

    20 document from me.  Clearly relevant document

 

    21 describing in detail -- I am going to ask -- in

 

    22 fact, Officer Keeffe did appear sympathetic

 

    23 because my client broke down crying and did he

 

    24 reprimand the officer.

 

    25                This is a defense counsel, and it


 

 

                                                    40

 

 

     1 is not going to be spun in very favorable light.

 

     2 I think they are going to say Keeffe might be

 

     3 mentally disabled or something.

 

     4                The Town hid this document.  It

 

     5 was clearly relevant to the core of the case,

 

     6 the treatment by the Town, by Town officials of

 

     7 my client.

 

     8               JUDGE CURRAN:  Mr. Bevere or

 

     9 Mr. --

 

    10               MR. BEVERE:  Judge, let me address

 

    11 that because I will also acknowledge that I was

 

    12 unaware of that document until I saw it when Mr.

 

    13 Leanza produced his file.  It wasn't a document

 

    14 that I knew of.  But let me -- as -- as far as

 

    15 the allegation of intentionally withholding

 

    16 things in discovery, I mean, understand what

 

    17 happens.  I take discovery demands that I

 

    18 receive from Plaintiffs' counsel.  I send them

 

    19 to the Town.  I say, "Give me what you got."

 

    20               JUDGE CURRAN:  There is no

 

    21 question about that.

 

    22               MR. BEVERE:  I think as a question

 

    23 of interpretation of what I'm looking for, you

 

    24 know -- and quite frankly, to say that the Town

 

    25 is intentionally withholding documents, I mean,


 

 

                                                    41

 

 

     1 I don't think that that is true.

 

     2               JUDGE CURRAN:  At this point --

 

     3               MR. MULLIN:  It was in Mr.

 

     4 Leanza's file.  Let me just make that clear.

 

     5               JUDGE CURRAN:  At this point I am

 

     6 not finding that it was intentionally withheld.

 

     7               MR. BEVERE:  Okay.

 

     8               JUDGE CURRAN:  We'd need a little

 

     9 more information.  But if it was in Mr. Leanza's

 

    10 file, I don't know who made the decision --

 

    11               MR. PARIS:  What is interesting --

 

    12               JUDGE CURRAN:  My concern on a

 

    13 separate issue --

 

    14               MR. PARIS:  -- what's referred to

 

    15 is a civilian complaint.  That's what's it's

 

    16 referred to as.  It's not referred to as a

 

    17 police investigation report.

 

    18               JUDGE CURRAN:  I believe -- but no

 

    19 matter what, because they didn't get it, I am

 

    20 not going to allow any questioning on it.

 

    21 Again, I am not finding it was intentionally

 

    22 withheld because I don't know all the facts at

 

    23 this point.

 

    24                Any other issues?

 

    25               MR. PARIS:  Any other issues?


 

 

                                                    42

 

 

     1               JUDGE CURRAN:  This is just a very

 

     2 small point, minuscule, Mr. Paris; but because

 

     3 I'm learning that things I don't recognize turn

 

     4 out to be mountains, rather than molehills, when

 

     5 Mr. Leanza testified, to the best of my

 

     6 knowledge -- and Tracey, I think, heard the same

 

     7 thing because I looked at the transcript -- you

 

     8 asked him about his recollection of one

 

     9 conversation or two.  He said that he has since

 

    10 found, by looking at his billing records, that

 

    11 he had a second conversation.  He said it was

 

    12 March 1st.  He didn't give a year.  Did he mean

 

    13 May 1st?

 

    14               MR. BEVERE:  He meant May 1st.  I

 

    15 heard it.  He said, "March."

 

    16               MR. PARIS:  Can I clarify?

 

    17               JUDGE CURRAN:  I didn't know if

 

    18 that was going to give me something the

 

    19 following year, March 1st, '05 or something.  I

 

    20 think we ought to.

 

    21               MR. PARIS:  Yeah, I will clarify

 

    22 that.

 

    23                Okay.  With regard to the

 

    24 O'Keeffe matter?

 

    25               JUDGE CURRAN:  Nothing.


 

 

                                                    43

 

 

     1               MR. PARIS:  Okay.

 

     2               MR. MULLIN:  There is two -- I

 

     3 understand about the follow-up.  I assume it's

 

     4 the follow-up after they learn in July '05 that

 

     5 DAG's investigation --

 

     6               MR. PARIS:  Yeah.

 

     7               MR. MULLIN:  He testified at

 

     8 deposition about why -- his recommendations

 

     9 after that.  I have my same running objection

 

    10 for all of his testimony, nothing beyond that.

 

    11                The last category, counsel says

 

    12 he is going to elicit testimony about Town

 

    13 ordinances and Town policy.  I mean, may I have

 

    14 a proffer on that?

 

    15               MR. PARIS:  The Chapter 12, the

 

    16 fire code.

 

    17               MR. MULLIN:  Okay.  No objection.

 

    18               MR. PARIS:  And with regard to the

 

    19 EMT harassment training and --

 

    20               MR. MULLIN:  Sensitivity thing?

 

    21               MR. PARIS:  No, no, not

 

    22 sensitivity thing, afterwards.  But what's --

 

    23 the document you have.

 

    24               MR. BEVERE:  We provided -- it's a

 

    25 marked document prior to discovery.  It's the


 

 

                                                    44

 

 

     1 Town's training manual with the Town's sexual

 

     2 harassment policy.  That's all been provided.

 

     3               MR. MULLIN:  Is that the MEL, the

 

     4 big thing?

 

     5               MR. BEVERE:  No, no, no, no, no,

 

     6 it's the -- it's our D exhibit.  It was the --

 

     7               MR. PARIS:  I will give you the

 

     8 number.

 

     9               MS. SMITH:  Did he testify at all

 

    10 about that in his deposition?

 

    11               MR. PARIS:  Yeah -- you know what,

 

    12 I would have to look at his deposition.  My

 

    13 recollection is he indicated that he signs off

 

    14 on that on a yearly basis.

 

    15               MR. MULLIN:  He did say he signs

 

    16 off with Iacono on some certification.

 

    17               JUDGE CURRAN:  Right.  Whether

 

    18 it's that one or not, I don't know.

 

    19               MR. BEVERE:  The only thing we are

 

    20 looking to establish that --

 

    21               JUDGE CURRAN:  He signed off on

 

    22 it?

 

    23               MR. MULLIN:  I'm not going to --

 

    24               JUDGE CURRAN:  Thank you very

 

    25 much.


 

 

                                                    45

 

 

     1               MR. PARIS:  Thank you, Your Honor.

 

     2               (Whereupon, sidebar discussion is

 

     3        concluded.)

 

     4               JUDGE CURRAN:  The witness may

 

     5 take the stand, please.

 

     6               (Whereupon, the witness re-takes

 

     7        the stand.)

 

     8               JUDGE CURRAN:  Ladies and

 

     9 Gentlemen, it had been so long, I'm not sure you

 

    10 even remember it; but if you do, I'm going to

 

    11 strike the last question under the rules.  Thank

 

    12 you.

 

    13                Mr. Paris.

 

    14               MR. PARIS:  Thank you, Your Honor.

 

    15 BY MR. PARIS:

 

    16        Q      Mr. Leanza, in your -- in your

 

    17 testimony I think you -- I don't have the screen

 

    18 in front of me, but I think you indicated you

 

    19 had a conversation with either Mr. Carter or

 

    20 Mr. deVries.  I think you said March 1st?

 

    21 A      Oh, excuse me, May 1st.

 

    22        Q      Okay.  That's what I was

 

    23 wondering.

 

    24          How did you find out that the Attorney

 

    25 General was closing its investigation?


 

 

                                                    46

 

 

     1 A      Well, as I testified before, on or about

 

     2 May 10th we received the first subpoena and

 

     3 letter with regard to their investigation.  My

 

     4 experience in these matters is a Grand Jury is

 

     5 normally impaneled for a one-year period.  So

 

     6 about May 2005, early June I kept inquiring of

 

     7 the Police Department, particularly Chief

 

     8 Corcoran and Detective Captain Buckley as to

 

     9 what the status was.

 

    10          And the reason I went through them is

 

    11 they had contact with an investigator from the

 

    12 Attorney General's Office to whom they provided

 

    13 all of their investigations.  And from reviewing

 

    14 my time sheets, it looks like on or about

 

    15 June 9th I had a discussion with Police Chief

 

    16 Corcoran.  And he advised me that their

 

    17 discussion with the investigator from the

 

    18 Attorney General's Office indicated that they

 

    19 were going to drop their investigation, there

 

    20 was not going to be any indictment by a Grand

 

    21 Jury.

 

    22               MR. MULLIN:  Objection, Your

 

    23 Honor.  Motion to strike.  There is no evidence

 

    24 about the issue of whether or not an indictment

 

    25 was issued or not issued.  This witness doesn't


 

 

                                                    47

 

 

     1 know that.  Motion to strike and ask for an

 

     2 instruction to the jury on the inappropriateness

 

     3 of that statement.

 

     4               MR. PARIS:  Your Honor, can we be

 

     5 heard at sidebar?

 

     6               JUDGE CURRAN:  Surely.

 

     7               (Whereupon, the witness steps

 

     8        down.)

 

     9               (Whereupon, the following sidebar

 

    10        discussion is held.)

 

    11               MR. PARIS:  Your Honor, I just

 

    12 want to be clear, what was -- what was

 

    13 originally ruled on is that the -- there

 

    14 wouldn't be testimony as to whether the Grand

 

    15 Jury issued a no bill or not.  That was the

 

    16 issue, as to whether or not anyone -- whether

 

    17 there was an actual no bill.  But I -- I think

 

    18 it's not a dispute that nobody was prosecuted.

 

    19 I didn't think that that was an issue.  Nobody

 

    20 was indicted for this.  I mean, that's not an

 

    21 issue.

 

    22               JUDGE CURRAN:  Well, yeah, it is

 

    23 an issue in my mind because that letter at the

 

    24 very least is less than definitive.  And it

 

    25 doesn't say they're not going to indict.  It


 

 

                                                    48

 

 

     1 doesn't say -- it says, "Right now we don't have

 

     2 enough information."  I mean, frankly --

 

     3               MR. MULLIN:  I am going to take

 

     4 this trial transcript --

 

     5               JUDGE CURRAN:  Definitive is the

 

     6 best view I could put of that letter.

 

     7               MR. PARIS:  Well, Your Honor,

 

     8 there is --

 

     9               MR. MULLIN:  Excuse me.  I am

 

    10 going to take this trial transcript, and I am

 

    11 going to give it to the U.S. attorney and the

 

    12 Attorney General and ask them to reopen criminal

 

    13 investigations.

 

    14               MR. PARIS:  That's fine.

 

    15               MR. MULLIN:  You don't know what's

 

    16 going on down there; you really don't.

 

    17               MR. PARIS:  No, no, I agree, Your

 

    18 Honor.  That is not the issue.

 

    19               MS. SMITH:  We have an order in

 

    20 this court not to talk about what the Grand Jury

 

    21 did.

 

    22               JUDGE CURRAN:  Right.

 

    23               MR. PARIS:  Your Honor, all that

 

    24 I --

 

    25               JUDGE CURRAN:  What we basically


 

 

                                                    49

 

 

     1 have said -- I personally have issued curative

 

     2 instructions to the jury with which there was no

 

     3 objection --

 

     4               MR. PARIS:  Right.

 

     5               JUDGE CURRAN:  -- saying phrases

 

     6 like there -- we have no information, Grand Jury

 

     7 proceedings are secret, there is no information

 

     8 as to the outcome of the Grand Jury or any

 

     9 action or inaction.  So for him to say as a

 

    10 lawyer, the attorney -- I learned the Attorney

 

    11 General was not going to issue an indictment, I

 

    12 don't care if you call it a "no bill" or you

 

    13 don't, it's basically the same thing.  Frankly,

 

    14 I don't think --

 

    15               MR. PARIS:  I see the point.

 

    16               JUDGE CURRAN:  -- jury probably --

 

    17               MR. BEVERE:  Could I say --

 

    18               JUDGE CURRAN:  I will note your

 

    19 objection.

 

    20               MR. PARIS:  No, no, I guess what I

 

    21 didn't think was at issue is up to that point in

 

    22 time no one was being prosecuted, that nobody

 

    23 had been charged, that's all.  That's all I was

 

    24 saying.

 

    25               JUDGE CURRAN:  I --


 

 

                                                    50

 

 

     1               MR. PARIS:  I didn't understand --

 

     2               JUDGE CURRAN:  I understand.

 

     3 Thank you.

 

     4               MR. MULLIN:  Your Honor, I would

 

     5 request a curative instruction.  Again, what

 

     6 Your Honor said is we can only say a Grand Jury

 

     7 was impaneled and that was it.  He has gone far

 

     8 beyond that.

 

     9               JUDGE CURRAN:  Okay.  I will do it

 

    10 again.

 

    11               MR. PARIS:  Okay.

 

    12               JUDGE CURRAN:  Thank you.

 

    13               (Whereupon, sidebar discussion is

 

    14        concluded.)

 

    15               JUDGE CURRAN:  Mr. Leanza.

 

    16               THE WITNESS:  Thanks Your, Honor.

 

    17               (Whereupon, the witness re-takes

 

    18        the stand.)

 

    19               JUDGE CURRAN:  Thank you.

 

    20                I am going to strike the last

 

    21 question, Ladies and Gentlemen.  This has come

 

    22 up in the past.  What we know in regard to the

 

    23 evidence in this case is that a Grand Jury was

 

    24 impaneled.  We have no information whatsoever as

 

    25 to an outcome or lack of an outcome in that


 

 

                                                    51

 

 

     1 regard.  I'm going to strike that last question.

 

     2 Thank you.

 

     3                Mr. Paris.

 

     4 BY MR. PARIS:

 

     5        Q      Mr. Leanza, without specific

 

     6 reference to the Grand Jury or what the Grand

 

     7 Jury did or did not do, all right, all that I

 

     8 want to know is you found out that the matter

 

     9 was being -- was not proceeding with the

 

    10 Attorney General, correct?

 

    11 A      Yes.  And over and above that,

 

    12 subsequently --

 

    13               JUDGE CURRAN:  Sir, I apologize.

 

    14 That was the question.  Mr. Paris is well

 

    15 prepared.  I am sure if he wishes to have

 

    16 another question, he will.

 

    17               THE WITNESS:  Thank you.

 

    18 BY MR. PARIS:

 

    19        Q      And that was based upon a

 

    20 conversation you had, I think you said, with the

 

    21 Police Chief on June 9th, correct?

 

    22 A      Initially.  Then, subsequently, I

 

    23 reviewed a letter that was issued by the

 

    24 Attorney General.

 

    25        Q      Okay.  Well, we'll get to that.


 

 

                                                    52

 

 

     1 Now, that was June 9th of 2005, correct?

 

     2 A      Yes.

 

     3        Q      So that was over a year after the

 

     4 incident?

 

     5 A      Yes.

 

     6        Q      Okay.  Now, after the conversation

 

     7 with Chief Corcoran you mentioned you saw a

 

     8 letter, correct?

 

     9 A      Correct.

 

    10        Q      Okay.  I'm showing you a document

 

    11 which was marked D-232 and ask if this is the

 

    12 letter that you're referring to?

 

    13 A      Yes.  July 5th is the date.

 

    14        Q      And who -- who authored that

 

    15 letter?

 

    16 A      This author -- the author of the letter

 

    17 was the same Deputy Attorney General,

 

    18 Hester Agudosi, who had authored the letter you

 

    19 had previously shown me with regard to turning

 

    20 over the files, ceasing any administrative

 

    21 proceedings and also assigned the subpoenas for

 

    22 the information from the Town of Secaucus to go

 

    23 to the Grand Jury.

 

    24        Q      And who was that letter addressed

 

    25 to?


 

 

                                                    53

 

 

     1 A      That letter is addressed to Timothy

 

     2 Carter and Peter deVries, the plaintiffs.

 

     3        Q      And did you see that letter on or

 

     4 about July 5th of 2005?

 

     5 A      Sometime after July 5th, 2005.  I don't

 

     6 recall exactly when.

 

     7        Q      Was it months after July 5th?

 

     8 A      No, in -- during the month of July.

 

     9        Q      Okay.  Now, with regard to the

 

    10 letter, okay, what was your understanding as to

 

    11 what happened with the Attorney General's

 

    12 investigation?  I'm just asking your

 

    13 understanding.

 

    14 A      Okay.

 

    15               MR. MULLIN:  Objection, Your

 

    16 Honor.  Objection, Your Honor.  Question is --

 

    17 the form of the question is maybe contrary to

 

    18 your recent ruling.

 

    19               JUDGE CURRAN:  Exactly.  You can

 

    20 rephrase.

 

    21               MR. PARIS:  I will.

 

    22               MR. MULLIN:  Question should be

 

    23 very specific.

 

    24               JUDGE CURRAN:  The objection is

 

    25 sustained, thank you.


 

 

                                                    54

 

 

     1 BY MR. PARIS:

 

     2        Q      Mr. Leanza, without reference to

 

     3 what a Grand Jury may or may not have done,

 

     4 without reference to that my question is:  What

 

     5 was your understanding as to what happened with

 

     6 regard to the Attorney General's investigation?

 

     7 A      The Attorney General had made a

 

     8 determination that it had exhausted all of its

 

     9 leads with regard to the criminal investigation

 

    10 and you could not determine or identify anyone

 

    11 who committed a criminal act of bias.

 

    12        Q      Now, as a result of finding this

 

    13 out what did you do?

 

    14 A      Well, I did something previously.  When I

 

    15 first heard that the State was dropping its

 

    16 investigation, I had directed Chief Corcoran and

 

    17 Detective Captain Buckley to determine whatever

 

    18 they could from the investigatory files of the

 

    19 Attorney General so we would have it and we

 

    20 might be able to proceed on that.  I never got

 

    21 anything except negative answers in terms of

 

    22 what was received from the attorney -- from the

 

    23 Attorney General's Office, basically nothing.

 

    24          And then, when I received this letter

 

    25 in July saying that all their investigation had


 

 

                                                    55

 

 

     1 revealed nothing with respect to identifying

 

     2 anyone who had committed a crime, internally I

 

     3 made the determination that if the Attorney

 

     4 General, who had the powers I alluded to before

 

     5 with both regard to subpoenaing witnesses and

 

     6 enforcing their testimony, couldn't do any

 

     7 identification, that it would be hard-pressed or

 

     8 impossible for me, as the Town attorney, to do

 

     9 the same thing.

 

    10        Q      And based upon -- well, before --

 

    11 before July 5th of '05 had you reviewed police

 

    12 reports with regard to the incident of

 

    13 April 25th and the police reports thereafter?

 

    14 A      Yes, Captain Buckley copied me with every

 

    15 police report because everything was turned over

 

    16 to the Attorney General.

 

    17        Q      Did you keep them in your file?

 

    18 A      I didn't keep them in my file.  I make

 

    19 that a habit not to keep the police reports in

 

    20 my file because they're confidential.  I receive

 

    21 them not only on this but on other incidences

 

    22 with regard to ABC matters, et cetera, like

 

    23 that; and I don't like to have them in the

 

    24 office.  I review them and I either return them

 

    25 or destroy them.  And the Police Department


 

 

                                                    56

 

 

     1 keeps a copy of them.

 

     2        Q      Now, based upon the information

 

     3 that you had in terms of reviewing the police

 

     4 reports and the information you just mentioned

 

     5 about the Attorney General's investigation, what

 

     6 did you determine?

 

     7 A      Based upon that, based upon my 30 years

 

     8 practice as an attorney --

 

     9        Q      Just wait one second.  I'm having

 

    10 trouble --

 

    11 A      Okay.

 

    12        Q      Okay.  I'm sorry, go ahead.

 

    13 A      Yeah, based upon my 18 years as a

 

    14 municipal judge, based upon my representation of

 

    15 five or six other municipal entities -- and I

 

    16 have conducted these administrative hearings to

 

    17 discipline people -- I concluded that there was

 

    18 not enough evidence, not only to proceed

 

    19 criminally but not enough to proceed

 

    20 administratively, as well, in action against

 

    21 anybody because there was no identification,

 

    22 basically, of who said what that night or that

 

    23 early morning of April 25th, 2004.

 

    24        Q      With regard to the issue of

 

    25 firefighters pleading the Fifth amendment, did


 

 

                                                    57

 

 

     1 you recommend that there be discipline for that?

 

     2 A      There was no way we could discipline

 

     3 them.  There was nothing in our rules with

 

     4 regard to firefighters or nothing that I saw in

 

     5 the bylaws of the respective companies that

 

     6 provided for discipline for firefighters who

 

     7 took or who exercised their Constitutional

 

     8 rights with regard to their positions.

 

     9        Q      Now, who did you discuss your

 

    10 findings with?

 

    11 A      I discussed my findings with the Town

 

    12 Administrator at that time, who is Anthony

 

    13 Iacono.

 

    14        Q      Mr. Leanza, have you prosecuted

 

    15 other disciplinary actions against firefighters?

 

    16 A      Yes.  As a matter of fact, at about the

 

    17 same time, probably from April of 2005 to maybe

 

    18 August of 2005, I was in the process of

 

    19 prosecuting two disciplinary actions against two

 

    20 separate firefighters, one was a Mr. Nielsen and

 

    21 one was a Mr. Ballance.

 

    22          We had -- as pursuant to law, they have

 

    23 a due process right to a hearing.  We had full

 

    24 hearing, evidence.  I believe there was

 

    25 transcripts taken.  We had an impartial third


 

 

                                                    58

 

 

     1 person who was the hearing officer.  There was a

 

     2 determination made that they had violated the

 

     3 Town ordinance with respect to conduct of a

 

     4 firefighter, and both firefighters were

 

     5 terminated.

 

     6        Q      Mr. Leanza, just want to talk a

 

     7 little bit about Township codes and -- and

 

     8 policies and things like that.  Are you familiar

 

     9 with the Chapter 12 of Secaucus's Code?

 

    10 A      Well, I know that Chapter 12 of

 

    11 Secaucus's Code refers to the Volunteer Fire

 

    12 Department.  I'm familiar with it.  And I can't

 

    13 cite the verse and line, but I'm generally

 

    14 familiar with the terms and conditions.

 

    15        Q      Are you familiar with the election

 

    16 process for Fire Chief?

 

    17 A      Yes.

 

    18        Q      And what is that process?

 

    19 A      Well, the Chief is not elected.  What

 

    20 happens is there are three chiefs.  There is a

 

    21 battalion chief, a deputy chief and an overall

 

    22 chief of the Department.  Every two years a new

 

    23 battalion chief is elected.  And the battalion

 

    24 chief's election is supposed to be someone from

 

    25 a different house every year.  So, for instance,


 

 

                                                    59

 

 

     1 this company, Engine 2, had the battalion chief

 

     2 from them in 2000.  Then, in 2002 the battalion

 

     3 chief couldn't come from Firehouse 2.

 

     4          So the battalion chief would be elected

 

     5 every two years.  And then, after two years the

 

     6 existing chief would retire, the deputy chief

 

     7 would move up to chief.  The battalion chief

 

     8 would move up to deputy chief.  And the recently

 

     9 elected battalion chief would serve his two

 

    10 years and await being moved up to deputy chief.

 

    11        Q      Does the entire Fire Department

 

    12 vote on who is going to be the battalion chief?

 

    13 A      The fire -- all volunteer fire members in

 

    14 good standing have the right to vote for who's

 

    15 going to be the next battalion chief.

 

    16        Q      What is the role of the Mayor and

 

    17 Council in the selection of a battalion chief?

 

    18 A      The Mayor and Council has no role at all

 

    19 other than, my understanding is, we can

 

    20 disapprove or veto the election of a battalion

 

    21 chief.  And if that were the case, then that

 

    22 person would be entitled to a full hearing and

 

    23 we'd have to prove why we didn't think he was

 

    24 qualified for it.

 

    25        Q      Now, just want to show you another


 

 

                                                    60

 

 

     1 document marked D-273.  Is this Chapter 12 of

 

     2 the Code of the Town of Secaucus that deals with

 

     3 the Fire Department?

 

     4               MR. MULLIN:  What is the exhibit

 

     5 number again?

 

     6               MR. PARIS:  273.

 

     7               JUDGE CURRAN:  273.

 

     8               MR. MULLIN:  Hold on a second.

 

     9 BY MR. PARIS:

 

    10 A      It appears to -- I'm not reading every

 

    11 word --

 

    12        Q      No.

 

    13 A      -- but I see the table of contents,

 

    14 Chapter 12, that's it.

 

    15        Q      Be merciful --

 

    16 A      Copy is on the small side too.

 

    17        Q      We will be merciful and not ask

 

    18 you to read every word, okay.

 

    19          Now, in -- on April 25th of 2004 did

 

    20 the Town of Secaucus have in place a written

 

    21 antiharassment and antidiscrimination policy for

 

    22 its employees?

 

    23 A      Yes, we had a, basically, an employee

 

    24 handbook that had antidiscrimination,

 

    25 antiharassment, generally workplace conduct


 

 

                                                    61

 

 

     1 provisions in it.

 

     2        Q      Now, I am going to show you what's

 

     3 been marked as D-249 through D-254 and ask you

 

     4 is that the Town of Secaucus discrimination

 

     5 and/or harassment policy?

 

     6 A      I will get -- word for word, without

 

     7 looking at my signed copy, but it appears to

 

     8 be -- it appears to contain all the material

 

     9 provisions as I recollect them.

 

    10        Q      Okay.  Now, in addition, Mr.

 

    11 Leanza, did Secaucus also have harassment and

 

    12 discrimination training for its employees in

 

    13 place in April of 2004?

 

    14 A      Well, when you say, "in place in 2004,"

 

    15 what happened is the policy together -- is given

 

    16 to every employee.  In addition to that,

 

    17 periodically we have someone from the outside --

 

    18 I believe we had -- at that time we were using

 

    19 someone from Rutgers University.  Now we have

 

    20 another gentleman, Dr. Fox, who's from

 

    21 Intervention Strategies.

 

    22          They would come in, give a seminar and

 

    23 disseminate, in addition to the policy, certain

 

    24 procedures.  A lot of it was anecdotal, how

 

    25 would you react in a situation to try and


 

 

                                                    62

 

 

     1 indicate -- and these people -- that sexual

 

     2 harassment innuendos, anything of that nature,

 

     3 anything racially, anything discriminatory would

 

     4 not be tolerated and to make clear that even

 

     5 jokes and things of that nature would be

 

     6 violative of the policy.

 

     7          So I don't remember what happened on

 

     8 the 24th.  I believe -- my recollection is, you

 

     9 know, probably in 2000, 2002.  I know last year

 

    10 we had a seminar.

 

    11          And actually, we run two or three of

 

    12 them because we can't have everybody in from the

 

    13 Town in at one time.  But we have these outside

 

    14 people in.  We have it in the Town meeting room

 

    15 where the Mayor and Council meet.  And, you

 

    16 know, we'll have a third or a quarter of the

 

    17 Town employees in at a time; and somebody will

 

    18 come in and give an update on the policy.  And

 

    19 it gives these examples.

 

    20        Q      Okay.  And does -- does that

 

    21 training -- is that training required of all

 

    22 Town employees?

 

    23 A      Required of all Town employees.

 

    24        Q      I'm showing you document which has

 

    25 been marked D-233 to 248 and ask you if you can


 

 

                                                    63

 

 

     1 identify that?

 

     2 A      Yeah, these are some of the training

 

     3 materials and some participants -- these are the

 

     4 handouts that are given out and some of the

 

     5 examples.  However, I believe this is a more

 

     6 recent one.  I'm not sure if this -- there is no

 

     7 date on this --

 

     8        Q      Okay.

 

     9 A      -- but this might be from the last three

 

    10 or four years.  I'm not sure if this is the one

 

    11 that was given in 2002 or 2004.

 

    12        Q      In looking at this -- take a look

 

    13 at it.  Did you attend -- did you attend these

 

    14 sessions?

 

    15 A      Yes, I believe I attended this one

 

    16 because this one was given by a Dr. Fox from

 

    17 Intervention Strategies.

 

    18        Q      Is this the type of material that

 

    19 is provided by way of training --

 

    20 A      Yeah.

 

    21        Q      -- to Secaucus Town employees

 

    22 prior to April of 2004?

 

    23 A      Yes, these are really the handouts.

 

    24 There would be somebody who would give a

 

    25 presentation; and generally, there would be some


 

 

                                                    64

 

 

     1 type of slide show.  Now they do it by this

 

     2 computer or Power Point thing.  Back then I

 

     3 think it might have just been a slide show.  And

 

     4 there would be different slides that relate to

 

     5 some of the handouts, going through anecdotes,

 

     6 what is and what isn't allowed and what could be

 

     7 deemed inflammatory or violative of the policy.

 

     8        Q      Just leave that there.

 

     9          Mr. Leanza, as of April 2004 did the

 

    10 Town have in place a procedure for responding to

 

    11 complaints of citizens and employees with regard

 

    12 to harassment or discrimination against Town

 

    13 employees?

 

    14 A      Yes.

 

    15        Q      What was your involvement in that

 

    16 process?

 

    17 A      Well, I reviewed the process because it

 

    18 was all set forth in a manual.  And in certain

 

    19 cases the process is duplicative because some of

 

    20 our employees are members of unions.  So we have

 

    21 for general people who are not members of the

 

    22 unions these procedures.  And some of the people

 

    23 who are members of unions also have certain

 

    24 rights.  They have union delegates present, et

 

    25 cetera, things like that.  That's kind of what I


 

 

                                                    65

 

 

     1 work on.  And I generally worked on that, who --

 

     2 with the person who was at that time the Town

 

     3 Administrator, Mr. Iacono.

 

     4        Q      Okay.  Was Mr. Iacono also the

 

     5 EEOC compliance officer?

 

     6 A      Yes, he was.

 

     7               MR. PARIS:  If I could just have

 

     8 one second, please, Your Honor?

 

     9               JUDGE CURRAN:  Surely.

 

    10               MR. PARIS:  Your Honor, if we

 

    11 could, this is -- we were talking about playing

 

    12 the tape from April 27th.  I need to get that

 

    13 from your chambers.  And if I could, I may

 

    14 reserve a question or so after that's done.

 

    15               JUDGE CURRAN:  Surely.  Do you

 

    16 want to start playing the tape now?

 

    17               MR. PARIS:  Yeah.

 

    18               JUDGE CURRAN:  Surely.  Go off the

 

    19 record for a moment.

 

    20               COURT CLERK:  Off the record.

 

    21               (Whereupon, a discussion is held

 

    22        off the record.)

