00001

  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 19

           Vs.

  6  

      THE TOWN OF SECAUCUS,

  7   Defendant.

      - - - - - - - - - - - - - - - -

  8  

      HUDSON COUNTY COURTHOUSE

  9   595 Newark Avenue

      Jersey City, New Jersey  07306

 10   Monday, June 9, 2008

      Commencing 9:10 a.m.

 11  

      B E F O R E:

 12             HONORABLE BARBARA A. CURRAN

 13                       TRACEY R. SZCZUBELEK, CSR

                          LICENSE NO. XIO1983

 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


 

00002

  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  

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

 11   Attorneys for the Defendants

 12        360 Passaic Avenue

 13        Nutley, New Jersey  07110

 14   BY:  DANIEL R. BEVERE, ESQ.

 15        DAVID M. PARIS, ESQ.

 16  

 17  

 18  

 19  

 20  

 21  

 22  

 23  

 24  

 25  


 

00003

  1                 JUDGE CURRAN:  Thank you.  We are

  2   on the record.  This is the matter of deVries

  3   and Carter versus the Town of Secaucus, Docket

  4   Number 3520 of the 2004 term.  I will note that

  5   the jury is not present, all counsel are.

  6                  If there is no objection, I'll

  7   start with Mr. Mullin's e-mail, which is dated

  8   6/7/08, 5:24 p.m., in which he starts at page 11

  9   of the defendant's proposed charges.  Okay.

 10                 MR. BEVERE:  Yeah.

 11                 JUDGE CURRAN:  All right.  As to

 12   the proposal in number one, Mr. Bevere.

 13                 MR. BEVERE:  Okay.  With regard to

 14   factors to consider include -- and what I have

 15   is what Mr. Mullin proposes, whether any of the

 16   firefighter actions -- I have no objection to

 17   the "any of" on any of those bullet points.

 18                  Okay.  Should I continue, Judge?

 19                 JUDGE CURRAN:  Sure.

 20                 MR. BEVERE:  Okay.

 21                 JUDGE CURRAN:  Mr. Mullin and

 22   Miss Smith, if you don't mind, because we're

 23   using your proposals, I am not going to ask you

 24   to argue unless Mr. Bevere --

 25                 MR. MULLIN:  Exactly right.


 

00004

  1   That's why I submitted them by e-mail.

  2                 MR. BEVERE:  Yeah, I'm going to go

  3   through them, Judge.

  4                 JUDGE CURRAN:  Thank you.

  5                 MR. BEVERE:  The next proposed

  6   change, "However, the fact that a defendant acts

  7   for personal reasons does not necessarily

  8   prevent a finding that the defendant is acting

  9   under color of State law.  A defendant who

 10   pursues personal goal but who uses governmental

 11   authority to do so acts under color of State

 12   law," no objection to that.  That is from the

 13   model charge.

 14                 JUDGE CURRAN:  Thank you.

 15                 MR. BEVERE:  However, the next two

 16   items, whether the events took place in the

 17   geographic area covered by the defendant's Fire

 18   Department and whether any of the firefighters

 19   used Town-owned transportation, I have objection

 20   to those two bullet points.

 21                  First there is in the model

 22   charge a reference to geographic area.  But that

 23   has to do with police cases and situations where

 24   police may make an arrest or stop outside of the

 25   Town limits.  Here we don't have a police


 

00005

  1   situation.  So whether or not -- then in the

  2   geographic area of the firehouse is not relevant

  3   to the issue of color of law.

  4                  And particularly whether or not

  5   they used Town-owned transportation, I mean,

  6   there is no indication in the case that the

  7   transportation had anything to do with the

  8   incident whatsoever.  Whatever happened while

  9   they were at the firehouse and whether they used

 10   Town-owned transportation is irrelevant and --

 11   and was not -- should not be considered with

 12   regard to the issue of color of law.

 13                 JUDGE CURRAN:  Mr. Mullin.

 14                 MR. MULLIN:  Again, I derived

 15   these loosely from the model that was given by

 16   Defendants.  But again, counsel is right, that I

 17   modified it.  Perhaps it should say, "within the

 18   vicinity of the North End Firehouse" or, "within

 19   the vicinity of property owned and operated by"

 20   or, "controlled and operated by Defendants Fire

 21   Department."  I would be willing to make that

 22   difference because, of course, you know, police

 23   may cover a very wide area.  So I would make

 24   that change.

 25                  And the other is whether any of


 

00006

  1   the firefighters used Town-owned transportation.

  2   There is evidence if the Town had not given them

  3   a bus to deliver them in a drunken -- in a

  4   drunken mass from the restaurant to the doorstep

  5   of my clients' house there wouldn't have been

  6   this incident at all.  And we have had evidence

  7   in the case that the Town -- Town bus was used

  8   and a Town bus driver didn't have to be paid was

  9   used.  Certainly, that is an indicia of Town

 10   sanction; and that should be one of the factors

 11   the jury considers.

 12                  I believe in the model charge

 13   they were referring to whether a police car was

 14   used, in other words, whether an official

 15   vehicle had anything to do with the incident.

 16   So I would say it's very much in the case.  And

 17   we have had witnesses testify about it.  I

 18   started with Richard Johnson.  I had him in my

 19   case.  He testified Town-owned bus, Town bus

 20   driver, didn't have to pay her.  He also

 21   testified -- or somebody testified it was worth

 22   about a thousand dollars.

 23                 JUDGE CURRAN:  Thousand dollars.

 24                  Mr. Bevere.

 25                 MR. BEVERE:  Judge, the fact that


 

00007

  1   the Town may have provided them with

  2   transportation so they wouldn't drink and drive

  3   and the fact that Mr. Mullin may argue that that

  4   is a Town sanctioning of an event, which,

  5   certainly, I do not concede by any stretch of

  6   the imagination, does not mean that the actions

  7   were taken -- they have nothing to do with

  8   whether the actions were taken under color of

  9   law.

 10                  Whether or not they used a Town

 11   bus to get to or from the function has nothing

 12   to do with whether or not they were carrying out

 13   their employment functions or purporting to

 14   carry out their employment functions at the time

 15   that the -- the allege incident occurred.

 16                 JUDGE CURRAN:  What about the

 17   wording, "within the vicinity of the North End

 18   Firehouse"?

 19                 MR. BEVERE:  Well, once again,

 20   Judge, I think that that is, again, not relevant

 21   to the issue of color of law.  Color of law has

 22   to do with the nature of the fact being

 23   committed and not where it took place.

 24                 MR. MULLIN:   Judge, on page 17 of

 25   the model Section 1983 charge, the bullet point


 

00008

  1   and the text provided by the defendants is,

  2   "whether a defendant used a police car or other

  3   police equipment."  So there it is in their

  4   model charge as one of the indicia of under

  5   color of State law.  That translates pretty

  6   easily as to whether these firemen were

  7   participants or on a Town bus by Town bus

  8   driver.

  9                  Again, if that Town bus hadn't

 10   brought them drunk back from that party -- and

 11   that's why they got the bus, because they knew

 12   they were going to be doing heavy drinking --

 13   this incident never would have happened.  So

 14   certainly a jury can consider.  This is just

 15   factors that a jury can consider in determining

 16   whether any of this may have happened under the

 17   mantel of State law -- of municipal law,

 18   actually.

 19                 JUDGE CURRAN:  Mr. Mullin, I can

 20   see your argument in that regard; but I think

 21   it's at least arguable, even if the bus wasn't

 22   provided, maybe they would have come back there

 23   on their own.  Dumb thing to do, drink and

 24   drive; but maybe they would have.  I think the

 25   reference to the bus, although it's certainly an


 

00009

  1   arguable point in closing, does not belong in

  2   the charge.

  3                  In regard to the issue of within

  4   the vicinity, I think that too can certainly be

  5   argued, but it does not belong in the charge.

  6   It's not as clear-cut, for instance, as it was

  7   in the case we can't pronounce, where the

  8   alleged problems happened within the Police

  9   Department.

 10                  Certainly, that's all fair game

 11   for argument jury closing.  I will note your

 12   objection.

 13                 MR. MULLIN:  Thank you.

 14                 JUDGE CURRAN:  We have already

 15   taken care of number three.  We move to number

 16   four.

 17                 MR. BEVERE:   Judge, in regard to

 18   the violation of the Constitutional rights, I do

 19   have an objection to definition of

 20   "Constitutional right" as set forth by Mr.

 21   Mullin.  I would simply say, "Under New Jersey

 22   Constitution the plaintiffs have a right to be

 23   free from discrimination on the basis of their

 24   sexual orientation and have the right to the

 25   equal protection of the laws."  That's what I


 

00010

  1   would define the right as.

  2                 JUDGE CURRAN:  Mr. Mullin.

  3                 MR. MULLIN:  Let me just read it

  4   for a second.

  5                 JUDGE CURRAN:  Sure.

  6                 MR. MULLIN:  Do you have that

  7   text, Dan, written somewhere?  I don't see it in

  8   your submission today.

  9                 MR. BEVERE:  No, I --

 10                 JUDGE CURRAN:  I don't have it.

 11                 MR. BEVERE:  All I work with --

 12   I'll read it again though, Judge, for the

 13   record.

 14                 JUDGE CURRAN:  Okay.

 15                 MR. BEVERE:  Under our State

 16   Constitution persons have a right to be free

 17   from discrimination on the basis of their sexual

 18   orientation and are entitled to the equal

 19   protection of the laws.

 20                 JUDGE CURRAN:  Just -- I got the

 21   last part.  Be free from discrimination?

 22                 MR. BEVERE:  On the basis of their

 23   sexual orientation.

 24                 JUDGE CURRAN:  Okay.

 25                 MR. BEVERE:  And are entitled to


 

00011

  1   the equal protection of the laws.

  2                 JUDGE CURRAN:  Thank you.

  3   Mr. Mullin.

  4                 MR. MULLIN:  Trouble with that

  5   formulation, which is fine as an addition to

  6   what I have proposed, is -- is that it doesn't

  7   discuss harassment.  We have to clearly state to

  8   this jury that the New Jersey Constitution

  9   articles -- Article I, Section 1 and 5, as

 10   implemented through the LAD, prohibits

 11   harassment.  The jury has to know that's --

 12   that's the right that's protected here.  And

 13   that's why I spelled it out.  I spelled it out

 14   very briefly in a very compressed way.  I met

 15   the standards, the legal standards.  And I don't

 16   have a problem with adding Defendant's language,

 17   but we have to be more specific on the right.

 18                 JUDGE CURRAN:  Mr. Bevere.

 19                 MR. BEVERE:  See, Judge, I

 20   disagree that there is a inherent --

 21   Constitutional right to be free from harassment.

 22                 MR. MULLIN:  Sexual harassment.

 23                 MR. BEVERE:  What the LAD talks

 24   about and -- first of all, this isn't the LAD

 25   portion of the charge.  This is the


 

00012

  1   Constitutional portion of the charge.  And when

  2   you're talking about harassing in the context of

  3   the LAD, you're talking about harassment that

  4   rises to the level of that becomes

  5   discrimination.  So what you are -- so not all

  6   harassment -- the Constitution doesn't prohibit

  7   all harassment.

  8                 JUDGE CURRAN:  No, absolutely.

  9                 MR. BEVERE:  So it becomes -- it's

 10   harassment that rises to the level of

 11   discrimination.  And that's why I think the

 12   formulation should be as I say, because you

 13   can't say that you have a Constitutional right

 14   to be free from any and all harassment, even

 15   harassment on the basis of your sexual

 16   orientation, because you do not.  It's when it

 17   becomes discrimination that it becomes

 18   Constitutional issue.

 19                 MR. MULLIN:  If I had said that,

 20   then I would have been wrong; but that's not

 21   what I said in my proposed text, which counsel

 22   has inserted in there.  You know, I understand

 23   he is objecting to it; but he has a right.  I

 24   said, "Under the New Jersey State Constitution

 25   Article I, Section 1 and 5, as implemented in


 

00013

  1   part through the New Jersey Law Against

  2   Discrimination, Plaintiffs were entitled to

  3   peacefully enjoy their residence in Secaucus and

  4   the public accommodations of Secaucus without

  5   suffering harassment by Secaucus firemen because

  6   of their sexual orientation.  In that regard,

  7   Plaintiffs were entitled to reside in Secaucus

  8   without being subject to harassment based on

  9   their sexual orientation that was so severe or

 10   pervasive that a reasonable gay person would

 11   have concluded that their living conditions were

 12   altered and had become hostile or abusive."

 13                  I am not talking about any garden

 14   variety harassment.  I am talking about illegal,

 15   discriminatory harassment as that's been

 16   defined.  And that is the right that they have.

 17                 JUDGE CURRAN:  Mr. Bevere, it

 18   seems to me that if we use the wording that

 19   Mr. Mullin proposed, other than where it says,

 20   "Secaucus without suffering," I would take out,

 21   "suffering" -- "without harassment" -- you know,

 22   to try to be objective and then add exactly what

 23   you said after, "become hostile or abusive."

 24   Everything is covered.

 25                 MR. BEVERE:  I'm sorry, Your


 

00014

  1   Honor, you are proposing to take out "without

  2   suffering peaceful enjoyment"?

  3                 JUDGE CURRAN:  No, no, no.

  4   "Without harassment," not "without" -- I would

  5   just take out "suffering."

  6                 MR. BEVERE:  Without harassment?

  7                 JUDGE CURRAN:  Then go all the way

  8   down to, "hostile or abusive" as it stands and

  9   then add the sentence that you wanted under --

 10                 MR. BEVERE:  So -- so the public

 11   accommodation of Secaucus -- I'm sorry, Judge, I

 12   am just getting confused.  And apologize, I just

 13   don't know what we are doing.  The public

 14   accommodations of Secaucus without harassment --

 15   or without -- without being subject to

 16   harassment based -- is that what you are saying?

 17   So we take out --

 18                 JUDGE CURRAN:  I would only take

 19   out the word "suffering" in the sentence before

 20   that.

 21                 MR. BEVERE:  Okay.

 22                 JUDGE CURRAN:  Line 4 I would

 23   like --

 24                 MR. BEVERE:  You are going to

 25   propose to take out -- "without harassment --"


 

00015

  1                 JUDGE CURRAN:  Right.

  2                 MR. BEVERE:  -- "by" --

  3                 JUDGE CURRAN:  Right.

  4                 MR. BEVERE:  -- "Secaucus --"

  5                 JUDGE CURRAN:  Firemen.

  6                 MR. BEVERE:  -- "firemen"?

  7                 JUDGE CURRAN:  I am going to leave

  8   in the whole next sentence, and then I would add

  9   your sentence.

 10                 MR. BEVERE:  Judge, I -- once

 11   again, I renew my objection to anything other

 12   than what I said --

 13                 JUDGE CURRAN:  Okay.

 14                 MR. BEVERE:  -- should be defined

 15   as the right.  But if Your Honor is inclined

 16   to -- to charge it as Mr. Mullin has said it

 17   here, then what I would do is then just end it

 18   at "hostile or abusive," period.  I wouldn't add

 19   my sentence because he has already defined it.

 20                 JUDGE CURRAN:  Okay.

 21                 MR. BEVERE:  And Your Honor, just

 22   so the record is clear, I just -- I want to be

 23   clear that when we're talking about 10:6-2,

 24   we're talking about enforcement of a right

 25   directly underneath the New Jersey Constitution.


 

00016

  1   The New Jersey LAD sets forth certain standards

  2   for conducting oneself in the workplace and in

  3   places of public accommodations and sets

  4   those -- doesn't mean that they're necessarily

  5   inherent Constitutional rights directly under

  6   the New Jersey Constitution.

  7                  So I think to inject the LAD

  8   here, where we have the LAD in a separate

  9   portion of the charge, is improper.  Once again,

 10   I think it should be that you simply are

 11   entitled to be free from discrimination based

 12   upon sexual orientation and that you are

 13   entitled to equal protection under the law.

 14                  I want my objection to be clear

 15   for the record.  But if Your Honor is inclined

 16   to overrule that objection and go with what

 17   Mr. Mullin has, then I would withdraw the

 18   sentence that I proposed.

 19                 JUDGE CURRAN:  What about leaving

 20   the explanation and taking out the reference to

 21   the LAD?  Trying to look at page 12.

 22                 MR. BEVERE:   Judge, I --

 23                 JUDGE CURRAN:  That really is

 24   where --

 25                 MR. BEVERE:  Well, Judge, I would


 

00017

  1   propose this modification under the New Jersey

  2   State Constitution Article I, Sections 1 and 5.

  3   Then I would say, "Plaintiffs were entitled to

  4   reside in Secaucus without being subject to

  5   harassment based upon" -- no, I -- forget it.

  6   Withdraw that.

  7                 JUDGE CURRAN:  Yeah.

  8                 MR. BEVERE:  That's too broad.

  9   That proposal is too broad.

 10                 JUDGE CURRAN:  Right.

 11                 MR. BEVERE:  Because then it would

 12   make us responsible for acts of private

 13   harassment, which clearly the law would not.

 14                 JUDGE CURRAN:  I think basically

 15   this says it properly, and I think it's also

 16   all-inclusive.

 17                 MR. BEVERE:   Judge, what we will

 18   remove, the part of the sentence that says, "as

 19   implemented in part through the New Jersey Law

 20   Against Discrimination," since that's charged

 21   someplace else.

 22                 JUDGE CURRAN:  Mr. Mullin.

 23                 MR. BEVERE:  This isn't an LAD

 24   claim.

 25                 MR. MULLIN:  I object to that


 

00018

  1   because the court has ruled -- and I think

  2   completely correctly -- consistently with the --

  3   almost the exact words in Supreme Court decision

  4   Shaner that the State Constitution

  5   antidiscrimination provisions are implemented by

  6   the LAD.  That's almost a quote from Shaner,

  7   which I had in my original jury charges.  It's

  8   not a misstatement of law; it's an accurate

  9   statement of the law.

 10                 JUDGE CURRAN:  It's not a

 11   misstatement.  I just was trying to look through

 12   here to see if we already have it.

 13                 MR. MULLIN:  It may appear

 14   elsewhere, Your Honor.  I don't know that it

 15   does or doesn't but.

 16                 JUDGE CURRAN:  It's an accurate

 17   statement.  It's an accurate statement.

 18                 MR. MULLIN:  Something that

 19   Defense disagrees with.

 20                 JUDGE CURRAN:  I understand.  I

 21   understand, Mr. Bevere.  I'm going to note your

 22   strong objection.  But I find that this wording

 23   is accurate, and I'm going to leave it in.  I

 24   did consider taking out the LAD here; but it

 25   would be more for repetitive purposes, not


 

00019

  1   because this is inaccurate.  I'm going to leave

  2   it in this way.  I'll note your objection

  3   under -- on the record.

  4                  As to number five.

  5                 MR. BEVERE:  Where it says,

  6   "caused the deprivation" -- well, let's just go

  7   on because what I did was page by page.  I

  8   inserted the provision that Mr. Mullin and I

  9   agreed to on Friday in next paragraph down.  "In

 10   other words, Secaucus' official policy or custom

 11   must have caused the deprivation of rights."  I

 12   added that in.

 13                  With regard to his number five,

 14   Judge, I -- I object to the insertion of, "In

 15   considering this factor, you may also

 16   consider" -- "you may consider also the fact

 17   that Supreme Court of New Jersey has since 1994

 18   recognized the known prevalence of sexual

 19   harassment."  I object to that in this portion

 20   of the charge.

 21                 JUDGE CURRAN:  Mr. Mullin.

 22                 MR. MULLIN:  Well, that comes

 23   right out of Lehmann; and it's where they're

 24   discussing why you need the policies, because

 25   there is a -- that's a Supreme Court saying you


 

00020

  1   need policies because we know sexual harassment

  2   is prevalent.

  3                 JUDGE CURRAN:  It does come out of

  4   Lehmann.  I'm sure you wouldn't misquote it.  I

  5   certainly didn't recheck it this morning.  But I

  6   think that that is way too subjective for a jury

  7   charge.  You're certainly free to argue that.

  8   So number 5B is out.  I will note your

  9   objection, Mr. Mullin.

 10                 MR. MULLIN:  Thank you, Your

 11   Honor.

 12                 JUDGE CURRAN:  Mr. Bevere.

 13                 MR. BEVERE:  The next change,

 14   Judge, will be, "cause a violation of

 15   substantive due process or equal protection."

 16   No problem; I will make that change.

 17                 JUDGE CURRAN:  Thank you.

 18                 MR. BEVERE:  With -- with regard

 19   to the next provision, Your Honor, I do have an

 20   objection to the insertion of, "inadequate

 21   investigation" and "inadequate discipline."

 22                  When you look at the Monell

 23   charge, it talks about failure to train, failure

 24   to supervise or failure to adopt necessary

 25   policy.  It doesn't talk about -- it is -- there


 

00021

  1   is -- certainly, where there is failure to

  2   discipline or failure to investigate we are

  3   talking here about the Constitutional -- the

  4   direct Constitutional claim here.  And

  5   certainly, these provisions, while they may be

  6   relevant to the Lehmann sexual harassment

  7   portion of the charge, are not relevant here.

  8   They are not in the Monell charge.

  9                  I would also take issue with the

 10   fact that under a direct Constitutional claim,

 11   as brought under 10:6-2, which applies to

 12   Monell, whether you have a Constitutional right

 13   to have someone disciplined or whether you have

 14   a Constitutional right to an investigation.