 

    23               JUDGE CURRAN:  I will note for the

 

    24 record that Mr. Paris has brought the cassette

 

    25 tape player and a cassette tape; is that


 

 

                                                    66

 

 

     1 correct, Mr. Paris?

 

     2               MR. PARIS:  That's correct.

 

     3               JUDGE CURRAN:  Do you have a

 

     4 number on the cassette tape --

 

     5               MR. PARIS:  No.

 

     6               JUDGE CURRAN:  -- an exhibit

 

     7 number?  We'll mark it later.

 

     8               MR. PARIS:  Okay.

 

     9               JUDGE CURRAN:  Thank you.

 

    10               MR. PARIS:  Hopefully it's queued

 

    11 up properly.  Your Honor, there is a point where

 

    12 we are going to need to take a break; I just

 

    13 want to say that in advance.

 

    14               JUDGE CURRAN:  That's fine.  Just

 

    15 let us know.

 

    16               MR. PARIS:  I will.

 

    17               (Whereupon, a portion of the

 

    18        audiotape is played.)

 

    19               JUDGE CURRAN:  I really apologize.

 

    20               MS. SMITH:  Just stop for a

 

    21 minute.

 

    22               JUDGE CURRAN:  I apologize.  My

 

    23 concern is, first of all, I think it would be

 

    24 helpful to explain to the jury what this is.

 

    25               MR. PARIS:  I'm sorry.


 

 

                                                    67

 

 

     1               JUDGE CURRAN:  That's okay.

 

     2               MR. PARIS:  I'm sorry.

 

     3               JUDGE CURRAN:  Then I think there

 

     4 may be a question.  I don't have an unofficial

 

     5 transcript; but if there is a question, we may

 

     6 as well answer it now.

 

     7               MR. PARIS:  Is there a question?

 

     8               MR. MULLIN:  No, we have no

 

     9 question.

 

    10               JUDGE CURRAN:  I'm sorry.  I would

 

    11 ask you to back it up, but I know you don't want

 

    12 to do it.

 

    13               MR. PARIS:  I could do it a little

 

    14 bit and be safe probably.

 

    15               JUDGE CURRAN:  If you can do it,

 

    16 that's fine.  But if you would just explain

 

    17 first to the jury what they are hearing, what

 

    18 voices.

 

    19               MR. PARIS:  I'm sorry.  This is a

 

    20 tape recording that was made during the

 

    21 executive session portion of a caucus meeting of

 

    22 the Mayor and Council that was held on

 

    23 April 27th of 2004.  And Mr. -- I don't want to

 

    24 testify, but --

 

    25 BY MR. PARIS:


 

 

                                                    68

 

 

     1        Q      Mr. Leanza, was the Police Chief

 

     2 present at that meeting?

 

     3 A      Yes.

 

     4        Q      Were you present?

 

     5 A      Yes.

 

     6        Q      Were members of the Mayor and

 

     7 Council present?

 

     8 A      Yes.  And the Fire Chief.

 

     9        Q      And the Fire Chief Walters was

 

    10 present?

 

    11 A      Yes.

 

    12        Q      Anyone else of significance -- I

 

    13 don't want to say, "of significance"; we are all

 

    14 significant.

 

    15 A      My recollection is that is all.  If I

 

    16 hear any extraneous voice, I will let you know.

 

    17               MR. PARIS:  I will try to -- you

 

    18 know what, I think if I do this -- just give me

 

    19 one second.  I think if I do that, this backs it

 

    20 up, I think, a little bit.

 

    21               (Whereupon, a portion of the

 

    22        audiotape is played.)

 

    23               MR. PARIS:  Okay.  I think I'm

 

    24 doing all right.  Okay.  Here we go.

 

    25               (Whereupon, a portion of the


 

 

                                                    69

 

 

     1        audiotape is played.)

 

     2               MR. PARIS:  Can I pause it right

 

     3 there for a moment?

 

     4 BY MR. PARIS:

 

     5        Q      Mr. Leanza, was that you speaking

 

     6 to the Mayor and council?

 

     7 A      Yes, that was my voice.

 

     8               (Whereupon, a portion of the

 

     9        audiotape is played.)

 

    10        Q      Mr. Leanza, you recognize that as

 

    11 Mayor Elwell's voice?

 

    12 A      Mayor Elwell.

 

    13               (Whereupon, a portion of the

 

    14        audiotape is played.)

 

    15               MR. MULLIN:  Can we identify that

 

    16 voice?

 

    17               THE WITNESS:  That is Councilman

 

    18 Kickey.

 

    19 BY MR. PARIS:

 

    20        Q      Who was that?

 

    21               MR. MULLIN:  Who was that?

 

    22 A      Councilman Kickey.

 

    23               (Whereupon, a portion of the

 

    24        audiotape is played.)

 

    25        Q      Identify that voice.


 

 

                                                    70

 

 

     1 A      That is Chief Corcoran speaking, Dennis

 

     2 Corcoran.

 

     3        Q      Okay.

 

     4               (Whereupon, a portion of the

 

     5        audiotape is played.)

 

     6               MR. PARIS:  Oh, I have to flip it

 

     7 over.

 

     8               MR. MULLIN:  Can we have a voice

 

     9 identification?

 

    10               THE WITNESS:  That was Councilman

 

    11 Kickey who answered the question.

 

    12               MR. MULLIN:  "Chief, have any

 

    13 charges been filed?"

 

    14               THE WITNESS:  Yes.

 

    15               (Whereupon, a portion of the

 

    16        audiotape is played.)

 

    17               MR. MULLIN:  Voice identity?

 

    18               THE WITNESS:  Kickey again.

 

    19               MR. MULLIN:  Kickey?

 

    20               (Whereupon, a portion of the

 

    21        audiotape is played.)

 

    22 BY MR. PARIS:

 

    23        Q      Is that Chief Walters?

 

    24 A      That -- yeah, Chief Frank Walters, who

 

    25 was at that time the Chief of the Fire


 

 

                                                    71

 

 

     1 Department.

 

     2        Q      That was Chief Walters who was the

 

     3 Chief at that time?

 

     4 A      At that time, right.

 

     5        Q      Okay.  When did Chief Walters

 

     6 finish his term as chief?

 

     7 A      I believe at the end of 2004, and then

 

     8 Chief Cieciuch became chief after that.

 

     9        Q      Chief Cieciuch became the chief in

 

    10 January?

 

    11 A      January of 2005.

 

    12               MR. MULLIN:  Hold on one second.

 

    13               MR. PARIS:  Stop it.

 

    14               MR. MULLIN:  I want to stop it for

 

    15 one second.

 

    16                Your Honor, could we have an

 

    17 agreement that the witness will identify voices

 

    18 as they come on because I don't want to keep

 

    19 interrupting the tape but he can just call it

 

    20 out?

 

    21               THE WITNESS:  As I hear them.  If

 

    22 I miss, just give me a nod or a point.

 

    23               JUDGE CURRAN:  Thank you, Mr.

 

    24 Leanza.

 

    25               (Whereupon, a portion of the


 

 

                                                    72

 

 

     1        audiotape is played.)

 

     2               THE WITNESS:  Chief Walters again.

 

     3               (Whereupon, a portion of the

 

     4        audiotape is played.)

 

     5               THE WITNESS:  John Bueckner,

 

     6 councilman.  Councilman Bueckner.

 

     7               (Whereupon, a portion of the

 

     8        audiotape is played.)

 

     9               THE WITNESS:  That was the Chief

 

    10 answering, police chief, excuse me.

 

    11               (Whereupon, a portion of the

 

    12        audiotape is played.)

 

    13               THE WITNESS:  That's still

 

    14 Bueckner.

 

    15               (Whereupon, a portion of the

 

    16        audiotape is played.)

 

    17               THE WITNESS:  This is me.

 

    18               (Whereupon, a portion of the

 

    19        audiotape is played.)

 

    20               MR. PARIS:  Your Honor, I have to

 

    21 stop this at this point, I think, Your Honor.

 

    22 Okay.  Your Honor, could we have a short

 

    23 break --

 

    24               JUDGE CURRAN:  Sure.

 

    25               MR. PARIS:  -- and then we'll


 

 

                                                    73

 

 

     1 continue with the tape?

 

     2               JUDGE CURRAN:  Ladies and

 

     3 Gentlemen, you haven't had a break at all, so we

 

     4 will take a ten-minute break.  If you would like

 

     5 to go into the jury room.  Thank you.

 

     6                Off the record.

 

     7               COURT CLERK:  Off the record.

 

     8               (Whereupon, the jury is excused.)

 

     9               (Whereupon, a brief recess is

 

    10        taken.)

 

    11               MS. HAWKS:  Jurors are

 

    12 approaching.

 

    13               JUDGE CURRAN:  Thank you.

 

    14               MS. HAWKS:  You're welcome.

 

    15               (Whereupon, the jury is brought

 

    16        into the courtroom.)

 

    17               JUDGE CURRAN:  Thank you.  Thank

 

    18 you, please be seated.  Thank you.

 

    19               MR. PARIS:  We'll continue, Your

 

    20 Honor.

 

    21               JUDGE CURRAN:  Surely.

 

    22               (Whereupon, a portion of the

 

    23        audiotape is played.)

 

    24               THE WITNESS:  This is Deputy Mayor

 

    25 Reilly.


 

 

                                                    74

 

 

     1               (Whereupon, a portion of the

 

     2        audiotape is played.)

 

     3               THE WITNESS:  It's the Police

 

     4 Chief.

 

     5               MR. PARIS:  I'm sorry, can you

 

     6 hear that?

 

     7               JUROR:  Can't hear.

 

     8               MR. PARIS:  I'm going to try to

 

     9 just rewind it a little bit.  At times it gets a

 

    10 little low.

 

    11               (Whereupon, a portion of the

 

    12        audiotape is played.)

 

    13               THE WITNESS:  Councilman Bueckner.

 

    14 Bueckner.

 

    15               (Whereupon, a portion of the

 

    16        audiotape is played.)

 

    17               THE WITNESS:  That's Councilman

 

    18 Chris Marra.  And that is Fire Chief Walters.

 

    19               (Whereupon, a portion of the

 

    20        audiotape is played.)

 

    21               THE WITNESS:  That's the Mayor.

 

    22               (Whereupon, a portion of the

 

    23        audiotape is played.)

 

    24               MR. MULLIN:  Police Chief?

 

    25               THE WITNESS:  Police Chief.


 

 

                                                    75

 

 

     1               (Whereupon, a portion of the

 

     2        audiotape is played.)

 

     3               THE WITNESS:  That's me.

 

     4               (Whereupon, a portion of the

 

     5        audiotape is played.)

 

     6               THE WITNESS:  Bueckner, Councilman

 

     7 Bueckner.

 

     8               MR. MULLIN:  Bueckner?

 

     9               THE WITNESS:  Bueckner, Bueckner.

 

    10               (Whereupon, a portion of the

 

    11        audiotape is played.)

 

    12               THE WITNESS:  Police Chief.

 

    13               (Whereupon, a portion of the

 

    14        audiotape is played.)

 

    15               THE WITNESS:  That's Councilman

 

    16 Constantino.

 

    17               (Whereupon, a portion of the

 

    18        audiotape is played.)

 

    19               THE WITNESS:  Deputy Mayor Reilly.

 

    20 Deputy Mayor Reilly.

 

    21               (Whereupon, a portion of the

 

    22        audiotape is played.)

 

    23               THE WITNESS:  Deputy Mayor Reilly.

 

    24               (Whereupon, a portion of the

 

    25        audiotape is played.)


 

 

                                                    76

 

 

     1               THE WITNESS:  Chief Corcoran,

 

     2 Police Department.

 

     3               (Whereupon, a portion of the

 

     4        audiotape is played.)

 

     5               THE WITNESS:  That's Bueckner.

 

     6               (Whereupon, a portion of the

 

     7        audiotape is played.)

 

     8               THE WITNESS:  Bueckner again.

 

     9               (Whereupon, a portion of the

 

    10        audiotape is played.)

 

    11               THE WITNESS:  Kickey.

 

    12               (Whereupon, a portion of the

 

    13        audiotape is played.)

 

    14               THE WITNESS:  Deputy Mayor Reilly.

 

    15               (Whereupon, a portion of the

 

    16        audiotape is played.)

 

    17               MR. MULLIN:  Who's that?

 

    18               THE WITNESS:  Deputy Mayor Reilly.

 

    19               (Whereupon, a portion of the

 

    20        audiotape is played.)

 

    21               THE WITNESS:  This is Kickey.

 

    22               (Whereupon, a portion of the

 

    23        audiotape is played.)

 

    24               THE WITNESS:  Deputy Mayor Reilly.

 

    25               (Whereupon, a portion of the


 

 

                                                    77

 

 

     1        audiotape is played.)

 

     2               THE WITNESS:  Chief Walters, Fire

 

     3 Department.

 

     4               (Whereupon, a portion of the

 

     5        audiotape is played.)

 

     6               THE WITNESS:  Kickey again.

 

     7               (Whereupon, a portion of the

 

     8        audiotape is played.)

 

     9               THE WITNESS:  Kickey and the

 

    10 Police Chief.

 

    11               (Whereupon, a portion of the

 

    12        audiotape is played.)

 

    13               THE WITNESS:  Bueckner.

 

    14               (Whereupon, a portion of the

 

    15        audiotape is played.)

 

    16               THE WITNESS:  Fire Chief Walters.

 

    17               (Whereupon, a portion of the

 

    18        audiotape is played.)

 

    19               THE WITNESS:  Chris Marra.

 

    20               (Whereupon, a portion of the

 

    21        audiotape is played.)

 

    22               THE WITNESS:  Bueckner said, "Not

 

    23 true."  Bueckner said, "Not true."

 

    24               (Whereupon, a portion of the

 

    25        audiotape is played.)


 

 

                                                    78

 

 

     1               THE WITNESS:  The chief, the

 

     2 Police Chief.

 

     3               (Whereupon, a portion of the

 

     4        audiotape is played.)

 

     5               MR. MULLIN:  I don't want to stop

 

     6 there.  Can we keep going, Your Honor?  Just a

 

     7 couple lines.

 

     8               (Whereupon, a portion of the

 

     9        audiotape is played.)

 

    10               MR. PARIS:  Your Honor, he is

 

    11 still talking about the press and the minutes.

 

    12 And it goes on for two more lines.  Can we just

 

    13 have the rest under completeness rule?

 

    14               (Whereupon, a portion of the

 

    15        audiotape is played.)

 

    16               MR. MULLIN:  That's it.

 

    17               JUDGE CURRAN:  Thank you.

 

    18               MR. PARIS:  I have no questions.

 

    19 Thank you, Your Honor.

 

    20               JUDGE CURRAN:  Thank you.

 

    21               MR. MULLIN:  Your Honor, I'll

 

    22 proceed.  And we may want to take the lunch

 

    23 break a little early to organize papers, but I

 

    24 will go as far as I can.

 

    25               JUDGE CURRAN:  Okay.  Just let us


 

 

                                                    79

 

 

     1 know when there is a natural break.

 

     2 CROSS EXAMINATION BY MR. MULLIN:

 

     3        Q      Well, sir, we just listened to the

 

     4 non-public, the private executive session

 

     5 meeting of the Town Council's meeting of

 

     6 April 27th, 2004, true?

 

     7 A      Yes, sir.

 

     8        Q      That was two days after the

 

     9 incident, true?

 

    10 A      Yes, sir.

 

    11        Q      And we heard some laughter; isn't

 

    12 that the case, true?

 

    13 A      Yes.

 

    14        Q      And we never heard the names Tim

 

    15 Carter or Peter deVries mentioned the entire

 

    16 tape, right, true?

 

    17 A      That's correct.

 

    18        Q      And nobody said, "Well, how are

 

    19 Tim Carter and Peter deVries doing?  How are the

 

    20 victims doing?"  Nobody said that, right?

 

    21 A      That is --

 

    22        Q      True?

 

    23 A      That's correct.

 

    24        Q      Okay.  And there was talk about

 

    25 civil liability, right?  That was the phrase


 

 

                                                    80

 

 

     1 used, right?

 

     2 A      Correct.

 

     3        Q      And there was talk about

 

     4 plaintiffs lawyers, people like me?  That phrase

 

     5 was used, right?

 

     6 A      Correct.

 

     7        Q      There was talk about maybe

 

     8 somebody is going to sue the Town and we have to

 

     9 protect ourselves from being sued?  That theme

 

    10 was there, right?  The jury heard it and you

 

    11 heard it, true?

 

    12 A      Correct.

 

    13        Q      And early on in the meeting we

 

    14 heard Chief Corcoran describe the incident,

 

    15 right, early on in the meeting?

 

    16 A      Early on in the meeting you heard me

 

    17 first.

 

    18        Q      I'm not asking what I heard first.

 

    19 I am focusing your attention on a narrow

 

    20 question, sir.  You are an attorney, an

 

    21 experienced attorney and judge, so I am not

 

    22 meaning to be rude; but I am going to ask you

 

    23 some narrow questions that require -- so I am

 

    24 asking you early on towards the beginning of the

 

    25 meeting we heard the Chief describe what he said


 

 

                                                    81

 

 

     1 was the incident, true?

 

     2 A      No, he gave a limited description of the

 

     3 incident.

 

     4        Q      He gave a description of the

 

     5 incident, true?

 

     6 A      A limited description based upon my prior

 

     7 advice to him that we should not go into detail

 

     8 about the investigation because it was

 

     9 confidential.

 

    10        Q      That's a good --

 

    11 A      You heard that, didn't you?

 

    12        Q      That is a good point, the prior

 

    13 advice, because the truth is you met with Chief

 

    14 Corcoran before this meeting, right?

 

    15 A      Correct.

 

    16        Q      You met with Chief Corcoran on

 

    17 April 25th, the day of the incident, right?

 

    18 A      No, I did not.

 

    19        Q      Okay.  You met with Chief -- oh,

 

    20 that's not in your billing that you met with

 

    21 Chief Corcoran?  Did I make a mistake?  You

 

    22 didn't meet with Chief Corcoran on April 25th,

 

    23 2004?

 

    24 A      No, that's -- that -- I made a mistake --

 

    25 whoever transcribed my billing.  April 25th was


 

 

                                                    82

 

 

     1 a Sunday.  I did not meet with anybody.  I just

 

     2 had discussions with Mayor Elwell.

 

     3        Q      Okay.  Well, hang on a second.

 

     4 Maybe I made a mistake.

 

     5 A      I met with Chief --

 

     6        Q      No question pending, sir.  You

 

     7 submit bills to the Town of Secaucus that are

 

     8 rather detailed, right?

 

     9 A      Yes, sir.

 

    10        Q      Okay.  And that's your boss over

 

    11 there?  That's the Mayor sitting there while you

 

    12 testify, right?

 

    13 A      Well, either one of them are my boss.

 

    14        Q      Who is the other gentleman?

 

    15 A      The Town administrator.

 

    16        Q      Who is the other gentleman?  He is

 

    17 the Town -- what's his name?

 

    18 A      David Drumeler.

 

    19        Q      Okay.  And you submit bills to the

 

    20 Town of Secaucus for the legal services you

 

    21 provide, right?

 

    22 A      Yes.  Actually, they're submitted to

 

    23 Mr. Drumeler now.

 

    24        Q      Mr. Drumeler, sitting right there?

 

    25 A      Yes.


 

 

                                                    83

 

 

     1        Q      And you testified at a deposition

 

     2 that you get paid somewhere towards about

 

     3 200,000 a year, is that right, by the Town of

 

     4 Secaucus?

 

     5 A      I believe somewhere between 100 and 200;

 

     6 it depends upon the year.

 

     7        Q      How about -- how about the year

 

     8 2007; what did you get paid?

 

     9 A      I don't recall.

 

    10        Q      Okay.  But you submit bills every

 

    11 month, right?

 

    12 A      Yes, sir.

 

    13        Q      And that's for a part-time job,

 

    14 right?

 

    15 A      Sir, it's not a job; it's my whole firm.

 

    16        Q      I understand what you are saying.

 

    17 But you are part-time -- you're not a full-time

 

    18 employee of the Town, right?  You work in a law

 

    19 firm --

 

    20 A      Yes.

 

    21        Q      -- correct?  And your law firm

 

    22 submits bills to the Town, right?

 

    23 A      Right.

 

    24        Q      And on these bills you have to

 

    25 swear that they're true, right?  These bills


 

 

                                                    84

 

 

     1 that you submit to the Town of Secaucus, they

 

     2 have a certification and declaration, right?

 

     3 A      Yes, sir.

 

     4        Q      You actually sign that declaration

 

     5 on all the bills, right?

 

     6 A      These -- actually, that's signed by my

 

     7 secretary.

 

     8        Q      You authorized her to sign, your

 

     9 secretary, right?

 

    10 A      Yes.

 

    11        Q      And it says, "I do solemnly

 

    12 declare and certify under the penalties of the

 

    13 law that the within bill is correct in all its

 

    14 particulars."  Then it goes on to make other

 

    15 statements, right?

 

    16 A      That's correct, sir.

 

    17        Q      You signed that statement or you

 

    18 authorized your secretary to sign it, correct?

 

    19 A      That's correct.

 

    20        Q      Let's look at your billing entry

 

    21 for 4/25/04.  And I probably should put a

 

    22 Plaintiff's Exhibit sticker on it.

 

    23               MR. MULLIN:  Why don't we call the

 

    24 bill of four -- of April -- for April '04, why

 

    25 don't we call that Plaintiff's Exhibit 406.


 

 

                                                    85

 

 

     1               JUDGE CURRAN:  So ordered.

 

     2               MR. MULLIN:  Thank you, Your

 

     3 Honor.

 

     4               (Whereupon, Mr. Leanza's bill,

 

     5        dated 4/25/04 is received and marked as

 

     6        Plaintiff's Exhibit P-406 for

 

     7        Identification.)

 

     8 BY MR. MULLIN:

 

     9        Q      Your entry on 4/25 -- well, let's

 

    10 look at -- did you sign that one?  Is that -- is

 

    11 that your signature, or is that your secretary

 

    12 signing on your behalf?

 

    13 A      That's my secretary.

 

    14        Q      That month you got -- for your

 

    15 work?

 

    16 A      That's what the bill says, yes, sir.

 

    17        Q      And on April 25th, 2004 -- well,

 

    18 that's the day of the incident, right?

 

    19 A      That's correct.

 

    20        Q      And it says, "Meeting with Chief

 

    21 Corcoran," right?  It says, "Meeting with Chief

 

    22 Corcoran and Linda Carpenter regarding printing

 

    23 bids," right?  But it does say, "Meeting with

 

    24 Chief Corcoran," doesn't it?

 

    25 A      It says, "Meeting with Chief Corcoran and


 

 

                                                    86

 

 

     1 Linda Carpenter," correct.

 

     2        Q      But you did meet with Chief

 

     3 Corcoran on April 25th, 2004, contrary to what

 

     4 you just told the jury; is that correct?

 

     5 A      Of course not.

 

     6        Q      Is that a false statement in this

 

     7 bill; yes or no?

 

     8 A      That is an error.  Should be the 26.

 

     9        Q      An error?  You can remember all

 

    10 the way back four years ago that is an error in

 

    11 your bill?

 

    12 A      Will you allow me to explain it?

 

    13        Q      No, I believe your lawyer is going

 

    14 to allow you to explain it at great length.  I

 

    15 want a simple answer to my question.

 

    16          You signed a certificate saying the

 

    17 particulars of this bill are true; and it says

 

    18 meeting on April 25th, 2004 with chief.  My

 

    19 question is:  Is that a false statement in the

 

    20 bill, an inaccurate statement or a true

 

    21 statement?  That is my question, very narrow

 

    22 question.

 

    23 A      My answer is that was an error.  And if

 

    24 that's the only error in all my bills, I would

 

    25 be very pleased.


 

 

                                                    87

 

 

     1        Q      Okay.  And do you think it is the

 

     2 only error in all your bills?

 

     3 A      Probably.

 

     4        Q      You met with -- you testified to

 

     5 the jury and you testified in deposition that

 

     6 you had another meeting with the police on

 

     7 April 26th, 2004, right?

 

     8 A      Right.

 

     9        Q      You testified you met with

 

    10 Corcoran and Buckley, is that right, on

 

    11 April 26th, 2004?

 

    12 A      Yes, sir.

 

    13        Q      Okay.  Where is that in your bill?

 

    14 That's omitted, isn't it?

 

    15 A      No, sir, a five and a six look very

 

    16 similar.  I probably wrote April 26th, and my

 

    17 secretary thought it was April 25th.

 

    18        Q      I'm not asking you to testify for

 

    19 your secretary.  I'm asking you if it says in

 

    20 your bill that you met with the Police Chief and

 

    21 that captain of the detectives the day after

 

    22 this investigation, on April 26th, 2004?  Is

 

    23 that in that bill that you swore to?  Is it

 

    24 there?

 

    25 A      Of course it's not there.


 

 

                                                    88

 

 

     1        Q      It's not there.  Well, I guess we

 

     2 got two mistakes, huh?

 

     3 A      No, it's one mistake.

 

     4        Q      Okay.  And you know, so you had

 

     5 two meetings -- well, you'll at least admit to

 

     6 one meeting with the Police Chief and the

 

     7 Detective Captain the day before the meeting we

 

     8 just heard on tape?  You will at least admit to

 

     9 one, right?

 

    10 A      Of course I would, yes.

 

    11        Q      Only you didn't report that

 

    12 meeting on that bill, true?

 

    13 A      I reported it on that bill.

 

    14        Q      You didn't report the April 26th

 

    15 meeting on that bill, did you?

 

    16 A      I did, but --

 

    17        Q      Well, show the jury where it is.

 

    18 A      It appears my secretary looked at the six

 

    19 as a five, and that's the difference.

 

    20        Q      You have an entry for the 25th,

 

    21 and you don't have an entry for the 26th.  And

 

    22 you're under oath and you're a lawyer and you're

 

    23 a judge and you're swearing here there is an

 

    24 entry for the 26th?

 

    25               MR. PARIS:  Objection, Your Honor.


 

 

                                                    89

 

 

     1 A      Yes, I'm swearing that --

 

     2               MR. PARIS:  Excuse me.

 

     3               JUDGE CURRAN:  Excuse me.

 

     4 A      Edge the entry for 26th --

 

     5               MR. PARIS:  This is argumentative.

 

     6 The witness already indicated what the answer is

 

     7 and explanation is, and this is nothing but

 

     8 argumentative.

 

     9               JUDGE CURRAN:  I'll sustain that.

 

    10               MR. MULLIN:  I'll move on.

 

    11               JUDGE CURRAN:  Move on.

 

    12               THE WITNESS:  Thank you, Your

 

    13 Honor.

 

    14               JUDGE CURRAN:  Just don't --

 

    15 excuse me.  Witnesses do not thank judges for

 

    16 their decisions.  Right or wrong, my decision is

 

    17 made objectively as --

 

    18               THE WITNESS:  Sorry.

 

    19               JUDGE CURRAN:  No problem.

 

    20 BY MR. MULLIN:

 

    21        Q      There is not a single police

 

    22 report -- there is not a single police report by

 

    23 Detective Buckley or -- or Chief Corcoran

 

    24 reporting that you met with them on the 25th or

 

    25 the 26th?  Such a report doesn't exist, right?


 

 

                                                    90

 

 

     1 You have never seen one?

 

     2 A      I have never seen such a report.

 

     3        Q      In fact, in your deposition and in

 

     4 your billing records you had many meetings --

 

     5 and we will go through -- you had many meetings

 

     6 with Detective Buckley and Chief Corcoran during

 

     7 the week, two weeks and three weeks and months

 

     8 to file this incident?

 

     9 A      Correct.

 

    10        Q      There is not a single police

 

    11 report that you have ever seen or that you are

 

    12 aware of detailing what happened at those

 

    13 meetings between you, the Town's lawyer and the

 

    14 Detective Captain or the Police Chief?  There is

 

    15 no such police report that you were aware of,

 

    16 right?

 

    17 A      Of course not.

 

    18        Q      Okay.  So in a meeting that's not

 

    19 recorded in a police report on April 26th, the

 

    20 day before the meeting that you just heard

 

    21 taped, you have a meeting with Corcoran and

 

    22 Chief of the police and Detective Captain.  Then

 

    23 the next day there is this caucus meeting,

 

    24 right?

 

    25 A      Yes, sir.


 

 

                                                    91

 

 

     1        Q      And Corcoran makes some sort of

 

     2 summary about what happened at -- at the -- at

 

     3 the incident, right?

 

     4 A      Yes.

 

     5        Q      When the jury just heard it, just

 

     6 heard the tape, isn't it true that on that tape

 

     7 Corcoran says on the early morning of Sunday,

 

     8 Saturday night into Sunday the Police Department

 

     9 received three -- three telephone calls that we

 

    10 know of because they came in on 911 and we got

 

    11 the phone numbers from them?  That's what the

 

    12 jury just heard on that tape, three phone calls,

 

    13 right?

 

    14 A      That -- to the best of my recollection,

 

    15 that's what the tape says.

 

    16        Q      That was a false statement by the

 

    17 Chief of Police, wasn't it?  Right?

 

    18 A      I -- I don't recall without having all

 

    19 the reports in front of me.  And as I alluded to

 

    20 before --

 

    21        Q      You don't recall --

 

    22 A      -- the Chief was directed to limit the

 

    23 discussion about his investigation.

 

    24        Q      He said there were three phone

 

    25 calls on 911, true?  That what he said, right?


 

 

                                                    92

 

 

     1 A      That's what he said.

 

     2        Q      And that was a false statement,

 

     3 true?

 

     4 A      I don't know without looking at the

 

     5 reports.  I didn't add up how many there were.

 

     6        Q      There were four calls on the 911

 

     7 tape, right?

 

     8 A      I don't remember, sir.

 

     9        Q      One of them was from a woman named

 

    10 Dee Bardini claiming she heard something that

 

    11 sounded like gunshots, right?

 

    12 A      Now I recall there was a report that

 

    13 someone thought they heard something that could

 

    14 have been a gunshot.

 

    15        Q      And then Lieutenant Malanka went

 

    16 out a few days later and interviewed her; and

 

    17 she didn't use the word, "I thought it sounded

 

    18 like gunshots."  Malanka wrote in a report this

 

    19 jury saw many times saying she heard three

 

    20 shots.  Are you aware of that report, she heard

 

    21 three shots?

 

    22 A      Yes.

 

    23        Q      You met with the Mayor the day

 

    24 before the meeting at least you'll -- excuse me.