 15   What the Monell talks about is if you are on

 16   notice of a high likelihood that someone's

 17   Constitutional rights are going to be violated,

 18   unless you take certain action, then that may be

 19   the basis for a -- and you fail to do so, that

 20   may be the basis to establish a municipal custom

 21   and policy.  But there is nothing in Monell

 22   about inadequate investigation, inadequate

 23   discipline.  I do not believe it belongs in this

 24   charge.

 25                 MR. MULLIN:  Well, it belongs in


 

00022

  1   the charge because if you have a policy of -- of

  2   inadequate investigation, inadequate discipline,

  3   if your policy is the firemen can do whatever

  4   they want, up to and including attempting an

  5   assault on a uniformed police officer, if the

  6   policy is firemen can commit any acts they want

  7   and they will go unpunished, if your policy is

  8   the firemen don't get any investigation, even

  9   under the Town's discrimination policy because

 10   they're excluded completely from the -- from the

 11   policy, that's different from like just a simple

 12   LAD claim.

 13                  I'm talking under this charge I

 14   have to prove high-level policymakers have made

 15   policy decisions that harm the plaintiffs.  And

 16   Your Honor has heard repeated testimony that the

 17   policy was that the volunteer firemen had for

 18   years, as Town Administrator Iacono said,

 19   excluded the volunteer firemen from the whole

 20   Town of Secaucus harassment policy and

 21   discrimination policy, which has an

 22   investigation procedure.

 23                  So this clearly is an indicia of

 24   deliberate indifference.  You know, that's --

 25   Secaucus may be unique in the whole world of New


 

00023

  1   Jersey to actually have no policy -- to have a

  2   policy of excluding the volunteers from their

  3   sexual harassment provisions.

  4                  So the way it's worded, Your

  5   Honor, it's not worded down to a simple

  6   negligence standard as in the LAD charge.  It's

  7   talking about a policy.  And later on we talk

  8   about, "By policy we mean that which is

  9   implemented by high-level policymakers."  I

 10   think it's completely appropriate.

 11                 JUDGE CURRAN:  I think it's

 12   accurate; but I find that the wording that's in

 13   here now, "through inadequate training,

 14   inadequate supervision and failure to adopt

 15   policy" covers all of that.  You can certainly

 16   argue that in closing.

 17                  And in regard to the attempted

 18   assault, that too is a very fact-sensitive

 19   question as to what Mutschler did or didn't do.

 20   The officer involved, Amodeo, testified that he

 21   couldn't, which he would have to, under the law,

 22   he couldn't find probable cause.

 23                  So you know, I -- I think that

 24   the wording as it's already included is

 25   appropriate.  But again, I'll not your


 

00024

  1   objection.

  2                 MR. MULLIN:  Your Honor, so which

  3   wording are you leaving in, just so I know?

  4                 JUDGE CURRAN:  I'm leaving in,

  5   "through inadequate training, inadequate

  6   supervision."  And then I think you -- I had

  7   made a note the other day it should say, "and/or

  8   failure to adopt a needed policy."  But I'm

  9   leaving out, "inadequate investigation,

 10   inadequate discipline."

 11                 MR. MULLIN:  Okay.  I'm not -- I

 12   just want to be clear when I argue this.  So

 13   it's -- we're at the defendant's section 4.6.7.

 14   It says, "Section 19."

 15                 MR. BEVERE:  4 -- first word,

 16   4.6.5.

 17                 JUDGE CURRAN:  .5.

 18                 MR. BEVERE:  Because inadequate

 19   investigation, which is referenced in -- I am

 20   going to ask all this portion, the Monell

 21   charge, inadequate investigation, inadequate

 22   discipline not be included in the charge.  So

 23   wherever that appears, we are simply going to

 24   have failure to train --

 25                 JUDGE CURRAN:  The standard.


 

00025

  1                 MR. BEVERE:  The standard.

  2                 JUDGE CURRAN:  Inadequate

  3   training, inadequate supervision and/or failure

  4   to adopt a needed policy.  And you can argue

  5   investigation and discipline under all of those,

  6   basically.

  7                 MR. MULLIN:  Okay.  Thank you.

  8                 JUDGE CURRAN:  Okay.

  9                 MR. MULLIN:  Can I just have

 10   counsel point me to the other changes that are

 11   made?

 12                 MR. BEVERE:  Sure.  And what I'm

 13   going to do is on the next page, which is on

 14   fourth paragraph, "Plaintiffs claim that

 15   Secaucus adopted a policy of inadequate

 16   training," I guess what we'll do is put,

 17   "inadequate training and/or supervision" and

 18   take out the "discipline."  "Investigation and

 19   discipline" come out.  "And that such policies

 20   caused the violation of Plaintiffs' substantive

 21   due process of equal protection rights."

 22                 JUDGE CURRAN:  So all you have to

 23   do there is add, "/or" in that sentence.

 24                 MR. BEVERE:  And take out

 25   "investigation and discipline."


 

00026

  1                 JUDGE CURRAN:  I don't see

  2   "investigation."

  3                 MR. BEVERE:  Oh, you know why,

  4   Your Honor?  I am looking --

  5                 JUDGE CURRAN:  You are looking at

  6   the addition?

  7                 MR. BEVERE:  I read mine when

  8   Mr. Mullin sent to me.

  9                 JUDGE CURRAN:  I'm looking at the

 10   original.

 11                 MR. BEVERE:  So that is going to

 12   read, "training or supervision caused the

 13   violation" --

 14                 JUDGE CURRAN:  Right.  You see

 15   that, Mr. Mullin?  I'm working with the

 16   original.

 17                 MS. SMITH:   Judge, I am going to

 18   make you a copy of the redline.  That might be a

 19   little easier.

 20                 JUDGE CURRAN:  No, no, no, no, no,

 21   no, I have -- I have a copy of the redlined in

 22   regard to, yeah, Plaintiffs.

 23                 MR. BEVERE:  Mr. Bevere says I can

 24   run and make you a copy of the redline.  It

 25   might be a little easier.


 

00027

  1                 MR. MULLIN:  Defendant's redline.

  2                 MR. BEVERE:  This is my -- I'm

  3   sorry, Your Honor, I printed out two copies and

  4   gave one to Mr. Mullin this morning; and I --

  5                 JUDGE CURRAN:  Thank you.  Okay.

  6                 MR. BEVERE:  And Judge, while

  7   Miss Smith is -- if we can stay on the record.

  8   With regard to who was an official policy-maker

  9   of the Town, the only individual inserted by Mr.

 10   Mullin who I have an objection to being an

 11   official policy-maker is Frank Walters.  He --

 12   Fire Chief is a two-year position.  Final

 13   policy-making authority rests with the Mayor,

 14   the Council in the Town.  And there is no

 15   dispute that Fire Chief is a two-year elected

 16   position.  And I object to Frank Walters being

 17   designated a policy-maker.

 18                 JUDGE CURRAN:  My concern in that

 19   regard is that all the testimony or -- or even

 20   the conversation that was heard in the meeting

 21   was basically the Fire Department is an entity

 22   unto itself.  I realize that's not an accurate

 23   recollection.  And that they carefully listened

 24   to the -- Mr. Walters in regard to opening --

 25   he -- A, he expressed an opinion in regard to


 

00028

  1   reopening the firehouse.  And he did that,

  2   presumably, as the head of the Fire Department.

  3   And B, they certainly took into consideration

  4   his opinion.  And C, they acted on it.  That's

  5   my concern.

  6                 MR. BEVERE:  But Judge, certainly,

  7   as the Fire Chief, they would ask him for his

  8   opinion and -- and his recommendation.  But the

  9   final decision pursuant -- pursuant to the code

 10   that's in Evidence, the Town of Secaucus

 11   makes -- makes the final -- everything rests at

 12   the end of the day with the Mayor and the

 13   Council.

 14                 JUDGE CURRAN:  See, I would agree

 15   with that.  But part of my concern is if we

 16   went -- and I know this would be nitpicking, but

 17   when you go through the testimony -- and I tried

 18   to listen carefully because you had raised that

 19   issue -- you have people like Mr. Iacono using

 20   the first person, "I reopened," "I did this."

 21   So it's not so clear that only the Mayor and

 22   Council are the individuals who did that.

 23                  In fact, you have got some denial

 24   on -- in regard to some councilmen as to whether

 25   they were even involved in the decision to


 

00029

  1   reopen it, just from the conversation, or

  2   whether they had the right to be involved.  But

  3   I don't need to argue that to you.

  4                  Mr. Mullin, as to the proposals.

  5                 MR. MULLIN:  Your Honor, one of

  6   the reasons we read the deposition testimony of

  7   Elwell, Iacono and Frank Walters was to

  8   establish that they were policymakers.  In those

  9   dep readings we have them clearly say they're

 10   policymakers.  One says it of the other, but

 11   it's all there.  And you can hear in the meeting

 12   it's Frank Walters' decision about closing the

 13   firehouse and it's Frank Walters about opening

 14   it.  The -- the Town Council doesn't take any

 15   votes on that issue.  There are no votes to

 16   reopen or reclose the firehouse.  They put in no

 17   evidence that the Town Council ever voted on

 18   reopening or closing -- or reclosing the

 19   firehouse, so there is no evidence that they

 20   were --

 21                 JUDGE CURRAN:  I think the

 22   evidence was the other way; there was no vote.

 23                 MR. MULLIN:  There was no vote

 24   taken.

 25                 MR. BEVERE:  But Judge, I would


 

00030

  1   take issue with the fact that that makes him a

  2   final policymaker -- final policy-making

  3   official.  The -- the fact that, as the Fire

  4   Chief, he may have reopened the firehouse

  5   doesn't make him a final policy-making official.

  6   And for the purposes of Monell it is the actions

  7   of the final policy-making officials that

  8   control.

  9                 JUDGE CURRAN:  But then don't we

 10   have to also get to the -- first of all, I doubt

 11   he had anything to do with the policy that said

 12   the firemen are exempt prior to this.  But after

 13   this he certainly was the policymaker from the

 14   testimony I remember in regard to, for instance,

 15   the individuals who said they wouldn't go to the

 16   harassment training.

 17                 MR. BEVERE:  Well, once again,

 18   Judge, I mean, the Chief, as the Chief, as a

 19   Chief has the right to suspend people who don't

 20   go to training.  And he has the right to open --

 21   but that doesn't make him a final policymaker

 22   under the terms of Monell standards.  Doesn't

 23   make him a final policymaker.

 24                  Final policy-making -- final

 25   policy-making decisions are made by the Mayor


 

00031

  1   and the Council with regard to the Fire

  2   Department.  Certainly, Frank Walters exercises

  3   high level administerial function; but that

  4   doesn't make him high-level policymaker.  He

  5   doesn't make policy.  It is a two-year elected

  6   position.

  7                 JUDGE CURRAN:  I would agree with

  8   you, if the Mayor and Council had a meeting and

  9   had a vote and it was on the record.  Then,

 10   clearly, you could say, well, he advised them;

 11   but it was their decision.  We just don't have

 12   that here.  So I will note your objection, but I

 13   think he stays in as a policymaker.

 14                 MR. BEVERE:   Judge, just note my

 15   objection --

 16                 JUDGE CURRAN:  Your strong

 17   objection.

 18                 MR. BEVERE:  -- that that was a --

 19   that that was an act of final policy-making

 20   authority with regard to the municipality.

 21                 JUDGE CURRAN:  I got it.  Okay.

 22   Thank you.

 23                  Okay.  I now, thanks to

 24   Miss Smith, have the redlined copy.

 25                 MR. BEVERE:  Okay. Judge, moving


 

00032

  1   on, I think if we go down to -- we were in

  2   Section 4.6.7.  We had gone through first

  3   paragraph.

  4                  With regard to the second

  5   paragraph, the numbers, once again, I will have

  6   training and/or supervision.  "Investigation,"

  7   "discipline" come out.  Same thing with

  8   paragraph two, "training and/or supervision."

  9                 MR. MULLIN:  Now you are taking

 10   "supervision" out, as well?

 11                 MR. BEVERE:  No, "training and/or

 12   supervision."

 13                 JUDGE CURRAN:  He is adding,

 14   "/or."

 15                 MR. MULLIN:  You are going through

 16   the numbered bullet points?

 17                 MR. BEVERE:  Right.  Wherever it

 18   says, "investigation, supervision and/or

 19   discipline," what I have is, "training and/or

 20   supervision."

 21                 MR. MULLIN:  Okay.  And my

 22   objection is noted?

 23                 JUDGE CURRAN:  Yes.

 24                 MR. BEVERE:  Same thing with

 25   paragraph three, "training and/or."


 

00033

  1                 JUDGE CURRAN:  Wait a minute.

  2   Yeah, because -- but you are keeping in 4.6.7,

  3   "and/or failure to adopt the needed policy"?

  4                 MR. BEVERE:  Right.

  5                 JUDGE CURRAN:  Okay, good.

  6                 MR. BEVERE:  I am not taking that

  7   out.

  8                 JUDGE CURRAN:  Okay, good.

  9                 MR. BEVERE:  And then we go to the

 10   next page.  Same thing at the top, "to train

 11   and/or supervise."  And I think that that's a

 12   rap, Judge.

 13                 MR. MULLIN:  Your Honor, can I

 14   just confer with my co-counsel for a minute on

 15   something?

 16                 JUDGE CURRAN:  Surely.

 17                 (Whereupon, a discussion is held

 18          off the record.)

 19                 MR. MULLIN:  Your Honor.

 20                 JUDGE CURRAN:  Yes, Mr. Mullin.

 21                 MR. MULLIN:  I want to make a

 22   concession of sorts on the issue that was just

 23   raised by counsel.  I want to fine-tune the

 24   paragraph on policymakers.  The page is

 25   unnumbered, so between --


 

00034

  1                 JUDGE CURRAN:  I have numbered

  2   mine, so maybe I can help you.  Which page?

  3                 MR. BEVERE:  It would be, Judge,

  4   under 4.6.5.

  5                 JUDGE CURRAN:  Okay.

  6                 MR. BEVERE:  Second page under

  7   4.6.5, just above 4.6.7.

  8                 JUDGE CURRAN:  Parenthetically, I

  9   am just putting the defense on notice that I

 10   believe Mr. Mullin is ahead on concessions, so

 11   you know.

 12                 MR. PARIS:  There is a reason for

 13   that, Judge.

 14                 MS. SMITH:  Very unusual, Your

 15   Honor.

 16                 MR. MULLIN:  I would -- very

 17   unusual.  I would -- I would modify -- we have a

 18   paragraph that counsel just took issue with,

 19   where you instruct the jury that various people

 20   are, "policymakers whose deliberate choices

 21   represent official policy."

 22                  Would like to fine-tune that a

 23   little.  I would like to, first of all, instruct

 24   the jury that Mayor Elwell and the members of

 25   the Town Council are policymakers whose


 

00035

  1   deliberate choices represent official policy.

  2                  I would like you then to instruct

  3   the jury that you may consider whether Town

  4   Administrator Iacono, Chief Frank Walters,

  5   Counsel Leanza, Chief Corcoran are policymakers

  6   whose deliberate choices represent official

  7   policy.  May consider whether or not.

  8                 MR. BEVERE:  It's hard for me to

  9   have an objection to that.

 10                 JUDGE CURRAN:  Absolutely.

 11                 MR. BEVERE:  Judge, the only thing

 12   I just want to clarify is that an individual

 13   Council member would not be a policymaker.  As a

 14   body they are the policymaker.  But I think --

 15                 JUDGE CURRAN:  That's fair.  The

 16   Mayor and the entire Council or the Mayor and

 17   Council acting as --

 18                 MR. BEVERE:  As a whole.

 19                 MR. MULLIN:  The Mayor and Council

 20   as a whole.

 21                 MR. BEVERE:  As a whole.

 22                 JUDGE CURRAN:  As a whole,

 23   perfect.

 24                 MR. MULLIN:  In my list of people

 25   I would add Councilman Kickey in that, "you may


 

00036

  1   consider" because the law is when a high level

  2   policymaker takes an action or inaction, that a

  3   jury may conclude, because they are high-level

  4   policymakers, that that constitutes official

  5   Town policy.

  6                 JUDGE CURRAN:  Which action is

  7   that?

  8                 MR. MULLIN:  That would be telling

  9   the police officer that his son absolutely would

 10   not be talking to them.

 11                 JUDGE CURRAN:  I am going to

 12   disallow that.  I will note the objection; but

 13   no, I am not going to -- I don't find that

 14   that's supported in the record.

 15                 MR. BEVERE:   Judge, I just want

 16   to -- I just want to make sure that I have the

 17   language correct.  So instead of, "I instruct

 18   you," can we say, "The Mayor and the Town

 19   Council acting as a whole are policy-making

 20   officials," right?

 21                 JUDGE CURRAN:  Yes.

 22                 MR. BEVERE:  Acting as a whole.

 23                 MR. MULLIN:  Let me just read

 24   that.  Now he separated the Mayor from the

 25   Council.  The Mayor has policy-making authority


 

00037

  1   and the Town Council does and together they

  2   have.  I think that can be charged as a matter

  3   of law.  We can say --

  4                 JUDGE CURRAN:  Oh, you think that

  5   that indicates the Mayor and the Council have to

  6   all act together?

  7                 MR. MULLIN:  All act together at

  8   all times.

  9                 JUDGE CURRAN:  I don't think that

 10   was the intent.  The intent was it has to be the

 11   entire Council.  I mean, the Mayor can act as a

 12   policymaker without the Council, without the --

 13   he has already done that, according to the

 14   testimony in the case.

 15                 MR. BEVERE:  The Mayor -- so we

 16   will say the Mayor -- I just want to get the

 17   language right because I am going to type it.

 18                 JUDGE CURRAN:  The Mayor --

 19                 MR. BEVERE:  The Mayor.

 20                 JUDGE CURRAN:  -- the Town

 21   Council -- the entire Town Council.

 22                 MR. BEVERE:  Let me just get to

 23   the page.

 24                 JUDGE CURRAN:  Any objection to

 25   that wording?


 

00038

  1                 MR. MULLIN:  No, Your Honor.

  2                 MR. BEVERE:  Let me just get to

  3   the page, Judge; that way I can -- okay.  So

  4   what we're going to have is -- all right.  So

  5   go -- I will probably go to the previous

  6   paragraph and said -- we will say -- right below

  7   the bullet points, above, Your Honor, where it

  8   says, "Agreeing to subordinate's decision to

  9   engage in the violation," then the next

 10   paragraph I think what -- what I'll say is I

 11   will just say, "Town policy-making officials may

 12   also cause a violation through inadequate

 13   training," go on from there, then the next

 14   paragraph --

 15                 MR. MULLIN:  What page are we on?

 16                 MR. BEVERE:  We are on 4.6.5, just

 17   above 4.6.7.

 18                 MR. MULLIN:  What are you changing

 19   again?  What sentence are you working on?

 20                 MR. BEVERE:  If you go to the

 21   previous paragraph we were just working on --

 22                 MR. MULLIN:  Yes.

 23                 MR. BEVERE:  -- not -- not the, "I

 24   instruct you"; the paragraph above it.  See, I

 25   have parentheses.  So I am going to put -- I was


 

00039

  1   going to just put, "Town policy officials."

  2   Then the next paragraph we define who are the

  3   Town policy-making officials.  Fair enough?

  4                 MR. MULLIN:  Fair enough.

  5                 MR. BEVERE:  Okay.  So Town

  6   policy -- I instruct you while -- here.  Sorry,

  7   Judge, this is hard on the laptop here.  So the

  8   Mayor -- and then what are we saying; and --

  9                 MR. MULLIN:  And --

 10                 MR. BEVERE:  And --

 11                 MS. SMITH:  I think the judge

 12   said, "The entire Town Council."

 13                 MR. BEVERE:  And the entire --

 14                 MS. SMITH:  Is that right, Your

 15   Honor?

 16                 JUDGE CURRAN:  Yes.

 17                 MS. SMITH:  Okay.

 18                 MR. BEVERE:  -- Town Council

 19   acting as a whole.

 20                 MR. MULLIN:  Then you may consider

 21   whether or not all those others, Iacono, Leanza,

 22   Corcoran, are policymakers.

 23                 JUDGE CURRAN:  Yeah, but if you

 24   look at that wording, then it does say the Mayor

 25   and the Council all have to do the same thing.


 

00040

  1   It doesn't isolate the Mayor out.  For instance,

  2   directly under 4.6.5 it says, "The Mayor and

  3   Council of the Town of Secaucus is a

  4   policy-making entity."  That means everybody has

  5   to be together.  That does not mean that the

  6   Mayor is on his own.  We could change it to be

  7   the Mayor and all members of the Town Council.

  8                 MS. SMITH:  How about separating

  9   it?  The Mayor is a policy-making official.  The

 10   Town Council is a policy-making official.

 11                 JUDGE CURRAN:  I think we really

 12   have to do that and then make all the verbs

 13   plural.

 14                 MR. MULLIN:  So it will read, "I

 15   instruct you that Mayor Elwell is a policymaker

 16   whose deliberate choices represent official

 17   policy.  I further instruct you that the Town

 18   Council" -- or, "the entire Town Council is a

 19   policymaker whose deliberate choices represent

 20   official policy.  You may consider also whether

 21   or not Town Administrator Iacono, Fire Chief

 22   Walters, Town Counsel" -- I would say, "Town

 23   lawyer," so it doesn't sound like Council.

 24                 JUDGE CURRAN:  Or "Town attorney."

 25                 MR. MULLIN:  -- "Town attorney


 

00041

  1   and/or Police Chief Corcoran are policymakers."

  2                 MR. BEVERE:  See, Judge, my only

  3   problem with that is not everything that the

  4   Mayor does is a policy-making decision.  Do you

  5   see what I'm saying?