 

    25 You met with the Police Chief and the Detective


 

 

                                                    93

 

 

     1 Captain the day before the meeting, and then the

 

     2 captain -- the Police Chief comes to the Council

 

     3 meeting and he forgets to mention the Dee

 

     4 Bardini calling on 911?  Is that a true -- true

 

     5 statement?

 

     6               MR. PARIS:  Objection, Your Honor.

 

     7 How can the witness talk about what the Chief

 

     8 may have remembered?

 

     9               JUDGE CURRAN:  Sustained.

 

    10               MR. MULLIN:  Okay.

 

    11 BY MR. MULLIN:

 

    12        Q      And in fact, throughout this whole

 

    13 tape you never hear the Chief say, "I heard

 

    14 there is a woman who heard gunshots"?  Not

 

    15 mentioned in the entire meeting, right?

 

    16 A      Right.

 

    17        Q      True?  Is that true?

 

    18 A      That's true.

 

    19        Q      And you don't mention it either,

 

    20 right?

 

    21 A      That's correct.

 

    22        Q      You have told this jury at this

 

    23 trial yesterday that when it came to a bias

 

    24 investigation, the Town had no role, the Police

 

    25 Department basically acted as the initial


 

 

                                                    94

 

 

     1 investigatory arm of the Prosecutor's Office.

 

     2 That's what you told them under oath yesterday,

 

     3 right?

 

     4 A      Correct.

 

     5        Q      You deny meeting with Police Chief

 

     6 Corcoran on April 25th, right?

 

     7 A      Yes.

 

     8        Q      You concede meeting with Police

 

     9 Chief Corcoran and Captain Buckley, head of the

 

    10 detectives, on April 26th, right?

 

    11 A      Yes.

 

    12        Q      Your bills show that you met with

 

    13 Chief Corcoran and Captain Buckley on

 

    14 April 28th, right?

 

    15 A      Yes.

 

    16        Q      Your records show that you met

 

    17 with Chief Corcoran and Captain Buckley, among

 

    18 others, on April 29th, 2004, right?

 

    19 A      Correct.

 

    20        Q      On May 1, 2004 you had a telephone

 

    21 conference with the entire Detective Bureau,

 

    22 true?  "Telephone conference with Detective

 

    23 Bureau," true?

 

    24 A      It doesn't say, "entire."

 

    25        Q      It says, "Detective Bureau"?


 

 

                                                    95

 

 

     1 A      That's what it says.  It says, "Detective

 

     2 Bureau."

 

     3        Q      Okay.  On May 4th your billing

 

     4 indicates that you had a telephone conference

 

     5 and meeting with Chief Corcoran and Detective

 

     6 Captain Buckley, right?

 

     7 A      Correct.

 

     8        Q      On May 5th you indicate on your

 

     9 bill a meeting with Captain Buckley and Chief

 

    10 Corcoran, among others, true?

 

    11 A      Correct.

 

    12        Q      During the very time that the

 

    13 Detective Bureau was investigating this incident

 

    14 you had repeated meetings with the Police Chief,

 

    15 the Detective Bureau and the captain of

 

    16 detectives; isn't that true?

 

    17 A      Of course, I did, yes.

 

    18        Q      And you had -- you claim you have

 

    19 no notes of any of those meetings, right?

 

    20 A      That's correct.

 

    21        Q      In fact, you claim you have no

 

    22 notes of any of your communications to or from

 

    23 any member of the Town of Secaucus concerning

 

    24 this incident for the last four years?  That's

 

    25 what you claimed under oath at your deposition,


 

 

                                                    96

 

 

     1 true?

 

     2 A      That's correct.

 

     3        Q      You claim you have no e-mails

 

     4 reflecting your communications with Detective

 

     5 Buckley, Captain -- Chief Corcoran or the

 

     6 Detective Bureau?  You have no e-mails

 

     7 reflecting those communications, true?

 

     8 A      In my eight years I have never e-mailed

 

     9 Captain Buckley, anybody in the Police

 

    10 Department.

 

    11        Q      That's what you said?

 

    12 A      Or Chief Corcoran; that's correct.

 

    13        Q      And as you sit here today you are

 

    14 not aware of a single police record, a single

 

    15 police report reflecting any of the meetings I

 

    16 just brought to your attention on your billing

 

    17 records with Captain Buckley, the Detective

 

    18 Bureau or Chief Corcoran?  You're not aware of

 

    19 any police reports reflecting or summarizing

 

    20 those meetings, right?

 

    21 A      And I would be surprised if there were

 

    22 such a report.

 

    23        Q      See, that would be an answer to a

 

    24 question, "Are you surprised?"  That's not my

 

    25 question.


 

 

                                                    97

 

 

     1 A      No.

 

     2        Q      Let me ask you my question.

 

     3 A      No, I am not aware of any report.

 

     4        Q      You are not aware of any police

 

     5 reports reflecting those meetings with the

 

     6 Police Chief, the Detective Captain or the

 

     7 Detective Bureau?  You're not aware of any such

 

     8 reports, true?

 

     9 A      Of course not.  I'm not aware of them.

 

    10        Q      You had no business under the law

 

    11 going into that Police Department, when they

 

    12 were in the middle of their investigation of

 

    13 this crime or alleged crime, you had no business

 

    14 under the law going into investigatory arm of

 

    15 the Prosecutor's Office and having those

 

    16 repeated conferences and discussions with the

 

    17 Detective Bureau, true?

 

    18 A      False.

 

    19        Q      Okay.  That's your position.

 

    20          There is a general order that's in

 

    21 Evidence concerning how bias crimes are

 

    22 investigated.  That general order of the

 

    23 Secaucus Police Department doesn't mention any

 

    24 role for the Town counsel, true?

 

    25 A      Town attorney.


 

 

                                                    98

 

 

     1        Q      The Town attorney.  That general

 

     2 order doesn't mention that, does it?

 

     3 A      No, but that's -- my function is to

 

     4 provide legal counsel to them.

 

     5        Q      Well, when you wrote the letter --

 

     6 let's not go there.

 

     7          The general bias order of the Secaucus

 

     8 Police Department concerning bias crimes says

 

     9 the person who will determine if it's a bias

 

    10 crime is first the reporting or the responding

 

    11 officer and second, his superior?  That's what

 

    12 that general order, which the jury has seen and

 

    13 heard read in part, that's what that general

 

    14 order says, true?

 

    15 A      That's true.

 

    16        Q      See, you're the lawyer who's

 

    17 responsible for, among many other things,

 

    18 protecting the Town from lawsuits like this,

 

    19 civil liability, right?

 

    20 A      Correct.

 

    21        Q      And it sure wouldn't help

 

    22 defending a case like this if the Secaucus

 

    23 Police Department made a finding identifying

 

    24 specific individual firemen who were involved in

 

    25 the incident of April 25th, 2004?  That would


 

 

                                                    99

 

 

     1 not be helpful to your case, right?

 

     2 A      I don't have any case.  And I didn't have

 

     3 any case at that time.

 

     4        Q      Well, but you said to the Town

 

     5 Council a case might be filed?

 

     6 A      If the Town didn't take proper action.

 

     7        Q      Even if the Town took proper

 

     8 action you were saying a case might be filed?

 

     9 A      Correct.  Alls it takes is file the paper

 

    10 and pay the fee.

 

    11        Q      And you came up with all kinds of

 

    12 reasons for why the Town couldn't suspend or

 

    13 fire any of the North End firemen during the

 

    14 year 2004, right?  You told the jury why no

 

    15 action could be taken, right?  True?  That was

 

    16 your testimony?

 

    17 A      My testimony was I followed the advice

 

    18 that we received from the Attorney General,

 

    19 which said to halt all the administrative

 

    20 actions.

 

    21        Q      Even before --

 

    22 A      I -- well, I agreed with the same

 

    23 analysis that the Attorney General did.

 

    24        Q      Even before you -- the Attorney

 

    25 General came into the case May 10th or 11th,


 

 

                                                   100

 

 

     1 2004.  You told this jury you had reasons for

 

     2 telling the Town not to take any action against

 

     3 these North End firemen, true, before the

 

     4 Attorney General took over on May 10th, 11th,

 

     5 right?

 

     6 A      Yes.  The same reasons the Attorney

 

     7 General had.

 

     8        Q      You know that Chief Corcoran had

 

     9 Chuck Snyder, Jr. working for him at the night

 

    10 of the -- during the time of the incident had

 

    11 been working for him for years as a part-time

 

    12 Police dispatcher; you know that, right?

 

    13 A      I did not know it then.  I know it now.

 

    14        Q      And Chief Corcoran in that little

 

    15 window between May 5th, when the Secaucus Police

 

    16 Department investigation ended, and May 10th,

 

    17 when the Attorney General came in, in that

 

    18 window, Chief Corcoran ended Chuck Snyder, Jr.'s

 

    19 assignments to work as a part-time Police

 

    20 dispatcher.  Are you aware he did that?

 

    21 A      After the fact I was aware he did that.

 

    22        Q      Okay.  And there was nothing

 

    23 illegal about that, right?

 

    24 A      Nothing --

 

    25        Q      That was perfectly appropriate,


 

 

                                                   101

 

 

     1 right?

 

     2 A      That was perfectly appropriate.

 

     3        Q      In that window the Fire Chief did

 

     4 not fire or suspend any firemen, true?

 

     5 A      That's correct.

 

     6        Q      Then you told the jury -- well,

 

     7 the Attorney General took over and you had this

 

     8 year-long investigation that you learned came to

 

     9 some sort of conclusion or end at about June or

 

    10 July of 2005, right?

 

    11 A      Correct.

 

    12        Q      And you said, well, the Attorney

 

    13 General's letter said we couldn't invoke that

 

    14 statute that involves suspending or firing

 

    15 firemen, right?

 

    16 A      Correct.

 

    17        Q      And you discussed how that

 

    18 involves a hearing and all kinds of complicated

 

    19 legal machinations, right?

 

    20 A      Well, your termination -- your

 

    21 terminology, "legal machinations."

 

    22        Q      Did you try to make it sound

 

    23 complicated to the jury?

 

    24 A      No.

 

    25        Q      No?


 

 

                                                   102

 

 

     1 A      I told them the truth.

 

     2        Q      It's really rather simple, isn't

 

     3 it?

 

     4 A      No, it's --

 

     5        Q      Well, is it complicated or simple

 

     6 to fire a fireman?  Because you are going both

 

     7 ways.

 

     8 A      No, there is a procedure.

 

     9        Q      Okay.

 

    10 A      And they have a right to a hearing and a

 

    11 due process and witnesses, not unlike this

 

    12 proceeding here.

 

    13        Q      There was a way to get rid of the

 

    14 firemen in the North End Firehouse without ever

 

    15 conducting a single hearing; isn't that true?

 

    16 A      Not to my knowledge.

 

    17        Q      Not to your knowledge?  Let me

 

    18 help you.

 

    19               MR. MULLIN:  Can we have a copy

 

    20 for the witness?  P-134.  "P-134" it says on

 

    21 there.  You know what, I might have a hard copy

 

    22 sitting right there.  Hang on a second.

 

    23        Q      We have D-298, okay.  It's the

 

    24 same document.  I'm going to show you, sir,

 

    25 what's been marked as D-298.


 

 

                                                   103

 

 

     1          Sir, you're familiar with that letter,

 

     2 right?  You have seen it before, right?

 

     3 A      I may have seen it four years ago.  I'm

 

     4 reviewing it now.  Okay.

 

     5        Q      You saw that letter back then,

 

     6 didn't you?

 

     7 A      I saw -- no, I didn't see this letter

 

     8 back then.

 

     9        Q      Really?

 

    10 A      Really.

 

    11        Q      Mayor Dennis Elwell, your client,

 

    12 never showed it to you?

 

    13 A      No, I don't know when he received it.

 

    14        Q      Fire Department liaison John

 

    15 Reilly, he never showed it to you?

 

    16 A      No.

 

    17        Q      Town Administrator Iacono, he

 

    18 didn't mention that the entire North End Fire

 

    19 Department was threatening to resign?  They

 

    20 didn't mention this letter to you?

 

    21 A      Not until sometime earlier in May.

 

    22        Q      Deputy chief -- you heard about

 

    23 this letter early May 2004; is that what you are

 

    24 saying now?

 

    25 A      Early May 2004.


 

 

                                                   104

 

 

     1        Q      Okay.  And in this letter the

 

     2 North End Firehouse threatened to resign.  They

 

     3 hereby resign their membership unless the

 

     4 company's quarters, right, their quarters where

 

     5 they party and fraternize, is reopened by May

 

     6 2nd?  That's what it said, right?

 

     7 A      That's what it seems to say.

 

     8        Q      And all the Town of Secaucus had

 

     9 to do to get rid of the North End firemen was to

 

    10 say, "Fine, we're going to keep your social

 

    11 quarters closed until Mr. Carter and Mr. deVries

 

    12 move out of Town.  And if you want to resign,

 

    13 resign"?  That's all they had to do to get rid

 

    14 of the North End Firehouse, true?

 

    15 A      I don't know.

 

    16        Q      You don't know?

 

    17 A      I don't know.

 

    18        Q      Okay.  You don't know that?

 

    19 A      I don't know that.

 

    20        Q      And you're the Town lawyer, right?

 

    21 And you are -- how many years did you say you

 

    22 were a judge?

 

    23 A      Eighteen years.

 

    24        Q      How many years have you been a

 

    25 lawyer?


 

 

                                                   105

 

 

     1 A      Thirty years.

 

     2        Q      Where did you go to law school?

 

     3 A      Same place you and your wife did.

 

     4        Q      Same place we went.  Got a law

 

     5 degree?

 

     6 A      Yes, sir.

 

     7        Q      And you don't know that if you

 

     8 accepted the resignation of these people, they

 

     9 would be gone?  You can't figure that out?

 

    10 Don't know?  Don't know, right?

 

    11 A      I didn't know about this.

 

    12        Q      Didn't know about the letter.

 

    13 Didn't know if you accepted the resignation,

 

    14 they would be gone?  That's your testimony,

 

    15 true?

 

    16 A      I didn't know about this until after the

 

    17 firehouse was opened.

 

    18        Q      You actually met the day that that

 

    19 letter is dated, April 29th, 2004.  Your billing

 

    20 record for April, Plaintiff's Exhibit 406, shows

 

    21 on that day you actually met with Mayor Elwell,

 

    22 right, Deputy Reilly, who also is on that

 

    23 letter, right, and Anthony Iacono, who is also

 

    24 on that letter, right?

 

    25 A      That's correct.


 

 

                                                   106

 

 

     1        Q      And your testimony is they didn't

 

     2 tell you at that meeting, "Hey, we just got a

 

     3 letter a few minutes ago or couple hours ago

 

     4 where the whole North End Firehouse threatened

 

     5 to resign"?  They didn't mention that at that

 

     6 meeting?

 

     7 A      I don't know if they received the letter

 

     8 at the time of that meeting.  The letter is

 

     9 dated the 29th.  The meeting was the 29th.

 

    10        Q      Do you know if there is a police

 

    11 report reflecting when that letter was put into

 

    12 the evidence and record room after Fire Chief

 

    13 Walters received it?  Don't know that?

 

    14 A      Don't know that.

 

    15        Q      Okay.  You don't know that.  Now,

 

    16 you testified here that on April 26th, 2004 you

 

    17 had a conversation.  Was it with the Mayor,

 

    18 where your advice was essentially don't talk to

 

    19 the victims or any witnesses?  That was your

 

    20 testimony, right?

 

    21 A      Right.

 

    22        Q      People -- right?  But there is no

 

    23 record in your bills reflecting such a meeting,

 

    24 right?  The April 26 meeting you say you had

 

    25 with Mayor Elwell, where you advised him, hey,


 

 

                                                   107

 

 

     1 don't talk to the victims, there is no billing

 

     2 for April 26th for talking to the Mayor, right?

 

     3 True?

 

     4 A      That's true.

 

     5        Q      That's because that meeting never

 

     6 happened?  That's why it's not there, right?

 

     7 A      No, that's not why it's not there.

 

     8        Q      See, you know that the Mayor has

 

     9 testified here and there is other evidence here

 

    10 that after Tim Carter called in and left a voice

 

    11 mail message on the Mayor's phone on May 1st

 

    12 after the reopening the firehouse, the Mayor

 

    13 never called him back?  You're aware of that

 

    14 claim, aren't you, that the Mayor never, ever

 

    15 called him back?

 

    16 A      I told the Mayor not to call him back.

 

    17        Q      That's what you're saying.  So

 

    18 you're trying to help the Mayor by saying,

 

    19 "I" -- "That was my advice.  I gave him that

 

    20 advice on April 26th"?  That's what you're

 

    21 telling the jury, right?  "He was just following

 

    22 my advice that I gave him on April 26th," right?

 

    23 A      I gave him that advice many times.

 

    24        Q      Many times.  Including on

 

    25 April 26th, right?


 

 

                                                   108

 

 

     1 A      Yes.

 

     2        Q      Only you don't have a billing

 

     3 record for April 26th, true?

 

     4 A      I have a billing record for April 26th.

 

     5        Q      It says, "April 25th."

 

     6 A      But I have -- just like -- sir, just like

 

     7 you had the wrong exhibit number on what you

 

     8 just showed me, mistakes happen.

 

     9        Q      Well, here is the difference.  I

 

    10 don't have to swear under oath that my exhibit

 

    11 number is right, do I?  Do I?

 

    12 A      I don't know.

 

    13        Q      Don't know?  You're a lawyer how

 

    14 many years?

 

    15 A      I don't know what happened before, what

 

    16 you submitted, when you are submitting all your

 

    17 exhibit numbers.

 

    18        Q      So here is another way you're

 

    19 trying to help the Mayor out on that point.  In

 

    20 your deposition you said you only called Tim

 

    21 Carter once, and that was on April 28th, 2004,

 

    22 right?  That's what you said on page 139 of your

 

    23 deposition and page 141 of your deposition,

 

    24 true?

 

    25 A      I don't know the page numbers, but


 

 

                                                   109

 

 

     1 that's --

 

     2        Q      But you remember that you

 

     3 testified to that effect under oath?

 

     4 A      Yes, I do remember quite well.

 

     5        Q      Now, that doesn't help the Mayor

 

     6 because what you have told the jury here is two

 

     7 things.  After the Mayor got the call on May 1 I

 

     8 told the Mayor -- I have been telling him all

 

     9 along -- don't call anybody in this case.  So

 

    10 what you told the jury here today is I called

 

    11 back on behalf of the Mayor on May 1, right?

 

    12 A      That's correct.

 

    13        Q      Only you had a problem because you

 

    14 had said under oath -- we'll get to your billing

 

    15 in a minute.  I'll help you out.  Because you

 

    16 had said under oath in the deposition, "I only

 

    17 called him once and that was on April 28th,

 

    18 2004," right?  That's what you said in the

 

    19 deposition?

 

    20 A      That's correct.

 

    21        Q      But now you want to come in here

 

    22 and say something different, right?

 

    23 A      No, I --

 

    24        Q      Say, "Oh, I looked at my records;

 

    25 and now I remember.  I called him after that


 

 

                                                   110

 

 

     1 tape recording came in," right?  Right?

 

     2 A      Correct.

 

     3        Q      Do you have any notes that reflect

 

     4 calling Mr. Carter on that day?

 

     5 A      No.

 

     6        Q      Have you come to court with your

 

     7 phone records to show you made that call, cell

 

     8 phone records --

 

     9 A      I --

 

    10        Q      -- any records?

 

    11 A      I don't even know how I could dig that

 

    12 up.  I don't know what his number is.  I don't

 

    13 know what his calls were.

 

    14        Q      You don't know his number?

 

    15 A      I don't even know if they keep them from

 

    16 four years ago.  And I certainly don't keep

 

    17 those records from four years ago, my four years

 

    18 ago telephone bills.

 

    19        Q      And you told this jury that this

 

    20 telephone message left by Tim Carter on May 1

 

    21 was, I think your phrase was, "accusatory

 

    22 epithets."  "Epithets" means kind of curses or

 

    23 insults, right?

 

    24 A      Yes.

 

    25        Q      "Accusatory" means accusing.  Did


 

 

                                                   111

 

 

     1 you listen to that tape?

 

     2 A      No.

 

     3        Q      You didn't listen to the tape.  So

 

     4 you don't -- you didn't listen to the tape

 

     5 because you didn't care, true?  You didn't care

 

     6 what he was saying, true?

 

     7 A      Of course not.

 

     8        Q      If you cared what he was saying,

 

     9 you would have listened to the tape, true?

 

    10 A      I found out about it from my office.  The

 

    11 Mayor called me from out of his office to tell

 

    12 me about it, and that's how I knew about it.  I

 

    13 couldn't listen to the tape.  I wasn't in the

 

    14 Town Hall then.

 

    15        Q      Now, you told this jury that after

 

    16 the Attorney General gave you some indication in

 

    17 June or July '05 that the Attorney General's

 

    18 proceedings were in some way concluded.

 

    19          Then you say during July you gave

 

    20 certain advice to certain members of the Town

 

    21 government, especially Mr. Iacono -- you

 

    22 mentioned the Town Administrator -- to the

 

    23 effect of, well, if the Attorney General

 

    24 couldn't get -- get -- identify criminal

 

    25 activity in this case and name the criminals,


 

 

                                                   112

 

 

     1 how could we possibly bring administrative

 

     2 charges to suspend and fire them?  That's

 

     3 essentially what you told the jury, right?

 

     4 A      Basically.

 

     5        Q      Right?  Now, you know that in

 

     6 order to terminate an employee, well, you don't

 

     7 have to prove they're guilty of a crime, right?

 

     8 You know that?  We can agree on that principle,

 

     9 correct?

 

    10 A      Correct.

 

    11        Q      And the Attorney General, well,

 

    12 that Prosecutor was investigating a crime,

 

    13 right?

 

    14 A      Correct.

 

    15        Q      And to prove a crime you have to

 

    16 prove criminality beyond a reasonable doubt,

 

    17 right?  True?

 

    18 A      Yes.

 

    19        Q      That's the highest legal standard,

 

    20 right?

 

    21 A      Yes.

 

    22        Q      That's's different from the

 

    23 standard in court like this, right?

 

    24 A      Yes.

 

    25        Q      The standard in a court like this


 

 

                                                   113

 

 

     1 is I just have to prove whether something is

 

     2 more likely than not by a preponderance of the

 

     3 evidence, right?

 

     4 A      Correct.

 

     5        Q      You're not saying that in order to

 

     6 fire an employee of the Town of Secaucus you had

 

     7 to prove something beyond a reasonable doubt,

 

     8 right?  You're not saying that, right?

 

     9 A      Of course not.

 

    10        Q      And yet you advised -- your

 

    11 testimony is you told the Town not to proceed

 

    12 against these firemen after July '05 because,

 

    13 well, they couldn't find enough evidence to

 

    14 make -- to reach the criminal liability

 

    15 standard, so therefore we shouldn't proceed?

 

    16 That's essentially what you told them, right?

 

    17 A      I think -- let me be a little bit more

 

    18 precise, if you would allow me.  What the

 

    19 Attorney General said is they could find no

 

    20 evidence with which they could even identify the

 

    21 individuals.  So it wasn't really rising to a

 

    22 standard; it was rising to who was a

 

    23 participant.  And that's a problem.

 

    24        Q      Are you aware that this jury has

 

    25 heard evidence, even written evidence, even


 

 

                                                   114

 

 

     1 police reports identifying some of the

 

     2 perpetrators, some of the individuals who were

 

     3 in the parking lot that night immediately upon

 

     4 the arrival of the police to the scene?  Are you

 

     5 aware of that -- that information?

 

     6 A      I am not aware of anything that the jury

 

     7 has heard.

 

     8        Q      Are you aware of the police

 

     9 reports to that effect?

 

    10 A      I am aware of the police reports.

 

    11        Q      Okay.  Are you aware that firemen

 

    12 refused three to five orders the night of the

 

    13 incident by Sergeant Amodeo to leave the

 

    14 premises?  Are you aware of that?

 

    15 A      I have reviewed the police reports for

 

    16 that after the fact.

 

    17        Q      Are you aware of that?

 

    18 A      Yes.

 

    19        Q      Are you aware that ex-captain,

 

    20 North End firefighter Charles Mutschler came

 

    21 charging at Sergeant Amodeo the night of

 

    22 incident with a -- and had to be restrained by

 

    23 fellow firemen?  Are you aware of that?

 

    24 A      I don't recall that incident

 

    25 specifically.  If it's -- if it's in reports --


 

 

                                                   115

 

 

     1        Q      With all the meetings that you had

 

     2 with the police in April and May of '04 nobody

 

     3 brought that to your attention?

 

     4 A      They did not.  My meetings with the

 

     5 police did not detail their investigation.

 

     6        Q      And your testimony is that in '04

 

     7 no action could be taken to suspend or terminate

 

     8 any of the North End firemen, true?

 

     9 A      Correct.

 

    10        Q      And your testimony is that in '05

 

    11 the Town of Secaucus could take no action to

 

    12 suspend or terminate the employment of any North

 

    13 End firemen in '05, right?

 

    14 A      No, that's not my testimony.  We could

 

    15 have taken action; but if they appealed it, my

 

    16 opinion is we would have been lost and -- we

 

    17 would have lost and firemen would have been

 

    18 restored and we would have been potentially

 

    19 liable for the damages they incurred.

 

    20        Q      Because there was a problem with

 

    21 some of the evidence the police gathered, right?

 

    22 Didn't really nail down the case, in your view,

 

    23 right?

 

    24 A      I -- I don't -- I'm not following you.

 

    25        Q      You're having trouble following


 

 

                                                   116

 

 

     1 me?  I will give you an example, and you tell me

 

     2 if you're aware of this.

 

     3 A      Okay.

 

     4        Q      Dee Bardini on a 911 tape calls in

 

     5 and says she hears something like shots.  Couple

 

     6 days later she tells Lieutenant Malanka, "I

 

     7 heard three shots."  No police officer of the

 

     8 Town of Secaucus brings Dee Bardini in to take a

 

     9 sworn statement, true?

 

    10 A      I don't recall.

 

    11        Q      The night of the incident, when

 

    12 Dee Bardini makes that call about shots, no

 

    13 member of the Detective Bureau goes over to that

 

    14 firehouse while those firefighters are still

 

    15 there and seeks forensic evidence of gun powder

 

    16 residue on their hands or their clothes that

 

    17 night, true?

 

    18               MR. PARIS:  Objection, Your Honor.

 

    19               JUDGE CURRAN:  Basis?

 

    20               MR. PARIS:  The earlier rulings

 

    21 regarding standard.

 

    22               JUDGE CURRAN:  Sustained.

 

    23 Withdraw the question.

 

    24               MR. MULLIN:  Well, Your Honor, I

 

    25 should be heard sidebar.


 

 

                                                   117

 

 

     1               MR. PARIS:  I ask that question be

 

     2 stricken.

 

     3               JUDGE CURRAN:  Okay.  We will go

 

     4 to sidebar.

 

     5               THE WITNESS:  Step down or stay up

 

     6 here?  Okay.

 

     7               (Whereupon, the witness steps

 

     8        down.)

 

     9               (Whereupon, the following sidebar

 

    10        discussion is held.)

 

    11               MR. MULLIN:  Judge, I think

 

    12 perhaps counsel forgot that when I

 

    13 cross-examined Detective Captain Buckley I had

 

    14 him testify in detail about the kind of forensic

 

    15 evidence that could be gathered when a gunshot

 

    16 is fired.  I went through a pistol.  I went

 

    17 through a shotgun.  He talked about gunshot

 

    18 powder residue on the hand and the clothes.  He

 

    19 talked about searching for shell casings, things

 

    20 of that nature.

 

    21                I then had him establish that no

 

    22 reports were done of that nature.  I had him

 

    23 establish that there are no reports reflecting

 

    24 any of that.  So this is in Evidence.  This

 

    25 was -- this was their witness.  I don't recall


 

 

                                                   118

 

 

     1 any objections.  If there were, they were --

 

     2 they were not sustained and I proceeded.  So

 

     3 I'm going -- I'm going over evidence this jury

 

     4 has heard come out of the mouth of Detective

 

     5 Captain Buckley.

 

     6               MR. BEVERE:  The fact that Captain

 

     7 Buckley said what you can find on a hand is

 

     8 residue or if it's a shell casing doesn't mean

 

     9 it's within the standard of care for it to have

 

    10 been looked for that night based upon the

 

    11 evidence that was presented.  And that's

 

    12 where -- they knew at the time and that's the

 

    13 issue that I come back to, with regard to the

 

    14 police practices expert.  Who sets the standard

 

    15 that when someone calls and said, "I heard

 

    16 something that sounded like a gunshot" that

 

    17 there would be probable cause to bring somebody

 

    18 in, test their hands for residue?  I mean,

 

    19 that's so far beyond.

 

    20               JUDGE CURRAN:  Mr. Bevere -- hold

 

    21 on.

 

    22               MR. MULLIN:  I'm sorry.

 

    23               JUDGE CURRAN:  Frankly, I forgot

 

    24 what Mr. Mullin just put on the record because I

 

    25 remembered the first discussion in regard to we


 

 

                                                   119

 

 

     1 can't get anything exotic in.  Even granting

 

     2 that that might be true, I would sustain the

 

     3 objection in regard to the gunshot residue.  But

 

     4 what about the testimony in regard to whether or

 

     5 not there would be cartridges, what -- which

 

     6 kinds of guns would or wouldn't eject

 

     7 cartridges?  All of that was on the record with

 

     8 Buckley.

 

     9               MR. BEVERE:  Judge, I mean, I

 

    10 really have to go look at Buckley's testimony

 

    11 because I don't recall if we objected to that or

 

    12 what the -- you know, I'm not --

 

    13               JUDGE CURRAN:  Okay.  But in

 

    14 fairness, as Mr. Mullin says, right or wrong, if

 

    15 you did object to it, I must have overruled the

 

    16 objection because that evidence did come in.  I

 

    17 don't honestly remember if you objected or not.

 

    18 But I'm going to allow the question.  I'm going

 

    19 to ask you to rephrase it too.

 

    20               MR. MULLIN:  As to the cartridges

 

    21 or casing?

 

    22               JUDGE CURRAN:  Exactly.  But the

 

    23 objection is preserved.  Thank you.

 

    24               (Whereupon, sidebar discussion is

 

    25        concluded.)


 

 

                                                   120

 

 

     1               JUDGE CURRAN:  Mr. Leanza, you may

 

     2 return.

 

     3               (Whereupon, the witness re-takes

 

     4        the stand.)

 

     5               JUDGE CURRAN:  Thank you.

 

     6 Mr. Mullin.

 

     7               MR. MULLIN:  Thank you.

 

     8 BY MR. MULLIN:

 

     9        Q      You're not aware of any police

 

    10 reports reflecting any search done ever by the

 

    11 Secaucus Police Department of the North End

 

    12 Firehouse or its parking lot for shell casings,

 

    13 bullet shell casings or cartridges, true?

 

    14 You're not aware of any such report?

 

    15 A      No, I'm not aware of any such report.

 

    16        Q      Sir, Mr. Bevere put a Town policy

 

    17 concerning sexual harassment in front of you,

 

    18 drew your attention to it.  Do you recall that

 

    19 testimony?

 

    20 A      Mr. Paris.

 

    21        Q      I'm sorry, I apologize.

 

    22 Mr. Paris.  He put -- he drew your attention to

 

    23 a Town policy --

 

    24 A      Yes.

 

    25        Q      -- concerning sexual harassment


 

 

                                                   121

 

 

     1 and so forth, right?

 

     2 A      Yes.

 

     3        Q      There has been testimony by -- by

 

     4 several members of Town government in this trial

 

     5 that that policy did not apply for volunteer

 

     6 firemen.  That's true, isn't it?

 

     7 A      Correct, it applied to Town employees.

 

     8        Q      Not Town firemen, true?

 

     9 A      If they weren't employees, if they were

 

    10 just volunteer firemen, it didn't apply to them.

 

    11        Q      Just give me a moment to check,

 

    12 Your Honor.

 

    13               JUDGE CURRAN:  Sure.

 

    14        Q      You mentioned -- strike that.

 

    15          During the hearing of the tape

 

    16 recording of the 4/27/04 meeting, on several

 

    17 occasions you identified Councilman Kickey as

 

    18 having spoken up at that meeting, right?

 

    19 A      Yes.

 

    20        Q      Councilman Kickey's son was a

 

    21 firefighter in the North End Firehouse, true?

 

    22 A      Correct.

 

    23        Q      Tim Carter reported to the police

 

    24 that used condoms had been thrown over the fence

 

    25 between the firehouse parking lot and his


 

 

                                                   122

 

 

     1 backyard and that on one occasion he got a

 

     2 license plate number of a car that was there in

 

     3 which people were having sex in his view shortly

 

     4 before he found the used condom on his porch.

 

     5 Are you aware of that?

 

     6               MR. PARIS:  Objection, Your Honor.

 

     7 The report was made to the police after this

 

     8 meeting.  It was a 5/1 report with the

 

     9 identification of the vehicle.

 

    10               MR. MULLIN:  I didn't ask about a

 

    11 date.  I asked him if he was aware of the

 

    12 incident.

 

    13               JUDGE CURRAN:  You can address

 

    14 that on cross.

 

    15               MR. PARIS:  Fine.

 

    16 BY MR. MULLIN:

 

    17 A      Yes.

 

    18        Q      Okay.  You're aware of that

 

    19 incident, right?

 

    20 A      I just said yes.

 

    21        Q      And the license plate that Tim

 

    22 Carter got came back as belonging to a car owned

 

    23 by Councilman Bob Kickey, true?

 

    24 A      That's correct.

 

    25        Q      You're aware?  Nowhere in the tape


 

 

                                                   123

 

 

     1 recording of the April 27th, '04 executive

 

     2 session meeting with do we hear anyone say, "I

 

     3 think Mr. Kickey should probably recuse himself,

 

     4 step out of this meeting"?  No one says that,

 

     5 right?

 

     6 A      That's correct.

 

     7        Q      And in fact, at some point in the

 

     8 discussion you talk about the rights of the

 

     9 accused assert Fifth Amendment Privileges not to

 

    10 testify, right?

 

    11 A      That's correct.

 

    12        Q      And in your testimony you talked

 

    13 about that, true?

 

    14 A      That's correct.

 

    15        Q      And you pointed out to the jury

 

    16 that a Prosecutor has the power under certain

 

    17 circumstances to force a witness to abandon the

 

    18 Fifth Amendment privilege and testify before a

 

    19 Grand Jury; is that true?

 

    20 A      Correct.

 

    21        Q      And the jury has heard some

 

    22 testimony about a statute.  Are you familiar

 

    23 with the statute which says it is the duty of a

 

    24 public employee to testify before the court, a

 

    25 Grand Jury or the State Commission of


 

 

                                                   124

 

 

     1 Investigation?  Are you familiar with that

 

     2 statute?

 

     3 A      I'm somewhat familiar with the statute.

 

     4 If you give me a copy of it --

 

     5        Q      I don't think I have it handy.  I

 

     6 want to know if you are familiar with it.

 

     7 A      I'm generally familiar with it.

 

     8        Q      Are you familiar with the concept

 

     9 that --

 

    10               MR. BEVERE:  I have it, Judge.

 

    11               JUDGE CURRAN:  Do you need a copy,

 

    12 Mr. --

 

    13               MR. MULLIN:  Copy would be fine.

 

    14 I don't even need a copy; but if he wants to

 

    15 bring it up while we're talking, that would be

 

    16 fine too.

 

    17 BY MR. MULLIN:

 

    18        Q      And you can use it to refresh your

 

    19 recollection.

 

    20          Are you familiar with the process --

 

    21 how long have you been a town attorney for how

 

    22 many towns?

 

    23 A      Well, I have been Town attorney for

 

    24 Secaucus from January 2000.

 

    25        Q      And how about for other towns?


 

 

                                                   125

 

 

     1 A      It's the only town where I have been Town

 

     2 attorney, except back in -- from '79 to '84 I

 

     3 worked for a law firm that was a town attorney

 

     4 for the Borough of Fort Lee.  And I was

 

     5 occasionally assigned to cases with respect to

 

     6 the Borough of Fort Lee.

 

     7        Q      Okay.  And your -- the Attorney

 

     8 General, well, they have criminal prosecutors,

 

     9 right?

 

    10 A      Yes.

 

    11        Q      You mentioned Agudosi, right, who

 

    12 wrote some letters from the Attorney General's

 

    13 Office, right?

 

    14 A      Yes.

 

    15        Q      And she was on the criminal side

 

    16 of the Attorney General's Office, right?  Right?

 

    17 A      I believe so.

 

    18        Q      Okay.

 

    19 A      I'll look at the letter again.

 

    20        Q      And you testified to this jury --

 

    21 and here, again, there are some court rules on

 

    22 this, so I am going to keep this very narrow and

 

    23 limited.  You testified to this jury that you

 

    24 know a Grand Jury was impaneled in regard to

 

    25 this matter, true?


 

 

                                                   126

 

 

     1 A      Yes.

 

     2        Q      And under the statute -- if

 

     3 counsel wants to give it to you to refresh your

 

     4 recollection, I have no problem with that.

 

     5 Under the statute we're referring to, if a

 

     6 public employee is told, "You'll be fired if you

 

     7 don't testify in front of the Grand Jury or

 

     8 testify in court.  You'll be fired if you assert

 

     9 the Fifth," then the Prosecutor has the power to

 

    10 grant immunity to that witness and force them to

 

    11 testify, true?

 

    12 A      That's correct.

 

    13        Q      Okay.  I think sometimes that's

 

    14 referred to as a "Garrity process," right?

 

    15 You're familiar with that, right?  Now, here is

 

    16 something we can agree on.  There is no letter,

 

    17 there is no e-mail from you or anyone else in

 

    18 the Town of Secaucus Government to the Attorney

 

    19 General's Office before or during the Attorney

 

    20 General's Grand Jury requesting or demanding or

 

    21 asking that the Attorney General, that

 

    22 prosecutor immunize, say, Chuck Snyder, Sr. or

 

    23 Chuck Snyder, Jr. or Charles Mutschler under the

 

    24 Garrity process, under the statute?  There is no

 

    25 such letter or e-mail, right?


 

 

                                                   127

 

 

     1 A      Correct.

 

     2        Q      That request was never made,

 

     3 right?

 

     4 A      Correct.

 

     5        Q      Are you aware, sir, that the day

 

     6 of the incident some hours after the incident of

 

     7 April 25th, 2004 that the Chief of Police,

 

     8 himself, Chief Corcoran with various other Town

 

     9 officials, including the Mayor, sat down and met

 

    10 with the alleged perpetrators of the activities

 

    11 of April 24th, April 25th, 2004?  Are you aware

 

    12 that they did that?

 

    13 A      Yes.

 

    14        Q      You're not aware of any tape

 

    15 recording of that meeting, are you?

 

    16 A      No.

 

    17        Q      You're not aware of any notes from

 

    18 anybody who attended that meeting concerning

 

    19 what happened at that meeting, right?

 

    20 A      I was not at that meeting.

 

    21        Q      You were not at that meeting,

 

    22 right?

 

    23 A      Right.

 

    24        Q      And during that meeting you got no

 

    25 phone calls from the Mayor or anyone else,


 

 

                                                   128

 

 

     1 right?

 

     2 A      After the meeting I got --

 

     3        Q      During the meeting?

 

     4 A      During the meeting, no.

 

     5        Q      You got no phone calls from Mayor

 

     6 Elwell or anyone else, true?

 

     7 A      No.

 

     8               MR. MULLIN:  I have nothing

 

     9 further.

 

    10               JUDGE CURRAN:  Thank you.

 

    11               MR. PARIS:  Thank you.

 

    12 REDIRECT EXAMINATION BY MR. PARIS:

 

    13        Q      Mr. Leanza, let's start at the --

 

    14 A      How about the beginning?

 

    15        Q      How about the end.  Let's start at

 

    16 the end, rather than the beginning.  Let's start

 

    17 at the end.  With regard to the meeting of the

 

    18 morning of April 25th, are you familiar with the

 

    19 Open Public Meetings Act?

 

    20 A      Yes.

 

    21        Q      Okay.  Was there any requirement

 

    22 that that meeting be tape recorded?

 

    23 A      There is never a requirement that a

 

    24 meeting be tape recorded.  What the requirement

 

    25 of the Open Public Meetings Act are twofold.


 

 

                                                   129

 

 

     1 Number one, that we give notice, unless there is

 

     2 an emergency; and then the notice can be given

 

     3 later on.

 

     4          And number two, if there is a majority

 

     5 of the governing body present, then the Open

 

     6 Public Meetings Act comes into force and effect.

 

     7        Q      Okay.  And to your understanding

 

     8 was there a majority of the governing body

 

     9 present at the meeting on Sunday morning?

 

    10 A      No, not to my understanding.

 

    11               MR. MULLIN:  Objection, no

 

    12 foundation.  He wasn't there.

 

    13               MR. PARIS:  I asked for his

 

    14 understanding to whether there was a quorum

 

    15 present.

 

    16               MR. MULLIN:  Objection, no

 

    17 foundation.

 

    18               MR. PARIS:  I asked --

 

    19               MR. MULLIN:  What is the

 

    20 understanding.

 

    21               JUDGE CURRAN:  I am going to allow

 

    22 him to answer the question.  The objection is

 

    23 overruled, but you can certainly address it.

 

    24               MR. MULLIN:  Thank you.

 

    25 BY MR. PARIS:


 

 

                                                   130

 

 

     1 A      Yeah, my understanding is that there was

 

     2 not a majority of the governing body in

 

     3 attendance at that meeting on Sunday morning, I

 

     4 believe it was.

 

     5        Q      Now, let's go back, I guess, to

 

     6 the beginning.  Do you have your bills up here?

 

     7 A      No.

 

     8        Q      Okay.  Let's take a look at your

 

     9 entry that's dated 4/25/04.  Do you see that?

 

    10 A      Yes.

 

    11        Q      What's -- what's the problem with

 

    12 that entry of 4/25/04 in terms of your

 

    13 activities of 4/26, 4/27?

 

    14               MR. MULLIN:  Objection, leading,

 

    15 suggesting there is a problem.

 

    16               MR. PARIS:  Your Honor, the

 

    17 witness has already indicated there was a

 

    18 problem before counsel.  He indicated that he

 

    19 wanted to explain, and all that I'm asking him

 

    20 to do is to explain.  I'm really directing him

 

    21 back to his prior testimony where he said there

 

    22 was a problem.

 

    23               JUDGE CURRAN:  You can ask him if

 

    24 he wants to explain, rather than indicate a

 

    25 problem.


 

 

                                                   131

 

 

     1 BY MR. PARIS:

 

     2        Q      Can you explain -- you had

 

     3 testified, I think, that there was an error,

 

     4 correct?

 

     5 A      Right.

 

     6        Q      I think that was the word you

 

     7 used, an error?

 

     8 A      Right.

 

     9        Q      Can you explain to the jury what

 

    10 the error was?

 

    11 A      4/25 is the wrong date.  It really should

 

    12 be broken down between 4/26 and 4/27.  4/25 was

 

    13 a Sunday.  And some of the things that happened

 

    14 that are listed for 4/25 would have been

 

    15 impossible to have happened on 4/25.

 

    16          For instance, Linda Carpenter works 9

 

    17 to 5 Monday through Friday as a purchasing

 

    18 officer.  I would never meet with her on a

 

    19 Sunday.  That was Monday morning.

 

    20          I remember I met with Chief Corcoran

 

    21 and Captain Buckley on Monday morning.

 

    22          And the second part of it, attendance

 

    23 at the caucus and regular meetings, we know from

 

    24 the tape and the official records and the agenda

 

    25 that that meeting was, in fact, on the 27th.


 

 

                                                   132

 

 

     1          So, apparently, a couple of days were

 

     2 lumped together.  And as I alluded to before, I

 

     3 am known for sloppy handwriting; and I probably

 

     4 wrote, "4/26" or whatever and my secretary

 

     5 thought it was 4/25.

 

     6        Q      Is the entry of 4/25 then combined

 

     7 a couple dates worth of --

 

     8 A      It's 4/27 and -- 4/26 and 4/27.

 

     9        Q      Now, does your billing record

 

    10 reflect the first phone call to either

 

    11 Mr. Carter or deVries that you testified to as

 

    12 the first call?

 

    13 A      Yes, on 4/28/04 I have an entry that

 

    14 says, "Telephone conference with alleged

 

    15 victim."

 

    16        Q      Let me ask you this also.  These

 

    17 records, are they -- when are they prepared?

 

    18 A      You -- sometimes I will prepare them

 

    19 contemporaneously.  Actually what I do is I have

 

    20 a clipboard --

 

    21        Q      Well, what I'm referring to --

 

    22 just to save time, what I'm referring to is the

 

    23 records -- the document that's sent to the Town

 

    24 that you have in front of you.

 

    25 A      Oh, the documents sent to the Town?


 

 

                                                   133

 

 

     1        Q      Yeah.

 

     2 A      As a matter of fact -- for example, this

 

     3 is June 5th or whatever it is.  I have been out

 

     4 of the office for a couple weeks.  So my

 

     5 secretary doesn't even have all my handwritten

 

     6 time sheets.  She puts them into the computer,

 

     7 and then they're all typed up like this and --

 

     8        Q      Okay.  But here is my question.

 

     9 The time sheet you have in front of you --

 

    10 A      Right.

 

    11        Q      -- was that prepared back in the

 

    12 spring of 2004?

 

    13 A      Yes.

 

    14        Q      Okay.  So in the spring of 2004

 

    15 you have an entry of a phone call on -- what's

 

    16 the date -- with one of the plaintiffs?

 

    17 A      The first one is April 28th.

 

    18        Q      Okay.  I want to show you -- and

 

    19 this hasn't been marked for Identification, so I

 

    20 guess this should be marked as the next D

 

    21 number.

 

    22               MR. PARIS:  Do you have that?

 

    23               MR. BEVERE:  314.

 

    24               MR. PARIS:  314?

 

    25               MR. BEVERE:  I believe it's 314.


 

 

                                                   134

 

 

     1               JUDGE CURRAN:  314, is that the

 

     2 next number you have, Miss Castelli?  314,

 

     3 D-314?

 

     4               COURT CLERK:  Yes, I believe so.

 

     5               (Whereupon, May 2004 voucher and

 

     6        attached document are received and marked

 

     7        as Defendant's Exhibit D-314 for

 

     8        Identification.)

 

     9               JUDGE CURRAN:  And just indicate,

 

    10 if you would, for the record what it is.

 

    11               MR. PARIS:  Sure.  First page is a

 

    12 voucher.  And then attached to the voucher it's

 

    13 for legal professional services supplied for the

 

    14 month of May 2004.

 

    15 BY MR. PARIS:

 

    16        Q      Okay.  In your -- in your billing

 

    17 submitted to the Town back for May of 2004, was

 

    18 that billing prepared in the spring of 2004?

 

    19 A      Yes.

 

    20        Q      Is there -- does it indicate you

 

    21 had a second phone call?

 

    22 A      Well, actually, it says the date it was

 

    23 prepared, 6/7/04.

 

    24        Q      But does it indicate you had a

 

    25 second phone call with one --


 

 

                                                   135

 

 

     1 A      Yes.

 

     2        Q      Okay.  What does it indicate?

 

     3 A      May 1st, 2004 telephone conference with,

 

     4 it says, Detective Bureau and alleged bias

 

     5 victim.

 

     6        Q      Okay.  And that's the second phone

 

     7 call?

 

     8 A      That's the second phone call that I

 

     9 testified to on May 1st.

 

    10        Q      Okay.  What's your understanding

 

    11 as to why there was no -- there is no police

 

    12 report prepared of your meetings with the

 

    13 police?

 

    14 A      There -- to my understanding --

 

    15               MR. MULLIN:  Objection.  That

 

    16 would be getting into the reasons by the police

 

    17 for not preparing a report.

 

    18               JUDGE CURRAN:  Sustained.  You may

 

    19 rephrase it.

 

    20 BY MR. PARIS:

 

    21        Q      Okay.  Mr. Leanza, in your prior

 

    22 testimony you were asked as to whether you had

 

    23 seen any reports prepared by the police of your

 

    24 meetings with the police?

 

    25 A      Correct.


 

 

                                                   136

 

 

     1        Q      Is that true?

 

     2 A      Yes.

 

     3        Q      Okay.  Did you anticipate at the

 

     4 time that reports would be prepared by the

 

     5 Police Department regarding your meetings?

 

     6 A      I in my eight years as Town attorney I

 

     7 have had numerous meetings with the Police

 

     8 Department about these, other matters --

 

     9               MR. MULLIN:  Objection,

 

    10 nonresponsive.

 

    11 A      -- Alcoholic Beverage Control --

 

    12               MR. MULLIN:  Objection,

 

    13 nonresponsive.

 

    14               THE WITNESS:  May I finish?

 

    15               JUDGE CURRAN:  I am going to

 

    16 overrule the objection, but it's noted for the

 

    17 record.

 

    18 BY MR. PARIS:

 

    19        Q      Thank you very much.

 

    20 A      Okay.  And I have never seen in our

 

    21 police report any reference to discussions with

 

    22 me.  And I have seen police reports involving

 

    23 all these different matters where the police

 

    24 consulted with me and I advised them.  If there

 

    25 is something that I think that I need to direct


 

 

                                                   137

 

 

     1 the police or to give them the advice of my

 

     2 counsel, I will put it in writing.  Otherwise, I

 

     3 discuss it with the police, review it and we

 

     4 move on from there.

 

     5        Q      Now, when you were at the Council

 

     6 meeting of April 27th, did you understand that

 

     7 Chief Corcoran was providing the Mayor and

 

     8 Council of each and every detail of the

 

     9 investigation up to that point in time?

 

    10 A      To the contrary, as my opening statement

 

    11 was, I just wanted a general description for the

 

    12 reasons I have said three or four times.  I

 

    13 didn't want to taint the investigation, and

 

    14 everything at that time was just allegations.

 

    15        Q      Okay.  Now, in your testimony

 

    16 also -- and I thought this had been cleared up

 

    17 on direct, but when you said the Town had no

 

    18 role -- and I think Mr. Mullin questioned you

 

    19 about it -- what were you -- what did you mean,

 

    20 that the Town had no role?

 

    21 A      Any -- well, you know, even though it's

 

    22 the Secaucus Police Department, they're

 

    23 employees of the Town of Secaucus.  In terms of

 

    24 investigating a crime, especially something when

 

    25 it is that -- could rise to an indictable


 

 

                                                   138

 

 

     1 offense or under a State statute, such as a bias

 

     2 crime, they are under the direct supervision of

 

     3 the County Prosecutor.  And the County

 

     4 Prosecutor can supersede anything that the Mayor

 

     5 and Council or myself, as Town attorney, can do.

 

     6        Q      You -- you were questioned on

 

     7 cross-examination about having repeated meetings

 

     8 with various Police Department officials,

 

     9 detectives, Chief while the investigation was

 

    10 ongoing?

 

    11 A      Yes.

 

    12        Q      Had you ever done that in the

 

    13 past?

 

    14 A      Yes.

 

    15        Q      Did you handle this matter any

 

    16 differently than you have handled other legal

 

    17 matters involving the police in the eight years

 

    18 that you were Town attorney?

 

    19 A      Exactly the same.  And you'll see from my

 

    20 billing records there is numerous meetings with

 

    21 the police about various different matters,

 

    22 exactly the same.

 

    23        Q      Did you believe that you were

 

    24 doing anything wrong by meeting with the police

 

    25 while this investigation was going on?


 

 

                                                   139

 

 

     1 A      Of course not.

 

     2        Q      Mr. Leanza, what was your

 

     3 understanding as to why there would be no

 

     4 administrative action taken while the criminal

 

     5 investigation was going on?

 

     6 A      Any administrative action taken during

 

     7 the criminal investigation would most likely

 

     8 result in a challenge of that action by the

 

     9 individuals against whom it was taken.  They

 

    10 would be entitled to a hearing and would get

 

    11 into a difficulty where, in order to conduct a

 

    12 hearing, I would have to divulge to them some of

 

    13 the investigatory records that we had.

 

    14          And notwithstanding that, the Attorney

 

    15 General told us not to do it.  From my own mind,

 

    16 I couldn't give these guys what we had or what

 

    17 the witnesses said or anything of that nature

 

    18 because that could taint the whole

 

    19 investigation.

 

    20        Q      Mr. Leanza, can you take a look at

 

    21 the statute which was placed before you, the

 

    22 statute with regard to the --

 

    23 A      Yes.

 

    24        Q      -- the testimony of public --

 

    25 A      NJSA 2A:81-18.2a1.


 

 

                                                   140

 

 

     1        Q      Can you take a look at -- I

 

     2 believe it's Section 4.  I can give you the --

 

     3 let's just put the actual statutory cite in.

 

     4 2A:18-17.2a4, which is entitled, "Removal

 

     5 proceedings."  Pursuant to that statute who is

 

     6 authorized to bring removal proceedings of a

 

     7 public employee?

 

     8 A      By the Attorney General or the County

 

     9 Prosecutor.  The only people who could give that

 

    10 employee the immunity to force them to

 

    11 prosecute.

 

    12        Q      And according to the statute, who

 

    13 has the power to bring an action in Superior

 

    14 Court to remove an employee?

 

    15 A      Again, the Attorney General or the County

 

    16 Prosecutor.

 

    17        Q      Why was there no request to grant

 

    18 use -- well, number one, you couldn't -- you

 

    19 don't have any knowledge of what went on before

 

    20 the Grand Jury, do you?

 

    21               MR. MULLIN:  Objection, leading.

 

    22               JUDGE CURRAN:  Sustained.  But I'm

 

    23 going to overrule that question and going to

 

    24 strike it.

 

    25 BY MR. PARIS:


 

 

                                                   141

 

 

     1        Q      Why wasn't there a request to the

 

     2 Attorney General or the Hudson County Prosecutor

 

     3 to grant use immunity to one of the firemen?

 

     4 A      It was their investigation, and at that

 

     5 time we already received instructions from the

 

     6 Attorney General to put a hold on anything

 

     7 administrative.

 

     8        Q      Mr. Leanza, when you were making a

 

     9 decision regarding prosecuting a -- an

 

    10 administrative action after the Attorney

 

    11 General's investigation was done, did you think

 

    12 it was approach -- well, did you think it was

 

    13 appropriate to bring charges against someone, if

 

    14 you didn't think you could prove them?

 

    15 A      Of course not.

 

    16               MR. PARIS:  No further questions.

 

    17 RECROSS EXAMINATION BY MR. MULLIN:

 

    18        Q      Requesting use -- requesting a

 

    19 Prosecutor to invoke that statute to force

 

    20 Mutschler or the two Snyders to testify, that's

 

    21 not administrative proceeding?  That's a letter

 

    22 from you to the Attorney General's Office

 

    23 saying, "Prosecutor, Attorney General, please

 

    24 take the Garrity steps.  I hereby threaten this

 

    25 employee with firing, if he doesn't testify.


 

 

                                                   142

 

 

     1 Please, I encourage you to take the steps,"

 

     2 right?  That's not an administrative proceeding;

 

     3 it's a letter, right?

 

     4 A      It's an administrative proceeding as

 

     5 opposed to criminal.

 

     6        Q      To ask in a criminal proceeding,

 

     7 criminal proceeding, not administrative

 

     8 proceeding, to ask use immunity be granted,

 

     9 that's an administrative matter?

 

    10 A      What is the ultimate consequence going to

 

    11 be?  Is that an administrative matter, as

 

    12 opposed to criminal matter?  You went to great

 

    13 lengths to describe the distinction between the

 

    14 burden of proof between criminal and

 

    15 administrative.  That is an administrative

 

    16 matter.

 

    17        Q      You still claimed that you made

 

    18 two phone calls not to Tim Carter; is that

 

    19 correct?

 

    20 A      In your words, I swore under oath on my

 

    21 time sheets that I made those two calls.

 

    22        Q      You say now you made the two calls

 

    23 on April, then you made another call right after

 

    24 Mayor Elwell got the voice mail message from Tim

 

    25 Carter on May 1, true?


 

 

                                                   143

 

 

     1 A      No, that's wrong.  I said in June of

 

     2 2004, as my time sheets indicate and I'm saying

 

     3 it now.

 

     4        Q      It's not -- you are swearing under

 

     5 oath, to use your words, which you say are my

 

     6 words, swore you in here, put your hand on the

 

     7 Bible saying I made two phone calls to Tim

 

     8 Carter, one was on April 28, 2004 and the second

 

     9 one was on May 1st, 2004 after Mayor Elwell got

 

    10 a voice mail from Tim Carter?  That's what you

 

    11 are telling the jury, right?

 

    12 A      Right and --

 

    13        Q      Is that yes or no?

 

    14 A      It's no because, as I said before, I

 

    15 wasn't sure with whom I was speaking, whether it

 

    16 was Mr. Carter or Mr. deVries.

 

    17        Q      Or Mr. deVries?

 

    18 A      I don't have a recollection of that, and

 

    19 it's not indicated on my time sheet whether it

 

    20 was Mr. Carter or Mr. deVries.  The only

 

    21 indication is that I spoke to the two alleged --

 

    22 to an alleged victim twice.

 

    23        Q      And you testified about that

 

    24 matter, that May 1 phone call you say you made

 

    25 at your deposition, right, sir?


 

 

                                                   144

 

 

     1 A      No, you asked me that question; and I

 

     2 said I didn't remember it.  And then, when I saw

 

     3 the time sheet, it indicated that I spoke with

 

     4 the alleged bias victim on May 1st, it refreshed

 

     5 my recollection.

 

     6        Q      But at your deposition you did

 

     7 claim that you had a conversation with my client

 

     8 after my client placed a call to the Mayor,

 

     9 right?  You did testify about that in your

 

    10 deposition, right?

 

    11 A      That's right.

 

    12        Q      In fact, at page 89 on line 3 of

 

    13 your deposition -- you can look on with me --

 

    14 the question to you -- Miss Smith took that

 

    15 deposition, right?

 

    16 A      Yes.

 

    17        Q      And the question to you was, "So

 

    18 it's your testimony that the conversation you

 

    19 had with my client took place after he -- after

 

    20 he, my client, placed a call to the Mayor,

 

    21 right?"

 

    22          And your answer was, "Yeah" --

 

    23 A      Yes.

 

    24        Q      -- "because I got your client's

 

    25 number.  I think I was the one who called him


 

 

                                                   145

 

 

     1 was my recollection;" is that right?  That's

 

     2 what you testified right?

 

     3 A      That's right.

 

     4        Q      And that was under oath, right?

 

     5 A      Yes.

 

     6        Q      And next question is, "It was a

 

     7 telephone call, right?"

 

     8          And your answer, you said, "I believe

 

     9 so, yes."

 

    10          That's the way the testimony went,

 

    11 right?  I'm reading it accurately, right?

 

    12 That's right?  Follow along with me.

 

    13 A      Yes.

 

    14        Q      I read that accurately, right?

 

    15 A      Yes.

 

    16        Q      And the next question Miss Smith

 

    17 asked you was, "Tell me about it," right?

 

    18          And you said to Miss Smith, my partner

 

    19 over there, "I called your office, said who I

 

    20 was.  I don't even recall which one of your

 

    21 clients it was, whether it was Mr. deVries or

 

    22 Mr. Carter.  And he expressed his concern for

 

    23 his and his partner's safety.  I tried to assure

 

    24 him that we were taking this as seriously as

 

    25 possible.  I told him, 'I'm not the Town


 

 

                                                   146

 

 

     1 attorney, that perhaps you should get your own

 

     2 legal counsel.'"  Didn't you go on about how you

 

     3 suggested the Lambda Legal Defense Fund?  "You

 

     4 should get a lawyer," right?  You see?  That's

 

     5 what you said, right?  Let me keep reading.

 

     6 A      No, no, wait.  Wait.  Wait.  Wait.

 

     7        Q      You wait.  I ask the questions.

 

     8 A      That's not what you said.  You asked me a

 

     9 question.

 

    10        Q      I am going to have you read --

 

    11               MR. PARIS:  Excuse me.

 

    12 A      I didn't say, "I'm not the Town

 

    13 attorney."

 

    14               JUDGE CURRAN:  Mr. Leanza, with

 

    15 all due respect.

 

    16                Mr. Paris.

 

    17               MR. PARIS:  Thank you.  Your

 

    18 Honor, my understanding is the deposition can be

 

    19 used to impeach a witness if it differs from

 

    20 their testimony in court.  This --

 

    21               MR. MULLIN:  It does.

 

    22               MR. PARIS:  -- is not different

 

    23 than his testimony in court, number one.

 

    24                And number two, the way -- the

 

    25 way it would be used would be to read a question


 

 

                                                   147

 

 

     1 and read an answer, not to have this

 

     2 argumentative thing going.

 

     3               JUDGE CURRAN:  Certainly, I am

 

     4 going to sustain the objection in both issues;

 

     5 however, you may address the first issue.  But I

 

     6 would appreciate it if you would use the

 

     7 question and answer format as Mr. Paris had

 

     8 pointed out, which is the normal way to impeach.