  6                 JUDGE CURRAN:  That's true.

  7                 MR. BEVERE:  Not everything.

  8                 JUDGE CURRAN:  But here the

  9   allegation is in regard to this, his actions or

 10   inactions were policy-making decisions.  You're

 11   right; he didn't -- not everything he does.

 12                 MR. BEVERE:  Not everything that

 13   he does.  I mean, if he does it -- if he --

 14   like -- like, for instance, you know, he goes

 15   down and gives a statement to the police about

 16   the meeting that happened the next day, I mean,

 17   that's not a policy-making decision on the part

 18   of the Town.  And my concern is that the jury

 19   will think that everything that he did was a

 20   policy-making decision.

 21                 JUDGE CURRAN:  You can certainly

 22   explain that in closing.  And I think the charge

 23   is accurate.

 24                 MR. BEVERE:  What -- what I would

 25   think, Judge, because I am just going to suggest


 

00042

  1   this, I would say, "The Mayor and the entire

  2   Town Council acting as whole are policymakers

  3   whose deliberate choices represent official

  4   policy.  You may also consider whether the Mayor

  5   acting individually, Township administrator" --

  6   I would add the Mayor to that part because that

  7   way you're not saying that everything he does is

  8   a policy-making decision.  But Mr. Mullin is

  9   free to argue in his summation that certain

 10   things that the Mayor did were policy-making

 11   decisions; and we can argue they were not.  You

 12   see what I'm saying?

 13                 JUDGE CURRAN:  Yeah, I do.  It's a

 14   fair argument.

 15                  Mr. Mullin.

 16                 MR. MULLIN:  Let me just think

 17   about that for a second, Your Honor.  Just

 18   thinking about his proposal.

 19                 JUDGE CURRAN:  Oh, I'm sorry.

 20                 MR. MULLIN:  Your Honor, I don't

 21   have a problem with formulation counsel just

 22   offered, that when the Mayor acts with the Town

 23   Council, as undisputed as a matter of law, Town

 24   policy.  And you may consider whether the Mayor

 25   acting individually without the Town Council and


 

00043

  1   all the others.

  2                 JUDGE CURRAN:  Thank you.  And it

  3   makes sense to leave out Council because there

  4   was no official Council vote on anything, so

  5   that's safe.  Thank you.

  6                 MR. MULLIN:  You're welcome.

  7                 JUDGE CURRAN:  Are counsel going

  8   to be able to get us a clean copy of this

  9   charge?

 10                 MR. BEVERE:  Yeah, I'm going to

 11   put it this on a disk, Judge.  Then, if I can

 12   give it to someone --

 13                 JUDGE CURRAN:  Amy.

 14                 MR. BEVERE:  -- from your staff

 15   and they can print it out, everybody can get a

 16   clean copy.  That's why I brought the disk.

 17                  Now, I have to look at the rest

 18   of the sentence to -- the rest of the paragraph

 19   to make sure it makes sense in light of what we

 20   added.  Instead of saying, "If you find that

 21   such," I think that what you say is, "If you

 22   find that an official policy" -- "an official

 23   policy decision was the cause of and then the

 24   moving force behind the violation."  Any problem

 25   with that, Neil?


 

00044

  1                 MR. MULLIN:  That's okay.

  2                 MR. BEVERE:  That's okay?

  3                 MR. MULLIN:  Well, where is that

  4   change?

  5                 MR. BEVERE:  In other words, if

  6   you go to the next sentence, it doesn't make

  7   sense now.

  8                 MR. MULLIN:  I see.

  9                 MR. BEVERE:  "If you find that

 10   such."  So what I say is, "If you find that an

 11   official policy decision was the cause of and

 12   the moving force behind" --

 13                 MR. MULLIN:  Fine.

 14                 MR. BEVERE:  Okay?

 15                 MR. MULLIN:  An official?

 16                 MR. BEVERE:  Right.

 17                 MR. MULLIN:  Instead of taking out

 18   "such"?

 19                 JUDGE CURRAN:  Right.

 20                 MR. MULLIN:  Calling it an

 21   official policy decision?

 22                 MR. BEVERE:  Correct.  Then I

 23   think that that was -- is that your only other

 24   proposed --

 25                 MR. MULLIN:  That was it.


 

00045

  1                  Then you saw the couple

  2   additional charges that I proposed on -- did we

  3   go through my whole list?  Hold on.  Let me make

  4   sure I went through my whole list.  You have my

  5   e-mail.

  6                  I think we're at 11 on my list

  7   because I have -- I won a motion to strike your

  8   mitigation defense, and you have a mitigation

  9   charge.  I don't think there is any dispute that

 10   I prevailed on the motion to strike the

 11   mitigation defense.  You may disagree with the

 12   ruling but --

 13                 MR. BEVERE:   Judge, I don't think

 14   it was a motion to strike the mitigation.  We

 15   made a motion to bar the testimony of Dr. Marcus

 16   on the grounds that he was not a vocational

 17   expert, and the plaintiffs defeated that motion

 18   by arguing that the defendant has to prove

 19   mitigation of damages.  But I don't think that

 20   that prevents the jury from considering whether

 21   or not Mr. deVries -- every plaintiff has a duty

 22   to mitigate damages.

 23                 JUDGE CURRAN:  All right.  I will

 24   take this, then, as a motion to bar the

 25   defendant's request for the mitigation charge.


 

00046

  1                 MR. MULLIN:  Well, again, I feel

  2   like I have made this argument at least twice

  3   before.  But it's been a long complicated trial,

  4   and maybe I forgot.

  5                  Mitigation of damages, well,

  6   that's governed by the Goodman case.  And I have

  7   cited that to the Court before.  And Goodman

  8   says the burden is on the defendants to show

  9   failure to mitigate.  And Goodman says as a

 10   threshold matter defendants have to show the

 11   availability of other available, suitable,

 12   substantially equivalent jobs in the -- in the

 13   relevant region or area.

 14                  There hasn't been even an attempt

 15   to.  There was no expert put on by the defense

 16   in that regard.  And they didn't elicit any

 17   testimony from anyone, any layperson in that

 18   regard.

 19                  So having failed to carry that

 20   threshold requirement, they have not proven

 21   their mitigation defense; and therefore, it

 22   should not be charged to the jury.  The cite is

 23   Goodman V. London Metals Exchange, Inc., 86 NJ

 24   19, 34 1981.

 25                 JUDGE CURRAN:  All right.  Mr.


 

00047

  1   Bevere.

  2                 MR. BEVERE:  Yes, Judge, our

  3   position is, clearly, the plaintiff always has

  4   duty to mitigate their damages.  In fact, one of

  5   the notes from Barbara Hines that was read to

  6   the jury through Dr. Goldwaser, the note says

  7   Mr. deVries was going to use his disability time

  8   to job hunt, try to find another job.  So I

  9   think the jury is free to consider whether or

 10   not he could have worked or done something else.

 11                 MR. MULLIN:  Plaintiff always has

 12   a duty to mitigate damages.  Unfortunately for

 13   Defendants, it's Defendant's burden to prove

 14   that duty was breached.

 15                 JUDGE CURRAN:  You see, that's the

 16   issue.  That's my concern.  The breach is the

 17   issue, not the duty.

 18                 MR. MULLIN:  Well, clearly.  But

 19   there is no issue -- Plaintiffs have a duty to

 20   mitigate, but it's the -- it's the defendant's

 21   burden to prove they haven't lived up to that.

 22   It's just not in the case.

 23                 JUDGE CURRAN:  In a traditional

 24   case the burden would shift.  I'm going to note

 25   your objection, Mr. Bevere; but I find that the


 

00048

  1   mitigation charge is out here because there was

  2   no expert from the defense in regard to

  3   mitigation.  That doesn't mean you can't just

  4   argue something not the charge, obviously, but

  5   that you just can't mention your view in

  6   closing.  I'll note your objection.

  7                 MR. MULLIN:  Your Honor, let me

  8   also add, just so the record is clear, there was

  9   not even any lay testimony elicited by the

 10   defendants --

 11                 JUDGE CURRAN:  No, good point.

 12                 MR. MULLIN:  -- that there was --

 13                 JUDGE CURRAN:  Good point.

 14                 MR. MULLIN:  -- failure to

 15   mitigate.

 16                 JUDGE CURRAN:  The only reference

 17   was, I believe, as Mr. Bevere indicated, in

 18   Expert Hines' notes or -- or reference.

 19                 MR. MULLIN:  Right, which was

 20   not -- just ordered as a hearsay document relied

 21   upon by an expert.

 22                 JUDGE CURRAN:  I'm going to go

 23   over the experts to make sure that we've got

 24   everything properly organized.  This is amazing

 25   to me that I don't remember any question -- I


 

00049

  1   could be wrong.

  2                 MR. BEVERE:  There was no

  3   questioning on fee by either expert.

  4                 JUDGE CURRAN:  No, which you

  5   virtually never, ever see that.

  6                 MR. MULLIN:  Right.

  7                 JUDGE CURRAN:  Because I always

  8   put that in.

  9                 MR. BEVERE:   Judge, Judge, can we

 10   go off the record one second?

 11                 JUDGE CURRAN:  Surely.  Off the

 12   record.  We are off the record.

 13                 (Whereupon, a discussion is held

 14          off the record.)

 15                 JUDGE CURRAN:  I'm going to ask

 16   that counsel -- that we go through and list all

 17   the experts and their specialty, just to be able

 18   to remind them.  I can do that from my notes;

 19   but if counsel would rather, you know, go over

 20   it today, we can -- we can do that, especially

 21   because I'm concerned we have the motion in

 22   regard to Dr. Almeleh, who did not appear,

 23   obviously.  But I just want to be sure.  Okay.

 24                 MR. MULLIN:  So we have -- on our

 25   side we have Dr. Mati Marcus, and he is an


 

00050

  1   economist.  And we have Dr. Harold Bursztajn,

  2   B-u-r-s-z-t-a-j-n; but it's pronounced

  3   Bursztajn.

  4                 JUDGE CURRAN:  Right.

  5                 MR. MULLIN:  And he is a

  6   psychiatrist.  And that's it.

  7                 MS. SMITH:  That was it.

  8                 MR. MULLIN:  That was it on our

  9   side of the table.

 10                 JUDGE CURRAN:  Mr. Bevere.

 11                 MR. BEVERE:  And we had Dr.

 12   Alberto M. Goldwaser, G-o-l-d-w-a-s-e-r.

 13                 JUDGE CURRAN:  Psychiatrist, he

 14   was?

 15                 MR. BEVERE:  Forensic

 16   psychiatrist -- psychiatrist.

 17                 JUDGE CURRAN:  Right.  Now, after

 18   I list the experts is the request that I

 19   indicate what is in number 12 as far as Dr.

 20   Almeleh?

 21                 MR. BEVERE:  Excuse me, Judge?

 22                 JUDGE CURRAN:  Mr. Mullin

 23   requested in number 12 basically a limiting

 24   instruction to Dr. Almeleh.

 25                 MR. MULLIN:  I think it was


 

00051

  1   actually they requested it, Judge.

  2                 JUDGE CURRAN:  I'm sorry, it is

  3   there.  It is yours.

  4                 MR. MULLIN:  They wanted a

  5   request -- requested a limitation.

  6                 MR. BEVERE:  Just with regard to

  7   his opinion, Judge.  Just with regard to his

  8   opinion diagnosis, that it was something that

  9   was relied upon by the experts who testified but

 10   that the opinion, itself -- just simply that he

 11   can't be considered as a -- a second --

 12                 JUDGE CURRAN:  Conflicting.

 13                 MR. BEVERE:  With regard to his

 14   diagnosis.

 15                 JUDGE CURRAN:  Okay.  So then

 16   there is --

 17                 MR. BEVERE:  That was all,

 18   something very simple like that.

 19                 MR. MULLIN:  I have no objection

 20   to him not being considered as an expert with

 21   regard to --

 22                 JUDGE CURRAN:  I can just say

 23   that.  It would make it easier.

 24                 MR. BEVERE:  I think we --

 25                 JUDGE CURRAN:  Refer to Dr.


 

00052

  1   Almeleh and he is not to be considered an

  2   expert.  I think that might make it easier.

  3                 MR. BEVERE:  I think that --

  4   that -- yeah, that's -- he is -- not to consider

  5   as an opinion of another expert, whatever.

  6                 MR. MULLIN:  I think all sides can

  7   refer to whatever their experts referred to.

  8                 MR. BEVERE:  No question about it.

  9                 JUDGE CURRAN:  Absolutely.

 10                 MR. BEVERE:  No question.

 11                 MR. MULLIN:  And then --

 12                 JUDGE CURRAN:  Maybe there is an

 13   inverse relationship here to -- often we don't

 14   have any of the information in regard to

 15   differences on learned treatises; we don't get

 16   to that.  We always get to the other aspect.

 17   Maybe there is some sort of a relationship

 18   there.

 19                  Okay.  So I will then talk about

 20   the hypothetical questions, the conflicting

 21   testimony and the differences in background,

 22   learned treatises, et cetera.

 23                 MR. MULLIN:  Then in my set that I

 24   e-mailed all the parties yesterday I had a

 25   couple other -- I think they're fairly


 

00053

  1   noncontroversial charges; but in fairness, we

  2   got -- I got to just bring them to everybody's

  3   attention.

  4                  One was Your Honor had asked me

  5   to use the model jury charge on proximate cause

  6   and rewrite it, which I did.  It appears on page

  7   34 of my latest redlined version.

  8                  I have page 35, the standard form

  9   life expectancy.  And then I have the -- and

 10   then I have -- I will put in the record the

 11   basis for that.

 12                  And then somewhere in here I put

 13   in a -- the Rule 1:7-1(b), time unit charge,

 14   which appears on page 40 of my new charges.  So

 15   you want to start with proximate cause, Your

 16   Honor, on page 34?

 17                 JUDGE CURRAN:  Sure.

 18                 MR. MULLIN:  I tried to keep it

 19   very tight to the model.

 20                 JUDGE CURRAN:  Any objections?

 21                 MR. BEVERE:  I'm sorry.  I'm

 22   sorry, I was making --

 23                 JUDGE CURRAN:  Page 34.

 24                 MR. BEVERE:  Just the model

 25   proximate cause charge.


 

00054

  1                 MR. MULLIN:  Here is the way I

  2   wrote it, page -- here you guys --

  3                 JUDGE CURRAN:  Basically what

  4   Mr. Mullin did -- I read it earlier this

  5   morning -- he basically put into, using as the

  6   basis the model charge, the facts of this case.

  7   But there is always some room, perhaps, for

  8   comment on that.

  9                 MR. BEVERE:  No objection.  That

 10   seems to model -- let me just -- I believe it

 11   models the model charge, which I have right in

 12   front of me.  No objection, Judge, to proximate

 13   cause.

 14                 JUDGE CURRAN:  Okay.

 15                 MR. MULLIN:  Then I have the

 16   standard form life expectancy charge.  And for

 17   the record I'll state -- this is in the record.

 18   I think it's in P-106 and P-107.  Peter deVries'

 19   date of birth is June 24th, 1948.  He is 60

 20   years old.  Timothy Carter is -- as indicated in

 21   P-107, his date of birth is April 15, 1958.  His

 22   current age is 50.  So in the life expectancy

 23   form charge I put in Peter deVries' life

 24   expectancy today is 20.6 years -- 20.6 -- and

 25   Carter's, 28.8 years.


 

00055

  1                 JUDGE CURRAN:  Anything else on

  2   that?

  3                 MR. BEVERE:  On proximate cause?

  4   No.

  5                 JUDGE CURRAN:  Or -- or the life

  6   expectancy?

  7                 MR. BEVERE:  Oh, the life

  8   expectancy, I'm sorry.  Nothing on the life

  9   expectancy.

 10                 MR. MULLIN:  Then page 40, Rule

 11   1:7-1(b), time unit charge.

 12                 JUDGE CURRAN:  I'm sorry, which

 13   page?

 14                 MR. MULLIN:  Page 40 of my -- of

 15   what I e-mailed Your Honor.

 16                 JUDGE CURRAN:  Right, got it.

 17                 MR. MULLIN:  I have a whole copy

 18   of it, if you would --

 19                 JUDGE CURRAN:  That is verbatim, I

 20   think, from the -- from the charge, so I don't

 21   think there is a problem with that.

 22                 MR. BEVERE:  Well, I guess I'm not

 23   sure what -- what are we time uniting?

 24                 MR. MULLIN:  Future emotional

 25   distress and pain and suffering.


 

00056

  1                 MR. BEVERE:  Because usually we

  2   use this in a situation where there is a

  3   physical jury, you know, and the person is going

  4   to have back pain the rest of their life.  I

  5   mean --

  6                 MR. MULLIN:  We have testimony on

  7   permanence for both plaintiffs and a prognosis

  8   that's lifelong for both plaintiffs in Dr.

  9   Bursztajn's testimony.

 10                 JUDGE CURRAN:  I mean, it's the

 11   same basis as the rest of the case.

 12                 MR. BEVERE:  I mean, it is from

 13   the model charge, Your Honor.

 14                 JUDGE CURRAN:  It is.

 15                 MR. MULLIN:  You know what, Your

 16   Honor, I have to be frank with you; I couldn't

 17   pull it because I couldn't find it.  I went into

 18   cases to pull it out and --

 19                 JUDGE CURRAN:  It looks verbatim

 20   to me.  And frankly, you know, it's hard to find

 21   because I remember one day a lawyer never put

 22   anybody on notice and in his summation used it

 23   and we had to get it really quickly.  My law

 24   clerk kept saying, "I can't find it."  It's

 25   listed in a strange way.  But it looks to me


 

00057

  1   verbatim because that's basically what you say.

  2   It's argument.

  3                 MR. MULLIN:  It's only argument.

  4                 JUDGE CURRAN:  But that could be

  5   why you couldn't -- I forget how it's listed.  I

  6   will try to find that.

  7                 MR. MULLIN:  I think, just in

  8   fairness, we had the -- the issue on that -- the

  9   word "incident" and the whole Taylor V. Metzger

 10   thing.  And so in this charge I tried to solve

 11   that problem.  Well, there were two things in my

 12   charge.  If everyone will turn to page 12 of

 13   what I just sent, Judge, their model charge,

 14   again, plaintiffs must prove the conduct

 15   occurred, quote, because of their sexual

 16   orientation.  Stated differently, plaintiffs

 17   must prove the conduct would not have occurred

 18   if they were heterosexual.  This is the way we

 19   have it.

 20                  Then I have a note to Your Honor,

 21   "This was not brought up yesterday," referring

 22   to last week.

 23                 JUDGE CURRAN:  Right.

 24                 MR. MULLIN:  But this statement

 25   taken from the model charge overstates the


 

00058

  1   burden on the plaintiffs.  The plaintiffs simply

  2   have to show the fact that they were not

  3   homosexual -- that they were homosexual, not

  4   heterosexual, was a determinative factor, even

  5   if not the only factor, in the motivation of

  6   conduct.  Citing is a Slohoda V. United Parcel

  7   Service, Inc., 207 NJ Super 145 and 155.

  8                  Therefore, the first sentence

  9   should read, "Plaintiffs must prove that the

 10   fact that they were gay was a determinative

 11   factor in causing the conduct."  The second

 12   sentence beginning, "Stated differently" should

 13   similarly be omitted.  So I propose that.

 14                 JUDGE CURRAN:  Any objection?

 15                 MR. BEVERE:  So the paragraphs

 16   that start out by saying, "First plaintiffs must

 17   prove the fact that they were gay was a

 18   determinative factor or causing conduct" --

 19                 MR. MULLIN:  Yes.

 20                 JUDGE CURRAN:  That would be the

 21   only sentence in the paragraph.

 22                 MR. MULLIN:  Right, be the only

 23   sentence in the paragraph.

 24                 MR. BEVERE:  No -- no objection,

 25   Your Honor.


 

00059

  1                 JUDGE CURRAN:  Thank you.

  2                 MR. MULLIN:  There was one other.

  3   Then, on page 14, I tried to address that issue

  4   that came up about Taylor V. Metzger.

  5                 MR. BEVERE:  What page?

  6                 MR. MULLIN:  That's page 14.  The

  7   third bullet point says, "The conduct can

  8   consist of a single severe incident or

  9   accumulation of incidents, although it would be

 10   a rare and extreme case in which" -- and there I

 11   say -- "a onetime use of a single derogatory

 12   word would be so severe it would make the living

 13   environment hostile."  I note, Your Honor, here

 14   I would substitute "onetime use of a derogatory

 15   word," Taylor V. Metzger.

 16                  Again, throughout this trial we

 17   have referred to the whole -- the entirety of

 18   the April 25th incident as an incident.  If we

 19   say it's rare that an -- one incident gives rise

 20   to liability, we may mislead the jury to

 21   think -- in fact, under Taylor V. Metzger April

 22   25th was probably a 50 or a hundred incidents.

 23   Who knows how many?  But it was many incidents.

 24   So this makes it really clear what they're

 25   talking about.


 

00060

  1                  If all that happened here a

  2   firemen had driven by and screamed a homophobic

  3   comment, we'd have a Metzger issue; but we don't

  4   have a Metzger issue in this case because we

  5   have many, many incidents.

  6                 JUDGE CURRAN:  So what are you

  7   asking that this read?  The second sentence?

  8                 MR. MULLIN:  The second sentence

  9   should read -- and it should be in what I sent

 10   to Your Honor.  I have actually made the change.

 11   "The conduct can consist of a single severe

 12   incident or an accumulation of incidents,

 13   although it would be a rare and extreme case

 14   that a onetime use of a single derogatory word

 15   would be so severe that it would make the living

 16   environment hostile."

 17                 JUDGE CURRAN:  But do we need the

 18   rest of that sentence?  That is not factually --

 19                 MR. MULLIN:  I don't even know

 20   that we need it.

 21                 JUDGE CURRAN:  I don't think we

 22   do.  I think that's misleading to the jury

 23   because this is so different from Metzger.  If

 24   we take, "even one word" -- let's say the 25th

 25   didn't happen.


 

00061

  1                 MR. MULLIN:  Right.

  2                 JUDGE CURRAN:  It seems to me it

  3   should read, "The conduct can consist of a

  4   single severe incident or an accumulation of

  5   incidents," period.

  6                 MR. MULLIN:  I agree.

  7                 JUDGE CURRAN:  Then go down to,

  8   "When the conduct."

  9                 MR. MULLIN:  This is not a Metzger

 10   issue; I agree.

 11                 JUDGE CURRAN:  Okay.  Any

 12   objection, Mr. Bevere?

 13                 MR. BEVERE:  As long as the

 14   objections that I previously put on the

 15   record --

 16                 JUDGE CURRAN:  Yes --

 17                 MR. BEVERE:  -- on Friday --

 18                 JUDGE CURRAN:  -- they are

 19   preserved.

 20                 MR. BEVERE:  -- stand, the

 21   sentence as modified is acceptable.

 22                 JUDGE CURRAN:  Thank you.

 23                 MR. BEVERE:  So what we're saying

 24   is what?  The rest of the paragraph comes out?

 25                 MR. MULLIN:  Yeah.


 

00062

  1                 JUDGE CURRAN:  No.

  2                 MR. MULLIN:  Picks up, "When the

  3   conduct consists of multiple incidents," et

  4   cetera.

  5                 JUDGE CURRAN:  Exactly.  So it

  6   takes out from, "Although it will" down to,

  7   "1998."

  8                 MR. BEVERE:  Okay.

  9                 JUDGE CURRAN:  Anything else?

 10                 MR. MULLIN:  And we have our

 11   stipulation, Judge.  What I did was Mr. Bevere

 12   may have the stipulation in the form he gave it

 13   to me.  I went to the trial transcript, and I

 14   have pulled out that portion of the transcript

 15   for you to read.  I will just review it with

 16   counsel to make sure it's neat and reads easily.

 17   And it's about Richard Johnson, Backiel, all

 18   these people that got promoted.  Is that okay,

 19   Your Honor?

 20                 JUDGE CURRAN:  Absolutely.

 21                 MR. MULLIN:  Okay.  This is the

 22   stip I forwarded out of the trial transcript.

 23                 MR. BEVERE:  Do you have a copy of

 24   the Marcus blowups?

 25                 JUDGE CURRAN:  Okay.  On the


 

00063

  1   stipulation, Mr. Bevere.

  2                 MR. BEVERE:  Yeah, that's

  3   accurate.

  4                 MR. MULLIN:  Okay.  So I am just

  5   going to mark it up, so it's readable to you,

  6   Your Honor.

  7                 JUDGE CURRAN:  Okay.

  8                 MR. BEVERE:  Your Honor.

  9                 JUDGE CURRAN:  Yes.

 10                 MR. BEVERE:  I had gone through

 11   and I had made the changes we discussed from

 12   Friday, but if we could go to what would be page

 13   nine of my charge.

 14                 JUDGE CURRAN:  Yes.

 15                 MR. BEVERE:  Okay.  And this is

 16   what I had -- Neil.

 17                 MR. MULLIN:  Page nine of your

 18   charge?

 19                 MR. BEVERE:  Yeah.  In other

 20   words, we were talking about who was at -- who

 21   we conceded was -- well, over my objection who

 22   we conceded was acting under color of law and

 23   who wasn't.

 24                 MR. MULLIN:  Right.

 25                 MR. BEVERE:  All right.  This is


 

00064

  1   what I put, Your Honor.  The Town of Secaucus

  2   does not contest the Mayor Elwell, Township

  3   Administrator Anthony Iacono, Fire Chief Frank

  4   Walters, Deputy Fire Chief Raymond Cieciuch,

  5   Police Chief Corcoran, and Town Attorney, Frank

  6   Leanza were officials acting under color of law

  7   with regard to the actions taken with regard to

  8   this matter.  The Town of Secaucus denies --

  9   sorry.

 10                 JUDGE CURRAN:  You want to say,

 11   "denies" or, "does contest"?  You can do it

 12   either way but --

 13                 MR. BEVERE:  I would say the Town

 14   of Secaucus denies that anyone -- let me read

 15   it, so it's clear for the record.  "The Town of

 16   Secaucus denies that anyone who committed an act

 17   of bias harassment against the plaintiffs did so

 18   under color of law.  You, the jury, therefore

 19   must decide whether, one, any member of Engine

 20   Company Number 2 committed an act of bias

 21   harassment against the plaintiffs, two, whether

 22   that person did so while acting under color of

 23   law and, three, whether that act of bias

 24   harassment violated the plaintiffs'

 25   Constitutional rights."


 

00065

  1                 MR. MULLIN:  No objection.

  2                 JUDGE CURRAN:  Okay.  I have a

  3   question, as long as you're back on yours.

  4   There is a slight difference in what I have

  5   starting on page one of each charge.  We've

  6   got -- on page one of both charge we start with

  7   the burden of proof.  We've got the burden of

  8   proof on the plaintiffs' first, which is

  9   appropriate.  Then, on page one of Mr. Mullin's

 10   we've got the defendant's denial as the last

 11   paragraph.  And then we go down to, "The

 12   plaintiffs must prove their case by a

 13   preponderance of the evidence"; and the wording

 14   is a little different in page two of the defense

 15   proposal.

 16                 MR. BEVERE:  Page two of my

 17   proposal says --

 18                 JUDGE CURRAN:  Basically, is there

 19   any objection to the first paragraph on page two

 20   of Mr. Mullin's?  It's right --

 21                 MR. BEVERE:  Page two,

 22   preponderance of the evidence.

 23                 JUDGE CURRAN:  "The plaintiffs

 24   must prove."  "The plaintiffs must prove their

 25   case by a preponderance of the evidence."  Any


 

00066

  1   objection to the wording in that paragraph?

  2                 MR. BEVERE:  No objection.

  3                 JUDGE CURRAN:  Okay.  And then the

  4   second paragraph -- the next paragraph -- it's

  5   virtually the same, but there are a few words --

  6   and I just want to make sure I'm not missing

  7   what's a significant word to one side or the

  8   other.  Otherwise, I don't think that there is

  9   a -- a problem other than the defense worded it

 10   slightly differently.

 11                 MR. BEVERE:  It doesn't appear to

 12   be --

 13                 JUDGE CURRAN:  I don't think it's

 14   significant --

 15                 MR. BEVERE:  -- consequential --

 16                 JUDGE CURRAN:  -- but I just

 17   wanted to make sure.

 18                 MR. BEVERE:  -- Your Honor.

 19                 JUDGE CURRAN:  All right.  And so

 20   then I'll get a copy of the stipulation.  I --

 21   is there anything else on the charge?

 22                 MS. SMITH:  The stipulation,

 23   Judge, just because I'm having it marked up, I

 24   am having it dictated to our secretary and

 25   e-mailed to Amy.


 

00067

  1                 JUDGE CURRAN:  We have never had

  2   such -- see, that's why when Mr. Mullin said

  3   maybe we would like to get him a copy, I

  4   sometimes keep copies here.  My usual charges

  5   have cut and paste and things taped onto the

  6   side.

  7                 MS. SMITH:  Exactly.

  8                 JUDGE CURRAN:  The jury couldn't

  9   read it if they had to.

 10                  Okay.  Shall we go to the verdict

 11   sheet?

 12                 MR. MULLIN:  Right.  Well, I gave

 13   a proposed verdict sheet when Your Honor

 14   proposed to do so --

 15                 JUDGE CURRAN:  I have those.

 16                 MR. MULLIN:  -- on Thursday

 17   morning.

 18                 JUDGE CURRAN:  And we are just

 19   going to do the contributory right now --

 20                 MR. MULLIN:  Right.

 21                 JUDGE CURRAN:  -- just to be ready

 22   for the jury.  That's not in any way to make any

 23   decision in regard to punitive.

 24                 MR. MULLIN:  I think we need to

 25   make a decision because we'll probably refer to


 

00068

  1   it in our closing statement.

  2                 JUDGE CURRAN:  Well, yes, but I

  3   just want to get the --

  4                 MR. MULLIN:  So, Your Honor, I

  5   gave you Thursday morning -- you required us to

  6   turn in our sheets, and I gave you this.  And

  7   it's -- it's --

  8                 JUDGE CURRAN:  Two pages, seven

  9   questions.

 10                 MR. MULLIN:  Yeah.  And real

 11   straight to the point.  And you can instruct the

 12   jury, of course, where it says, Your Honor, is

 13   where the numbers, the vote should be written

 14   in.

 15                 JUDGE CURRAN:  Yes.

 16                  Mr. Bevere.

 17                 MR. BEVERE:  And Your Honor, I

 18   submitted a verdict sheet this morning with

 19   regard to the Monell --

 20                 JUDGE CURRAN:  Yes, you did.

 21                 MR. BEVERE:  -- issues in the

 22   case.

 23                 MR. MULLIN:  Your Honor, I'm going

 24   to -- and this is the first time I'm doing this.

 25   I am going to object to this submission on terms


 

00069

  1   of timeliness.  You gave us a very clear

  2   instruction to submit our jury charges, as you

  3   put it on the record, no later than Thursday at

  4   Thursday morning.

  5                  I did so.  Counsel for the

  6   defense didn't.

  7                  My jury verdict form has their

  8   claim.  It has their claim, which is not a

  9   Monell claim, of course.  It's under New Jersey

 10   Civil Rights Act.  I have just gotten this this

 11   morning.  Wasn't even e-mailed to me.

 12                  And it's complicated and wrong.

 13   But I don't even want to address the merits of

 14   it.  It's -- it somehow acts as if there are two

 15   separate groups of defendants that -- whose --

 16   damages about whom should be assessed separately

 17   by the jury, that somehow we should have the

 18   jury address damages with respect to acts of

 19   firefighters separately, have jury address acts

 20   by the Town officials separately.

 21                  There no basis in law to have a

 22   jury attempt to tease apart these as if there

 23   were separate defendants.  There is no cites on

 24   this jury sheet to this approach.  It is created

 25   to just create massive confusion.  It's designed


 

00070

  1   to create confusion.  And Your Honor, it's

  2   untimely by four days.  And we have a jury about

  3   to come in, closings about to go.  We have

  4   overextended the jury's stay.  And we need to

  5   proceed to closing argument.

  6                 JUDGE CURRAN:  Mr. Bevere.

  7                 MR. BEVERE:  All right.

  8                 JUDGE CURRAN:  I will note the

  9   objection of Mr. Mullin as to timeliness.

 10   However, I think that it would be remiss of me

 11   not to at least consider the defendant's

 12   proposed verdict sheet on compensatory damages.

 13   It would not, I think, be proper.  This is the

 14   charge conference, and we need to go over the

 15   verdict sheet.  But the objection is

 16   certainly --

 17                 MR. MULLIN:  Thank you, Your

 18   Honor.

 19                 JUDGE CURRAN:  Mr. Bevere.

 20                 MR. BEVERE:  All right.  Your

 21   Honor, the reason that I separated it out is

 22   because I think that there has to be -- you

 23   know, the liability of persons who may have

 24   committed an act of bias harassment against the

 25   plaintiffs is a separate issue of whether or not


 

00071

  1   municipal -- see, in the normal Monell case,

  2   typical Monell case what you have is you have a

  3   named defendant who committed a Civil Rights

  4   violation against the plaintiff.

  5                  And then the first questions that

  6   are put to the jury under the standard of Monell

  7   verdict sheets are did the person act under

  8   color of law?  Did they violate a Constitutional

  9   right?  And then, once you get past those two

 10   issues, then the third question is typically was

 11   it caused by municipal custom, practice or

 12   policy of the municipality?  And then that's

 13   where you consider whether or not those

 14   high-level policy-making officials, as we've

 15   described, are somehow responsible for what the

 16   employee who violated the right did.

 17                  But I -- as I was going

 18   through -- the -- the transcripts of the case

 19   and particularly when we talked about the denial

 20   for summary judgment motion at the beginning of

 21   the case and denial of the motion at the end of

 22   the case, it appeared that what -- there was two

 23   separate issues going on here.

 24                  And one is that -- whether or not

 25   the firefighters who may have committed an act


 

00072

  1   of bias harassment did so under color of law.

  2   And then, if they did so under color of law, did

  3   a municipal custom, practice and policy cause

  4   them to do that?

  5                  And then there seemed to be a

  6   separate issue, which is whether or not Town

  7   officials, through their actions and the way

  8   that they responded to or -- or, as the

  9   plaintiffs say, failed to respond to incidents

 10   of harassment, was a separate Constitutional

 11   violation for which they would be entitled to

 12   damages.

 13                  And I don't think if -- if the

 14   firefighters -- let's say the firefighters --

 15   the jury says the firefighters the morning of

 16   April 25th were not acting under color of law,

 17   not acting under color of law and therefore

 18   whatever damages were proximately caused by that

 19   event of April 25th, 2004 should not be assessed

 20   against the municipality in regard to the Monell

 21   claim.

 22                  But let's say the jury finds that

 23   the manner in which the Town responded to the

 24   incident of harassment in the way they

 25   investigated it or in the reopening of the


 

00073

  1   firehouse or in failing to take discipline

  2   against anyone involved, well, that would be a

  3   separate Constitutional violation with separate

  4   damages that would flow from that.

  5                  So if the jury finds that we're

  6   not liable for what happened on the morning of

  7   April 25th, 2004 because there was no color of

  8   law, then we shouldn't be liable for damages

  9   that proximately flow from that.  But -- and if

 10   the jury finds that, however, the way we

 11   responded to the incidents of harassment was

 12   unconstitutional or violated their due process,

 13   equal protection rights, then you would have to

 14   figure out what damages proximate -- were

 15   proximately caused by that violation.

 16                  Otherwise, what you would be

 17   doing is holding the Town liable for what

 18   happened on the morning of April 25th in a

 19   damages sense without there being color of law

 20   for that event.  And that's why I separated them

 21   out between the actions of the individual and

 22   the actions of the policymakers.

 23                  I mean, if -- if the Town -- if

 24   the jury finds that they were acting under color

 25   of law and that a municipal custom, practice and


 

00074

  1   policy caused the firefighters to do what they

  2   did, then the Town, under Monell, would be

  3   liable for that.  But if they were not acting

  4   under color of law when that happened, then the

  5   Town would not be liable for what happened in

  6   that parking lot.  But they may be liable if

  7   they did something else that might have caused

  8   Mr. deVries and Mr. Carter injury.

  9                  And that's why I separated them

 10   out the way that I did.  I thought it was

 11   important that -- that the jury be given the

 12   distinction.

 13                 JUDGE CURRAN:  Thank you.

 14   Mr. Mullin.

 15                 MR. MULLIN:  Your Honor, what time

 16   did we say the jury is coming in today?

 17                 JUDGE CURRAN:  11.

 18                 MR. MULLIN:  11.

 19                 JUDGE CURRAN:  They are bringing

 20   their lunch.

 21                 MR. MULLIN:  It's 10:35 and the

 22   jury will be here in 25 minutes and we have --

 23                 COURT CLERK:  11:30.

 24                 JUDGE CURRAN:  11:30.  I

 25   apologize, I thought we told them 11.


 

00075

  1                 MR. MULLIN:  I thought we said 11.

  2   In any event, now we hear an argument for the

  3   first time that I have never heard throughout

  4   this trial, which is that the Mayor and Town

  5   Council should be treated as a separate

  6   defendant, policymakers should be treated as a

  7   separate defendant unit, if you will, for

  8   purposes of damages and that the firefighters

  9   should be treated as a unit separate from them,

 10   as a separate, almost like, group defendant for

 11   purposes of damages and that the verdict sheet

 12   should reflect the separation.

 13                  And -- and there is no law cited.

 14   And standing here on my feet getting ready for

 15   my closing argument I have no possibility of

 16   researching this strange proposition.

 17                  The fact of the matter is that --

 18   that there -- the acts of the firemen, if they

 19   were the product of Town policy, practice

 20   procedure or custom, make the Town liable.  Fact

 21   of the matter is that the -- the acts of

 22   high-level policymakers, if they acted with

 23   deliberate indifference and caused injury to the

 24   plaintiff through their deliberate indifference,

 25   well, that can make the Town liable.  Fact of


 

00076

  1   the matter is that a policy of deliberate

  2   indifference can be one of the policies,

  3   practices or customs that caused or allowed the

  4   firemen to violate the rights.

  5                  They are completely intertwined,

  6   these two issues.  They flow together and are

  7   intertwined in inseparable course of events that

  8   it would be impossible for a rational jury to

  9   tease out in the way counsel is saying on his

 10   feet and in the way that this brand new jury

 11   verdict form purports to do.

 12                  A verdict sheet is not a jury

 13   charge and should not be a jury charge.  And

 14   more complicated a verdict -- a verdict sheet

 15   gets, the higher probability that there will be

 16   error, the higher the probability that there

 17   will be inconsistencies and error and confusion.

 18                  And so in this case Your Honor

 19   has -- has put together a comprehensive and

 20   thorough and clear jury charge that will inform

 21   the jury when they sit down with the jury

 22   verdict form.  Our job should be to give the

 23   jurors a clear and simple jury verdict form so

 24   they don't become confused.

 25                  This form is confusing to me.  I


 

00077

  1   have been involved in Civil Rights legal work

  2   for almost 30 years and I just read it and I

  3   find it completely and utterly confusing.  So I

  4   don't know how a jury possibly would -- would be

  5   able to tease out the damages that -- that flow

  6   from policies of deliberate indifference that

  7   triggered or caused, condoned or ratified what

  8   the firefighters do from damages of deliberate

  9   indifference that independently triggered

 10   damages.  It's a closely -- these are closely

 11   intertwined events.  We're asking the jury to do

 12   the impossible in this verdict form.

 13                  So, again, Your Honor, I renew

 14   my -- my argument that this is an untimely

 15   submission of a verdict form.  It's highly

 16   prejudicial because it's based on a new theory

 17   that hasn't been documented with any citations

 18   to precedent.

 19                  We have a jury where we have

 20   already lost one member sitting past the time

 21   that the jury committed to sit.  We must proceed

 22   to closing arguments today.  And the -- and the

 23   arguments that support this verdict form have no

 24   merit.

 25                 JUDGE CURRAN:  Mr. Bevere, I can


 

00078

  1   understand your argument; but there is no way in

  2   the world that I think the jury could figure out

  3   which damages flow -- you know, we, as lawyers,

  4   might talk about the causes of actions that lead

  5   to.  But for them to figure out which damages

  6   flow and/or for us to figure out whether they

  7   even understood it would be impossible.

  8                  So frankly, regard generally to

  9   your charges, I just find that it is not

 10   appropriate to have two different sets of

 11   damages -- two different damage calculations or

 12   two different damage findings.

 13                  That having been said, what

 14   about -- because I frankly do agree that the

 15   more complicated we make the jury verdict sheet,

 16   the more likely it is that they're not going to

 17   understand.  But it does seem to me, Mr. Mullin,

 18   that there is a jury question as to whether or

 19   not there -- the individuals, the firemen and

 20   the Town officials -- certainly, I don't think

 21   it's a question in regard to the Town officials,

 22   but I -- I could certainly listen to argument on

 23   that -- but, certainly, whether or not the

 24   firemen were acting under color of law.  It

 25   seems to me we have to put that phrase into one


 

00079

  1   of the sentences.  Obviously, when I say, "one

  2   of the sentences," would be the same for

  3   Mr. deVries and Mr. Carter.  I don't mean just

  4   one of them.

  5                 MR. MULLIN:  I think we can put

  6   that in that -- my question number three.  And

  7   under the New Jersey Civil Rights Act, which

  8   indicates has the plaintiff Timothy Carter --

  9   and question four -- proven by a preponderance

 10   of the evidence that the Town of Secaucus acting

 11   under color of law violated his rights under the

 12   New Jersey Civil Rights Act?  And we can repeat

 13   the phrase, "under color of law," in number

 14   four.

 15                 JUDGE CURRAN:  I think we

 16   absolutely have to put that --

 17                 MR. MULLIN:  I have no objection

 18   to that approach.

 19                 JUDGE CURRAN:  -- in.  I also

 20   think too -- and I will say that just for the

 21   record -- Mr. Bevere, that we went through the

 22   beginning of the case taking out the Fire

 23   Department and the Police Department.  I

 24   understand that you didn't do it on this basis;

 25   but because the caption and every time we have


 

00080

  1   talked about the case to the jury we have talked

  2   about the Town of Secaucus and it was that

  3   understanding, I think that that's even another

  4   reason not to try to separate these out,

  5   although I understand your doing it.

  6                  Do you have any objection to

  7   adding "under color of law" in questions three

  8   and four?

  9                 MR. BEVERE:  All right.  Let me

 10   get -- let me get the question.  I had it in

 11   front of me.

 12                 JUDGE CURRAN:  The question is:

 13   Has the plaintiff, Timothy Carter, proven by a

 14   preponderance of the evidence that the Town of

 15   Secaucus -- I would say we have to add "acting

 16   under color of law" -- violated his rights under

 17   the New Jersey Civil Rights Act?  And then the

 18   same question would follow for Mr. deVries.