 

     9 BY MR. MULLIN:

 

    10        Q      You told this jury that you called

 

    11 one of my clients, Mr. deVries or Mr. Carter, at

 

    12 home on May 1st, true, after the -- after the

 

    13 voice mail came in, right?

 

    14 A      Yes.

 

    15        Q      In your deposition you testified

 

    16 that you called my office and spoke to

 

    17 Mr. Carter at my office, true?

 

    18 A      I don't know if that's true because I see

 

    19 some other errors in there, as well, too.

 

    20        Q      But that's what you said, right,

 

    21 under oath, right?

 

    22 A      No, I'm --

 

    23        Q      Okay.  Now I will show you your

 

    24 deposition, and see if it doesn't refresh your

 

    25 recollection?


 

 

                                                   148

 

 

     1 A      Okay.

 

     2        Q      And again, I will go to page 89.

 

     3 Didn't you say, when Miss Smith said, "Tell me

 

     4 about it," meaning the phone call -- after my

 

     5 client placed a call to the Mayor, didn't you

 

     6 say, "I called your office"?  Didn't you say

 

     7 that under oath at your deposition?  True?

 

     8 A      No, I think that might be an error

 

     9 because I also see it says I told them, "I am

 

    10 not the Town attorney."

 

    11        Q      You now say that you didn't say

 

    12 what's in this official certified court

 

    13 transcript?

 

    14 A      I'm sure I did not say, "I am not the

 

    15 Town attorney."

 

    16        Q      No, that's what you told --

 

    17 A      I tried to assure them we were taking

 

    18 this as seriously as possible.  I told him, "I

 

    19 am not the Town attorney"?

 

    20        Q      You probably told them you were

 

    21 the Town attorney, right?

 

    22 A      Well, it appears that there is an error

 

    23 in the transcript.

 

    24        Q      Are you saying there is an error

 

    25 here, when you said, "I called your office"?


 

 

                                                   149

 

 

     1 A      Yes, because I didn't call your office.

 

     2        Q      Why didn't you call my office?

 

     3 Why could that not possibly be the case?

 

     4 A      Because why -- first of all, I would have

 

     5 remembered it.  Who knows if I would have got

 

     6 your client at the office?

 

     7        Q      On May 1, 2004 did the Town have

 

     8 any knowledge that I was even involved in this

 

     9 case?

 

    10 A      I didn't.

 

    11        Q      So if you said under oath that to

 

    12 reach Tim Carter you called my office on May

 

    13 1st, that would have been a false and inaccurate

 

    14 statement, right, if you said it?

 

    15 A      That's right.  And that --

 

    16        Q      Hang on.  I'm waiting to formulate

 

    17 my next question.  In fact, the first time the

 

    18 Town has notice that I represent Mr. Carter and

 

    19 Mr. deVries is in a police report that this jury

 

    20 has seen and heard dated May 20th, 2004, isn't

 

    21 that true, where Mr. Carter calls up the police

 

    22 and says, "I don't want to hurt anybody's

 

    23 feeling, but Neil Mullins" -- he made me plural;

 

    24 he put an "S" on my name -- "Neil Mullins," he

 

    25 says, "is representing me."  That's the first


 

 

                                                   150

 

 

     1 official notice to the Town that I represent

 

     2 him, on May 20th, right?

 

     3 A      I don't recall the date, but I realize --

 

     4 I recall the police report.

 

     5               JUDGE CURRAN:  If I might see

 

     6 counsel at sidebar, please.

 

     7               (Whereupon, the following sidebar

 

     8        discussion is held.)

 

     9               JUDGE CURRAN:  As far as

 

    10 scheduling -- I'm not trying to rush anybody,

 

    11 but are you going to have any other witnesses?

 

    12               MR. BEVERE:  Well, only in terms I

 

    13 have to move evidence in.  If there is objection

 

    14 to some evidence, I may have to call a witness.

 

    15               MR. PARIS:  In other words, what I

 

    16 would -- if I may interpret what I thought you

 

    17 were asking is I think, if we push on, we will

 

    18 be done with him today, we could probably send

 

    19 jury home.

 

    20               JUDGE CURRAN:  That's my question.

 

    21               MR. MULLIN:  Take a couple

 

    22 minutes.

 

    23               MS. SMITH:  Minutes.

 

    24               JUDGE CURRAN:  Okay.

 

    25               MR. MULLIN:  We're minutes away.


 

 

                                                   151

 

 

     1               MR. PARIS:  I only have about a

 

     2 half hour after that.

 

     3               JUDGE CURRAN:  Miss Smith.

 

     4               MS. SMITH:  I'm sorry, Your Honor,

 

     5 I don't want to make it obvious that the witness

 

     6 is not coming back quickly.

 

     7               MR. BEVERE:  We're going to have

 

     8 coffee.

 

     9               MS. SMITH:  Can I run to the

 

    10 ladies room?

 

    11               JUDGE CURRAN:  Sure.

 

    12               MS. SMITH:  Then it will look like

 

    13 it's me.

 

    14               JUDGE CURRAN:  Mr. Bevere.

 

    15               (Whereupon, a discussion is held

 

    16        off the record.)

 

    17               JUDGE CURRAN:  You can put it on

 

    18 the record at length, but have you decided

 

    19 you're not -- other than the evidence questions,

 

    20 have you decided you're not going to call any

 

    21 other witnesses?

 

    22               MR. BEVERE:  The only other

 

    23 witness --

 

    24               JUDGE CURRAN:  In regard to the

 

    25 LAD questions?


 

 

                                                   152

 

 

     1               MR. BEVERE:  The only other

 

     2 witness I would call in response to the LAD

 

     3 claim would be Administrator Iacono.  But if

 

     4 Mr. Mullin has no objection to my -- for

 

     5 employee sexual harassment policy going into

 

     6 Evidence --

 

     7               MR. MULLIN:  I think that goes in.

 

     8               MR. BEVERE:  -- I don't see any

 

     9 reason to bring him in.

 

    10               MR. MULLIN:  That goes into

 

    11 Evidence, no problem.

 

    12               JUDGE CURRAN:  Okay.  So then

 

    13 we're safe.

 

    14               MR. BEVERE:  Obviously, I'm not

 

    15 waiving any prior objections --

 

    16               JUDGE CURRAN:  No, no, the

 

    17 objections stand.

 

    18               MR. BEVERE:  -- to mistrial but --

 

    19               JUDGE CURRAN:  I, just in

 

    20 fairness, wanted the offer to be there.

 

    21 Decision is certainly the Defense decision to be

 

    22 made.

 

    23               MR. BEVERE:  Thank you.

 

    24                He is here, Judge.

 

    25               JUDGE CURRAN:  Okay.  Fine.  Thank


 

 

                                                   153

 

 

     1 you.

 

     2               (Whereupon, sidebar discussion is

 

     3        concluded.)

 

     4               JUDGE CURRAN:  Mr. Mullin.

 

     5               MR. MULLIN:  Thank you.

 

     6 BY MR. MULLIN:

 

     7        Q      Sir, your lawyer for the Town just

 

     8 asked some questions about any written records

 

     9 concerning your dealings with the Police

 

    10 Department.  Do you recall him generally asking

 

    11 you some questions about that?

 

    12 A      If I had notes of my meetings with

 

    13 Captain Buckley and Chief Corcoran?

 

    14        Q      Or police reports.  Do you

 

    15 remember that Mr. Paris raised that topic with

 

    16 you just a few minutes ago?

 

    17 A      Police reports, I had reviewed them all;

 

    18 and I testified that I don't -- generally don't

 

    19 keep police reports.

 

    20        Q      And your testimony is that you

 

    21 have no notes whatsoever for your dealings with

 

    22 the Police Department concerning the de -- this

 

    23 case for the last four years, all -- no notes?

 

    24 A      Right.

 

    25        Q      Now, let's go to your August bill.


 

 

                                                   154

 

 

     1 And we probably should put an exhibit marker on

 

     2 that.

 

     3

 

     4               (Whereupon, Mr. Leanza's bill,

 

     5        dated August 2004 is received and marked

 

     6        as Plaintiff's Exhibit P-407 for

 

     7        Identification.)

 

     8               MR. MULLIN:  We will call it

 

     9 Plaintiff's Exhibit 408?

 

    10               JUDGE CURRAN:  Thank you.  408 is

 

    11 the August bill.

 

    12 BY MR. MULLIN:

 

    13        Q      And this is yet another one of

 

    14 your bills for your legal professional services

 

    15 rendered to the Town for the month of

 

    16 August 2004, correct?

 

    17 A      Correct.

 

    18        Q      And for that month the Town paid

 

    19 your firm $13,820, right?

 

    20 A      I assume they paid, yes.  I don't think

 

    21 there is anything that's due and owing me.

 

    22        Q      Okay.  Now, your entry of

 

    23 August 17, 2004 states -- starts off, "Review of

 

    24 additional correspondence and drafts of

 

    25 opinions."  And then you refer to certain


 

 

                                                   155

 

 

     1 people, certain lawyers; and that has nothing to

 

     2 do with this case, right?

 

     3 A      No.

 

     4        Q      Is that a no, meaning yes --

 

     5 A      It has nothing to do with the case;

 

     6 that's correct.

 

     7        Q      Then you have a comma, and it goes

 

     8 on to, "Correspondence from Police Department,

 

     9 correspondence from Police regarding deVries

 

    10 suit"?

 

    11 A      Right.

 

    12        Q      "Correspondence from Police

 

    13 Department regarding deVries suit"?

 

    14 A      Right.

 

    15        Q      And in your deposition at page

 

    16 145 -- well, let's put it this way.  You

 

    17 testified under oath that you have no idea where

 

    18 that correspondence is, right?

 

    19 A      If it's not in my file, I don't know

 

    20 where it is.

 

    21        Q      Okay.  Is it in your file?

 

    22 A      Quite truthfully, I didn't look for it.

 

    23 You have copies of it, and the Town's attorneys

 

    24 have copies of it.

 

    25        Q      Copies of what?


 

 

                                                   156

 

 

     1 A      Of my file.

 

     2        Q      Do we have copies of this

 

     3 correspondence?

 

     4 A      If it's in the file, you have a copy of

 

     5 it.

 

     6        Q      Did Miss Smith ask you at page

 

     7 145, line 22 where that August 1st

 

     8 correspondence is?  Did she ask you that

 

     9 question?

 

    10 A      Let me take a look, and I'll tell you.

 

    11        Q      And did you say, "I don't know

 

    12 where the correspondence is.  If there is

 

    13 nothing in my file for that date, I don't know

 

    14 what happened to it"?  That was your testimony?

 

    15 A      That's correct; same thing I'm saying

 

    16 now.

 

    17        Q      You know -- you're an attorney

 

    18 for, again, was it 30 years?

 

    19 A      Almost 30, yes.

 

    20        Q      Do you know that attorneys have an

 

    21 obligation under the law to retain their files

 

    22 for no less than seven years?

 

    23               MR. PARIS:  Objection, Your Honor.

 

    24 Objection.

 

    25               JUDGE CURRAN:  Basis?


 

 

                                                   157

 

 

     1               MR. PARIS:  Well, does this

 

     2 include police -- I mean, I think we need to be

 

     3 heard at sidebar.

 

     4               MR. MULLIN:  I am asking him about

 

     5 his files.

 

     6               JUDGE CURRAN:  I'm sorry?

 

     7               MR. MULLIN:  I was asking about

 

     8 his files.

 

     9               MR. PARIS:  About his files?

 

    10               JUDGE CURRAN:  That was the

 

    11 question.

 

    12               MR. PARIS:  Fine.

 

    13 BY MR. MULLIN:

 

    14        Q      Did you know that an attorney has

 

    15 an obligation to retain his files for a period

 

    16 no less than seven years?  You know that, right?

 

    17 A      Sure, I keep them ten years.

 

    18        Q      But not that correspondence,

 

    19 right?

 

    20 A      I have my file on this deVries case, and

 

    21 it was turned over to you.

 

    22        Q      And no notes?

 

    23 A      If there is a letter -- I took no notes.

 

    24        Q      For four years?

 

    25 A      Excuse me?


 

 

                                                   158

 

 

     1        Q      Nothing further.

 

     2 A      Thank you.

 

     3               JUDGE CURRAN:  Mr. Paris.

 

     4 FURTHER REDIRECT EXAMINATION BY MR. PARIS:

 

     5        Q      Mr. Leanza, do you know whether or

 

     6 not the Attorney General's Office offered use

 

     7 immunity to Snyder, Sr., Snyder, Jr. or

 

     8 Mutschler?

 

     9               MR. MULLIN:  Objection.

 

    10 Objection, Your Honor.

 

    11               JUDGE CURRAN:  Basis?

 

    12               MR. MULLIN:  Goes to the in limine

 

    13 area.

 

    14               MR. PARIS:  I don't think that has

 

    15 anything to do --

 

    16               MR. MULLIN:  He can't know that.

 

    17               MR. PARIS:  The question was --

 

    18               MR. MULLIN:  He can't know that

 

    19 because we don't have those records.

 

    20               MR. PARIS:  Then that's the

 

    21 answer.

 

    22               JUDGE CURRAN:  I'm going to

 

    23 sustain the objection.  We have gone through

 

    24 that.  The record will speak for itself.

 

    25               MR. PARIS:  I have no further


 

 

                                                   159

 

 

     1 questions, thank you.

 

     2               JUDGE CURRAN:  Any other

 

     3 questions?

 

     4                Is there anyone on the jury who

 

     5 has any questions for this witness?  If so,

 

     6 please raise your hand or take one of the

 

     7 question cards.  Anyone on the jury who has a

 

     8 question for this witness?  No?

 

     9                Thank you.

 

    10               THE WITNESS:  Thank you very much.

 

    11               JUDGE CURRAN:  Thank you.  If I

 

    12 might see counsel at sidebar for just a moment.

 

    13                It doesn't have to be on the

 

    14 record, Tracey.

 

    15               (Whereupon, a discussion is held

 

    16        off the record.)

 

    17               JUDGE CURRAN:  Ladies and

 

    18 Gentlemen, we can go back on the record.  I

 

    19 think I have good news for you.  We are going to

 

    20 excuse you for today.  As you -- oh, look at

 

    21 those smiles.  Oh, that's so sad.  Juror Number

 

    22 5, we just --

 

    23               JUROR NUMBER 5:  I was just making

 

    24 a joke about it.

 

    25               JUDGE CURRAN:  And I even have a


 

 

                                                   160

 

 

     1 document for you, which I will go over with

 

     2 counsel when the other jurors leave.

 

     3                But those -- those smiles make me

 

     4 feel sad.

 

     5                All right.  Please understand the

 

     6 attorneys are going to be working all afternoon.

 

     7 We were just discussing how long they would take

 

     8 for lunch.  And they will be back tomorrow.  So

 

     9 it's not as if we will not be working.

 

    10 Hopefully we will resolve the legal issues so

 

    11 that we can move ahead very expeditiously on

 

    12 Monday morning.

 

    13                We will ask that you report back

 

    14 Monday at 9:30.

 

    15                Again, please do not discuss the

 

    16 case among yourselves.  Please do not discuss it

 

    17 with anyone else.

 

    18                Are there any other questions?

 

    19               JUROR:  Do we have to go to work

 

    20 tomorrow?

 

    21               JUDGE CURRAN:  As I have said

 

    22 before -- well, first of all, I am going to ask

 

    23 Tracey to strike that, just in case there is

 

    24 ever a copy of this because we do realize that

 

    25 you work for the government; but --


 

 

                                                   161

 

 

     1               JUROR:  Yes.

 

     2               JUDGE CURRAN:  -- that's between

 

     3 you and your conscience and your office.  Okay.

 

     4                All right.  In fairness, if they

 

     5 call here, my secretary will say I am in the

 

     6 courtroom working on the case.  So whatever

 

     7 inference they draw is whatever inference they

 

     8 draw.

 

     9                Anything else?  Thank you very

 

    10 much.  We appreciate your patience for the long

 

    11 session.  Thank you.  Off the record.

 

    12               (Whereupon, the jury is excused.)

 

    13               (Whereupon, a luncheon recess is

 

    14        taken.)

 

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

 

    16               JUDGE CURRAN:  I will note that

 

    17 counsel are all here, the jury is not.  I have a

 

    18 suggestion, which I'm happy to hear objections

 

    19 to or -- or whatever.  What I often try to do is

 

    20 to go through starting with one set of jury

 

    21 charges.

 

    22               MR. MULLIN:  Yes.

 

    23               JUDGE CURRAN:  For instance, the

 

    24 plaintiffs, because usually the plaintiffs have

 

    25 more proposals than the defense do.  It seems to


 

 

                                                   162

 

 

     1 me that it's easier to go page by page that way.

 

     2                I'm not in any way saying that we

 

     3 won't include a discussion on the record of

 

     4 everything that the defense wants.  I'm not

 

     5 asking you just to react, for example, to the

 

     6 plaintiffs.  But I think sometimes it makes it

 

     7 easier to go through this way.

 

     8                And we may come to a certain

 

     9 point -- obviously, use the last page, adverse

 

    10 inference, I know that the defense in the past

 

    11 has objected to that.  So you'll get total

 

    12 opportunity to object, and you'll get total

 

    13 opportunity to add anything you want.

 

    14                There will be some issues where

 

    15 you'll want to bring up what you want, instead

 

    16 of what the defense -- the plaintiff is asking

 

    17 for because it makes no sense to consider the

 

    18 issue in a vacuum; but I think it's easier to do

 

    19 it that way.  If there is no objection, that's

 

    20 how we are going to start.

 

    21               MR. MULLIN:  No objection.  I am

 

    22 just waiting for my copy to come back.

 

    23               JUDGE CURRAN:  Thank you.  You

 

    24 will get your copy.  We will go off the record

 

    25 until we get the copy.


 

 

                                                   163

 

 

     1                Go back on the record for a

 

     2 moment.

 

     3                Go ahead.  Did you want to leave?

 

     4               MR. BEVERE:  While Mr. Mullin was

 

     5 waiting for his copy, I will use the men's room

 

     6 in the jury room.

 

     7               JUDGE CURRAN:  Sure.

 

     8               MR. BEVERE:  Not too far.

 

     9               JUDGE CURRAN:  Just in general, if

 

    10 there is no objection, I will just start at

 

    11 1.12.  These are all standard.  I always --

 

    12               MR. MULLIN:  Sure.

 

    13               JUDGE CURRAN:  -- use standard.

 

    14 There is no need for you all to have copied

 

    15 them; I've got them.  But I would propose to

 

    16 read the proposed, the purpose of the charge,

 

    17 the role of the court, the role of the

 

    18 attorneys, the role of the jury and then,

 

    19 obviously, the evidence, which in this case

 

    20 would include the evidence from the witnesses,

 

    21 the exhibits, the deposition testimony.  Were

 

    22 there Answers to Interrogatories read before the

 

    23 jury?

 

    24               MR. MULLIN:  Yes.

 

    25               MR. BEVERE:  Yes.


 

 

                                                   164

 

 

     1               JUDGE CURRAN:  Okay.  And the

 

     2 stipulations.  What I would suggest in regard to

 

     3 the stipulation is that if you give me a copy of

 

     4 the stipulation, which I don't have right now, I

 

     5 will read it to the jury, unless you all agree

 

     6 that one of you wants to read it.  It's up to

 

     7 you.  Okay?

 

     8               MR. MULLIN:  I don't have any

 

     9 objection to the Court reading it.

 

    10               MR. BEVERE:  No.

 

    11               JUDGE CURRAN:  Okay.  So I need

 

    12 the copy.  And then any testimony to that

 

    13 stricken.

 

    14                Now, in regard to limiting

 

    15 instructions, I would -- I'm sorry.

 

    16               MR. MULLIN:  Judge, I need a copy

 

    17 of stip.

 

    18               MR. BEVERE:  I don't have a copy

 

    19 of the stip with me.  I will print it out and

 

    20 bring it tomorrow.

 

    21               JUDGE CURRAN:  Sure.  And in

 

    22 regard to limiting, I would appreciate it if

 

    23 counsel would go through -- I'm sure you have

 

    24 already done this.  Just to make sure that every

 

    25 place that I indicated, yeah, I'll give a


 

 

                                                   165

 

 

     1 curative or yes, I will give a limiting, that I

 

     2 have either done it or you want it done.

 

     3                The only example that I can think

 

     4 of is I believe yesterday at page 244 we had the

 

     5 discussion on this -- at sidebar in regard to

 

     6 the objection in regard to the reference in the

 

     7 doctor's tape to the truck.  And I thought it

 

     8 was the truck in Jersey City, but it was not

 

     9 just the earlier -- no curative really was given

 

    10 or limiting in that regard.  So just go through,

 

    11 if you would, the transcripts to see if there is

 

    12 anything else that you feel that should be a

 

    13 curative instruction or limiting instruction,

 

    14 please.

 

    15                And then we've gotten to the

 

    16 burden of proof.  We will go through all of

 

    17 that.  At the end, the standard charges at the

 

    18 end are 1.12P, which is no passion, prejudice,

 

    19 bias or sympathy.  The deliberations, they're

 

    20 not advocates for either side.

 

    21                And then we get to the jury.  Has

 

    22 the plaintiff made a decision as to how many

 

    23 jurors you are asking to deliberate?

 

    24               MR. MULLIN:  We haven't made a

 

    25 decision yet, Your Honor.


 

 

                                                   166

 

 

     1               JUDGE CURRAN:  Okay.

 

     2               MR. MULLIN:  Can we hold off on

 

     3 that yet?

 

     4               JUDGE CURRAN:  Sure, no problem.

 

     5                And then we'll get to the verdict

 

     6 sheet.  We'll talk about the standard

 

     7 communications with the Court.  And then I'll go

 

     8 through, you know, asking counsel to check the

 

     9 exhibits.

 

    10                All the standard ending charges

 

    11 I -- you know, I don't think there is any

 

    12 problem about those; but I just want to be sure.

 

    13 So those are the standard charges that we will

 

    14 use.

 

    15                Now we'll go back, starting with

 

    16 the submission by Plaintiffs' counsel for the

 

    17 jury charges.  Again, I'm using the 37-page

 

    18 document to which Mr. Mullin referred earlier.

 

    19 Any objection to -- on page one?

 

    20               MR. PARIS:  Your Honor, may we

 

    21 stay seated?

 

    22               JUDGE CURRAN:  Of course.

 

    23               MR. PARIS:  Your Honor, the only

 

    24 objection I note from the model charge with

 

    25 regard to the burden of proof charge is the fact


 

 

                                                   167

 

 

     1 that it sets out the defendant's issues.  It

 

     2 does not set forth any of the defenses of the

 

     3 Town of Secaucus, which indicates that they'll

 

     4 be discussed later.  Under the model charge that

 

     5 would be explained at that point in time.

 

     6               MR. MULLIN:  Well, I think we do

 

     7 have to make a change.

 

     8               JUDGE CURRAN:  We do.

 

     9               MR. MULLIN:  I think now we

 

    10 have -- now that we know all the causes of

 

    11 action, it has to be not only the

 

    12 Constitution -- it has to be -- the LAD would be

 

    13 first.  So number -- number one under -- should

 

    14 be, "The defendant, the Town of Secaucus,

 

    15 violated their rights under the New Jersey Law

 

    16 Against Discrimination."  The second would be

 

    17 that they violated their rights under the

 

    18 Constitution of the state of New Jersey.  And

 

    19 the third would have to be that they violated

 

    20 their rights under NJSA 10:6-2, the Civil Rights

 

    21 Act of the State of New Jersey.

 

    22               MR. PARIS:  Your Honor, we would

 

    23 certainly -- and Mr. Bevere and I will both be

 

    24 arguing but --

 

    25               MR. BEVERE:  Well, Judge, let me


 

 

                                                   168

 

 

     1 tell you my position on that.  Certainly, based

 

     2 upon Your Honor's ruling, which I know is -- my

 

     3 objection is preserved, I think Your Honor has

 

     4 to say, "Law Against Discrimination."

 

     5                As for New Jersey Constitution

 

     6 and 10:6-2, my objection would be that they are

 

     7 the same claim.  10:6-2 is the vehicle pursuant

 

     8 to which our legislature has determined that

 

     9 Constitutional rights would be vindicated.  So

 

    10 you know -- and quite frankly, Judge, it's

 

    11 because it's the same claim there is not -- I

 

    12 don't want there to be a misunderstanding that

 

    13 there is somehow an LAD, then there is a 10:6-2,

 

    14 then there is a -- then there is a direct -- I

 

    15 think Mr. Mullin was referring to as a Peper

 

    16 claim.

 

    17                We now have the LAD based upon

 

    18 Your Honor's ruling.  That's in the case.  But

 

    19 with regard to the Constitutional claim, 10:6-2

 

    20 sets forth the standard as to how -- how a

 

    21 violation of a Civil Right will be vindicated

 

    22 when that Civil Right is not covered by the LAD.

 

    23               MR. MULLIN:  Well, obviously, this

 

    24 is a difference we have.  And what I have done

 

    25 in my charge is I -- I have argued that -- I


 

 

                                                   169

 

 

     1 have always argued that the LAD and State

 

     2 Constitution are the same -- same standard.  So

 

     3 that in my view we can word, number one, as

 

     4 being that Defendant, the Town of Secaucus,

 

     5 violated their rights under the LAD and the

 

     6 Constitution of the State of New Jersey.  That

 

     7 would be one charge because same exact standard.

 

     8 I don't get additional remedies, and I'm not

 

     9 trying to.

 

    10                Then I would say number two would

 

    11 be that the defendant, the Town of Secaucus,

 

    12 violated their rights under the New Jersey Civil

 

    13 Rights Act, 10:6-2.

 

    14                And then three would be that

 

    15 Plaintiffs' economic and emotional damages as a

 

    16 result of Defendant's conduct.  And I understand

 

    17 defendants take a different position and say

 

    18 Constitutional claims should be blended into the

 

    19 10:6-2 claim.  And we've argued ad nauseam on

 

    20 this; and I guess it's just a matter of the

 

    21 Court ruling on it, making a decision.

 

    22               JUDGE CURRAN:  Mr. Paris.

 

    23               MR. PARIS:  No, no, I'm sorry, I

 

    24 was just getting the book.  But again, I don't

 

    25 think that counsel can have it both ways.


 

 

                                                   170

 

 

     1 Earlier they were arguing the LAD was the --

 

     2 when LAD was not in the case, they were arguing

 

     3 the LAD was the vehicle.  Now they have got the

 

     4 LAD case, and now they are arguing that there

 

     5 should be two other remedies.

 

     6                And under the Monell standard,

 

     7 which Your Honor had applied to this case, the

 

     8 Monell standard, which is the 1983 standard, is

 

     9 the way that the rights are vindicated.  We have

 

    10 gone through the language of 10:6-2.  I mean,

 

    11 it's just, you know, clear that that's the

 

    12 statute that was enacted by the legislature to

 

    13 pick up any claims that weren't covered under

 

    14 the LAD.  Now you have the LAD.  Then it's only

 

    15 got -- it can only be the one.

 

    16               MR. MULLIN:  Again, long before

 

    17 10:6-2 existed there were claims directly under

 

    18 the State Constitution.  See Peper v. Princeton.

 

    19 So it can't be the only way to bring a claim

 

    20 under the State Constitution is through 10:6-2.

 

    21                I know I lost the battle about

 

    22 what standard should be used under 10:6-2.  I am

 

    23 not going to argue that anymore.  But an

 

    24 unresolved issue is whether the LAD and the

 

    25 State Constitution are the same standard.


 

 

                                                   171

 

 

     1 Peeler V. Princeton makes it really clear that

 

     2 they are.  It's just a discrimination case under

 

     3 the LAD, discrimination case under the State

 

     4 Constitution.  The LAD is the way the State

 

     5 legislature enacted and implemented the State

 

     6 Constitution.

 

     7                So I have written a charge that

 

     8 combines both because I -- I certainly don't

 

     9 think I'm entitled to a double recovery under

 

    10 both the LAD and the State Constitution.  It's

 

    11 not what I'm trying to accomplish.  It's just an

 

    12 identical charge.  I have merged them together

 

    13 carefully in my charge.

 

    14               JUDGE CURRAN:  What are you -- why

 

    15 don't we go to the charge and look at it; that

 

    16 way -- because I think I understand exactly what

 

    17 the arguments are, but I want to make sure that

 

    18 I do.  Otherwise, I'll ask it this way.

 

    19                What prejudice do you see with

 

    20 Mr. Mullin's proposal?

 

    21                And what do you see with

 

    22 Mr. Paris' proposal?

 

    23                Because when you read the charge,

 

    24 the charge is, I think, fairly all-encompassing.

 

    25 And I don't think it's duplicative but -- Mr. --


 

 

                                                   172

 

 

     1               MR. PARIS:  Your Honor, the

 

     2 statute -- the statute doesn't create additional

 

     3 rights.  The statute refers back to the

 

     4 Constitution and State law.  So you can't say

 

     5 that there are three causes of action because

 

     6 the statutory issue is how the rights under the

 

     7 prior are vindicated.  So it's either violated

 

     8 Constitutional right or the statute, but it's

 

     9 not both.  And that's the clear language in the

 

    10 statute.  That's all I'm saying.

 

    11               JUDGE CURRAN:  So are you saying,

 

    12 for instance, in what is now number one that you

 

    13 would not object if it said, "violated their

 

    14 rights under the Constitution of the State of

 

    15 New Jersey as implemented by the LAD"?

 

    16               MR. PARIS:  No.

 

    17               MR. BEVERE:  Judge.

 

    18               MR. PARIS:  I think it's the other

 

    19 way.  I think it's violate their right under the

 

    20 LAD.  Number two, violated their rights under

 

    21 the Constitution as implemented by --

 

    22               JUDGE CURRAN:  Okay.  So I do

 

    23 understand it.

 

    24               MR. MULLIN:  And on page six, if I

 

    25 had it my way, I would actually title it on page


 

 

                                                   173

 

 

     1 six -- the heading should be, "LAD and New

 

     2 Jersey Constitution" because it's all in one.

 

     3 So that's the way I would like it done.  I would

 

     4 change my heading because I am capturing both at

 

     5 once.  I think it's one in the same standard.

 

     6               MR. PARIS:  You know, we'll

 

     7 address that later; but we understand what he is

 

     8 seeking.

 

     9               JUDGE CURRAN:  I just -- my

 

    10 concern is I've read these charges as they are

 

    11 written, not that they're written in stone in

 

    12 any way.  But it seems to me that the way

 

    13 they're spelled out, to use as the example,

 

    14 starting on page six, is a proper understanding

 

    15 of the law.

 

    16                Can you show me, when you go back

 

    17 to the charge, where you feel that there is a

 

    18 problem?

 

    19               MR. BEVERE:  I'm sorry, Judge?

 

    20               JUDGE CURRAN:  And I said it

 

    21 backwards before.  I said the LAD as implemented

 

    22 by the Constitution.  Obviously, it would be the

 

    23 other way around, but --

 

    24               MR. MULLIN:  All you would have to

 

    25 do is change the title.  "The LAD and New Jersey


 

 

                                                   174

 

 

     1 State Constitution" on page six, the same exact

 

     2 charge.

 

     3               MR. BEVERE:  And Judge, you know,

 

     4 for the record, we don't think it is.  We think

 

     5 the LAD is one charge and Constitution charge is

 

     6 10:6-2.

 

     7               MR. PARIS:  Essentially, it's a

 

     8 combination.

 

     9               JUDGE CURRAN:  Well, yeah, that's

 

    10 the problem.

 

    11               MR. PARIS:  When I say,

 

    12 "combination," in other words, there is an LAD

 

    13 charge and then there is a Monell charge.  And I

 

    14 don't think Your Honor had said that Monell does

 

    15 not apply in this case anymore.  I didn't think

 

    16 that that was your ruling.  I think -- I thought

 

    17 what you were doing is you were adding an LAD

 

    18 count.

 

    19               JUDGE CURRAN:  Putting it back in.

 

    20               MR. BEVERE:  Right.

 

    21               MR. PARIS:  But that the Monell --

 

    22 I think even at that point you said the Monell

 

    23 standard still applies with regard to the

 

    24 Constitutional claim as implemented by 10:6-2.

 

    25 So there really should be two separate charges


 

 

                                                   175

 

 

     1 for them to prove the Constitutional claim.

 

     2 It's not the same standard as the LAD claim.

 

     3               MR. MULLIN:  Your Honor, I think

 

     4 you asked counsel to point out specific language

 

     5 they object to in my charge.  I think that would

 

     6 be a more constructive way to proceed.  My

 

     7 charge -- my substantive charge, which, again, I

 

     8 think should be titled, "The LAD and the New

 

     9 Jersey State Constitution."  And then what

 

    10 language are they objecting to in that charge?

 

    11               MR. PARIS:  See, Your Honor --

 

    12               MR. BEVERE:  Judge -- Judge, this

 

    13 is what I -- what I would say.  Because I think

 

    14 when we go to the LAD charge, this whole thing

 

    15 about the New Jersey State Constitution, Article

 

    16 I, paragraph one, that belongs, Judge -- that

 

    17 belongs in the Constitutional claim, not the LAD

 

    18 claim.  So that should be charged along with the

 

    19 Monell standard.

 

    20                The LAD has its own charge for

 

    21 the vindication of that statutory right.  And I

 

    22 guess our position is that it can't be both.  In

 

    23 other words, the legislative history of 10:6-2

 

    24 makes it clear.  This statute is here to cover

 

    25 gaps.  You know, where the LAD doesn't cover,


 

 

                                                   176

 

 

     1 this statute governs.  So you don't have a

 

     2 direct claim under the Constitution plus 10:6-2.

 

     3               MR. MULLIN:  Can we have authority

 

     4 for that?

 

     5               MR. BEVERE:  I'm going to the

 

     6 legislative history of the statute.  It says,

 

     7 "Vindication of a Constitutional right where" --

 

     8 "in situations where it's not covered by the

 

     9 LAD."

 

    10               MR. MULLIN:  Now, I can be really

 

    11 specific, now that counsel said that.  Can we

 

    12 have a cite to the provision in 10:6-2 that

 

    13 10:6-2 is the exclusive remedy for vindicating

 

    14 rights under the State Constitution?  Because

 

    15 that now is the argument that's being made.  Can

 

    16 you point us to the language?  Because there are

 

    17 statutes that say, "This is the exclusive

 

    18 vehicle for vindicating rights."

 

    19               MR. BEVERE:  Judge.

 

    20               MR. MULLIN:  So let's look at the

 

    21 statute and see where --

 

    22               MR. BEVERE:  Judge, first, I'm not

 

    23 going to engage in a shouting match.

 

    24               MR. MULLIN:  I'm not shouting.  I

 

    25 want the record to be clear I'm not shouting.  I


 

 

                                                   177

 

 

     1 want to focus in on what the statute language

 

     2 is.

 

     3               MR. BEVERE:  "This bill

 

     4 establishes the New Jersey Civil Rights Act."

 

     5 This is from the legislative history.  "In order

 

     6 to protect and assure against deprivation and

 

     7 the free exercise of Civil Rights, which are

 

     8 guaranteed and secured under the New Jersey

 

     9 Constitution and Federal Constitution, this bill

 

    10 provides a remedy when one person interferes

 

    11 with the Civil Rights of another.  This bill

 

    12 attempts to provide citizens of New Jersey with

 

    13 a State remedy for deprivation of or

 

    14 interference with the Civil Rights of an

 

    15 individual.  By providing this remedy this bill

 

    16 is intended to address potential gaps which may

 

    17 exist under remedies currently provided by New

 

    18 Jersey's Law Against Discrimination 10:5-1, et

 

    19 seq. and the law authorizing a civil cause of

 

    20 action for bias crime victims, N.J.S.A.

 

    21 2A:53A-21."  So you know --

 

    22               MR. MULLIN:  Let me repeat my

 

    23 argument.  I have 10:6-2.  I am not going to go

 

    24 to the legislative history until I need to

 

    25 because that's the way statutory construction


 

 

                                                   178

 

 

     1 law works.

 

     2                I have 10:6-2.  I have sections A

 

     3 through F.  Nowhere in the statute does it say,

 

     4 "This is the exclusive vehicle for asserting

 

     5 rights under the State Constitution."  So we

 

     6 don't have to look at legislative history.  And

 

     7 nothing counsel just read said that this was the

 

     8 exclusive remedy for asserting rights under the

 

     9 State Constitution.  It is a way to assert

 

    10 rights under the State Constitution.  That I

 

    11 have to concede.  We disagree on what the legal

 

    12 standard is, but it certainly is a way one can

 

    13 go.  And one uses this when, for example, one

 

    14 wants to recover statutory legal fees.

 

    15               JUDGE CURRAN:  Which is the reason

 

    16 it's in here to begin with from the history of

 

    17 this case, correct?

 

    18               MS. SMITH:  Right.

 

    19               MR. MULLIN:  That's --

 

    20               JUDGE CURRAN:  I'm sorry.

 

    21               MR. MULLIN:  That's correct.

 

    22 So -- so, you know, sometimes you have -- I'm

 

    23 trying to remember a statute that has it, but

 

    24 sometimes you have a CEPA, for example.  The

 

    25 Conscientious Employer Protection Act pretty


 

 

                                                   179

 

 

     1 much says if you plead something under CEPA, you

 

     2 give up on statutory -- on common law remedies

 

     3 in connection with your whistle-blower claim,

 

     4 CEPA, that's it.

 

     5               JUDGE CURRAN:  Or the worker's

 

     6 comp, unless it's intentional.

 

     7               MR. MULLIN:  Worker's comp.

 

     8 Another one that comes to mind is RISA statute

 

     9 governing retirement rights.  It says it's the

 

    10 collective vehicle, exclusive remedy for

 

    11 violation of rights under a benefits plan and

 

    12 you can't plead anything else and there is no

 

    13 other way to go.

 

    14                So there is no language in here

 

    15 this is the exclusive way to go.  So then the

 

    16 question becomes, if this is not the exclusive

 

    17 way to go, well, what -- what -- what's wrong

 

    18 with asserting a claim, as I have all

 

    19 throughout, directly under the State

 

    20 Constitution?  The answer is there is nothing

 

    21 wrong with doing that.  I can assert a claim

 

    22 under 10:6-2, which I have.  And I can assert a

 

    23 claim under State Constitution, which I have.

 

    24 And under the LAD, which I have.

 

    25                It so happens that the LAD and


 

 

                                                   180

 

 

     1 the State Constitutional claim have the same

 

     2 exact legal standard.  I don't get a double

 

     3 recovery.  And that -- so I put the two

 

     4 standards together.  So -- so I don't think

 

     5 there is a sound argument to say 10:6-2 is the

 

     6 exclusive vehicle for asserting a claim under

 

     7 the State Constitution because Constitution

 

     8 language isn't there.

 

     9               JUDGE CURRAN:  Mr. Bevere.

 

    10               MR. BEVERE:  Judge, I don't

 

    11 disagree that there -- that 10:6-2 is the

 

    12 exclusive statute to vindicate a Constitutional

 

    13 right.

 

    14               JUDGE CURRAN:  He is saying it's

 

    15 not the --

 

    16               MR. BEVERE:  No, no, I don't

 

    17 disagree that it's not.  Certainly, the

 

    18 Constitutional rights that you can vindicate

 

    19 under the LAD are Constitutional rights being

 

    20 vindicated under the LAD.  But the legislative

 

    21 history seems pretty clear that if you don't

 

    22 meet the standards of the LAD, then you go to

 

    23 10:6-2.  In other words, legislative history

 

    24 says we're going to address gaps that may exist

 

    25 with potential remedies under the LAD and under


 

 

                                                   181

 

 

     1 the statute giving a victim of a bias crime a

 

     2 civil cause of action.  And if you don't fall

 

     3 within those ends of the spectrum and you fall

 

     4 in the middle, then you go to 10:6-2.  And

 

     5 that's what the legislative history says.

 

     6                Otherwise, you know, what --

 

     7 whenever one didn't have a -- a -- a claim under

 

     8 the LAD, we would just apply the LAD, anyway.

 

     9 And that -- that can't be the law.  It just

 

    10 can't be the law.

 

    11                The legislature recognized that

 

    12 there was a problem.  And, you know, what do we

 

    13 do when someone wants to vindicate a

 

    14 Constitutional right that you can't do because

 

    15 you don't fall within the parameters of the LAD?

 

    16 We need a remedy for these people.  So we create

 

    17 10:6-2.  But -- but 10:6-2 would be superfluous,

 

    18 if we can just go right under the Constitution

 

    19 and bring the claim.

 

    20                10:6-2 sets forth the parameters

 

    21 for vindicating a Constitutional right when you

 

    22 don't fall within the LAD.

 

    23                So they were never different

 

    24 claims, Judge.  They were never different

 

    25 claims.  If they were different claims, yeah, I


 

 

                                                   182

 

 

     1 mean, there would be no need to amend the

 

     2 complaint.

 

     3               JUDGE CURRAN:  Well, that was --

 

     4 that's a separate issue in regard to amending

 

     5 the complaint because the LAD was out at that

 

     6 time.

 

     7               MR. BEVERE:  I understand.  I

 

     8 understand that, Judge.  But it -- but

 

     9 understand, when -- when I -- certainly, 10:6-2

 

    10 isn't going to say this is the exclusive remedy

 

    11 for vindicating a Civil Right because the LAD

 

    12 does vindicate Civil Rights.

 

    13                But what the legislative history

 

    14 says is if you don't meet the LAD, you go here.

 

    15 And that's what it says.  And -- and Peper was a

 

    16 different -- Peper did not apply the LAD.  Peper

 

    17 applied Title 7 standards.  They didn't apply

 

    18 the LAD.  They said you don't meet the LAD, you

 

    19 don't get the benefit of the LAD, we will give

 

    20 you Title 7.  Well, now New Jersey has a statute

 

    21 that says if you don't meet the LAD, this is

 

    22 what you prove.  That's our position, Judge.

 

    23               JUDGE CURRAN:  Mr. Mullin.

 

    24               MR. MULLIN:  Peper looked to Title

 

    25 7 as a model for how to try a discrimination


 

 

                                                   183

 

 

     1 case, which is what all the early LAD cases did.

 

     2 That's all Peper did.  It says how do we try a

 

     3 discrimination case?  They didn't apply Title 7

 

     4 to Federal law.  They looked to it as a model,

 

     5 the way all the early LAD cases did.

 

     6                And we have always had two causes

 

     7 of action in this case.  And now we have three.

 

     8 LAD, State Constitution and 10:6-2.  And it's

 

     9 just really simple what I'm saying.  The LAD

 

    10 standard is the standard that's used for the

 

    11 State Constitution.  It sounds as if counsel is

 

    12 almost arguing the only -- you only have two

 

    13 places to go if you are the victim of

 

    14 discrimination; you can sue under 10:6-2 or you

 

    15 can sue under the LAD.

 

    16                But what he seems to be saying is

 

    17 you can never sue directly under the State

 

    18 Constitution.  That's what counsel is saying.

 

    19 That proposition is demonstratively wrong

 

    20 because, otherwise, you couldn't have Peper V.

 

    21 Princeton.  It wouldn't exist.  It wouldn't be

 

    22 on the books.  Of course, you can still to this

 

    23 day sue directly under the State Constitution.

 

    24 And you can use the 10:6-2 vehicle, if you want

 

    25 to pick up some additional remedies.


 

 

                                                   184

 

 

     1               JUDGE CURRAN:  See, that's my

 

     2 concern, Mr. Bevere, that to accept your

 

     3 argument says you can't have a direct suit under

 

     4 the Constitution.

 

     5               MR. BEVERE:  I -- I think that

 

     6 after 10:6-2 there is direct suit for damages.

 

     7               JUDGE CURRAN:  Is there a case

 

     8 that says that?

 

     9               MR. BEVERE:  If you want to think

 

    10 that your -- that your school district isn't

 

    11 properly integrated and you want to bring an

 

    12 action for equitable relief directly under the

 

    13 Constitution, I don't think Robinson and those

 

    14 cases go out the window.  But I think after

 

    15 10:6-2, if you want damages for violation of a

 

    16 Constitutional right, you either go to the LAD

 

    17 or you go here.

 

    18                I don't think that there's -- you

 

    19 know, and -- and who's to say if you go directly

 

    20 under the Constitution, you're getting a Lehmann

 

    21 charge?  That's an LAD cause of action.  So I

 

    22 mean, I don't want to get there yet; but what

 

    23 I'm saying is -- is this statute and the

 

    24 legislative history of this statute make it

 

    25 clear.  I'm not saying that --


 

 

                                                   185

 

 

     1               MR. MULLIN:  Makes what -- can we

 

     2 say makes what clear?

 

     3               JUDGE CURRAN:  That there is no

 

     4 direct cause of action under the --

 

     5               MR. BEVERE:  No direct cause of

 

     6 action for damages.

 

     7               MR. MULLIN:  Under the State

 

     8 Constitution.

 

     9               MR. BEVERE:  Under the State

 

    10 Constitution and 10:6-2.  This says --

 

    11 otherwise -- otherwise, you know, Judge, why

 

    12 have the statute?  I mean, really, the statute

 

    13 is there because they wanted to create a cause

 

    14 of action for damages for rights under the

 

    15 Constitution when you don't fall within the LAD.

 

    16 And when you want to vindicate a Constitutional

 

    17 right that doesn't fall within the LAD, then

 

    18 this is the statute.

 

    19               JUDGE CURRAN:  Why wouldn't they

 

    20 have said that in plain English, considering

 

    21 this county's legislator, Assemblyman Jackman,

 

    22 was the one who wrote the plain English

 

    23 requirements?  Why wouldn't they just have said

 

    24 that?

 

    25               MR. BEVERE:  I -- Judge, I think


 

 

                                                   186

 

 

     1 they said it in the legislative history.  It's

 

     2 what they said.

 

     3               JUDGE CURRAN:  Said plain and

 

     4 simple, okay, if you think your Constitutional

 

     5 rights have been violated, you have two ways to

 

     6 go; we already have the LAD, and then the

 

     7 language that fills in there that says basically

 

     8 the fill-in, anything else comes here?  I -- I

 

     9 just don't --

 

    10               MR. BEVERE:  Judge.

 

    11               JUDGE CURRAN:  -- read it that

 

    12 way.

 

    13               MR. BEVERE:  Well, Judge, I can't

 

    14 help the way Your Honor -- I mean, Your Honor

 

    15 has the opinion.  And I'm just going to put on

 

    16 the record my position that it says, "This bill

 

    17 attempts to provide the citizens of New Jersey

 

    18 with a State remedy for deprivation of or

 

    19 interference with the Civil Rights of another.

 

    20 By providing this remedy the bill is intended to

 

    21 address potential gaps which may exist under

 

    22 remedies currently provided by New Jersey's Law

 

    23 Against Discrimination and the law authorizing a

 

    24 civil cause of action for bias crimes."  And

 

    25 I -- I'll stand on that.


 

 

                                                   187

 

 

     1               JUDGE CURRAN:  All right.  I'm

 

     2 going to deny your request, Mr. Bevere.  Again,

 

     3 it's too new for -- for any precedents to be of

 

     4 any interest to me other than the arguments

 

     5 Mr. Mullin gives in regard to Peper, which is

 

     6 really not all inclusive.  But I find here that

 

     7 I do not believe that the legislature intended,

 

     8 nor do I think that the statute -- statutory

 

     9 wording make clear that there is no direct cause

 

    10 of action under the State Constitution any

 

    11 longer.  Therefore, I am going to deny your

 

    12 request.

 

    13                As I said before in this -- this

 

    14 case, the Appellate Division and maybe the

 

    15 Supreme Court will work out whose interpretation

 

    16 is actually accurate; but I just don't see that

 

    17 statute as precluding, which I have to do.  I

 

    18 have to indicate the statute precluded you any

 

    19 direct cause of action under the Constitution,

 

    20 and I just find that it does not in my

 

    21 understanding.

 

    22               MR. MULLIN:  So again, Your Honor,

 

    23 page six, I would title it, "The LAD" or, "The

 

    24 New Jersey Law Against Discrimination and the

 

    25 New Jersey's Constitution."  That would be --


 

 

                                                   188

 

 

     1               JUDGE CURRAN:  Mr. Mullin, you

 

     2 have said that a few times.  I don't know any

 

     3 objection to that, but is there a thought that

 

     4 the jury is going to get a copy of this charge?

 

     5 Is that the --

 

     6               MR. MULLIN:  I am considering

 

     7 that.  I know the very new rules allow us, if --

 

     8 I don't remember whether it says both parties

 

     9 have to agree.  I just haven't checked it.  I

 

    10 really haven't made my mind up whether I want to

 

    11 send it in or not.

 

    12               JUDGE CURRAN:  My concern is

 

    13 always -- there are some judges, frankly, who

 

    14 give the charge --

 

    15               MR. MULLIN:  I know.  We have had

 

    16 that.

 

    17               JUDGE CURRAN:  -- in the

 

    18 beginning.  Personally, I think that is not a

 

    19 good thing to do because they just plain don't

 

    20 listen to what you are saying.  Not that we are

 

    21 the most interesting act in Town, but I do try

 

    22 to look at them and I do try to -- sometimes I

 

    23 will say on my own, "I am going to repeat that,"

 

    24 if I think that my inflection was wrong.

 

    25               MR. MULLIN:  I think that's a very


 

 

                                                   189

 

 

     1 good point, and I --

 

     2               JUDGE CURRAN:  But my concern is

 

     3 this is a complicated case.  So we will get to

 

     4 that tomorrow.

 

     5               MR. MULLIN:  Yeah.

 

     6               JUDGE CURRAN:  I just want to make

 

     7 that clear.

 

     8               MR. MULLIN:  I think that point is

 

     9 very well taken.

 

    10               JUDGE CURRAN:  Okay.  So let's get

 

    11 back, then, to page one, so that, you know,

 

    12 whoever is going to be making the changes can

 

    13 make them and there is an understanding.

 

    14                Is there an understanding as to

 

    15 how the burden of proof section just for the

 

    16 plaintiff is going to be changed?

 

    17               MR. MULLIN:  Yes.  Well, it should

 

    18 now say -- point number one under "A" on page

 

    19 one should read, "That defendant the Town of

 

    20 Secaucus violated their rights under the" -- we

 

    21 probably should spell it out -- "the New Jersey

 

    22 Law Against Discrimination" --

 

    23               JUDGE CURRAN:  Right.

 

    24               MR. MULLIN:  -- "and the

 

    25 Constitution of the State of New Jersey."  And


 

 

                                                   190

 

 

     1 point number two should be I have to prove the

 

     2 10:6-2, that -- "That the defendant, Town of

 

     3 Secaucus, violated their rights under the New

 

     4 Jersey" -- what is it called -- "the New Jersey

 

     5 Civil Rights Act" --

 

     6               MR. BEVERE:  Civil Rights Act.

 

     7               JUDGE CURRAN:  Yes.

 

     8               MR. MULLIN:  -- "10:6-2, et seq."

 

     9 or -- it's just 10:6-2.

 

    10               MR. BEVERE:  It's 10:6-2.

 

    11               MR. MULLIN:  Number two that's

 

    12 there about damages would become number three.

 

    13               JUDGE CURRAN:  Right.  Then we

 

    14 need to go to the Town of Secaucus.

 

    15               MR. MULLIN:  Right.

 

    16               JUDGE CURRAN:  I don't have any

 

    17 specific wording from the Town of Secaucus.

 

    18 What is it that you wish to say?  Because you

 

    19 make the exact correct point, Mr. Paris, what we

 

    20 do here is we say this is what the plaintiffs

 

    21 say, then we say this is what the defendants

 

    22 say.

 

    23               MR. PARIS:  Well, jumping ahead to

 

    24 page six, as Mr. Mullin has suggested that the

 

    25 charge -- you know, and I have read the charge


 

 

                                                   191

 

 

     1 from page six on.  It appears that Monell is not

 

     2 mentioned anywhere within the charge.

 

     3               JUDGE CURRAN:  No, I did note that

 

     4 myself.

 

     5               MR. PARIS:  The issue of color of

 

     6 law is nowhere in the charge.

 

     7               JUDGE CURRAN:  Right, I know that.

 

     8               MR. PARIS:  I think the Court has

 

     9 to make a determination as to how a LAD -- an

 

    10 LAD charge, which is only, as far as we're

 

    11 aware, has ever been charged in the State of New

 

    12 Jersey in employment settings is going to be

 

    13 changed to the setting that Your Honor has --

 

    14 has established and whether or not there is now

 

    15 going to be a 1983 charge on top of it.

 

    16                We have given you a 1983 charge.

 

    17 I don't think the Court had changed its ruling

 

    18 with regard to the applicability of Monell.  And

 

    19 you know, I would presume that what we're going

 

    20 to have to add, once we get that clarified, are

 

    21 defenses that are raised both under Monell and

 

    22 both under the LAD, that it has adequately

 

    23 trained, that the people who were acting --

 

    24 pardon me?

 

    25               MR. BEVERE:  Those aren't -- those


 

 

                                                   192

 

 

     1 aren't defenses; those have to be proven by the

 

     2 plaintiff.

 

     3               MR. PARIS:  Okay.  Well --

 

     4               MR. MULLIN:  Well, Your Honor,

 

     5 we're looking at the LAD charge right now.  I

 

     6 understand that I lost the battle on 10:6-2 and

 

     7 there is going to be a Monell charge.

 

     8               JUDGE CURRAN:  But I don't have a

 

     9 Monell charge.  What I need is the Monell

 

    10 charge, which I thought we were going to get

 

    11 today.  We need the Monell charge that the

 

    12 defendants are proposing.

 

    13               MR. BEVERE:  I gave that, Judge.

 

    14               JUDGE CURRAN:  Where?

 

    15               MR. BEVERE:  I handed that in.

 

    16               MR. MULLIN:  That's here.

 

    17               JUDGE CURRAN:  Where is it?

 

    18               MR. MULLIN:  That's the

 

    19 unmentioned -- has a date on it.  Defendants

 

    20 gave it to you May 3rd.

 

    21               MR. BEVERE:  That's our Monell

 

    22 charge.

 

    23               MR. MULLIN:  Their Monell charge

 

    24 is in there.

 

    25               JUDGE CURRAN:  Which page?


 

 

                                                   193

 

 

     1               MR. MULLIN:  That's --

 

     2               JUDGE CURRAN:  Oh, okay.  Okay.

 

     3 Just -- that's all you're looking for, then?

 

     4               MR. MULLIN:  The pages were not

 

     5 numbered, but it's page six of their charge.

 

     6 That is a separate topic.  I understand they are

 

     7 going to have a whole color of State law and

 

     8 Monell charge in connection with 10:6-2.  Right

 

     9 now I thought, Your Honor, we are just going

 

    10 through my charge, which is an LAD/State

 

    11 constitutional charge.  Your Honor has ruled --

 

    12               JUDGE CURRAN:  Right, but all we

 

    13 need is -- when we do burden of proof, we just

 

    14 need that -- we're not -- I'm not talking about

 

    15 their charge.  I am talking about the defendant,

 

    16 the Town of Secaucus has the burden of

 

    17 establishing any affirmative defenses.

 

    18               MR. MULLIN:  Affirmative defenses.

 

    19               JUDGE CURRAN:  Right.  But they

 

    20 may want to -- you know, in easy cases sometimes

 

    21 all the defense wants is, "The defense denies

 

    22 all allegations by the plaintiff."  Sometimes

 

    23 they want something more specific.  We're

 

    24 talking a sentence or two; I'm not talking about

 

    25 their charge.


 

 

                                                   194

 

 

     1               MR. BEVERE:  Yeah, I would say

 

     2 that we would take a sentence that says, "The

 

     3 defendant Town of Secaucus denies that the" --

 

     4 "that it violated the Plaintiffs' Constitutional

 

     5 rights."

 

     6               MR. MULLIN:  Rights under the LAD

 

     7 and rights under 10:6-2.

 

     8               MR. BEVERE:  Yeah, just kind of

 

     9 mirror it and say, "The defendant denies that it

 

    10 is liable for any damages."

 

    11               JUDGE CURRAN:  Any damages?

 

    12               MR. BEVERE:  Any damages.

 

    13               JUDGE CURRAN:  Okay.  Mr. Mullin,

 

    14 are you going to make those changes, just so

 

    15 that I -- with all due respect, I don't have the

 

    16 physical ability to do it tonight, only because

 

    17 with my law clerk out and whatever.  But --

 

    18               MR. MULLIN:  Sure.

 

    19               JUDGE CURRAN:  -- I have it all

 

    20 written down.

 

    21               MR. MULLIN:  It's not a problem.

 

    22 Tracey will send me this e-mail tonight, and

 

    23 I'll have it all prepared tomorrow.

 

    24               JUDGE CURRAN:  We can make

 

    25 whatever copies you need tomorrow -- that is not


 

 

                                                   195

 

 

     1 a problem -- if that gets to be an issue.  Okay.

 

     2 So now we have page one.  Any problem with the

 

     3 rest of page one?

 

     4               MR. BEVERE:  Judge, I don't

 

     5 think -- I don't think we need a distinction

 

     6 between civil and criminal.  I think just a

 

     7 civil burden of proof should be charged.

 

     8               MR. MULLIN:  I beg to differ, Your

 

     9 Honor, because in this trial there has been a

 

    10 bit of blur of the civil standard and the

 

    11 criminal standard.  I don't fault anybody for

 

    12 that.  It had to come into this case.

 

    13                There was a pending criminal

 

    14 investigation.  You have heard on my

 

    15 cross-examination, the attempt to make a

 

    16 distinction for the jury between a civil

 

    17 standard and a criminal standard.  So it's only

 

    18 because this is a unique case where we have

 

    19 criminal investigation that I just wanted to

 

    20 make that point again for the jury to avoid

 

    21 juror confusion.  That's -- normally I won't ask

 

    22 for it, but that's why I did it.

 

    23               JUDGE CURRAN:  Frankly, Mr.

 

    24 Bevere, when I read this, I thought that it was

 

    25 being overly fair to the defense, that it was


 

 

                                                   196

 

 

     1 not something, frankly, that the plaintiff had

 

     2 to do.  It seems to me it makes it clearer as

 

     3 to -- I -- I understand, you know, your view of,

 

     4 no, it basically says the plaintiffs have a

 

     5 lower standard of proof and -- burden of proof.

 

     6 And that's true; but it just seemed to me that

 

     7 it made it clear there are no criminal charges

 

     8 in this case, basically.  You know, because

 

     9 juries still tend to use words like -- in civil

 

    10 cases, use words like "guilty or not."  Well, in

 

    11 this case that's not what they should consider.

 

    12               MR. BEVERE:  Well, Judge --

 

    13               JUDGE CURRAN:  If you -- if you

 

    14 feel that it should go out, I will listen, you

 

    15 know, to the argument.

 

    16               MR. BEVERE:  Yeah, Judge, I think

 

    17 that if you just tell the jury what the standard

 

    18 of proof is, that's -- they'll follow it, and

 

    19 that should be sufficient.

 

    20               JUDGE CURRAN:  All right.  I'm

 

    21 going to then strike the last paragraph and just

 

    22 go directly to, "The plaintiffs must prove."

 

    23               MR. MULLIN:  Okay.  My objections

 

    24 are noted for the record.

 

    25               JUDGE CURRAN:  Yes, it is noted


 

 

                                                   197

 

 

     1 for the record.

 

     2               MR. MULLIN:  So now we are on page

 

     3 two.

 

     4               JUDGE CURRAN:  Now we are on page

 

     5 two.  Any objections to page two?

 

     6               MR. BEVERE:  I'm assuming that the

 

     7 first sentence is out with the previous

 

     8 paragraph.

 

     9               JUDGE CURRAN:  Yes, yes.

 

    10               MR. BEVERE:  Otherwise, I have no

 

    11 objections.

 

    12               JUDGE CURRAN:  I go down to where,

 

    13 "The plaintiffs must prove."

 

    14               MR. BEVERE:  I have no objections

 

    15 to the rest of, "at that" --

 

    16               JUDGE CURRAN:  How about three?

 

    17               MR. BEVERE:  No objection to

 

    18 three.

 

    19               JUDGE CURRAN:  Four?

 

    20               MR. BEVERE:  No objection to four.

 

    21               JUDGE CURRAN:  Five?

 

    22               MR. BEVERE:  No objection to five.

 

    23               JUDGE CURRAN:  Six?

 

    24               MR. BEVERE:  Yeah, what I want --

 

    25 what I put down, Judge, was going down to the --


 

 

                                                   198

 

 

     1 it says, "Plaintiffs, Pete deVries and Tim

 

     2 Carter, assert a claim during the time they

 

     3 lived in the Town of Secaucus they were subject

 

     4 to a hostile environment."

 

     5               MR. MULLIN:  Typo there.  The word

 

     6 "harassment" shouldn't appear at the end of that

 

     7 sentence.  Should end at "sexual orientation."

 

     8               MR. BEVERE:  Yeah, because of

 

     9 their sexual orientation.