 19                 MR. BEVERE:  Well, Judge, here is

 20   what I think.  The Town of Secaucus as an

 21   entity -- as an entity acts under color of law.

 22   I think if we were to say has Plaintiff Timothy

 23   Carter proven by a preponderance of the evidence

 24   that a -- that any Town --

 25                 MR. MULLIN:  How about agents


 

00081

  1   and/or employees of the Town of Secaucus acting

  2   under color of State law?

  3                 MR. BEVERE:  I was -- I was

  4   thinking of --

  5                 JUDGE CURRAN:  Agents, employees

  6   or volunteers?

  7                 MR. MULLIN:  Agents, employees or

  8   volunteers.

  9                 JUDGE CURRAN:  I think that makes

 10   it clear.

 11                 MR. BEVERE:  Acting under color of

 12   law?

 13                 MR. MULLIN:  Acting under color of

 14   law.

 15                 JUDGE CURRAN:  Right.

 16                 MR. BEVERE:  Violated his rights

 17   under the New Jersey Civil Rights Act?

 18                 JUDGE CURRAN:  Agents, employees

 19   and/or --

 20                 MR. MULLIN:  And/or volunteers.

 21                 JUDGE CURRAN:  -- volunteers.

 22                 MR. BEVERE:  I see what Your Honor

 23   is saying.  And then we go --

 24                 MR. MULLIN:  Acting under color of

 25   State law --


 

00082

  1                 JUDGE CURRAN:  Right.

  2                 MR. MULLIN:  Acting under color of

  3   law.  We should say that, "Secaucus agents,"

  4   right?

  5                 JUDGE CURRAN:  We could say, "Town

  6   of Secaucus."

  7                 MR. MULLIN:  I see.  "Agents

  8   employees and/or volunteers of the Town of

  9   Secaucus," right.

 10                 JUDGE CURRAN:  Yeah.

 11                 MR. BEVERE:  And then -- and then,

 12   if they find that someone acting under color of

 13   law violated the Constitutional rights -- and I

 14   think what the Court is saying is that then, in

 15   the subsequent questions, the jury would then,

 16   in their deliberations, parcel out in their own

 17   assessment --

 18                 JUDGE CURRAN:  Right.

 19                 MR. BEVERE:  In other words, if

 20   they were to find in deliberations, well, the

 21   firemen didn't act under color of law but

 22   Anthony Iacono acted under color of law, then we

 23   will give damages from what Iacono did; but we

 24   are assuming the jury would be able to figure

 25   that out through this question.


 

00083

  1                 MR. MULLIN:  So it will read, "Has

  2   the plaintiff, Timothy Carter, proven by a

  3   preponderance of the evidence that agents,

  4   employees and/or volunteers of the Town of

  5   Secaucus acting under color of law violated his

  6   rights under the New Jersey Civil Rights Act?"

  7   Is that correct?

  8                 MR. BEVERE:  That's it.

  9                 MR. MULLIN:  Then, Your Honor,

 10   just to be consistent, what you said, we

 11   probably should change the caption.  Oh, yeah,

 12   they don't get the caption right, Judge.

 13                 JUDGE CURRAN:  They should -- they

 14   have to -- what we usually do is put the caption

 15   on and then go to question one.  So they do need

 16   the caption, and the caption has to be changed.

 17                 MR. MULLIN:  Should just be the

 18   Town of Secaucus, period.

 19                 JUDGE CURRAN:  Exactly.

 20                 MR. MULLIN:  Should be Defendant,

 21   singular.

 22                 JUDGE CURRAN:  Exactly.

 23                 MS. SMITH:  I will fix that,

 24   Judge.

 25                 JUDGE CURRAN:  There is another


 

00084

  1   issue.  Having made those changes in section

  2   two, we have to go to the directions.  If you

  3   answer yes to everything, do this.  If you

  4   answer no to everything, do that.  But then

  5   there has got to be a possibility, if your

  6   answers to questions one and two --

  7                 MR. MULLIN:  What I have in the

  8   direction, if you have answered any or all of

  9   questions one through four with a yes, proceed

 10   to five.

 11                 JUDGE CURRAN:  Exactly.

 12                 MR. MULLIN:  If all of your

 13   questions to one through four are no, cease your

 14   deliberations and report a verdict in favor of

 15   the Town.

 16                 JUDGE CURRAN:  Now we have to

 17   account for no, let us say, in questions three

 18   and four.

 19                 MR. MULLIN:  I thought I captured

 20   that with the first sentence, which says, "If

 21   you have answered any or all of your questions

 22   one through four with a yes" --

 23                 JUDGE CURRAN:  We -- I think

 24   you -- I want to make sure --

 25                 MR. MULLIN:  I understand what you


 

00085

  1   are saying.  You want to make it clear.

  2                 JUDGE CURRAN:  Yes, that it's

  3   not -- the only -- the only alternatives are not

  4   four yeses or four no's.  Even if it's two and

  5   two, they still go on.

  6                 MS. SMITH:  Right.  Why -- why

  7   don't we say -- maybe after, "Proceed to two"

  8   and --

  9                 JUDGE CURRAN:  See, it's really

 10   not any, because not that I would in any way --

 11                 MR. MULLIN:  Should we say, "If

 12   you answered one" -- I don't know.  Should we

 13   say, "If you have answered one or two or three

 14   or four" -- I don't know how to do it.

 15                 JUDGE CURRAN:  Yeah, see.

 16                 MS. SMITH:  Why don't -- we could

 17   say, "Proceed to" -- in number one -- no, you

 18   don't want to do it that way either; you don't

 19   want to separate it.

 20                 JUDGE CURRAN:  I mean, maybe what

 21   we can do after, we can just say, "Proceed to

 22   the next," the next, the next; and after four we

 23   can just say, "If your answers are no, cease.

 24   Otherwise, proceed to question five."  And just

 25   leave it that way.


 

00086

  1                 MR. MULLIN:  If all of your

  2   answers to questions one through four are no,

  3   cease your deliberations, report a verdict --

  4                 JUDGE CURRAN:  Right.  Otherwise,

  5   question should say, "Proceed to the next

  6   question."

  7                 MS. SMITH:  Yes.

  8                 MR. MULLIN:  I see; there is an

  9   omission.  After question three it should say,

 10   "Proceed to question four."

 11                 JUDGE CURRAN:  Yes.

 12                 MS. SMITH:  Okay.  Judge, so it

 13   will be, "if all of your answers to questions

 14   one through four are no, cease your

 15   deliberations and report a jury verdict in favor

 16   of the Town of Secaucus"?

 17                 JUDGE CURRAN:  But I think it

 18   should say right before that, "Proceed to

 19   question five, unless" --

 20                 MS. SMITH:  Okay.

 21                 JUDGE CURRAN:  Okay.

 22                 MS. SMITH:  Thank you.

 23                 MR. MULLIN:  "Proceed to question

 24   five, unless all of your answers" --

 25                 JUDGE CURRAN:  Right.


 

00087

  1                 MS. SMITH:  Got it.  Got it.

  2                 JUDGE CURRAN:  Any objection to

  3   that, Mr. Bevere?  Just the directions,

  4   basically.  Your substantive are noted.

  5                 MR. BEVERE:  I have no objections

  6   to the directions.

  7                 JUDGE CURRAN:  Thank you.

  8                 MR. MULLIN:   Judge, I just want

  9   to also say for the record that, of course, I

 10   objected to the entire charge that's been

 11   submitted under the standard of 42 U.S.C. 1983

 12   for the New Jersey Civil Rights Act.

 13                 JUDGE CURRAN:  That is noted for

 14   the record.

 15                 MR. BEVERE:  I don't remember

 16   Mr. Mullin doing that, Your Honor.

 17                 JUDGE CURRAN:  And Mr. Mullin, is

 18   there a decision in regard to the number of

 19   jurors?

 20                 MR. MULLIN:  I will make that

 21   decision right now.

 22                 JUDGE CURRAN:  Thank you.  I'm not

 23   trying to rush you.

 24                 MR. MULLIN:  So, Judge, here is

 25   what we want to do because we are at the end of


 

00088

  1   the jury's commitment to stay.

  2                 JUDGE CURRAN:  You each want to

  3   pick which jurors you want and which not?  Okay.

  4                 MS. SMITH:  That would be a good

  5   way to do it.

  6                 JUDGE CURRAN:  That would be a

  7   good way.

  8                 MR. MULLIN:  I would let them all

  9   go in, subject to the following stipulations.

 10   Right now we have nine jurors.  And then, so we

 11   would win -- we, the -- either party would

 12   prevail with a vote of seven.  I have checked

 13   the rules; this is all permissible.

 14                 JUDGE CURRAN:  It's seven?

 15                 MR. MULLIN:  Seven.

 16                 JUDGE CURRAN:  If you agree.

 17                 MR. MULLIN:  What the rule says is

 18   it's up to agreement of counsel.

 19                 JUDGE CURRAN:  You have to agree,

 20   right.

 21                 MR. MULLIN:  Totally up to

 22   agreement of counsel.  Now, the danger is we may

 23   lose a juror in deliberation because it's gone

 24   on because of their time.  If the jury would

 25   drop down to eight, we would say the prevailing


 

00089

  1   should be six out of eight.

  2                  If the jury should drop down to

  3   seven, because of deliberation, the party who

  4   prevails should prevail with a verdict of five.

  5                  If the jury should drop down to

  6   six, the parties should prevail with a vote of

  7   five, the normal five out of six.  And I hope we

  8   don't have to consider beyond that.

  9                 JUDGE CURRAN:  Is there agreement

 10   to that?

 11                 MR. PARIS:  Could I just

 12   understand that again?  A nine would be a

 13   seven-two.  Eight would be a six-two.  Seven

 14   would be a --

 15                 MS. SMITH:  Five-two.

 16                 MR. PARIS:  -- five-two.  Six

 17   would be a?

 18                 JUDGE CURRAN:  Five-one.

 19                 MR. MULLIN:  Five-one.

 20                 MR. PARIS:  Which is normal.

 21                 MS. SMITH:  Right.

 22                 MR. MULLIN:  That's all.  So that

 23   should take care of all the eventualities.

 24                 JUDGE CURRAN:  If there is

 25   agreement, that's fine.  If not, we have got to


 

00090

  1   do it mathematically.

  2                  We will go off the record for a

  3   moment.

  4                 (Whereupon, a discussion is held

  5          off the record.)

  6                 MR. PARIS:  Your Honor, what we

  7   are looking at, in the event it goes to seven,

  8   we actually think it should be six-one at that

  9   point.

 10                 JUDGE CURRAN:  Right.

 11                 MR. MULLIN:  We won't agree to

 12   that, Your Honor.  If we can't get agreement, we

 13   will just go back to the normal five out of six.

 14                 MR. BEVERE:   Judge.

 15                 JUDGE CURRAN:  You want to go back

 16   on the record?

 17                 MR. BEVERE:  Can I make a quick

 18   phone call?

 19                 JUDGE CURRAN:  Of course.

 20                 (Whereupon, a brief recess is

 21          taken.)

 22                 MR. BEVERE:  Judge, we will agree

 23   to the defendants' --

 24                 MR. MULLIN:  Plaintiffs' proposal.

 25                 MR. BEVERE:  Plaintiffs' proposal.


 

00091

  1                 JUDGE CURRAN:  I will put it on

  2   the record again, then.  The proposal is agreed

  3   to by both the plaintiffs and defendants in

  4   regard to all nine jurors will begin

  5   deliberations, and seven out of two must agree

  6   with the -- with either side in order to have a

  7   verdict for that side.

  8                  If the jury gets reduced to eight

  9   jurors, then six would be required out of the

 10   jurors voting for the side that receives the

 11   verdict.

 12                  If there are seven jurors

 13   deliberating, five would be required.

 14                  And if there are six jurors

 15   deliberating, five would be required.

 16                  And both the plaintiffs and the

 17   defense have agreed to that.

 18                  Is there an agreement now that I

 19   indicate to the jury -- you know how we have to

 20   tell them if -- if all of you vote and one of

 21   you says no, then you have to continue, that I

 22   am just going to use the numbers right now nine

 23   and seven, because we may never get to the

 24   jurors being removed?  And if we do --

 25                 MR. MULLIN:  We will just


 

00092

  1   reinstruct them.  No objection.

  2                 JUDGE CURRAN:  No objection?

  3                 MR. MULLIN:   Judge, I assume

  4   this, as an eventuality, will never come; but

  5   the rules allow if a jury drops below six to

  6   allow taking of a verdict with five jurors.

  7                 JUDGE CURRAN:  Absolutely.

  8                 MR. MULLIN:  I believe it has to

  9   be, under the rule, unanimous at that point.

 10                 JUDGE CURRAN:  I believe it does.

 11                 MR. MULLIN:  So I would also say

 12   that I would ask that counsel consent to that,

 13   if it gets to that.

 14                 MR. PARIS:  That's fine.

 15                 JUDGE CURRAN:  Thank you.  So it

 16   would be, if for some strange reason this would

 17   end -- and considering it's supposed to be a

 18   hundred degrees today and we have no window in

 19   our jury room, you never -- so to five would be

 20   in agreement it would have to be unanimous.

 21                 MR. MULLIN:  All that has to

 22   happen next is defense has to move their

 23   evidence in and rest and just a couple finishing

 24   matters.

 25                 JUDGE CURRAN:  I -- I think that


 

00093

  1   we should just go over some of the evidence

  2   because, in fairness, Shirley has not been the

  3   court clerk and she really is stuck with the job

  4   that she should not have to do today.

  5                 MR. MULLIN:  Want me to rapidly

  6   read off the numbers of evidence that I have put

  7   in?

  8                 MS. SMITH:  I gave her a list.

  9                 JUDGE CURRAN:  Which list did you

 10   give her?  Because we had one list that was

 11   revised, but it was not correct either.  So I

 12   want to make sure we have a correct list.

 13                 MS. SMITH:  We cleaned out all of

 14   our exhibits based on the transcript.

 15                 JUDGE CURRAN:  Great.

 16                 MS. SMITH:  And we just gave a

 17   list.

 18                 JUDGE CURRAN:  Perfect.

 19                 MS. SMITH:  I think John just

 20   handed it to you.  He is making a copy for you

 21   based on what's in this book and the transcript

 22   checked.

 23                 JUDGE CURRAN:  Perfect, because I

 24   checked the transcript; but I obviously don't

 25   have -- okay.


 

00094

  1                 MR. MULLIN:  Let me just remind

  2   the Court that as to P-163 we put in the actual

  3   blowups with consent of counsel A through J.

  4                 JUDGE CURRAN:  Absolutely.

  5                 MR. MULLIN:  So I am taking out of

  6   my --

  7                 JUDGE CURRAN:  I have A through G.

  8                 MR. MULLIN:  A through G, excuse

  9   me, I misspoke.  I am taking out the old photos

 10   that were in my book and just say, "See

 11   blowups."

 12                 MS. SMITH:   Judge, also, for the

 13   record, we -- it says, "Tape recording of the

 14   911 calls and the 5/1/04 call to Mayor Elwell

 15   from Timothy Carter."  We have put CDs in

 16   because you can go to what you want to hear --

 17                 JUDGE CURRAN:  Exactly.

 18                 MS. SMITH:  -- on a CD.  And we

 19   have a CD player.

 20                 JUDGE CURRAN:  And that's why we

 21   had to have the dangerous problem of having a

 22   cassette brought in the other day.

 23                  Okay.  So we're fine on the

 24   plaintiffs' evidence.

 25                  As to the defense evidence,


 

00095

  1   Mr. --

  2                 MR. BEVERE:   Judge, let me see if

  3   I can shortcut this.  Let me tell you from my --

  4   I would like to just discuss Mr. Mullin's

  5   objection.  Mr. Mullin raised an objection to a

  6   Bates number, and I think it started with D.

  7                 MR. MULLIN:  233 through 255.

  8                 MR. BEVERE:  Included in those

  9   Bates stamp numbers, Judge, it starts out first

 10   247 is the training program; but 248 through 255

 11   is the Town sexual harassment policy, which Mr.

 12   Leanza identified and testified to in his --

 13                 MR. MULLIN:  No objection.

 14                 MR. BEVERE:  Okay.  Thank you.

 15   And Mr. Mullin had agreed.

 16                 JUDGE CURRAN:  Okay.

 17                 MR. MULLIN:  Then we had to add --

 18   about the library incident, pull out D-302 to

 19   305.

 20                 MR. BEVERE:   Judge, and I also,

 21   notwithstanding Mr. Mullin's objection, I did

 22   want to move in 233 through -- because Mr.

 23   Leanza, as a training, he did identify it.

 24                 MR. MULLIN:  I don't recall that

 25   testimony.


 

00096

  1                 MR. BEVERE:  He testified that the

  2   harassment training manual appeared to be one

  3   that was used by the Town.

  4                 MR. MULLIN:  All right.  I'll just

  5   check the transcript.  My recollection was

  6   not -- we will check the Leanza trial

  7   transcript.

  8                 MR. BEVERE:  233 through 247, but

  9   clearly 248 through 255, which is the policy,

 10   itself, that's it, that was testified to.  It

 11   was identified.  Mr. Mullin consented on

 12   Thursday.

 13                 JUDGE CURRAN:  Do you have a list

 14   of the defense exhibits that were already in?

 15   Because there were so many defense exhibits in.

 16                 MR. BEVERE:  This --

 17                 JUDGE CURRAN:  I have --

 18                 MR. BEVERE:  This is what -- this

 19   is what -- with regard to my binder, Your

 20   Honor -- and I will -- I will, you know -- the

 21   only exhibits in my binder that I'm not moving

 22   in -- well, D-56 --

 23                 JUDGE CURRAN:  How about D-13?

 24                 MR. BEVERE:  D-13 is on my exhibit

 25   list.


 

00097

  1                 MR. MULLIN:  Can I see D-13?

  2                 MR. BEVERE:  Sure.  And Judge,

  3   D-56, we just made a redaction on D-56 because

  4   there was a reference in the paragraph to Al

  5   Sullivan and his series on firehouse --

  6                 MR. MULLIN:  No objection.

  7                 MR. BEVERE:  So we redacted that.

  8   That's D-56.

  9                 JUDGE CURRAN:  So D-56, Shirley,

 10   goes in --

 11                 MR. BEVERE:  Yes.

 12                 JUDGE CURRAN:  -- as redacted.

 13   Hold on one second.  I want to make sure Shirley

 14   has this too.

 15                  Good morning, Miss Hawks.

 16                 MS. HAWKS:  Good morning, Judge.

 17                 COURT CLERK:  That is the

 18   intentionally left -- the D-56.

 19                 JUDGE CURRAN:  And it's redacted,

 20   but they have got the redacted copy.

 21                  Anything else through D-100?

 22                 MR. BEVERE:  I am not moving in

 23   D-87, but I can't find it to tell you what it

 24   is.  I was -- I was pulling together exhibits

 25   last night, trying to find my D-87.  While


 

00098

  1   Mr. Paris is looking for D-87 -- we will come

  2   back to that one.

  3                 JUDGE CURRAN:  Okay.  You have got

  4   D-92 in.

  5                 MR. BEVERE:  D-106 I am going to

  6   pull from my binder because Mr. Mullin had a

  7   better copy than I had.

  8                 MR. MULLIN:  Which one?

  9                 MR. BEVERE:  No, that was the

 10   property evidence report pursuant to which Frank

 11   Leanza --

 12                 MR. MULLIN:  About the tape.

 13                 MR. BEVERE:  Cassette.  Your copy

 14   was better than mine.

 15                 MS. SMITH:  D-96?

 16                 MR. BEVERE:  106.  106.

 17                 MS. SMITH:  Okay.  Trying to find

 18   it.  Got it.

 19                 JUDGE CURRAN:  So you have D-92,

 20   then you have D-106.  You're pulling that?

 21                 MR. BEVERE:  No, D-92 stays.

 22                 JUDGE CURRAN:  Yeah, D-92 stays.

 23   The next one that I have in is D-123 -- no, I

 24   apologize, you have D-100 and 101.

 25                 MR. BEVERE:   Judge, I'm sorry,


 

00099

  1   maybe I was confused.  Your Honor, what I'm

  2   doing now is going through my binder and telling

  3   you what I'm moving in from my binder.

  4                 JUDGE CURRAN:  We will do that,

  5   then we will go through the ones that are

  6   already in.

  7                 MR. BEVERE:  So basically, Judge,

  8   what I'm saying is from my binder D-56 I made

  9   the redaction for the Al Sullivan comment.  I'm

 10   not moving in D-87.  I'm not moving in D-106

 11   because it's a duplicate of something Mr. Mullin

 12   had a better copy of.  I am removing from my

 13   binder and not moving in D-167 through D-170

 14   because Your Honor excluded that incident from

 15   the case.

 16                 JUDGE CURRAN:  Right.

 17                 MR. BEVERE:  The same thing with

 18   D-174 through D-176; Your Honor excluded that

 19   incident from the case.  D-205 through D-207

 20   because Your Honor excluded that from the case.

 21   I made a redaction on D-210 because Your Honor

 22   excluded the incident of October 31st where the

 23   truck stopped outside Mr. deVries' and

 24   Mr. Carter's home when he was sweeping the

 25   porch.


 

00100

  1                 JUDGE CURRAN:  Right.

  2                 MR. BEVERE:  So I redacted that

  3   from -- that was the report where the graffiti,

  4   the bias graffiti but there was a second

  5   incident referred to.  I redacted that incident.

  6                 JUDGE CURRAN:  Right.

  7                 MR. BEVERE:  Then D-216 through

  8   218, Your Honor, excluded that from the case.

  9   And I removed from the binder D-302 through

 10   D-305 because Your Honor excluded the library

 11   incident from the case.  Everything else I'm

 12   moving in.

 13                 MR. MULLIN:  Your Honor, here is

 14   the problem with D-33 -- 233 through 248.  I

 15   found transcript, trial day 17, page 61 at the

 16   bottom.  Leanza is on the stand for the second

 17   day.  And his lawyer -- I think Mr. Paris said

 18   that -- Mr. Paris did this.

 19                  Question, "I'm showing you

 20   document which has been marked D-233 to 248 and

 21   ask if you can identify that?"

 22                  Answer, "Yeah, these are some of

 23   the training materials and some participants --

 24   these are the handouts that are given out and

 25   some of the examples.  However, I believe this


 

00101

  1   is a more recent one.  I'm not sure if this --

  2   there is no date on this" --

  3                  Question, "Okay."

  4                  Answer, "but this might be from

  5   the last three or four years.  I'm not sure if

  6   this is the one that was given in 2002 or 2004."

  7                  "In looking at this -- take a

  8   look at it.  Did you attend -- did you attend

  9   these sessions?"

 10                  "Yes, I believe I attended this

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

 12   Intervention Strategies."

 13                  "Is this the type of material

 14   that is provided by way of training" --

 15                  "Yeah."

 16                  -- "to Secaucus Town employees

 17   prior to April of 2004?"

 18                  "Yes, these are really the

 19   handouts.  There would be somebody who would

 20   give a presentation; and generally, there would

 21   be some type of slide show.  Now they do it by

 22   this computer or Power Point thing."  And it

 23   goes on.

 24                  So this document wasn't

 25   authenticated.  It was -- he didn't know if it


 

00102

  1   was -- the -- training took place, as I recall

  2   the list, in June, July and September of 2004,

  3   the so-called sensitivity training.  He doesn't

  4   know if this was back in the year 2004, these

  5   documents.  He has testified they are the type

  6   of thing that's given out.  But it simply wasn't

  7   authenticated.  There is no date on the

  8   document.

  9                 JUDGE CURRAN:  Mr. Bevere or

 10   Mr. Paris.

 11                 MR. PARIS:  Your Honor, he

 12   testified that these are the typical materials

 13   that were used in training even before April of

 14   '04.  We weren't talking about sensitivity

 15   training afterwards.  We were talking about the

 16   type of training that was in place in the Town

 17   and whether or not it was authenticated in terms

 18   of a date.  He indicated this is the type of

 19   material that's used.

 20                  So if they want to argue as to,

 21   you know, the weight that the jury should give

 22   it; but this is typical material.  And he did

 23   say this was the type of material that they --

 24   that they used.

 25                  Now, you know, again, there was a


 

00103

  1   sidebar discussion.  We don't -- we didn't want

  2   to bring in Mr. Iacono unnecessarily.  You know,

  3   but, theoretically, I guess, at that point we

  4   could have brought Mr. Iacono in.  But there was

  5   a sidebar discussion about not bringing him in,

  6   so we didn't really think there was going to be

  7   a problem.  There was no objection made that

  8   point in time.  And you know, he did testify

  9   that these were the typical materials that were

 10   used to train Secaucus employees in workplace

 11   harassment.

 12                 MR. MULLIN:  I have nothing

 13   further, Your Honor.

 14                 JUDGE CURRAN:  All right.  I am

 15   going to allow them in because the testimony

 16   certainly did, as read into the record, indicate

 17   these were the types of materials.  This is not

 18   the kind of case where there was a definite

 19   police training manual that said that X is

 20   inappropriate undue force and Y isn't.  It is

 21   basically was there basic or was there not?  So

 22   I am going to allow it in.  And certainly,

 23   counsel can argue to the weight, including but

 24   not limited to what the date is or isn't on the

 25   document.  If it's undated, that's something


 

00104

  1   they may want to consider.

  2                 MR. MULLIN:  Just in limine on

  3   that, Your Honor.  I assume they will not be

  4   able to argue to the jury these were the

  5   materials that were given; these are only the

  6   type of materials?

  7                 JUDGE CURRAN:  Absolutely.

  8                 MR. BEVERE:  Well, it will be

  9   along the lines of what Mr. Leanza and Mr.

 10   Iacono testified, that all Town employees had

 11   training prior.

 12                 JUDGE CURRAN:  And it's typical.

 13                 MR. BEVERE:  Typical of material

 14   that were provided.

 15                 JUDGE CURRAN:  You are doing the

 16   closing, Mr. Bevere?

 17                 MR. BEVERE:  Paris.

 18                 JUDGE CURRAN:  Mr. Paris.

 19                  Next issue.

 20                 MR. MULLIN:  Next -- I think we're

 21   finished.

 22                 MR. BEVERE:   Judge, I want to put

 23   on the record D-87 that I pulled from the binder

 24   was -- once again, it was a report to Lieutenant

 25   Malanka referencing a phone call from Mr. -- a


 

00105

  1   message from Mr. Carter on May 6th, 2004 and the

  2   messages about Al Sullivan and his rednecks and

  3   the firehouse drunkenness.  So that's why I

  4   pulled D-87 from the binder, and I am not going

  5   to move that.

  6                  Now, the only thing I was not

  7   able to do, in light of everything going on.

  8   Was see what was duplicative in my binder --

  9                 MR. MULLIN:  I wasn't either.

 10                 MR. BEVERE:  -- as well as

 11   Mr. Mullin's.

 12                 MR. MULLIN:  I wasn't able to do

 13   it.

 14                 MR. BEVERE:  But that having been

 15   said.

 16                 JUDGE CURRAN:  Frankly, I think

 17   we're better to send them duplicates than to

 18   start a weeding out process now.

 19                  One question I do have, P-153 and

 20   P-160 and P-247 and 274 my notes indicate had to

 21   be redacted.

 22                 MR. MULLIN:  We have done all the

 23   redactions.

 24                 JUDGE CURRAN:  Great.

 25                 MR. MULLIN:  And Council --


 

00106

  1   actually, before we send the books in, right --

  2   just quickly inspect each other's evidence

  3   books.

  4                 JUDGE CURRAN:  Absolutely.

  5                 MR. PARIS:  Can I have those

  6   references again, please, P?

  7                 JUDGE CURRAN:  P-153, P-160, P-247

  8   and P-274.  Those needed to be redacted.

  9   Mr. Mullin indicated they have done the

 10   redaction.  I think it would make sense.

 11                  How many jurors do we have now?

 12                 COURT CLERK:  I think two.

 13                 JUDGE CURRAN:  Not all.  Okay.  So

 14   you may want to look at each other's books now,

 15   rather than immediately before they go in.  But

 16   you may want to look -- is anybody going to take

 17   documents out of the books during summation?

 18                 MR. PARIS:  No.

 19                 JUDGE CURRAN:  Mr. Paris?

 20   Mr. Mullin?

 21                 MR. BEVERE:  We have them.

 22                 JUDGE CURRAN:  So if you look at

 23   them now, the books will not be touched by any

 24   court staff, so they will go in that way.

 25                 MR. MULLIN:  Your Honor, may I


 

00107

  1   ask -- my preference is that the books be

  2   inspected right after closing arguments because

  3   I have tagged the documents in the book.  I am

  4   going to take all the tags off.

  5                 JUDGE CURRAN:  No problem.  That's

  6   when they're usually done.

  7                 MS. SMITH:   Judge, I have for you

  8   typed up, I think so you can actually read it,

  9   the stipulation, the proposed jury charge form

 10   with the changes.

 11                 JUDGE CURRAN:  Jury verdict form?

 12                 MS. SMITH:  Jury verdict form,

 13   thank you.  And the two pages in Plaintiffs'

 14   that we changed.  I have those for Your Honor.

 15                 JUDGE CURRAN:  Thank you.  And do

 16   you have the defense?  Are these from Mr. Paris

 17   and Mr. Bevere?

 18                 MR. BEVERE:   Judge, my -- and my

 19   disk is done with the modifications I made to

 20   the jury charge, so if I can give the disk to

 21   Miss Catapano and she can print out copies?

 22                 JUDGE CURRAN:  Okay.  Mr. Bevere,

 23   you may be asked to go in with Miss Catapano.

 24   She is not sure she can run what you have got.

 25   So do you mind?


 

00108

  1                 MR. BEVERE:  Let me just get the

  2   disk.

  3                 JUDGE CURRAN:  I am happy to help

  4   on anything, but I make no volunteer efforts in

  5   regard to the computers.  So I don't --

  6                 MR. PARIS:  There is one matter I

  7   would like to be heard at sidebar but on the

  8   record, if I could.

  9                 JUDGE CURRAN:  Certainly.

 10                 MS. SMITH:  Amy, I'm sorry, can I

 11   confirm the judge has the two new pages, the new

 12   verdict form and the stipulation?

 13                 MS. CATAPANO:  Correct.

 14                 MS. SMITH:  Thank you.

 15                 MS. CATAPANO:  No problem.

 16                 JUDGE CURRAN:  I have the verdict

 17   forms, and I have pages 12, 14, 15 and the

 18   stipulations.

 19                 MS. SMITH:  Thank you, Judge.

 20                 (Whereupon, the following sidebar

 21          discussion is held.)

 22                 JUDGE CURRAN:  We are on the

 23   record.

 24                  Mr. Bevere -- I'm sorry,

 25   Mr. Paris.


 

00109

  1                 MS. SMITH:  We don't know who we

  2   are anymore, Judge.

  3                 MR. PARIS:  How long have we been

  4   here?

  5                 JUDGE CURRAN:  I talked about

  6   another case.  It's a verbal typo.

  7                 MR. PARIS:  Frankly, to be

  8   confused with anyone, to be confused with Mr.

  9   Bevere, it's a high compliment, thank you.

 10                 JUDGE CURRAN:  Good.

 11                 MR. PARIS:  Your Honor, the only

 12   issue I wanted to discuss is an issue with

 13   regard to summations.  I want to be sure that

 14   Mr. Mullin is not going to make reference to

 15   either the JIF or to insurance premiums --

 16                 MR. MULLIN:  Of course not.

 17                 MR. PARIS:  -- during the course

 18   of summations.

 19                 MR. MULLIN:  Never.

 20                  I also want to make sure there is

 21   no reference to taxpayers or taxpayers' money.

 22                 MR. PARIS:  You are not going to

 23   refer to your brother either?

 24                 MR. MULLIN:  I'm not referring to

 25   my brother.


 

00110

  1                 MR. PARIS:  That's --

  2                 JUDGE CURRAN:  I'm --

  3                 MR. MULLIN:  You are not -- can I

  4   clear up?  You are not referring to Amodeo's

  5   son?

  6                 MR. PARIS:  I'm referring to

  7   Amodeo but not his son.

  8                 MR. MULLIN:  Not his son.

  9                 JUDGE CURRAN:  I did just want to

 10   put that on the record.  I think we again dodged

 11   a bullet.  They mentioned JIF.  I don't think

 12   the juries' eyes even opened up on that.

 13                  So I would also just remind

 14   counsel -- and I'm sure I don't have to do this.

 15   But this is a case where would be very easy to

 16   use somewhat flamboyant language.  And I know

 17   all of you would not want all the work that you

 18   have done for all these weeks to be affected by

 19   that.

 20                  And I, frankly, am reminded of

 21   this because I had a motion the other day and,

 22   ironically, part of it was a deliberate

 23   indifference motion and the attorney from New

 24   York, I did find that, you know, some of the

 25   language was prejudicial.  Not unduly


 

00111

  1   prejudicial, so I didn't grant a new trial; but

  2   I just -- it's hot out today, and I would just

  3   hope that any of us who get hot under the

  4   collar, which we all do, would just take a drink

  5   of water and go from there.

  6                 MR. MULLIN:  Stick to the facts.

  7                 JUDGE CURRAN:  Yes, stick to the

  8   facts.

  9                 MR. PARIS:  Having said that, can

 10   I ask to use that end of the table and move

 11   down?

 12                 MR. MULLIN:  Sure, we can make

 13   some room for you.

 14                 MR. BEVERE:  Judge, I am going to

 15   hope that I can plug Dave's external drive into

 16   the USB port in Amy's computer because she does

 17   not have a floppy drive.

 18                 JUDGE CURRAN:  What you said, I am

 19   sure, is English, Mr. Bevere, but not English I

 20   can translate.

 21                 MS. SMITH:  We've had a printer

 22   here the entire trial.

 23                 MR. BEVERE:  We have one in Dave's

 24   car.

 25                 JUDGE CURRAN:  We have printers --


 

00112

  1   our printers won't help, I guess.

  2                 MR. MULLIN:  We should finish up

  3   with their resting --

  4                 JUDGE CURRAN:  Yes, in front of

  5   the jury, absolutely.  And move in your

  6   evidence.  There won't be a problem, just --

  7   thank you.

  8                 (Whereupon, sidebar discussion is

  9          concluded.)

 10                 (Whereupon, a brief recess is

 11          taken.)

 12                 JUDGE CURRAN:  We are back on the

 13   record.

 14                  Mr. Paris and Mr. Bevere, are you

 15   resting?  We'll do this again in front of the

 16   jury, but just to be sure.

 17                 MR. BEVERE:  Yes.

 18                 JUDGE CURRAN:  You are resting?

 19                 MR. BEVERE:  Yes, Your Honor.

 20                 JUDGE CURRAN:  Thank you.

 21                 MR. BEVERE:  We are resting, I

 22   apologize.

 23                 JUDGE CURRAN:  And all of your

 24   documents are in your book; is that correct?

 25                 MR. BEVERE:  All of my documents


 

00113

  1   are in the book.

  2                 JUDGE CURRAN:  Thank you.

  3                 MR. MULLIN:  So then, Your Honor,

  4   in rebuttal I just want to put in a couple items

  5   of evidence.  I want to put in what I marked as

  6   P-406, which is the billing records of Leanza

  7   for March -- April '04.

  8                 JUDGE CURRAN:  So it's March and

  9   April '04?

 10                 MR. MULLIN:  No, it's just April

 11   '04.

 12                 JUDGE CURRAN:  Okay.  No May.

 13                 MR. MULLIN:  I'm going to do May

 14   in a minute.

 15                 JUDGE CURRAN:  Sorry.

 16                 MR. MULLIN:  I want to put in

 17   P-409, which is May '04 billing records

 18   for Leanza.  And then there are -- I want to put

 19   in P-408, which is August billing records

 20   for Leanza.  And I want to put in P-407, which

 21   is the November and December billing '06 records

 22   for Leanza.  And I -- then I want to move in the

 23   P -- I think it was -- as P-410, the defendant's

 24   tape recording of the April 27th, '04 executive

 25   session Council meeting, which counsel advised


 

00114

  1   me is -- was in the Court's chambers as of last

  2   night.

  3                 JUDGE CURRAN:  And I suppose, if

  4   the jury needs to hear it, counsel will have to

  5   play it, if they need to come out and hear it,

  6   because I don't believe it was redacted the way

  7   counsel wanted it redacted.  I did see that note

  8   in the e-mail.  All I am aware of that's in my

  9   chambers is the machine.

 10                 MR. PARIS:  Yeah, the tape should

 11   be in the machine.

 12                 JUDGE CURRAN:  The tape is in

 13   there?

 14                 MR. PARIS:  Should be in the

 15   machine.

 16                 MR. MULLIN:  With that, that ends

 17   my rebuttal case.

 18                 JUDGE CURRAN:  All right.  And

 19   it -- it's clear that they will have to come out

 20   to play it?

 21                 MR. MULLIN:  Yeah.

 22                 MR. PARIS:  It also has to be -- I

 23   guess, if they are going to come out to play it,

 24   we can essentially skip over a portion at that

 25   point in time, Your Honor, with regard to --


 

00115

  1                 JUDGE CURRAN:  Excuse me, one

  2   second.  Let me just ask how we're going to do

  3   that.  I mean, they have to go through all the

  4   evidence, so we have to basically say to them,

  5   "Let us know when," not if, "you want to look at

  6   it, listen to it."  Theoretically they should

  7   listen to it, just as they should look at all

  8   the evidence, even if they remember it.

  9                 MR. MULLIN:  I don't -- I don't

 10   mind an instruction, Your Honor, saying that,

 11   "If you wish to hear the tape, then, because it

 12   has to be redacted, you can notify us and we

 13   will play it for you."  But I don't -- I don't

 14   feel like I have to require them to listen to

 15   it.

 16                 JUDGE CURRAN:  Okay.  Mr. Paris.

 17                 MR. PARIS:  With regard to the

 18   documents, the additional documents, there was

 19   no testimony with regard to the later bills of

 20   Mr. Leanza.  There was testimony with regard to

 21   the April bill and the May bill.  But there was

 22   not testimony with regard to the other bills.

 23                 JUDGE CURRAN:  The other would be

 24   407, the November and December 2006 bills.

 25                 MR. PARIS:  Right.  And in


 

00116

  1   addition, I would have to look at those bills to

  2   determine -- well, I'll leave it at that.

  3                  In addition, we should be -- we

  4   should look at those bills to determine if any

  5   of the entries need to be redacted.  For

  6   example, there may be entries with regard to

  7   other lawsuits, consultations with Mr. Bevere on

  8   another lawsuit that was going on at that point

  9   in time.  So those documents, even the ones that

 10   there was testimony about, can't go in without,

 11   you know, significant redactions probably.  So I

 12   have not had an opportunity to look at them.  I

 13   was not aware until now that they were going to

 14   be offered into Evidence.  So, obviously, I

 15   would have to look at them.  But we do have an

 16   objection beyond what was testified to, which,

 17   again, was April and May.

 18                 JUDGE CURRAN:  Mr. Mullin.

 19                 MR. MULLIN:  I showed these

 20   documents to Mr. Leanza during his testimony.

 21   The August bill had to do with the missing

 22   August 17 correspondence from Captain Buckley

 23   to Leanza, which is now missing.  The other bill

 24   I showed him because I didn't have a clear

 25   certification.  They had been covered over with


 

00117

  1   paste-ons.  So -- and then, of course, the

  2   May -- the May '04 and April '04 bill.

  3                 JUDGE CURRAN:  Those are not

  4   objected to.

  5                 MR. MULLIN:  As to redactions of,

  6   the attorney-client privilege has been waived.

  7   This is -- this is communications between Leanza

  8   and his client, the Town Council.  They waived

  9   the privilege.  I don't see why there should be

 10   any redactions.  I could care less about the,

 11   you know, unrelated cases.  But why should there

 12   be a redaction?  On what basis?

 13                 MR. PARIS:  Your Honor, I need

 14   to -- the attorney client privilege may have

 15   been waived with regard to advice in this

 16   matter.  It wasn't waived for all purposes.  I

 17   don't have the documents in front of me.  You

 18   know, as had been said earlier, we were

 19   scheduled to start summations at 11:30.  I need

 20   to see the document in order to determine what

 21   would need to be redacted from it, if anything.

 22                 JUDGE CURRAN:  Okay.

 23                 MR. PARIS:  But I can't just say

 24   at this point, yeah, that document should go in.

 25                 MR. MULLIN:  Your Honor, these


 

00118

  1   documents without redactions were given to me.

  2   If anything was privileged in them, that

  3   privilege was waived by giving them to me.  I

  4   have read them all.

  5                 COURT CLERK:  Jurors approaching.

  6                 (Whereupon, a juror enters the

  7          courtroom.)

  8                 JUDGE CURRAN:  This is what I'm

  9   going to do.  I'm not going to even touch on

 10   whether or not the privilege was waived.  In the

 11   interest of not confusing the jury, I'm going to

 12   admit 406, which is April, 409, which is May,

 13   and 408, which is August and ask that counsel

 14   redact anything that pertains to another case,

 15   that identifies another case.  That's it.  It's

 16   only based on not confusing the jury.

 17                  Now we have the question of 407,

 18   the November and December '06.  And those are

 19   the ones to -- that is the document or documents

 20   to which Mr. Paris objects.

 21                 MR. MULLIN:  We will withdraw 407

 22   to move things along.

 23                 JUDGE CURRAN:  Thank you.  So the

 24   only thing moved in for rebuttal, then, would be

 25   406, 408 and 409?


 

00119

  1                 MR. MULLIN:  That's right.

  2                 JUDGE CURRAN:  Thank you.

  3                 MR. PARIS:  Again, I will have to

  4   see those, Your Honor.

  5                 MR. MULLIN:  We will hand them to

  6   him and he can --

  7                 MR. PARIS:  I assume I will do

  8   that after the summations?

  9                 JUDGE CURRAN:  Sure.  And I will

 10   say, because counsel has had to do so many

 11   high-tech things today -- Mr. Bevere just

 12   finished with one -- I do know we have Wite-Out

 13   and a copy machine, so we can assist you in the

 14   redaction.  That's the most -- oh, okay.

 15                 MR. PARIS:  Low-tech.

 16                 JUDGE CURRAN:  Very good.  Any

 17   other issues?  Otherwise, I have a few

 18   questions.

 19                  When the jury comes out the

 20   defense is going to move their exhibits in and

 21   rest.  I will then explain to them that we are

 22   going to summations.

 23                  Mr. Mullin, do you have a

 24   preference?  I don't know how long Mr. Paris'

 25   summation -- is there a juror -- summation is


 

00120

  1   going to take.  And I'm not in any way trying to

  2   rush him, but do you have a preference or do you

  3   want to decide then and let me know as to

  4   whether or not you want to go right into your

  5   summation or take a short break?