 

    10               JUDGE CURRAN:  I had already

 

    11 crossed that out, thank you.

 

    12               MR. BEVERE:  Then says,

 

    13 "Plaintiffs claim that members of the Secaucus

 

    14 Fire Department subjected Plaintiffs to this

 

    15 discriminatory harassment in or near their

 

    16 secaucus residence and that this harassment

 

    17 prevented the enjoyment and use of their

 

    18 residence in Secaucus."

 

    19                I think it should end there,

 

    20 Judge, because, based upon Your Honor's ruling,

 

    21 what you said was it was a hostile environment

 

    22 in the neighborhood.  And therefore, I don't

 

    23 think we should -- we should say, "and drove

 

    24 them from all the Town of Secaucus and all of

 

    25 its public accommodation."  I think that goes


 

 

                                                   199

 

 

     1 beyond Your Honor's ruling.

 

     2               MR. MULLIN:  I don't think it

 

     3 does.  I think --

 

     4               JUDGE CURRAN:  Well, part of my

 

     5 ruling -- I'm sorry, Mr. Mullin.

 

     6               MR. MULLIN:  That's all right.

 

     7               JUDGE CURRAN:  Part of my ruling

 

     8 was if a police station under the case none of

 

     9 us can pronounce is a place of public

 

    10 accommodation, surely, a Fire Department, even

 

    11 though it's volunteer and the Fire Department

 

    12 parking lot, arguably is a public

 

    13 accommodation --

 

    14               MR. MULLIN:  Your Honor, my

 

    15 argument that I -- I thought Your Honor accepted

 

    16 was that --

 

    17               JUDGE CURRAN:  Was in part right.

 

    18               MR. MULLIN:  -- created hostile

 

    19 environmental at or near the residence.

 

    20               JUDGE CURRAN:  Living, right.

 

    21               MR. MULLIN:  And the effect of

 

    22 that was to drive them from the Town.  Now, I

 

    23 don't think I need to say all of its public

 

    24 accommodations.  I can take out all of, "drove

 

    25 them from its public accommodations."  It's not


 

 

                                                   200

 

 

     1 that they made the whole Town everywhere on

 

     2 every street and sidewalk hogs.  Still, it's

 

     3 that the effect of it was to drive them out of

 

     4 the Town and the use of its accommodations.  And

 

     5 I thought Your Honor accepted that argument.

 

     6               JUDGE CURRAN:  I did in part

 

     7 because that was -- that was the first argument

 

     8 when we went -- that was the stronger argument

 

     9 as I remembered it that was made the day of the

 

    10 summary judgment motion back in November.  I

 

    11 think the wording --

 

    12               MR. BEVERE:  Judge, Judge, I --

 

    13               JUDGE CURRAN:  We could make it,

 

    14 "The use of their residence in Secaucus and the

 

    15 Town's public accommodations."  I think "drove"

 

    16 is -- is part of the problem.

 

    17               MR. MULLIN:  Okay.  I -- I don't

 

    18 have a problem with that formulation.  I don't

 

    19 want to be precluded from arguing this in a

 

    20 closing argument.  I think argument is one

 

    21 thing, but I understand -- I don't have a

 

    22 problem with that modification of instruction.

 

    23               JUDGE CURRAN:  All right.  So it

 

    24 will read, then, "use of their residence in

 

    25 Secaucus and" --


 

 

                                                   201

 

 

     1               MR. MULLIN:  And Secaucus' --

 

     2               JUDGE CURRAN:  -- "public

 

     3 accommodations."

 

     4               MR. MULLIN:  -- public

 

     5 accommodations.

 

     6               JUDGE CURRAN:  Mr. Bevere, does

 

     7 that address your objection?

 

     8               MR. BEVERE:  Well, you'll note my

 

     9 objection for the record.

 

    10               JUDGE CURRAN:  I will.  To the

 

    11 underlying decision, no question about it.

 

    12 Anything else on that page?

 

    13               MR. BEVERE:  No, Your Honor -- oh,

 

    14 yeah, I -- I don't -- I don't think that we

 

    15 should use the word "polluted."  "Defendant

 

    16 denies these claims contended to the environment

 

    17 was not a hostile environment."

 

    18                There was -- let me just see

 

    19 something else, Judge.  There was the word

 

    20 "polluted" someplace else, which I -- I wanted

 

    21 to not -- Defendant denies these -- the

 

    22 environmental -- well, I -- I think if you say

 

    23 that in light of Your Honor's previous ruling

 

    24 was with regard to the previous sentence,

 

    25 Defendant denies that --


 

 

                                                   202

 

 

     1               JUDGE CURRAN:  I think if you take

 

     2 out -- after "environment," if you take out

 

     3 everything down to, "and that Town," it makes it

 

     4 cleaner.

 

     5               MR. MULLIN:  I have no objection

 

     6 to that.

 

     7               JUDGE CURRAN:  Okay.

 

     8               MR. BEVERE:  Denies these claims

 

     9 and contends that the Town --

 

    10               JUDGE CURRAN:  Took appropriate

 

    11 steps to prevented and/or stop and/or remediate

 

    12 such harassment and discrimination.  That seems

 

    13 to me a fair outline of what the Town's position

 

    14 is.  Any objection to that?

 

    15               MR. BEVERE:  And -- and instead

 

    16 of -- Defendant denies these claims and contends

 

    17 that the Town took appropriate steps to prevent

 

    18 and/or stop and/or remediate any harassment and

 

    19 discrimination.

 

    20               JUDGE CURRAN:  Thank you.

 

    21               MR. BEVERE:  Because I think if

 

    22 you put "such," I'm admitting that there was.

 

    23               JUDGE CURRAN:  Exactly.

 

    24               MR. MULLIN:  No objection.

 

    25               JUDGE CURRAN:  I think that's


 

 

                                                   203

 

 

     1 fair.  Okay.  Page seven.

 

     2               MR. BEVERE:  Okay.  Page seven --

 

     3 oh, Judge, with regard to just at the bottom of

 

     4 page six, the -- I -- I understand why this is

 

     5 here.  When Mr. Mullin prepared the charge there

 

     6 was Count 4 and there was Count 9.  I mean --

 

     7               MR. MULLIN:  What are you looking

 

     8 at?

 

     9               MR. BEVERE:  Well, I'm looking at

 

    10 page six, the New Jersey Constitutional

 

    11 provision.  Your Honor, I'm assuming that my --

 

    12 my objection, obviously, having been noted to

 

    13 the charge in Article I, paragraph one through

 

    14 this -- this charge on the LAD, as opposed to

 

    15 Monell.  And if that's -- I mean, as long as

 

    16 that's preserved for the record, in light of

 

    17 Your Honor's ruling that this count will include

 

    18 the LAD and, I guess, what we'll term the

 

    19 "direct claim under the Constitution" --

 

    20               JUDGE CURRAN:  Oh, your objections

 

    21 to which are totally preserved for the record.

 

    22               MR. PARIS:  You see, I think

 

    23 what's happening is by combining the two,

 

    24 it's -- in other words, the moment -- there was

 

    25 going to come a point when we started looking at


 

 

                                                   204

 

 

     1 number six standing on its own.  I don't think

 

     2 it can stand on its own now without also looking

 

     3 at the proposed 1983 charge.  So should it go

 

     4 from stopping to remediate any harassment and

 

     5 discrimination right to the New Jersey Supreme

 

     6 Court has interpreted the State Constitution

 

     7 and -- and basically, then, you're charging LAD

 

     8 and hold the State Constitution portion to the

 

     9 183 charge.

 

    10               MR. MULLIN:  Well, I think that it

 

    11 shows --

 

    12               MR. PARIS:  The question is are we

 

    13 going -- if we're going to get a 1983 charge,

 

    14 then the Constitutional language should go into

 

    15 that and the LAD language should go here.

 

    16               MR. MULLIN:  I think Your Honor

 

    17 has already ruled on this in my favor.  You have

 

    18 just ruled on this.

 

    19               MR. PARIS:  But I didn't think --

 

    20 I didn't think so.

 

    21               MR. MULLIN:  We are going to have

 

    22 to visit the issue again and again and again.

 

    23 The Court has ruled against your position and in

 

    24 favor of mine that you can have combined LAD,

 

    25 State Constitutional claim.  And that's what


 

 

                                                   205

 

 

     1 this does.  I understand you preserved your

 

     2 issue in that regard, but we don't have to keep

 

     3 rehashing this same issue over and over.

 

     4 Counsel will have their Monell charge, and they

 

     5 can cite -- there is a section where they will

 

     6 have to refer also --

 

     7               JUDGE CURRAN:  Right.

 

     8               MR. MULLIN:  -- to the State

 

     9 Constitution.  We discussed that once before.

 

    10 And there is no reason why it can't be in both

 

    11 places.  But we don't have to suddenly jump.

 

    12               JUDGE CURRAN:  I just don't find

 

    13 that it has to be mutually exclusive, unless --

 

    14               MR. PARIS:  We have been heard.

 

    15               JUDGE CURRAN:  I'll note it on the

 

    16 record at this point.

 

    17                Page seven.

 

    18               MR. BEVERE:  With regard to page

 

    19 seven, I would say the third paragraph, Judge --

 

    20               JUDGE CURRAN:  Uh-huh.

 

    21               MR. BEVERE:  -- "Sexual

 

    22 orientation, it creates a hostile environment,"

 

    23 I think we should take out, "or polluted."

 

    24               MR. MULLIN:  I don't mind taking

 

    25 it out.  I just want to note for the


 

 

                                                   206

 

 

     1 jurisprudence is filled with that word.

 

     2 "Polluted" is used repeatedly throughout

 

     3 reported cases.  So I -- I don't mind taking it

 

     4 out here, but I don't think it necessarily shows

 

     5 up.  I think we should probably have some

 

     6 argument on it.  But to move things along, I

 

     7 don't have an objection.

 

     8               JUDGE CURRAN:  Okay.  Anything

 

     9 else on page seven?

 

    10               MR. BEVERE:  Once again, Judge,

 

    11 I'm going to -- just so that my objection is

 

    12 clear for the record, substantially limits a

 

    13 person's peaceful and enjoyment use of their

 

    14 residence or prevents or substantially limits a

 

    15 person's peaceful enjoyment and use of a Town or

 

    16 its public accommodations, including its

 

    17 streets, sidewalks, library, City Hall, and

 

    18 businesses open to the public.

 

    19               JUDGE CURRAN:  Okay.  I apologize.

 

    20 I had already myself changed it to, "peaceful

 

    21 and enjoyment and use of a Town's public

 

    22 accommodations," period, paragraph.  Because we

 

    23 have some cases that say schools are public

 

    24 accommodations, some that say libraries, I think

 

    25 it's just cleaner to say, "of its public


 

 

                                                   207

 

 

     1 accommodations."

 

     2               MR. MULLIN:  You're not deleting,

 

     3 "use of their residence" because that's -- there

 

     4 are two pieces to the LAD?  We got the use of

 

     5 real property --

 

     6               JUDGE CURRAN:  No, no, I am just

 

     7 talking about.

 

     8               MR. MULLIN:  You are taking out

 

     9 all the examples?

 

    10               JUDGE CURRAN:  Yes.

 

    11               MR. MULLIN:  I don't object to

 

    12 that.

 

    13               JUDGE CURRAN:  Peaceful and

 

    14 enjoyment of a Town's, apostrophe S, public

 

    15 accommodations.

 

    16               MR. MULLIN:  No objection.

 

    17               JUDGE CURRAN:  Because I think

 

    18 that's a fair interpretation of the case law so

 

    19 far because we don't have any cases that say a

 

    20 prior house is --

 

    21               MR. BEVERE:  What is the second

 

    22 sentence you are going to read?

 

    23               JUDGE CURRAN:  The second sentence

 

    24 is going to read exactly as it is right now,

 

    25 except line 4 will read, "Peaceful enjoyment and


 

 

                                                   208

 

 

     1 use of a Town's public accommodations," period.

 

     2               MR. BEVERE:  Okay.

 

     3               JUDGE CURRAN:  Page eight.

 

     4               MR. BEVERE:  I believe accurately

 

     5 recites the statute, Judge.

 

     6               JUDGE CURRAN:  Let me ask you

 

     7 this.  I was trying to do this last night, and I

 

     8 will tell you I didn't come up with any answers.

 

     9 Is there any way that we can accurately explain

 

    10 this to them without reading all of the --

 

    11               MR. MULLIN:  All the stuff?

 

    12               JUDGE CURRAN:  Yeah.

 

    13               MR. MULLIN:  I think if you just

 

    14 went to my -- I'm not going to commit to this

 

    15 immediately, but if you just -- just eliminated

 

    16 the LAD definition and went to my paragraph

 

    17 where you charge and instruct the jury on that,

 

    18 "Under the definition and the statute the

 

    19 following are"; and we can avoid the extremely

 

    20 boring, mind-numbing definition of the word

 

    21 "public accommodation."  I --

 

    22               MR. BEVERE:  Judge, I would

 

    23 actually ask that you take out the definition of

 

    24 public accommodation.

 

    25               JUDGE CURRAN:  Oh, thank you, Mr.


 

 

                                                   209

 

 

     1 Bevere.

 

     2               MR. BEVERE:  Because --

 

     3               JUDGE CURRAN:  I owe you one.  I

 

     4 think it will totally confuse the jury.

 

     5               MR. BEVERE:  No, Judge, because,

 

     6 honestly, I mean, there is -- there is --

 

     7 because you are talking about in here privately

 

     8 owned property --

 

     9               JUDGE CURRAN:  Exactly.

 

    10               MR. BEVERE:  -- which has nothing

 

    11 to do with this.

 

    12               JUDGE CURRAN:  Exactly.

 

    13               MR. MULLIN:  So we will --

 

    14               JUDGE CURRAN:  We are going to go

 

    15 to, "and declared to be a Civil Right."

 

    16               MR. MULLIN:  Right.

 

    17               JUDGE CURRAN:  To page nine, "I

 

    18 hereby charge."  Now, do you want any changes on

 

    19 page nine?

 

    20               MR. BEVERE:  Well, Judge, you

 

    21 know, public streets, sidewalks, facilities open

 

    22 to the public, public restaurants and stores.

 

    23               MR. MULLIN:  I think this is

 

    24 important because all these things were

 

    25 mentioned in this case.  And I think since


 

 

                                                   210

 

 

     1 we're --

 

     2               JUDGE CURRAN:  See, I thought that

 

     3 covered it fairly well because they basically

 

     4 were mentioned.  I was, you know, thinking about

 

     5 some of the others, but I think this explains

 

     6 enough to them about what are places of public

 

     7 accommodations.  I don't think, for example,

 

     8 that we have to start with what they, you know,

 

     9 started with -- well, what they did early on,

 

    10 things like hotels or motels, because it is not

 

    11 an issue here.  And there was never even an

 

    12 issue that they tried to move out of their house

 

    13 and tried to check into a hotel or something and

 

    14 had a problem.

 

    15                So this seems to me to be a good

 

    16 explanation of what we need.  But if you want to

 

    17 add something or have an argument to take

 

    18 something out.

 

    19               MR. BEVERE:  Well, I mean -- I

 

    20 mean, if you look -- as well as public

 

    21 restaurants and stores, I shall -- I think you

 

    22 are giving the jury the impression we can be

 

    23 liable for them not being able to go into a

 

    24 store.

 

    25               JUDGE CURRAN:  Oh, I see.


 

 

                                                   211

 

 

     1               MR. MULLIN:  But that's true if

 

     2 the Town of Secaucus did something that

 

     3 prevented gay people from going into a public --

 

     4 a public store; that would be a violation of the

 

     5 act.

 

     6               JUDGE CURRAN:  Yeah, but that's

 

     7 not here.  I mean, that is a real, real, real,

 

     8 real stretch of the hostile living environment.

 

     9 Technically, they couldn't shop there; they

 

    10 couldn't go to the doctors.

 

    11               MR. MULLIN:  They couldn't do

 

    12 anything there.  They were afraid to go into

 

    13 that Town.  They weren't able to use anything in

 

    14 that Town after a while, not doctors, not

 

    15 dentists, not stores, not restaurants, not

 

    16 streets and sidewalks.  This is what the case is

 

    17 about.  The pharmacy, for example, is a store

 

    18 they specifically testified about.

 

    19               JUDGE CURRAN:  I got it.  But

 

    20 my -- the threshold question I have here is we

 

    21 don't say that a firehouse or firehouse and its

 

    22 area.

 

    23               MR. MULLIN:  Yes, that should be

 

    24 here, of course.

 

    25               JUDGE CURRAN:  Pardon me?


 

 

                                                   212

 

 

     1               MR. MULLIN:  That should of course

 

     2 be here.  My omission.

 

     3               JUDGE CURRAN:  I think it has to

 

     4 be.  Right or wrong, that's my finding.  And I

 

     5 have to tell that.  And I think they have to

 

     6 understand that; otherwise, they would question,

 

     7 A, whether or not they were supposed to decide

 

     8 that, which they're not, and, B, what they

 

     9 should do.

 

    10               MR. MULLIN:  Firehouse and its --

 

    11 and its parking lot -- "firehouse and vicinity"

 

    12 would be fine too.

 

    13               MR. BEVERE:  But, Judge, is it

 

    14 Your Honor's ruling that the firehouse is a

 

    15 place of public accommodation?

 

    16               JUDGE CURRAN:  Yep.

 

    17               MR. BEVERE:  Was that Your Honor's

 

    18 ruling?

 

    19               MR. MULLIN:  If a police station

 

    20 is, a firehouse is.

 

    21               MR. PARIS:  It's a little bit

 

    22 different.  In a police station you have a

 

    23 reason to go there, if you were going to report

 

    24 a crime.  Why would you go into a firehouse?

 

    25 Why would you go into a firehouse parking lot


 

 

                                                   213

 

 

     1 that says parking is for firemen?

 

     2               JUDGE CURRAN:  Well, one of the

 

     3 things that they had to do is walk across the

 

     4 firehouse parking lot.  Didn't they say --

 

     5 didn't they say they had to walk across on his

 

     6 way home from work.

 

     7               MR. MULLIN:  Not only that.

 

     8               MR. PARIS:  Sidewalks.

 

     9               JUDGE CURRAN:  Sidewalk?  Okay.

 

    10               MR. MULLIN:  He was in the

 

    11 library --

 

    12               JUDGE CURRAN:  And my concern is

 

    13 here is that the firehouse and the activities of

 

    14 the firehouse, including the social activities

 

    15 of the firehouse, were all public

 

    16 accommodations.  They were very similar to

 

    17 police stations.

 

    18                And I mean, frankly, to use that

 

    19 example, yeah, you do have to go to a public --

 

    20 to a police station to report a crime; but, in

 

    21 fact, in the case we can't pronounce it wasn't a

 

    22 matter of the people were going to report a

 

    23 crime.  They were brought there by the police on

 

    24 official business.  So they weren't using it to

 

    25 report a crime; they were there unwillingly.


 

 

                                                   214

 

 

     1 And I guess theoretically also an individual

 

     2 could go up to a fire house and -- and ask for

 

     3 things like CPR help.  There have been stories

 

     4 like that, that kind of thing.

 

     5                I think the nature of the kinds

 

     6 of service, the tax dollars being used, the

 

     7 holding out of the individuals as

 

     8 representatives of the community, as well as the

 

     9 building, itself, all goes to what is a public

 

    10 accommodation.  So I'll note the objection, but

 

    11 I'm going to add --

 

    12               MR. BEVERE:  Can we just have the

 

    13 sentence, Judge, so I can mark it properly.

 

    14               JUDGE CURRAN:  The municipal

 

    15 building, the firehouses and vicinity.

 

    16               MR. BEVERE:  Judge, I'm sorry, I

 

    17 hate to be a pain.  If we can start from the

 

    18 beginning of the paragraph, so I have it right.

 

    19               JUDGE CURRAN:  Well, I will start

 

    20 with line 2.  "Sidewalks and facilities open to

 

    21 the public, like the Town library, the municipal

 

    22 building, firehouses and the vicinities" -- "and

 

    23 vicinity, police stations, as well as" -- and

 

    24 then I didn't make any changes beyond that.

 

    25               MR. BEVERE:  Okay.


 

 

                                                   215

 

 

     1               JUDGE CURRAN:  Okay.

 

     2               MR. BEVERE:  You will note our

 

     3 objection?

 

     4               JUDGE CURRAN:  Your objection

 

     5 continues to be noted, absolutely.

 

     6                Anything else in the rest of that

 

     7 page?

 

     8               MR. BEVERE:  No, Your Honor, not

 

     9 in light of Your Honor's ruling.

 

    10               JUDGE CURRAN:  Page ten.

 

    11               MR. BEVERE:  Page ten, Your Honor,

 

    12 I just object to, "I hereby charge and instruct

 

    13 you that the house."

 

    14               JUDGE CURRAN:  Oh, I have to tell

 

    15 you -- honestly, why do you object to that?  I

 

    16 usually don't say things like, "hereby"; but I

 

    17 would tend to use -- that would be the only way

 

    18 I will, you know, change from the charge.  But I

 

    19 would say things like, you know, "I'm explaining

 

    20 to you now" or, "It's important that you

 

    21 understand that," that kind of thing.  I

 

    22 virtually never say -- I don't think I have ever

 

    23 said, "I hereby instruct you."

 

    24               MS. SMITH:  Do you want us to make

 

    25 that change, Your Honor --


 

 

                                                   216

 

 

     1               JUDGE CURRAN:  No, no.

 

     2               MS. SMITH:  -- or you'll just --

 

     3               JUDGE CURRAN:  Yeah.

 

     4               MS. SMITH:  Okay.

 

     5               JUDGE CURRAN:  But you object to

 

     6 the phrase, "I hereby charge and instruct."  I

 

     7 mean, technically, the phrase is right.

 

     8               MR. BEVERE:  Your Honor.

 

     9               JUDGE CURRAN:  You want me just to

 

    10 start with --

 

    11               MR. BEVERE:  What would Your Honor

 

    12 propose to say?  I guess I want to hear that.

 

    13               JUDGE CURRAN:  What I would

 

    14 normally say there is something like, "It's

 

    15 important that you understand" or, "You should

 

    16 understand that the house Peter deVries and

 

    17 Timothy Carter rented"; and I'd use the rest of

 

    18 the whole sentence.  I just wouldn't say, "I

 

    19 hereby charge and instruct."  I can start with

 

    20 the house, if that makes it easier.

 

    21               MR. BEVERE:  The house was real

 

    22 property -- yeah, I think Your Honor I would

 

    23 prefer that, thank you.

 

    24               JUDGE CURRAN:  Okay.  I'll take

 

    25 out that whole first phrase there, then.  And


 

 

                                                   217

 

 

     1 we'll start on there.  We would make that

 

     2 change, thank you.

 

     3               MR. MULLIN:  Okay, Judge.

 

     4               JUDGE CURRAN:  Anything else on

 

     5 that page?

 

     6               MR. BEVERE:  Judge, on paragraph

 

     7 third, "If you determine the conduct does

 

     8 constitute unlawful sexual orientation

 

     9 harassment, you must then determine whether

 

    10 Defendant" -- should be, "Defendant Town of

 

    11 Secaucus" -- "should be held responsible."  I

 

    12 would say, "for the conduct."

 

    13               JUDGE CURRAN:  No objection?

 

    14               MR. MULLIN:  No objection.

 

    15               JUDGE CURRAN:  Thank you.  Eleven.

 

    16               MR. BEVERE:  Well, obviously,

 

    17 first paragraph, where you state,

 

    18 "Constitution," I'm assuming, in light of Your

 

    19 Honor's ruling from which my objection is

 

    20 preserved for the record, it has to be, "State

 

    21 Constitution" blah, blah, blah, "LAD."

 

    22               MR. MULLIN:  It does have to be --

 

    23 wherever I said, "State Constitution," it has to

 

    24 be, "State Constitution and LAD."

 

    25               MR. BEVERE:  I assume Mr. Mullin


 

 

                                                   218

 

 

     1 will not do, "blah, blah, blah LAD."

 

     2               MR. MULLIN:  Wherever we have

 

     3 that, it should be both.

 

     4               MR. BEVERE:  Okay.

 

     5               MR. MULLIN:  I will have to do a

 

     6 global check on that.

 

     7               MR. BEVERE:  Nothing else on page

 

     8 11.

 

     9               JUDGE CURRAN:  Page 12.

 

    10               MR. BEVERE:  I believe that -- let

 

    11 me just compare it against my model, which I

 

    12 did.

 

    13               MS. SMITH:  Excuse me, Your Honor.

 

    14 Just because we're making such headway, if it's

 

    15 okay with Your Honor, I'm going to go home with

 

    16 John; and Neil can meet us later.  And we're

 

    17 making a lot of headway; I certainly don't want

 

    18 to interrupt it.

 

    19               MR. BEVERE:  No, we want Neil to

 

    20 have to go to the party.

 

    21               MR. MULLIN:  I will go there, but

 

    22 just a little later.

 

    23               MR. BEVERE:  He wants to be there

 

    24 when it starts.

 

    25               MR. MULLIN:  I will go there and


 

 

                                                   219

 

 

     1 collect my beer, but --

 

     2               JUDGE CURRAN:  And is he going to

 

     3 take the pictures.

 

     4               MS. SMITH:  I'm the picture-taker

 

     5 of the family.  There are no pictures of me

 

     6 anywhere in our entire family; I am the

 

     7 picture-taker.

 

     8                Is that okay?

 

     9               JUDGE CURRAN:  Is he not going to

 

    10 get to see her?

 

    11               MS. SMITH:  He is.  I am going to

 

    12 meet her at the party.

 

    13               JUDGE CURRAN:  There is a whole

 

    14 party.

 

    15               MS. SMITH:  I am the wheels to

 

    16 preprom.  There is no driving today.

 

    17               MR. PARIS:  Mom is at the preprom.

 

    18               JUDGE CURRAN:  Okay.

 

    19               MS. SMITH:  Thank you very much.

 

    20               JUDGE CURRAN:  Have a good time.

 

    21                I'm sorry, will you just tell

 

    22 them it will be a little while?

 

    23               MS. SMITH:  Want me to tell them?

 

    24 I have been talking to them.

 

    25               JUDGE CURRAN:  Thank you.


 

 

                                                   220

 

 

     1               MS. SMITH:  Thank you.

 

     2               JUDGE CURRAN:  On page 12.

 

     3               MR. BEVERE:  Let me go back to

 

     4 where I was, Judge.  I marked up a model, as

 

     5 well, Judge, model charge, as well.  So I just

 

     6 want to compare it to -- page 12, Judge, I would

 

     7 just say, if you go by the model charge, first

 

     8 paragraph, "Stated differently, Plaintiff must

 

     9 prove the conduct would not have occurred if

 

    10 they had been heterosexual" -- and then there

 

    11 is -- "as opposed to homosexual men."  I will

 

    12 just say, "had they been heterosexual men."

 

    13 That more closely follows the model charge.

 

    14               JUDGE CURRAN:  So you want on line

 

    15 3 just to end after, "heterosexual"?

 

    16               MR. BEVERE:  Yeah.

 

    17               JUDGE CURRAN:  Not, "as opposed

 

    18 to"?

 

    19               MR. BEVERE:  Yeah.

 

    20               JUDGE CURRAN:  Any objection,

 

    21 Mr. --

 

    22               MR. MULLIN:  No objection.

 

    23               MS. SMITH:  Excuse me.  I take the

 

    24 credit or the blame.  These counsel want to do

 

    25 it on the papers.


 

 

                                                   221

 

 

     1               (Whereupon, a discussion is held

 

     2        off the record.)

 

     3               JUDGE CURRAN:  I just want to

 

     4 indicate -- Tracey, go off the record; but we

 

     5 will keep on the Court's record, okay.

 

     6               (Whereupon, a discussion is held

 

     7        off the record.)

 

     8               MR. BEVERE:  Judge, with regard to

 

     9 paragraph two, this -- this is what I had --

 

    10 this is what I had marked up for the model

 

    11 charge.  And I'll -- I'll read it.  "When the

 

    12 harassing conduct is sexual or sexist in nature,

 

    13 that because of sex element is automatically

 

    14 satisfied.  Thus, for example, if Plaintiffs

 

    15 prove that they have been subjected to" -- the

 

    16 model charge says, "sexual touchings or

 

    17 comments" -- I think here it would be not

 

    18 "touchings" but "comments" -- "or if they allege

 

    19 that they have been subjected to harassing

 

    20 comments about their sexual orientation, they

 

    21 have established that the harassment occurred

 

    22 because of their sexual orientation," period,

 

    23 end of paragraph.

 

    24                And that -- you know, the model

 

    25 charge stops after "sexual orientation."  That


 

 

                                                   222

 

 

     1 last sentence about, "All that is required is a

 

     2 showing that it is more likely than not," that's

 

     3 not in the model charge.  I would ask that that

 

     4 be excluded.

 

     5               JUDGE CURRAN:  Mr. Mullin?

 

     6               MR. MULLIN:  Is that the sentence

 

     7 you want to delete?

 

     8               MR. BEVERE:  You know, and --

 

     9 well, that and also what -- what I had here -- I

 

    10 guess what you have is, "Plaintiffs claim that

 

    11 they have been subject to crude sexual

 

    12 comments"; and it goes on.

 

    13                I had actually, Judge, proposed a

 

    14 different paragraph, which I had read; but I

 

    15 will read it again.  Can I read it again?

 

    16               JUDGE CURRAN:  Surely.

 

    17               MR. BEVERE:  "When the harassing

 

    18 conduct is sexual or sexist in nature, that

 

    19 because of sex element is automatically

 

    20 satisfied.  Thus, for example, if Plaintiffs

 

    21 prove that they have been subjected to sexual

 

    22 touchings or comments or if they allege that

 

    23 they have been subjected to harassing comments

 

    24 about their sexual orientation, they have

 

    25 established that the harassment occurred because


 

 

                                                   223

 

 

     1 of their sexual orientation," period, end of

 

     2 paragraph.  Although, you know what, Judge, I

 

     3 look now, when I go to the model charge, I see

 

     4 what Mr. Mullin did, which is he put even

 

     5 conduct that is not sexual --

 

     6               JUDGE CURRAN:  Right.

 

     7               MR. BEVERE:  -- in nature.  And

 

     8 that's actually a separate paragraph.

 

     9               JUDGE CURRAN:  Right.

 

    10               MR. BEVERE:  When I look at what

 

    11 Mr. Mullin did, I don't have an objection to

 

    12 doing that.  So I would say instead of saying --

 

    13 let's have the paragraph -- I will take

 

    14 Mr. Mullin's paragraph.  "When the harassing

 

    15 paragraph is sexual in nature, the because of

 

    16 sex element is automatically satisfied."  Then I

 

    17 would take out, "Thus, for example."  I would

 

    18 say, "Plaintiffs claim that they have been

 

    19 subjected to crude sexual comments."