  6                 MR. MULLIN:  I would prefer to let

  7   you know at that moment.

  8                 JUDGE CURRAN:  That's fine.  The

  9   other thing is you may also want to think -- we

 10   did instruct the jurors to bring their lunch, so

 11   they may have snacks or something in there.  I

 12   was afraid we wouldn't be able to get to them

 13   right away; but I credit all of the attorneys

 14   for all your hard work Friday, Friday night,

 15   Saturday, Sunday.  We are ready for the jurors

 16   exactly on time.  We do not even have all the

 17   jurors yet.  So, you know, they presumably may

 18   want to take a little longer break and have a

 19   snack.  You let me know what your thinking is in

 20   that regard.

 21                 MR. MULLIN:  Sure.  I will go

 22   sidebar on that, Your Honor.

 23                 JUDGE CURRAN:  Anything else?

 24                 MR. BEVERE:  Run to the men's

 25   room, Your Honor.


 

00121

  1                 JUDGE CURRAN:  No need to indicate

  2   that on the record.  Thank you.  Off the record.

  3                 (Whereupon, a discussion is held

  4          off the record.)

  5                 (Whereupon, the following sidebar

  6          discussion is held.)

  7                 JUDGE CURRAN:  We're at sidebar.

  8                 MR. PARIS:  Your Honor, I just

  9   indicated to Miss Smith that we have prepared

 10   some -- I don't know what you would call -- I

 11   mean, some documents that summarize testimony

 12   and events that we intend to show the jury.  In

 13   other words, just to display them.  They are not

 14   going into Evidence.  But it's same kind of

 15   thing I would write on the board during the

 16   course of my summation, if I chose to do so.

 17                 JUDGE CURRAN:  What you are

 18   showing me are eight-and-a-half-by-11 sheets.

 19   Do you have blowups?

 20                 MR. PARIS:  Yeah, I am not -- a --

 21   we have blowups of evidence.  We have blowups of

 22   testimony --

 23                 JUDGE CURRAN:  Right.

 24                 MR. PARIS:  -- from the

 25   transcript.  But we also have some summary


 

00122

  1   documents that we created that are based upon

  2   evidence.

  3                 MS. SMITH:  I, of course, asked to

  4   see them because I haven't seen them.

  5                 JUDGE CURRAN:  And you have

  6   blowups of these?

  7                 MR. PARIS:  Yeah.

  8                 JUDGE CURRAN:  How many are there?

  9                 MR. PARIS:  There are several.

 10                 MS. SMITH:  I still haven't seen

 11   them.

 12                 MR. PARIS:  I don't have a copier

 13   in front of me.

 14                 JUDGE CURRAN:  We will make a copy

 15   for you.

 16                 MR. PARIS:  Okay.  Let me just

 17   double-check.  This is what we have.

 18                 JUDGE CURRAN:  Eva, would you do

 19   me a favor, please, Eva?

 20                  Because my law clerk is inside

 21   making copies of the jury verdict sheets, I am

 22   going to ask Eva to make copies.  Just tell me

 23   how many pages you are giving her.  Twenty-one

 24   sheets.

 25                  Twenty-one blowups you're


 

00123

  1   bringing in?

  2                 MR. PARIS:  Yeah.

  3                 JUDGE CURRAN:  Why would you not

  4   have done this at 9:00?

  5                 MS. SMITH:  Exactly.  We still

  6   haven't seen them.  It's five to 12.

  7                 MR. PARIS:  Frankly, some of these

  8   were prepared last evening.

  9                 JUDGE CURRAN:  Okay.  We will, so

 10   we know what we are talking about.

 11                  Eva, would you be kind enough --

 12   there are 21 sheets.  If you could make two

 13   copies of those, we'd appreciate it.

 14                 LAW CLERK:  Of each?

 15                 JUDGE CURRAN:  Of each.  In that

 16   order, presumably.  Thank you.  There is no

 17   point in discussing them until we really look at

 18   them.

 19                 MS. SMITH:  Yeah, I want to object

 20   at noon -- five to 12 or 10 to 12 for the first

 21   time today being told that there are 21

 22   so-called summary exhibits, which I think are

 23   611 or 612 exhibits that we have never seen

 24   before.  And I had to ask to see them.  Mr.

 25   Paris was going to proceed without even showing


 

00124

  1   them to us.

  2                 MR. MULLIN:  Your Honor, I just

  3   got in here.  As the guy who is going to do

  4   closing argument, I just think this should be

  5   barred because there is no way that on the eve

  6   of us -- me doing my closing argument, I can't

  7   even absorb the material then formulate

  8   objections.  It should have been sent to us in

  9   advance as demonstrative or summary evidence.

 10   They always have to be shown in advance of a an

 11   argument.  It's impossible for me to formulate

 12   intelligent objections without --

 13                  We are going to stand up and do

 14   our closing argument.  I don't mind Mr. Paris

 15   referring to them as guidance for himself during

 16   his closing argument.  That's what they are,

 17   apparently.  I don't mind him looking down and

 18   using them the way anyone would use notes.  But

 19   to have them put up on the screen without me

 20   having seen them, it's impossible at this late

 21   date for me -- I should not be required to

 22   formulate objections to 21 pages of material

 23   that should have been delivered last week, last

 24   night.  It's not appropriate.

 25                 JUDGE CURRAN:  Mr. Paris.


 

00125

  1                 MR. PARIS:  If I may, Your Honor,

  2   there is nothing about this material that's any

  3   different than if I went up to the board and

  4   wrote by hand various notes.  It only

  5   streamlines that process.  That's all that it

  6   is.

  7                  Now, for me to have to do that,

  8   okay, if that's what I am going to have to do.

  9   It just slows the process.  That's the only

 10   thing that these documents are about.  They're

 11   not evidentiary.  We don't intend put them into

 12   Evidence.  They are just basically to follow

 13   along during summation.  That's all it is.  It's

 14   dates and events and thing like that.  That's

 15   all.  So it's not anything other than what I

 16   could do, anyway, by hand.  And it just -- it

 17   just makes the process easier.  It makes it more

 18   legible, that's all.

 19                 JUDGE CURRAN:  Just explain in

 20   general to me, if you would, please, Mr. Paris.

 21   This is or these are your interpretations of the

 22   testimony of various witnesses, or they are just

 23   a theoretically factual chronology?  Which are

 24   they?  Both?

 25                 MR. PARIS:  I can give you an


 

00126

  1   example.  For example, there are -- maybe nine

  2   or ten of the pages are just basically outlining

  3   the events that took place after the opening of

  4   the firehouse.  Number one, you know, what was

  5   the first call from Mr. Carter.  Here is the

  6   first call.  What was the date?  Who called?

  7   You know, these are all things that I could

  8   absolutely go up and handwrite, if I wanted to,

  9   and make bullet points, if I wanted to.  And

 10   that's all that I have done here.  That's all it

 11   is.

 12                  Some of the documents are

 13   documents that just outline aspects of

 14   psychiatric care, psychological care, again,

 15   something that I could do.  November of '03,

 16   what was said, boom, boom, boom.

 17                  So it's all something that I

 18   could do by hand.  It's not creating anything

 19   that I couldn't just get up and do by hand.  And

 20   frankly, that's why -- sometimes you sum up and,

 21   you know, I -- obviously, I thought this through

 22   and some of it yesterday and last night; but

 23   obviously, I thought it through.  And I'm

 24   thinking, you know, rather than me going up to a

 25   board and trying to do that, it's a heck of lot


 

00127

  1   easier just to put it up.

  2                  But I certainly didn't see this

  3   as evidence that I had to produce to counsel

  4   because even if I had just gone up and -- and

  5   done it, okay, I wouldn't have to tell counsel,

  6   "I plan on going up to the board and writing a

  7   date and a time and a place and what was the

  8   investigation and what was this."

  9                  It's only our -- it's only

 10   summation.  It's a summation.  They have got the

 11   police reports.  If Mr. Mullin wants to say that

 12   what I'm saying doesn't comport with the facts,

 13   that's part of summation all the time.  I mean,

 14   that happens all the time.  So, I mean,

 15   that's -- that's what we're talking about.  This

 16   is no more evidence than if I had gone and done

 17   it by hand.

 18                  And you know, what counsel is

 19   saying, they don't like the fact that we had it

 20   typed up.  But I can go up to an easel and do it

 21   by hand.  I hate to say it, but I guess that's

 22   what I'm going to have to do.  But certainly,

 23   going to be more onerous and take more time.

 24   And I don't think the prejudice is any different

 25   for any -- for anything.  This is not a document


 

00128

  1   that is to be produced in discovery.  It's not a

  2   discovery document.  It's an aide for me to use

  3   during summation.  That's all it is.

  4                 JUDGE CURRAN:  Yeah, there is no

  5   question it's not a discovery document.  It is

  6   an exhibit that's being used as a demonstrative

  7   assistant -- as demonstrative assistance in

  8   summation.

  9                  I guess, frankly, the real

 10   problem here is if you had just told them at

 11   9:00 -- even if you didn't have them all typed,

 12   it would at least have put them on record.  As

 13   we all know, because there two counsel -- two

 14   attorneys on either side, we have often during

 15   trial had one attorney doing one thing and

 16   another attorney doing another.

 17                  Mr. Bevere was arguing a lot on

 18   the charge, so you and Miss Smith could have

 19   gone over the exhibits or whatever we are going

 20   to call them, even in the jury room because the

 21   jury wasn't required to be here first thing this

 22   morning.

 23                 MR. PARIS:  Honestly, Your Honor,

 24   I didn't really understand that is requirement

 25   under the rules because it was something that I


 

00129

  1   can do by hand spontaneously, anyway.

  2                 JUDGE CURRAN:  I understand that

  3   part of it.

  4                 MR. MULLIN:  There is a difference

  5   between putting something up and you're talking

  6   and putting a whole series of statements up.

  7                 MS. SMITH:  21 pages.

  8                 MR. PARIS:  It's not going to be

  9   21 pages at one point in time.  They handle

 10   different subjects.  But it's -- it's nothing

 11   that I couldn't have done beforehand.  And

 12   frankly, I didn't expect -- you know, I -- I

 13   expect if they had done the same thing, I

 14   wouldn't have necessarily known about it in

 15   advance either.

 16                 MR. MULLIN:  I have never -- I

 17   have just, in my experience, never had -- ever

 18   in a trial had counsel not shown me.  And I

 19   have -- nor have I not shown counsel summaries

 20   and demonstrative materials I'm going to use

 21   during my summation.

 22                 JUDGE CURRAN:  We usually just do

 23   that.

 24                 MR. PARIS:  Again, I didn't see it

 25   that way; and I apologize.  I didn't -- I didn't


 

00130

  1   do it for any other reason than I was preparing

  2   my summation, this is stuff that we put together

  3   and I thought it would be easier than going up

  4   and doing it by hand.  And it -- and it will be.

  5   I mean, there is just no question about that.

  6   Otherwise, I am going to end up having to ask

  7   the Court -- I mean, I didn't bring, you know,

  8   a -- another what is the word I'm looking for --

  9   pad, you know, a large easel pad.

 10                 JUDGE CURRAN:  And I think we have

 11   got one.  I don't think we have 21 pages on it,

 12   frankly.  See, my concern partly is, the way

 13   we're doing this now, if you had written five

 14   little points or whatever, they could object or

 15   not object.  It's also the defense summation, so

 16   the plaintiff has the chance to argue it.

 17                  Now because these are so

 18   formal -- they look to me like some of them, if

 19   not all of them, were single spaced in certain

 20   parts.  We are going to look at them.  Then we

 21   are going to be in a position of the plaintiffs

 22   saying, "I object to these.  It's not accurate,"

 23   you saying, "It's accurate from my viewpoint."

 24                  Thank you.  I will take one, and

 25   we will give the other one -- oh, it's two


 

00131

  1   copies.

  2                 LAW CLERK:  I will separate --

  3                 MR. PARIS:  Your Honor, if I had

  4   argued something in summation -- and let's say I

  5   argued something that they didn't agree with,

  6   they thought I was misstating the facts.  They

  7   can't get up during my summation, say, "He is

  8   misstating the facts."  They can state in

  9   their --

 10                 MS. SMITH:  We can object if you

 11   are misstating.  Of course, we can object.

 12                 MR. MULLIN:  If we don't -- I

 13   don't believe it's fair comment and I believe

 14   Your Honor, as many trial judges prefer, we

 15   would preserve our objections.

 16                 JUDGE CURRAN:  Unless it's very

 17   important, right.

 18                 MR. MULLIN:  We can always object

 19   that something is not fair comment on the

 20   evidence.

 21                 MR. PARIS:  That's a different

 22   story.  I am not talking about making comment on

 23   evidence.  What I'm talking about -- in other

 24   words, I'm not talking about mischaracterizing

 25   evidence.  I'm talking about basically just


 

00132

  1   summarizing the points that we wanted to make

  2   under certain incidents.  And I'm entitled to do

  3   that.  And I'm entitled to leave out points I

  4   don't want to make.  It doesn't have to be

  5   inclusive.

  6                 JUDGE CURRAN:  No, you're right.

  7                 MR. PARIS:  I am allowed to argue

  8   it the way that I want.  And all these are

  9   bullet points.  I apologize if it's a question

 10   of rudeness, but it's certainly not a question

 11   of being against the rules or something that I

 12   shouldn't be allowed to use.  You know, as I

 13   say, I could go do it by hand.  But if I could

 14   do it by hand, then I could certainly do it by

 15   sitting on a typewriter, putting it up on a

 16   screen.

 17                 JUDGE CURRAN:  Okay.  Well, let's

 18   just wait until we get those.

 19                 (Whereupon, a discussion is held

 20          off the record.)

 21                 MS. SMITH:  You know, I just don't

 22   know if this is fair comment on the evidence,

 23   Judge.  I just don't know.  I look at the

 24   Patrick Hjelm incident, and right away a lot of

 25   things are drawn to my attention that are not


 

00133

  1   what the police report says or what Patrick

  2   Hjelm's report says.  I mean, I could take

  3   several hours and go through these.

  4                 MR. PARIS:  But you know what,

  5   Your Honor, I don't have --

  6                 JUDGE CURRAN:  This is --

  7                 MR. PARIS:  I don't have several

  8   hours to go through what they are going say in

  9   their summation.  They already know more about

 10   my summation than I know about theirs.

 11                 MS. SMITH:  We are not going to

 12   show the jury our interpretation.  You must know

 13   the difference between showing the jury

 14   something and talking, right?

 15                 MR. PARIS:  Well, no, not

 16   necessarily.

 17                 MS. SMITH:  Every other trial I

 18   had lawyers know the difference.

 19                 MR. PARIS:  This is nothing I

 20   couldn't put up on the board.

 21                 MS. SMITH:  I don't agree with

 22   you.

 23                 MR. PARIS:  Absolutely.

 24                 JUDGE CURRAN:  Let me finish

 25   looking.


 

00134

  1                 MR. PARIS:  I could do this by

  2   hand, Your Honor.  And again, if they think I

  3   have mischaracterized these incidents, they can

  4   argue it.

  5                  You know what, they know more now

  6   about what I intend to argue, about what they

  7   intend to argue.  And these incidents are on

  8   record.  This is not pulled out of air.  It is

  9   all based on documents.

 10                 MS. SMITH:  I don't know that.

 11   Some things look like significant things are

 12   missing, and it is not fair comment.

 13                 MR. PARIS:  They are --

 14                 MS. SMITH:  The point is you are

 15   showing it to a jury.  It is not evidence.

 16   There is a big difference between what you can

 17   show to a jury --

 18                 MR. PARIS:  I can do this by hand.

 19                 MS. SMITH:  I don't think you can.

 20   Not if it's not fair comment on the evidence.

 21   And this looks very formal.  Look how formal

 22   this looks.  This looks like an actual report.

 23   That's how it's typed up.

 24                 MR. PARIS:  I will tell the jury I

 25   prepared these for my summation.  I have no


 

00135

  1   problem with that.  They are going to have the

  2   reports.  These -- this is what I prepared.

  3   That's no problem.

  4                 JUDGE CURRAN:  Well, at the very

  5   least, when we get to April 9th, 2004, in regard

  6   to, "Dr. Almeleh indicates," bullet number

  7   three, "dislikes his job and wants to leave," we

  8   have already had that argument; but they're free

  9   to say it.

 10                 MR. PARIS:  Of course.

 11                 MS. SMITH:  He is free to say it.

 12   Judge, there is difference between what they are

 13   allowed to say and what they have prepared in

 14   the documents before --

 15                 JUDGE CURRAN:  He can still write

 16   it down on the board.

 17                 MS. SMITH:  There is no testimony

 18   that that's the maximum amount of Zoloft.  Where

 19   does it -- it says -- you're saying in the

 20   Almeleh reports that Zoloft is the maximum

 21   amount.

 22                 MR. BEVERE:  No, I thought that --

 23   I will check, but I thought that Goldwaser had

 24   testified to that.  Let me just see.

 25                 JUDGE CURRAN:  Shirley, was that


 

00136

  1   the jury?  I thought I heard the door.

  2                 COURT CLERK:  That was the closet.

  3                 MR. PARIS:  We are still waiting

  4   for one?

  5                 COURT CLERK:  One.

  6                 JUDGE CURRAN:  All right, this is

  7   another example of technology getting ahead of

  8   us.

  9                  I am going to make the following

 10   findings.  I am going to find that it is

 11   allowable under the rules for Mr. Paris to use

 12   these.  I find that he could write all of this

 13   information.

 14                  Although, in fairness, even if I

 15   discounted these, I doubt you'd write all this.

 16   It is a much more succinct way of getting the

 17   information in front of the jury.  But

 18   technically, if you wanted to write it all, he

 19   could.

 20                  I am going to -- I would

 21   appreciate it, please, if you would say you

 22   prepared these --

 23                 MR. PARIS:  Absolutely.

 24                 JUDGE CURRAN:   -- they are not

 25   evidence.  I already say what counsel says in


 

00137

  1   summation is not evidence.  And when I comment

  2   on the evidence in my charges, I'm going to, you

  3   know, indicate, "You saw certain items in

  4   Defense Counsel's summation which are not

  5   evidence and therefore can't go into the jury

  6   room with you."

  7                 MS. SMITH:  Here, not fair comment

  8   on evidence.  You know, I found this in a few

  9   minutes, Judge.  Just the record is reflecting

 10   that I have had three minutes to look at 21

 11   pages.

 12                 JUDGE CURRAN:  I apologize -- mine

 13   are numbered -- they are start at page four.

 14   There is not one, two, three, is there?

 15                 MR. PARIS:  There wouldn't

 16   necessarily be.

 17                 MS. SMITH:  I am looking at one

 18   that is not numbered and says, "July 2003,

 19   taking Paxil for panic attacks."  I went over

 20   that with Dr. Goldwaser.  That is just

 21   completely false.  He was having panic attacks

 22   in the past.  "Used to have storms/panic

 23   attacks."  That's just completely false.  That

 24   is not what Almeleh says.  And Goldwaser was

 25   crossed on it and had to admit it.  That's not


 

00138

  1   fair comment on the evidence.

  2                 MR. PARIS:  Your Honor.

  3                 JUDGE CURRAN:  I don't even see a

  4   July.

  5                 MS. SMITH:  It's the second to the

  6   last page --

  7                 JUDGE CURRAN:  Okay.

  8                 MS. SMITH:  -- that I was handed.

  9                 JUDGE CURRAN:  Oh, thank you.  I

 10   do see it.

 11                 MS. SMITH:  That's false.

 12                 JUDGE CURRAN:  On Mr. Carter.

 13                 MS. SMITH:  That's false.  You

 14   assume -- you're allegedly quoting Almeleh

 15   records.  Is that what you are going to say this

 16   is a summary of?

 17                 MR. BEVERE:  Let me start with the

 18   first issue, Your Honor, which is the Zoloft

 19   issue.  Page 147 of the transcript at day --

 20   trial day nine, Dr. Goldwaser says, "The

 21   medication was raised substantially to the

 22   maximum amount, Zoloft, which is

 23   200 milligrams."

 24                 JUDGE CURRAN:  Okay.  As to the

 25   Paxil for --


 

00139

  1                 MR. BEVERE:  I'm looking for that,

  2   Your Honor, I'm sorry.

  3                 JUDGE CURRAN:  I'm sorry, would

  4   you be kind enough to give me the objection

  5   again on the Paxil?

  6                 MS. SMITH:  Objection on Paxil is

  7   on cross he admitted these are -- this is

  8   supposed to be Almeleh's notes.

  9                 JUDGE CURRAN:  Right.

 10                 MS. SMITH:  When I took him to

 11   Almeleh's notes on cross, it says, "Used to have

 12   storms/panic attacks."

 13                 JUDGE CURRAN:  I remember, right.

 14                 MS. SMITH:  He was never reported

 15   that he was currently having panic attacks in

 16   July 2003.

 17                 JUDGE CURRAN:  I see.

 18                 MS. SMITH:  They want it to look

 19   like he was having panic attacks in July of

 20   2003.  That's false.

 21                 JUDGE CURRAN:  I do basically

 22   believe that's accurate because I remember that

 23   back and forth during the cross.  Mr. --

 24                 MR. BEVERE:  Judge, if I could

 25   just say on page 154 of day 15 of the


 

00140

  1   transcript, "What was the condition of

  2   Mr. Carter's ADD let's say within year leading

  3   up to April 25th, 2004?"