 

    20               MR. MULLIN:  No objection to that

 

    21 change.

 

    22               MR. BEVERE:  If proven.

 

    23               JUDGE CURRAN:  Okay.

 

    24               MR. BEVERE:  I -- I wouldn't

 

    25 say -- I would take out the "clearly."  What I


 

 

                                                   224

 

 

     1 would do is -- is I -- I would say if -- if

 

     2 proven, then I would say, "If proven, they have

 

     3 established that the harassment occurred because

 

     4 of their sexual orientation."

 

     5               MR. MULLIN:  No objection.

 

     6               MR. BEVERE:  "They have

 

     7 established that the harassment occurred because

 

     8 of their sexual orientation.  Even conduct that

 

     9 is not sexual in nature can constitute unlawful

 

    10 sexual orientation harassment.  However, when

 

    11 the alleged conduct is not sexual in nature,

 

    12 plaintiffs must prove some additional evidence

 

    13 that the conduct occurred because of their

 

    14 sexual orientation."  And I think that models

 

    15 what the model charge has.  So I think that

 

    16 that's fine.

 

    17               MR. MULLIN:  You want to take off

 

    18 the last sentence of that paragraph?

 

    19               MR. BEVERE:  Then last sentence

 

    20 comes out.

 

    21               MR. MULLIN:  No objection.

 

    22               JUDGE CURRAN:  Thank you.

 

    23               MR. BEVERE:  And then the next

 

    24 paragraph is fine.  Vulgar is from the model

 

    25 charge.  The rest of page 12 is fine.


 

 

                                                   225

 

 

     1                Then the second element -- let me

 

     2 look.  The second element, severe and pervasive,

 

     3 I don't think -- all right.  Judge, I think when

 

     4 we go on after when decided -- so we are going

 

     5 now to section two.  Go to the second paragraph.

 

     6               JUDGE CURRAN:  Right.

 

     7               MR. BEVERE:  "When deciding

 

     8 whether Plaintiffs have proven these elements,

 

     9 you should consider the following guidelines."

 

    10 And what we have is the first paragraph talking

 

    11 about the State Constitution and the LAD

 

    12 that's -- that's not in the model charge.  The

 

    13 model charge starts with, "The law does not

 

    14 require the workplace be free of all

 

    15 vulgarities, sexual speech and conduct."  So I

 

    16 think that paragraph comes out.  And then, in

 

    17 light of Your Honor's ruling, I think we go

 

    18 directly to the second bullet point, that second

 

    19 bullet point becomes a number one bullet point.

 

    20               MR. MULLIN:  I think I took all

 

    21 these bullet points in the model charge.  I

 

    22 don't have the model charge in front of me but I

 

    23 charged all these bullet points in many cases.

 

    24 The first one came out of the model.

 

    25               MR. BEVERE:  The model -- just


 

 

                                                   226

 

 

     1 so -- for the record, the model charge that I

 

     2 have, 2.25, page six to 15, which I downloaded

 

     3 from www.NJ. --

 

     4               JUDGE CURRAN:  This looks

 

     5 familiar.  Is it somewhere else?

 

     6               MR. BEVERE:  -- .Judiciary.  This

 

     7 is what I downloaded.  I'm not -- certainly not

 

     8 saying that that --

 

     9               MR. MULLIN:  Because it's -- it's

 

    10 an imbalanced charge, if I take out the first

 

    11 paragraph but leave in the pro-defense second

 

    12 paragraph.  One paragraph offsets the other

 

    13 paragraph.  On one hand, it's not intent or

 

    14 fault based over trivial, sexually laced speech,

 

    15 is not sexual harassment.  So it was always a

 

    16 very balanced charge.

 

    17               MR. BEVERE:  But, Judge, we talked

 

    18 about intent in the previous section.  In other

 

    19 words, when we say the conduct must have

 

    20 occurred because of sexual orientation, we talk

 

    21 about the -- the -- we will call it the non --

 

    22 the non-necessity of proving intent.  And I

 

    23 think that that's covered by that.

 

    24                And when you look at the model

 

    25 charge, you look at two, which, by the way -- I


 

 

                                                   227

 

 

     1 mean, the model charge that I have sets it up a

 

     2 little differently.  They used A and B.  Like

 

     3 number three is, "Does the conduct constitute

 

     4 sexual harassment?"  And then A, subsection A,

 

     5 "Did the conduct occur because of plaintiff's

 

     6 sex?"  Subsection B, "Was the conduct

 

     7 sufficiently severe and pervasive?"  And then

 

     8 you go to -- and then number four becomes,

 

     9 "Should the defendant employer be held

 

    10 responsible?"

 

    11               JUDGE CURRAN:  In order to move

 

    12 along, why don't we put a question mark under

 

    13 that paragraph by the word "guidelines" on page

 

    14 13, then we can check?

 

    15               MR. MULLIN:  Okay.

 

    16               JUDGE CURRAN:  How about 14?

 

    17               MR. BEVERE:  Then, Judge, on page

 

    18 14, you know, it's going to -- I know it will

 

    19 sound trivial and nitpicky; but I would take out

 

    20 the alsos and just put "determining" and "in

 

    21 determining."

 

    22               MR. MULLIN:  No objection.

 

    23               JUDGE CURRAN:  No problem.

 

    24               MR. MULLIN:  You want the other

 

    25 also out --


 

 

                                                   228

 

 

     1               MR. BEVERE:  Yeah --

 

     2               MR. MULLIN:  -- on the next bullet

 

     3 point.

 

     4               MR. BEVERE:  -- take all the alsos

 

     5 out, yeah.

 

     6               MR. MULLIN:  Page 15.

 

     7               JUDGE CURRAN:  I have one

 

     8 question.

 

     9               MR. MULLIN:  Yes.

 

    10               JUDGE CURRAN:  In the second

 

    11 bullet, line 4, "Although it will be a rare an

 

    12 extreme case in which a single incident will be

 

    13 so severe that it would make the living

 

    14 environment hostile" --

 

    15               MR. MULLIN:  Single incident,

 

    16 yeah.

 

    17               MR. BEVERE:  That's the model

 

    18 charge, Judge.

 

    19               MR. MULLIN:  I wonder if it's

 

    20 accurate, though.

 

    21               JUDGE CURRAN:  I just --

 

    22               MR. MULLIN:  The case on this

 

    23 one -- case on this is called Taylor V. Metzger.

 

    24 That's the Supreme Court NJ decision in which

 

    25 single use of the "N" word against a black


 

 

                                                   229

 

 

     1 person was --

 

     2               JUDGE CURRAN:  Right?

 

     3               MR. MULLIN:  -- held enough to

 

     4 state a claim.  So this -- this all --

 

     5               JUDGE CURRAN:  My concern is, "it

 

     6 will be a rare" --

 

     7               MR. MULLIN:  Yeah, "rare and

 

     8 extreme," that's not -- really not the lawyer

 

     9 after Taylor V. Metzger.

 

    10               JUDGE CURRAN:  Right, that's part

 

    11 of my concern.

 

    12               MR. MULLIN:  I appreciate the

 

    13 concern.

 

    14               JUDGE CURRAN:  Do you see my

 

    15 concern, Mr. Bevere?

 

    16               MR. BEVERE:  I do, Judge.

 

    17               JUDGE CURRAN:  Again, I am not

 

    18 trying to help one side or the other.  It just

 

    19 seems to me it's not proper.

 

    20               MR. MULLIN:  That's prior --

 

    21 that's a formulation prior to Taylor V. Metzger.

 

    22               JUDGE CURRAN:  Right.  And my

 

    23 concern is, given this case, that, you know, if

 

    24 the jury says they didn't -- in their own minds

 

    25 they don't think there were any condoms thrown


 

 

                                                   230

 

 

     1 or any comments made, whatever, until -- that

 

     2 they only see the 25th as the incident, I think

 

     3 this gives an unfair --

 

     4               MR. MULLIN:  Yeah.

 

     5               JUDGE CURRAN:  -- implication that

 

     6 they, therefore, have to find that this is a

 

     7 rare and extreme case.

 

     8               MR. MULLIN:  Right.

 

     9               JUDGE CURRAN:  I'm not saying they

 

    10 will decide that.  I just think that wording

 

    11 also does not properly reflect what the law is.

 

    12               MR. MULLIN:  It doesn't.  It

 

    13 doesn't reflect the change.  Also, because it

 

    14 doesn't define the word "incident," the jury may

 

    15 think an incident is the whole 12-minute attack.

 

    16               JUDGE CURRAN:  Right.

 

    17               MR. MULLIN:  And that's not

 

    18 sufficient to state a claim.

 

    19               JUDGE CURRAN:  Exactly, because

 

    20 it's --

 

    21               MR. BEVERE:  Well, Judge, please

 

    22 note my objection because -- because the model

 

    23 charge that I have, which is the current one

 

    24 from the web site, has the following in it.

 

    25 "The conduct can consist of a single severe


 

 

                                                   231

 

 

     1 incident or an accumulation of incidents,

 

     2 although it will be a rare and extreme case in

 

     3 which a single incident will be so severe that

 

     4 it would make the working environment hostile

 

     5 or," in this case, "the living environment

 

     6 hostile."

 

     7                Then it has a footnote.  In the

 

     8 footnote it cites 132 NJ at 606-607.  Quotes,

 

     9 "Although it would be a rare and extreme case in

 

    10 which a single incident will be so severe that

 

    11 it would, from the perspective of a

 

    12 reasonable" -- says, "woman make the working

 

    13 environment hostile, such a case is certainly

 

    14 possible; see also Taylor versus Metzger, 152 NJ

 

    15 490, 500 (1998).  Court reiterates it will be a

 

    16 rare and extreme case in which a single incident

 

    17 is sufficient to be actionable, but finds that a

 

    18 single racial remark at issue could be

 

    19 sufficiently severe to be actionable."

 

    20                So it does refer to Taylor versus

 

    21 Metzger.  What it's saying is you can find it.

 

    22 It will be a rare case, but you can find it.

 

    23 And that's from the model charge, so I would

 

    24 take any objection to the deletion of that

 

    25 sentence.


 

 

                                                   232

 

 

     1               JUDGE CURRAN:  But I mean -- I

 

     2 agree with you.  Years ago I was on committee; I

 

     3 am not any longer.  But frankly, I mean, we are

 

     4 talking about equal protection under the law.

 

     5 How can you say -- and I realize you didn't say

 

     6 it, and I realize that that's what the Taylor

 

     7 says case.  And as I realize that's what it

 

     8 says, but how can we say it's worse to use a

 

     9 racial epithet than a sexual orientation

 

    10 epithet?  That doesn't make any sense.

 

    11               MR. BEVERE:  But, Judge, what

 

    12 Taylor said -- what Taylor said was that it will

 

    13 be the rare case, but it can happen.

 

    14               JUDGE CURRAN:  Right.

 

    15               MR. BEVERE:  And that's what the

 

    16 charges say.  The charge is not saying you can't

 

    17 find that one incident creates a hostile

 

    18 environment regardless of the severity.  What

 

    19 the charge is saying is that it will be the rare

 

    20 case when an incident is so severe, but it can

 

    21 happen.  And you have to judge the severity of

 

    22 the incident for yourself.

 

    23                So what -- and it cites Taylor

 

    24 versus Metzger because it's saying, listen, it's

 

    25 acknowledging it's a single racial -- I agree;


 

 

                                                   233

 

 

     1 whether it's sexist or antigay or whether

 

     2 it's -- it's racial or -- or ethnic based, you

 

     3 know, certainly what -- what the charge, which

 

     4 is our Supreme Court's model charge, is

 

     5 acknowledging, Taylor versus Metzger, and what

 

     6 they're saying is it will be a rare case but it

 

     7 could happen.  And that's what the charge says.

 

     8               MR. MULLIN:  Judge, I think the

 

     9 way to -- one way to clarify this might be to

 

    10 define what Taylor V. Metzger means by a single

 

    11 incident.  By "single incident" what the Court

 

    12 means is a single hostile word.  It's -- I don't

 

    13 want the jury to get the misimpression that the

 

    14 whole incident -- we actually use that word to

 

    15 describe the events of April 25th.  I don't want

 

    16 them to think the Court thinks that an incident

 

    17 is really -- in -- under Taylor V. Metzger, that

 

    18 was more than a single incident.

 

    19               JUDGE CURRAN:  It's a single --

 

    20 it's an incident, but it's also a single word.

 

    21               MR. MULLIN:  I would say a single,

 

    22 say, sexist word.  The conduct can consist of a

 

    23 single sexist or prejudiced word or an

 

    24 accumulation of such, although it would be a

 

    25 rare case in which a single prejudice word --


 

 

                                                   234

 

 

     1 prejudice or biased word or biased remark would

 

     2 be so severe.  The problem is the word

 

     3 "incident."

 

     4               MR. BEVERE:  But, Judge, I have to

 

     5 say that -- that the model charge refers to

 

     6 "incident."

 

     7               MR. MULLIN:  The model charge has

 

     8 been shown wrong many times.  There are many

 

     9 reported decisions -- the model charge is

 

    10 basically put together by committee of defense

 

    11 lawyers.  Occasionally they invite me in to talk

 

    12 to them, but they never put me on the committee.

 

    13 So it's been light in my life by Cynthia Jacob,

 

    14 who is a wonderful lawyer who represents nothing

 

    15 but defendants.

 

    16                So sometimes the model charge

 

    17 gets criticized by the Supreme Court of New

 

    18 Jersey, as in the Mogull case, M-o-g-u-l-l,

 

    19 where it was completely wrong.

 

    20                So it's a good model.  It's a

 

    21 good thing to start with.  But we shouldn't feel

 

    22 bound by it.  I think it's important for us to

 

    23 use -- for the Court -- and the Court is doing

 

    24 it -- to view it critically and look at the case

 

    25 law.  It's -- it doesn't represent a consensus


 

 

                                                   235

 

 

     1 of both sides of the Civil Rights Bar by any

 

     2 means.

 

     3               MR. BEVERE:  Judge, the model

 

     4 charge references -- references Taylor -- it

 

     5 footnotes and it references --

 

     6               JUDGE CURRAN:  I know.

 

     7               MR. BEVERE:  -- Taylor versus

 

     8 Metzger.  And quite frankly, I think that the

 

     9 intent of it is that can one incident be so

 

    10 severe that it creates an entire hostile

 

    11 environment going forward?  And you know, it's

 

    12 in the model charge.  It's there for a reason.

 

    13 That's what Taylor versus Metzger says.

 

    14                And I think that, you know, what

 

    15 we're talking about -- Mr. Mullin is going to

 

    16 have an opportunity to give a summation, as will

 

    17 we.  He could argue that in his summation.  In

 

    18 other words, he could say, "Listen, you are

 

    19 going to hear a charge that's going to say an

 

    20 incident, single incident has to be" -- "you

 

    21 know, has to be" -- normally a single incident

 

    22 won't do it, unless it's so severe.  And I

 

    23 respectfully submit to you that this is that

 

    24 incident.

 

    25               MR. MULLIN:  It is not a single


 

 

                                                   236

 

 

     1 incident.

 

     2               JUDGE CURRAN:  See, that's the

 

     3 problem.  That's my concern.

 

     4               MR. BEVERE:  But, Judge, then you

 

     5 go on and you say.

 

     6               JUDGE CURRAN:  You say --

 

     7               MR. BEVERE:  Yeah, it's all there.

 

     8               MR. MULLIN:  Your Honor, the word

 

     9 "incident" is misleading to the jury because we

 

    10 have used the word "incident," both sides, to

 

    11 describe the entirety of probably the hundreds

 

    12 or hundred of incidents that occurred the night

 

    13 of April 25th.  I don't think anyone actually

 

    14 put in a count of the number of times these

 

    15 horrible things were said or -- or different

 

    16 kinds of attacks were made, but it's not even in

 

    17 this case that there is a single homophobic

 

    18 term.  That's not in this case.

 

    19                This case involves a great

 

    20 multitude of incidents.  And the jury will be

 

    21 misled.  I think we've got to figure out a way

 

    22 to define the word "incident."  And what Taylor

 

    23 V. Metzger is talking about is the single use of

 

    24 the "N" word by an official in a race

 

    25 discrimination case.


 

 

                                                   237

 

 

     1               JUDGE CURRAN:  That's exactly what

 

     2 I'm trying to figure, out a word.

 

     3               MR. BEVERE:  Yeah, but Judge, then

 

     4 we are not telling them what the law is.

 

     5               JUDGE CURRAN:  Pardon me?

 

     6               MR. BEVERE:  Then we are not

 

     7 telling them what the law is.  Because that's

 

     8 the law.

 

     9               JUDGE CURRAN:  But the law doesn't

 

    10 have to have only verbatim what's in the model

 

    11 jury charge.  That's our purpose in having a

 

    12 charge conference.  Otherwise, you could just

 

    13 give me a set of numbers we have got in the

 

    14 dictionary.  We have got occurrence, we have got

 

    15 episodes.

 

    16               MR. MULLIN:  Maybe after single

 

    17 incident we can say, "Such as the onetime use of

 

    18 a prejudiced or biased word."

 

    19               MR. BEVERE:  But see, Judge, I

 

    20 don't think that's the law.  Incident is

 

    21 incident.

 

    22               MR. MULLIN:  That's not the law.

 

    23 The law is what Taylor V. Metzger held.  It

 

    24 wasn't just a sentence or a phrase not in

 

    25 context.  It was -- the issue before the court


 

 

                                                   238

 

 

     1 on that case was whether the single use the

 

     2 onetime use of the "N" word instituted

 

     3 actionable sexual harassment.  That's -- you

 

     4 can't -- we don't have to ignore the facts of

 

     5 the case.  And that's what they were talking

 

     6 about.  So I would after the word "incident"

 

     7 say, "such as the onetime use of a single

 

     8 prejudiced or biased phrase or word."

 

     9               JUDGE CURRAN:  Or we could try to

 

    10 go the other way and say something like,

 

    11 "Conduct can consist of a single all" -- "of an

 

    12 allegation of a single discriminatory action or

 

    13 harassing action or an accumulation of or an

 

    14 allegation of an accumulation of discriminatory

 

    15 actions."  But it's not just actions either;

 

    16 it's words.

 

    17               JUDGE CURRAN:  Well, why don't we

 

    18 leave a question mark there, then?  Why don't we

 

    19 just see if we can figure out over the night any

 

    20 better wording.

 

    21               MR. MULLIN:  Okay.

 

    22               MR. BEVERE:  Judge, you will note

 

    23 my objection to anything other than the model

 

    24 charge?

 

    25               JUDGE CURRAN:  Other than the


 

 

                                                   239

 

 

     1 model charge, absolutely.  Anything else on page

 

     2 14?

 

     3               MR. BEVERE:  I'm looking, Judge.

 

     4 I don't -- the model charge, Judge, just has an

 

     5 extra sentence, in that the two sentences at the

 

     6 top of page 15.  There is another sentence in

 

     7 the model that says, "You must use your own

 

     8 judgment in deciding whether a reasonable person

 

     9 would consider the living environment hostile."

 

    10               MR. MULLIN:  I don't object to

 

    11 that.

 

    12               JUDGE CURRAN:  Thank you.

 

    13               MR. BEVERE:  And then the only

 

    14 thing I would do with the next bullet point,

 

    15 Judge -- again, might be nitpicky -- I would

 

    16 have, "finally," Judge, because the model says,

 

    17 "finally."

 

    18               MR. MULLIN:  No objection.

 

    19               JUDGE CURRAN:  Thank you.

 

    20               MR. BEVERE:  All right.  Your

 

    21 Honor, I'm -- I'm anticipating we are going to

 

    22 have a lot of argument on Section 4, in light of

 

    23 some of the applications that I made to the

 

    24 Court.  And it's 4:30.  So I would ask if we

 

    25 could stop now and we could address this


 

 

                                                   240

 

 

     1 tomorrow.  I mean, I know what I want to do; but

 

     2 we are certainly going to have argument on it.

 

     3 And I could see it going beyond a half hour.

 

     4               JUDGE CURRAN:  Sure, no problem.

 

     5 So --

 

     6               MR. BEVERE:  In other words, I'm

 

     7 talking, Your Honor, about standards of

 

     8 liability to be -- to be -- you know, to be

 

     9 charged to the jury as to the Town of Secaucus.

 

    10 And I think I made some comments on the record

 

    11 the other day.  I started to argue it.

 

    12 Mr. Mullin started to respond.  And --

 

    13               JUDGE CURRAN:  Okay.

 

    14               MR. BEVERE:  -- I think Your Honor

 

    15 said we will get there when we do the charge

 

    16 conference.  And I just think, in light of the

 

    17 hour and the fact that, I anticipate --

 

    18               JUDGE CURRAN:  So where are you

 

    19 agreeing to down to?

 

    20               MR. BEVERE:  Oh, we're agreeing

 

    21 right up to the end of what I'll call

 

    22 Mr. Mullin's Number 2 and just above number

 

    23 three.

 

    24               JUDGE CURRAN:  Okay.

 

    25               MR. BEVERE:  In other words, where


 

 

                                                   241

 

 

     1 we're going to stop for the day is, "whether

 

     2 Defendant Town of Secaucus can be held

 

     3 responsible for alleged conduct:  Compensatory

 

     4 damages."

 

     5               JUDGE CURRAN:  Okay.

 

     6               MR. BEVERE:  And I think that, you

 

     7 know, that's where we should stop for the day

 

     8 because I think there will be --

 

     9               JUDGE CURRAN:  Okay.  Any

 

    10 objection?

 

    11               MR. MULLIN:  I have no objection.

 

    12 I suppose it makes sense for me to hold off

 

    13 putting these changes in until we have the rest?

 

    14               JUDGE CURRAN:  Right.

 

    15               MR. MULLIN:  Is that the Court's

 

    16 wish?

 

    17               MR. BEVERE:  Judge, doesn't matter

 

    18 to me.

 

    19               JUDGE CURRAN:  I am going to ask

 

    20 everybody to bring in your verdict sheets

 

    21 tomorrow.

 

    22               MR. MULLIN:  Oh, verdict sheets,

 

    23 right.

 

    24               JUDGE CURRAN:  Understand that we

 

    25 didn't -- I understand we haven't had the Monell


 

 

                                                   242

 

 

     1 argument.  You bring in the -- the verdict sheet

 

     2 the way you want it, and we'll combine it.  I

 

     3 think that's so much easier to do, rather than

 

     4 start from scratch.

 

     5               MR. MULLIN:  Okay.

 

     6               JUDGE CURRAN:  Okay.

 

     7               MR. BEVERE:  That's fine, Your

 

     8 Honor.

 

     9               JUDGE CURRAN:  Great.

 

    10               MR. BEVERE:  And what we can do

 

    11 is -- tomorrow we're coming in at noon?

 

    12               JUDGE CURRAN:  Yes.

 

    13               MR. BEVERE:  So what I'll do --

 

    14               JUDGE CURRAN:  We arranged the

 

    15 same thing we did last Friday.

 

    16               MR. BEVERE:  Tomorrow morning

 

    17 is -- what we'll do is we will -- we will

 

    18 e-mail; that way you have it on the computer.

 

    19               JUDGE CURRAN:  Okay.

 

    20               MR. PARIS:  Does that help the

 

    21 Court?

 

    22               JUDGE CURRAN:  I'm sorry?

 

    23               MR. PARIS:  Would that help Your

 

    24 Honor to have it on?

 

    25               JUDGE CURRAN:  If I could ask you


 

 

                                                   243

 

 

     1 a favor, because I am not sure if Amy will be in

 

     2 tomorrow.

 

     3                Excuse me one sec.

 

     4                Eva or Brian, do you know how to

 

     5 get into Amy's computer?  Okay.  Good.  Just --

 

     6               MR. BEVERE:  Judge, we'll -- we'll

 

     7 bring a printer.  We will have it on a laptop,

 

     8 bring a printer tomorrow.

 

     9               JUDGE CURRAN:  Either way, you

 

    10 know.  But as long as they, being geniuses -- I

 

    11 know I can't get into her computer, but that

 

    12 would be great.  If you will, that would be

 

    13 terrific.

 

    14               MR. PARIS:  That's fine, if they

 

    15 can do it.

 

    16               MR. BEVERE:  If they can do it,

 

    17 Judge, we won't have to bring the printer.

 

    18               JUDGE CURRAN:  No, don't worry

 

    19 about that.  They're terrific.

 

    20                And the other thing I would say

 

    21 is we have an argument that we kind of couldn't

 

    22 really change because people wouldn't agree

 

    23 unless they could put it off for two or three

 

    24 weeks.  So why don't you say that you'll be here

 

    25 closer to -- why don't you say 12:30, because I


 

 

                                                   244

 

 

     1 have got an argument that's supposed to start at

 

     2 12?

 

     3               MR. BEVERE:  That's fine because

 

     4 I'm.

 

     5               JUDGE CURRAN:  And nobody is going

 

     6 to complain if you are not here.  We will all be

 

     7 here.  We have plenty to do, so don't worry

 

     8 about that.

 

     9               MR. BEVERE:  We'll -- I will put

 

    10 the term on the record, even though if my wife

 

    11 saw the transcript, she'd kill me.  But I have

 

    12 to baby sit for an hour or so in the morning.

 

    13               JUDGE CURRAN:  Oh, you are not

 

    14 allowed to say that.

 

    15               MR. BEVERE:  So 12:30 would be

 

    16 better for me.

 

    17               JUDGE CURRAN:  She'd be terrific;

 

    18 bring her in.

 

    19               MR. MULLIN:  Judge.

 

    20               MR. BEVERE:  She won't have the

 

    21 attention span, trust me.

 

    22               MR. MULLIN:  Judge, just a heads

 

    23 up on a couple items.

 

    24               JUDGE CURRAN:  Yes.

 

    25               MR. MULLIN:  I'm going to ask that


 

 

                                                   245

 

 

     1 Your Honor charge a couple of the statutes that

 

     2 had been referred to in the course of this

 

     3 trial.  Simply say, "These have been referred

 

     4 to, and here is what they say."

 

     5                And the other thing is, on the

 

     6 emotional distress thing -- on the emotional

 

     7 distress charge, I am going to ask that Your

 

     8 Honor charge -- there is some language in

 

     9 N.J.S.A. 10:5-3, charged, that I think it's

 

    10 appropriate here.  So I am going to ask that

 

    11 that be added somewhere, probably to the

 

    12 emotional distress charge.

 

    13               MR. PARIS:  Can we also have the

 

    14 statutory cites you're referring to?

 

    15               MR. MULLIN:  Yeah.  So it will be

 

    16 the statute that was referred to today; you guys

 

    17 actually gave me that.

 

    18               MR. BEVERE:  2a:81-17.2.

 

    19               MR. MULLIN:  Right.  Then we had

 

    20 the witness testify --

 

    21               JUDGE CURRAN:  Small a.

 

    22               MR. BEVERE:  2a2 through 2a4.

 

    23               MR. MULLIN:  We have 2C:12-1a123.

 

    24 Then, under B, Section 5a about the assault,

 

    25 attempted assault on a uniformed --


 

 

                                                   246

 

 

     1               MR. PARIS:  Well, I guess we'll

 

     2 object to that tomorrow.

 

     3               MR. MULLIN:  I'm just giving folks

 

     4 a heads up.  2C:16-1, some portion of the bias

 

     5 intimidation statute which we referred to during

 

     6 testimony.

 

     7               MR. PARIS:  I'm sorry, can I have

 

     8 that again?

 

     9               MR. MULLIN:  You want it again?

 

    10               JUDGE CURRAN:  2C:16-1.

 

    11               MR. MULLIN:  2C:16-1.  And again,

 

    12 these are statutes -- these two statutes are

 

    13 cited all over the police reports.  And 2C:33-4.

 

    14 And maybe we can find a way not to, you know,

 

    15 use all the language.  But I think they been

 

    16 referred to, and I think the jury should be told

 

    17 what their text is.

 

    18               JUDGE CURRAN:  Anything else?

 

    19               MR. MULLIN:  I would ask counsel

 

    20 to also in their charge, their proposed charge

 

    21 to fill in that section that talks about the

 

    22 rights that have been violated.

 

    23               JUDGE CURRAN:  Right.

 

    24               MR. MULLIN:  We need that.  That

 

    25 wasn't in their proposed charge.


 

 

                                                   247

 

 

     1               MR. BEVERE:  The other thing is --

 

     2               MR. MULLIN:  So the other thing,

 

     3 Your Honor, is counsel has to move in his

 

     4 evidence.  And then we may move in some evidence

 

     5 by way of rebuttal, some of the things I

 

     6 referred to probably in cross-examining

 

     7 witnesses.  That's what I have in mind.

 

     8               JUDGE CURRAN:  Okay.

 

     9               MR. BEVERE:  Okay, Judge.

 

    10               JUDGE CURRAN:  If you want to

 

    11 bring your daughter in to help us --

 

    12               MR. BEVERE:  Judge, she will be

 

    13 good for the first 15 minutes, then she will

 

    14 be --

 

    15               MR. MULLIN:  Very bad.

 

    16               MR. BEVERE:  I don't want to say,

 

    17 "very bad"; but she will --

 

    18               MR. MULLIN:  I was thinking of my

 

    19 daughter.

 

    20               MR. BEVERE:  She will be

 

    21 distractible.

 

    22               MR. PARIS:  She won't be as good.

 

    23               MR. BEVERE:  She won't be as good,

 

    24 let's put it that way.

 

    25               (Whereupon, the witness is


 

 

                                                   248

 

 

     1        excused.)

 

     2               (Whereupon, the proceeding is

 

     3        concluded at 4:25 p.m.)

 

     4

 

     5

 

     6

 

     7

 

     8

 

     9

 

    10

 

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                                                   249

 

 

     1               C E R T I F I C A T E

 

     2

 

     3      I, TRACEY R. SZCZUBELEK, a Certified Court

 

     4 Reporter and Notary Public of the State of New

 

     5 Jersey, do hereby certify that the foregoing is

 

     6 a true and accurate transcript of the

 

     7 stenographic notes as taken by and before me, on

 

     8 the date and place hereinbefore set forth.

 

     9

 

    10

 

    11

 

    12

 

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    15

 

    16

 

    17

 

    18           ________________________________

 

    19           TRACEY R. SZCZUBELEK, C.C.R.

 

    20           LICENSE NO. XIO1983

 

    21

 

    22

 

    23

 

    24

 

    25


 


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