  4                  Answer by Dr. Goldwaser.  "He had

  5   problems holding on to jobs.  He had problems

  6   finding jobs.  He -- he had problems being

  7   productive.  And that was -- that was a source

  8   of friction, of problems in his relationship, as

  9   well.  And was -- primarily presented itself as

 10   enormous anxiety, fears, fears of being in an --

 11   in an enclosed space, like -- like a coffin,

 12   fear -- a lot of different fears.  Fears of,

 13   because he was homosexual, he was going to

 14   contract AIDS, regardless whether there was any

 15   real reason for that.  And there was no,

 16   apparently, any real reason for that, according

 17   to his behavior."

 18                  "He was afraid -- he was

 19   having -- he was moving from one fear to another

 20   to another to develop panic attacks.  And he was

 21   treated with Lexapro.  Is an antidepressant

 22   medication that is also medication that treats

 23   anxiety."

 24                 MS. SMITH:  This says, "Paxil."

 25   And on cross he admitted that the date that he


 

00141

  1   gave for that, July 2003, which is what you're

  2   saying -- you're not saying this.  You are

  3   summarizing Almeleh's notes from July 2003, and

  4   they don't say this.  You just admitted that

  5   these are Almeleh's notes.  These are the dates

  6   you're pulling out.

  7                 MR. BEVERE:  Well, you know what,

  8   Judge, we could do, we can White Out, "for panic

  9   attacks."  You can't --

 10                 MR. PARIS:  No.

 11                 JUDGE CURRAN:  You can cross it

 12   out.

 13                 MR. PARIS:  I can cross it out on

 14   here.  I can't cross it out on the computer.

 15                 MS. SMITH:  Then you can't use

 16   this one.

 17                 JUDGE CURRAN:  I mean, that does

 18   not appear to me to be a fair comment on the

 19   evidence.  If you can't take it out --

 20                 MR. PARIS:  Maybe technologically

 21   I may be able to not show that portion.

 22                 JUDGE CURRAN:  Okay.  That's fine.

 23   Cover it up.

 24                 MR. BEVERE:  All right.  And

 25   Judge, just to go on, and then Dr. Goldwaser


 

00142

  1   says, "Eventually these escalated to feeling

  2   panic attacks -- that is in the year 2003, in

  3   July -- for which he was treated."

  4                 MR. PARIS:  No.

  5                 MR. BEVERE:  "First with Paxil.

  6   And Paxil is an antidepressant."  On

  7   cross-examination I showed that was true.

  8                 JUDGE CURRAN:  It is the cross we

  9   need on that.

 10                 MR. PARIS:  Does counsel --

 11                 MS. SMITH:  He was lying.  You

 12   can't put his lie up there.

 13                 MR. PARIS:  He wasn't lying.

 14                 JUDGE CURRAN:  I'm not saying it's

 15   lying, but we just need to address it on cross.

 16                 MR. BEVERE:  Let me look at what

 17   the cross says.

 18                 JUDGE CURRAN:  Thank you.

 19                 MR. PARIS:  Was it the same day.

 20                 MR. BEVERE:  Yeah, it was same

 21   day.

 22                 MR. PARIS:  Let me talk to my

 23   operator, if I could, Your Honor.

 24                 JUDGE CURRAN:  Thank you.

 25                 (Whereupon, a discussion is held


 

00143

  1          off the record.)

  2                 MS. SMITH:  This is Dr.  --

  3   February 2004 under "Smoking" doctor notes

  4   Mr. deVries is smoking ten cigarettes a day.

  5   Says, "Smoking slip."  We did this on cross.

  6                 MR. BEVERE:  Judge, and then,

  7   right below that it says, "ten cigarettes a

  8   day."

  9                 JUDGE CURRAN:  I don't know if

 10   it -- I don't remember that.  I do remember it

 11   on cross.

 12                 MS. SMITH:  Your witness said,

 13   "every day" and argued with me that "/day" meant

 14   every day.  And it was, "smoking slip - ten

 15   cigarettes/day."  Not "a day" or "every day,"

 16   as -- I brought that out on cross very clearly.

 17                 JUDGE CURRAN:  Well, that's going

 18   to be subject for argument in close, then.

 19                 MR. BEVERE:  Because -- because my

 20   doctor did testify that he was smoking ten

 21   cigarettes a day.

 22                 MS. SMITH:  He said, "Dr. Almeleh

 23   said."  That's the difference, Your Honor --

 24                 MR. BEVERE:  Okay.

 25                 MS. SMITH:  -- that they are


 

00144

  1   trying to use their doctor that the treating

  2   doctor said it.  And I brought out on cross that

  3   that was false.  So they don't get to repeat

  4   what they're claiming the treating doctor says,

  5   once I brung out that it's false.

  6                 MR. BEVERE:  It says that the

  7   doctor said it was false.  He never -- never

  8   conceded that was false.  The doctor said the

  9   note says he is smoking ten cigarettes a day.

 10   And the dispute was whether or not every day --

 11   whether a day meant every day.  That was the

 12   dispute.

 13                 MS. SMITH:  No, he called it a

 14   relapse; and it wasn't.  And it was a slip.

 15                 MR. BEVERE:  We had -- we had

 16   dispute over slipped meant relapse and whether a

 17   day meant every day; but clearly, Dr. Goldwaser

 18   said it wasn't true.

 19                 MS. SMITH:  This is how you write

 20   it.  Dr. Almeleh notes that Mr. deVries is

 21   smoking ten cigarettes a day.  That is not fair

 22   about Dr. Almeleh's record.

 23                 JUDGE CURRAN:  Dr. Goldwaser --

 24                 MS. SMITH:  Claims.

 25                 JUDGE CURRAN:  -- claims or


 

00145

  1   indicates in his notes what his understanding of

  2   Dr. Almeleh's notes is.  And that was the

  3   dispute.  And you know, in fairness, because it

  4   was questioned on cross, at the very least it's

  5   a dispute.  So it can't say unchallenged, "Dr.

  6   Almeleh notes."

  7                 MR. BEVERE:  But Judge, the point

  8   is they are free to argue that.  They are free

  9   to argue that.

 10                 JUDGE CURRAN:  I understand.  But

 11   if there is a document like this in capital

 12   letters saying, "Dr. Almeleh notes," that's

 13   different than just mentioning it in closing.

 14                 MR. BEVERE:  Let me get --

 15                 (Whereupon, a discussion is held

 16          off the record.)

 17                 JUDGE CURRAN:  Mr. Bevere, if I

 18   might see you at sidebar.

 19                 MR. BEVERE:  Sure, Judge.

 20                 JUDGE CURRAN:  What if -- and this

 21   is not solving the problem; but what if we just

 22   took out the two pages, the one starts, "Tim

 23   Carter add and anxiety" -- "ADD and anxiety" --

 24                 MS. SMITH:  Right.

 25                 JUDGE CURRAN:  -- and the one that


 

00146

  1   says, "relationship issues"?  Seem to me those

  2   are so subjective because those are, you know,

  3   comments on -- comments made by a non-treating

  4   expert who read the report of the treating

  5   psychiatrist and had serious disagreements with

  6   plaintiff's counsel during the testimony.  It

  7   seems to me that would be a fairer way to do it

  8   because, you know, to put this up there, as I

  9   said, in capital letters, saying things like,

 10   "February 2004 Dr. Almeleh notes that Dr." --

 11   that Mr. deVries is smoking ten cigarettes a

 12   day --

 13                 MR. BEVERE:  Does that mean

 14   Mr. Paris can't comment on it?

 15                 JUDGE CURRAN:  No, no, comment is

 16   not an issue.  I am just talking about taking

 17   out those two pages.  I will give you mine, if

 18   you want see.  We can argue forever what the

 19   interpretation is.  That is what closing is.

 20   But to put it in this format makes it look

 21   factual because it will accompany every -- the

 22   other things, which appear to me to be more

 23   factual, such and such a date, the police

 24   report, even though Plaintiffs' counsel doesn't

 25   agree with all of it.


 

00147

  1                 MR. BEVERE:  Let me ask Dave

  2   because he is the one doing the closing.

  3                 MS. SMITH:  The Judge suggested

  4   taking these pages out and keeping your other 19

  5   pages.

  6                 MR. PARIS:  Your Honor, I think

  7   what we can do is we can take out words on this.

  8   We can block out words.  So if July 2003, taking

  9   Paxil and the problem -- I think his testimony

 10   was clear that his interpretation was he was

 11   taking Paxil for panic attacks.

 12                 JUDGE CURRAN:  Then we are going

 13   to have to start editing, and I am going to have

 14   to be editing.  And I don't think that makes

 15   sense.  I think it would be better to take out

 16   that page and the page that says, "Relationship

 17   issues," which are really your comments on

 18   Dr. Goldwaser's comments on Dr. Almeleh.  You

 19   can comment on them.

 20                 MR. PARIS:  I am going to write

 21   them by hand.  I am going to write some of the

 22   notes by hand.

 23                 JUDGE CURRAN:  Fine by me.

 24                 MS. SMITH:  Make sure it's fair

 25   comment on the evidence.


 

00148

  1                 MR. PARIS:  Pardon me?

  2                 MS. SMITH:  Make sure it's fair

  3   comment on evidence.

  4                 MR. BEVERE:   Judge, are we saying

  5   it's not fair comment on the evidence for

  6   Mr. Paris to reference Dr. Goldwaser reading

  7   Almeleh's notes?

  8                 MS. SMITH:  He is saying, "Dr.

  9   Almeleh said"; and that is not true.  You're --

 10   you're saying, "Almeleh said."  And on cross I

 11   brought out --

 12                 JUDGE CURRAN:  Dr. Almeleh notes

 13   that Mr. deVries is smoking ten cigarettes a

 14   day.

 15                 MR. PARIS:  And that's in there.

 16   That was commented on.  What was Miss Smith's

 17   cross, does that mean every day?

 18                 JUDGE CURRAN:  Right.  But the

 19   cross was whether or not that's what Dr. Almeleh

 20   meant.  The cross was how did Dr. Goldwaser

 21   interpret it?  Did he interpret it correctly or

 22   not?  But this in bold capital letters looks

 23   like it's a fact.

 24                  The other documents are pretty

 25   much facts, fact-based.  So I think if we take


 

00149

  1   out these two pages, it will, at the very least,

  2   get rid of somewhat of the prejudice of getting

  3   this right now for the plaintiffs.

  4                  You can comment on anything you

  5   want to comment on because that's fair game, as

  6   long as it is based on the evidence.

  7                  I think we're close to having to

  8   make a decision as to whether we go out this

  9   juror or not.  I hate to do it because she is

 10   the one who had trouble before and got here last

 11   time.

 12                 MS. SMITH:  I will have to talk to

 13   my partner.

 14                 JUDGE CURRAN:  Shirley, what did

 15   the jurors say?  Did they seem annoyed?

 16                 COURT CLERK:  One of them had a

 17   face; but they didn't say nothing, no.

 18                 MS. SMITH:  Have we heard from

 19   Juror 8?  Any further --

 20                 MR. PARIS:  You're saying I cannot

 21   use these two pages?

 22                 JUDGE CURRAN:  I'm saying that

 23   would be my strong suggestion.

 24                 MR. PARIS:  Can we have these

 25   marked as a court exhibit, then, Your Honor?


 

00150

  1                 JUDGE CURRAN:  Sure.

  2                 MS. SMITH:  I would like this

  3   whole thing marked as a Court exhibit, please,

  4   and noted when we got it.

  5                 JUDGE CURRAN:  Okay.  We will mark

  6   the whole thing as a Court exhibit.

  7                 MR. BEVERE:   Judge, can I just

  8   read the cross-examination during the trial?

  9                 JUDGE CURRAN:  Sure.

 10                 MR. BEVERE:  "Now, the other day

 11   when you testified, you said that Dr. Almeleh

 12   testified that Dr. Almeleh's notes indicated

 13   that Mr. deVries had a smoking relapse and that

 14   he was smoking ten cigarettes every day?  That's

 15   what you testified in front of this jury to

 16   under oath at page 163, the other day, right?"

 17                  "Yes."

 18                  "Okay.  And, in fact, what the

 19   Almeleh notes say are he had a smoking slip?  It

 20   never says, 'relapse,' right?  It says, 'slip,'

 21   doesn't it?"

 22                  "Yes."

 23                  "Okay.  And it doesn't say

 24   anywhere in that that he is smoking ten

 25   cigarettes every day, does it?"


 

00151

  1                  "It does say here in that same

  2   note that you are talking about, yes."

  3                  "It says, 'every day' where?"

  4                  "Smokes ten cigarettes a day."

  5                  "Does it say, 'every day'?  Where

  6   is the word 'every'?"

  7                  "'A day' means every."

  8                 MS. SMITH:  And the Almeleh notes

  9   had, "10 cigarettes/day."  So he is -- he is

 10   testifying that the, "Almeleh noted" means --

 11   that's the problem, is that he is testifying

 12   that the, "Almeleh noted" means -- "smoking

 13   slip/10 cigarettes/day" means every day or a

 14   day.  So now they're making it look like that's

 15   Almeleh's interpretation, not their doctor's

 16   interpretation, of what that means.  In bold

 17   capital letters.

 18                 JUDGE CURRAN:  In fairness, that's

 19   what Dr. Goldwaser alleges.  And you can say

 20   Dr. Goldwaser --

 21                 MR. PARIS:  These are all

 22   Dr. Goldwaser -- what Dr. Goldwaser gleaned from

 23   Dr. Almeleh's notes.  That's what all of this

 24   is.

 25                 MS. SMITH:  Well, then, you can


 

00152

  1   say that.  What you are saying is you can't --

  2                 JUDGE CURRAN:  Excuse me for a

  3   second.

  4                  Shirley, see if -- Shirley, do me

  5   a favor, please, and see if there is a phone

  6   number for that juror.  She may have a cell

  7   phone with her.  Okay.  I am sure we have a

  8   phone number because we called everybody, but it

  9   may or may not be a cell phone.  Thank you.

 10                  You can't say, "Almeleh's notes"

 11   because, "Almeleh notes," that just plain is

 12   not --

 13                 MR. PARIS:  Then I will take these

 14   two pages out, if that's Your Honor's ruling.

 15                 MR. BEVERE:  Why don't we just

 16   put, "10 cigarettes/day"; and we can argue what

 17   that means?

 18                 JUDGE CURRAN:  Absolutely.  There

 19   is no point --

 20                 MS. SMITH:  Absolutely.

 21                 MR. PARIS:  I am going to do it.

 22                 JUDGE CURRAN:  What it should say

 23   is, "Goldwaser says"; but Mr. Paris said when he

 24   is doing all of this he is going to be saying,

 25   "Dr. Goldwaser."  So that's fine.  Okay.


 

00153

  1                 MS. SMITH:  Right.

  2                 MR. PARIS:  Just want to identify

  3   I am going to have to go talk to my person; but

  4   we don't have that juror right now, anyway.  So

  5   we are talking about the one that starts,

  6   "Relationship issues"?

  7                 MR. BEVERE:  A juror wants --

  8                 COURT CLERK:  She needs to use her

  9   phone.

 10                 JUDGE CURRAN:  She can go out in

 11   the hallway and use one of -- her phone.

 12                 MR. PARIS:  You are saying we

 13   cannot use these two pages?

 14                 JUDGE CURRAN:  The relationship

 15   issues and the one that says, "Tim Carter," yes,

 16   thank you.

 17                 MR. PARIS:  Your Honor is going to

 18   mark the set?

 19                 JUDGE CURRAN:  Yes, we will mark

 20   them.

 21                 (Whereupon, sidebar discussion is

 22          concluded.)

 23                 JUDGE CURRAN:  I will note that

 24   all counsel are present but the jury has not

 25   been brought out.  I will note for the record


 

00154

  1   that counsel have been here since early this

  2   morning.  They are ready to proceed.

  3                  The jurors were asked to report

  4   back at 11 or 11:30.  There seems to be some

  5   discrepancy.  But nonetheless, we had all the

  6   jurors well before or certainly by 11:30.  We

  7   did receive, however, one call from Juror Number

  8   8 who indicated that her car had had a boot

  9   installed and she couldn't get here; therefore,

 10   she was taking the bus.

 11                  It is now basically 12:30.  We

 12   have waited with all of the other jurors in

 13   there basically an hour for this juror.

 14                  Is there any objection to

 15   starting without Juror Number 8 on behalf of

 16   either the plaintiff or the defense?  And I will

 17   certainly listen to any objection because this

 18   has been a long trial and I will note for the

 19   record, Counsel, as the record will indicate,

 20   that all the present jurors, nine in number,

 21   should deliberate.

 22                  My concern is that with the bus

 23   situation and repaving every third street in

 24   Jersey City, we have no way of knowing when the

 25   juror will get here.  We did attempt to reach


 

00155

  1   her but not going to but a message.

  2                  What is your preference,

  3   Mr. Mullin?

  4                 MR. MULLIN:  Your Honor, Juror

  5   Number 8 was in a car accident, I believe,

  6   sometime ago during this trial and made the

  7   effort to take a bus to be here.  I would say

  8   that, as much as I want to get going, that we

  9   should take a 30-minute lunch break at this

 10   time.  The jurors have brought their lunch.  And

 11   if Juror Number 8 is not back at the end of our

 12   30-minute lunch break, then I think we have no

 13   choice but to proceed without her.

 14                 JUDGE CURRAN:  Thank you.  Mr.

 15   Bevere or Mr. --

 16                 MR. BEVERE:   Judge, my sentiment,

 17   before Mr. Mullin said it, was the same thing,

 18   which is we should give her at least until 1:00.

 19                 JUDGE CURRAN:  Okay.  No problem

 20   at all.  We will bring the jury out and tell

 21   them that we are going to give them a half hour

 22   lunch break.

 23                 MR. PARIS:  Are we going to tell

 24   them why?

 25                 JUDGE CURRAN:  They can figure it


 

00156

  1   out.  Trust me, they know why.  We will go off

  2   the record.

  3                 (Whereupon, a discussion is held

  4          off the record.)

  5                 (Whereupon, the jury is brought

  6          into the courtroom.)

  7                 JUDGE CURRAN:  Don't worry, sir,

  8   you are not in trouble.  Just stay right there.

  9                  Ladies and Gentlemen, I am sorry

 10   that you have spent so much time in the jury

 11   room.  Want you to know this is one time -- I

 12   always take responsibility and say, "Well, we

 13   had tough legal issue."  We were ready.

 14   However, Juror Number 8 has been very

 15   responsible and she was in an accident one day,

 16   another day her camera was confiscated and she

 17   still came in to deliberate.  She has had a

 18   problem and is not yet here.

 19                  We are going to wait for her

 20   because you all have invested a lot in this

 21   trial, as have all of the parties.  So we will

 22   excuse you to go to lunch until 1:00.  If you

 23   would, we would appreciate it if you would be

 24   back by 1:00.

 25                  Okay.  Are there any questions at


 

00157

  1   all?

  2                  Once again, I will remind you

  3   please do not discuss the case among yourselves.

  4   May be temptation, well, we are pretty much at

  5   the end; but you haven't heard the best part.

  6                  Okay.  So we will see you at

  7   1:00.  Thank you very much.

  8                 (Whereupon, the jury is excused

  9          for lunch.)

 10                 (Whereupon, a luncheon recess is

 11          taken.)

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

 13                 JUDGE CURRAN:  We'll bring out the

 14   jury.

 15                 MS. HAWKS:  Jurors are

 16   approaching.

 17                 JUDGE CURRAN:  Thank you.

 18                 (Whereupon, the jury is brought

 19          into the courtroom.)

 20                 JUDGE CURRAN:  Good afternoon,

 21   Ladies and Gentlemen.  We're back on the record.

 22   As you know, this is the matter of Carter and

 23   deVries versus the Town of Secaucus, Docket

 24   Number 3520 of the 2004 term.

 25                  I'm going to ask counsel, please,


 

00158

  1   to give their appearances for the record.

  2                 MR. MULLIN:  Good afternoon,

  3   Ladies and Gentlemen.  Neil Mullin, Nancy Erika

  4   Smith.

  5                 JUDGE CURRAN:  Thank you.

  6                 MR. BEVERE:  Good afternoon,

  7   Ladies and Gentlemen.  Daniel Bevere and Dave

  8   Paris on behalf of the Town of Secaucus.

  9                 JUDGE CURRAN:  Thank you.  Ladies

 10   and Gentlemen, we do appreciate your patience.

 11   I know that all of you have made a real effort

 12   to be here, but especially Juror Number 8 today.

 13   So we do appreciate the patience of the jury.

 14                  As I have often said before, we

 15   can't control the temperature in this courtroom,

 16   so we are going to leave the fan on.  And I

 17   believe that air conditioner is on; but if it's

 18   not, you are welcome to put it on.  If it's too

 19   much for you, you are welcome to turn it off.

 20   And the same thing is true of the fan.

 21                  I would just indicate to counsel,

 22   if they wish, that Court has no objection to

 23   counsel removing their jackets.  Counsel will be

 24   too professional to do that unless there was

 25   some indication in the record.  But you're


 

00159

  1   welcome to do that.

  2                 MR. PARIS:  Thank you, Your Honor,

  3   appreciate it.

  4                 JUDGE CURRAN:  Ladies and

  5   Gentlemen, we are now at the end of the defense

  6   case.  And I'm going to ask the defense

  7   attorneys a few questions.

  8                  Mr. Bevere or Mr. Paris, have you

  9   moved into Evidence all of the evidence, having

 10   heard the arguments, that is going to be

 11   submitted?

 12                 MR. BEVERE:  We have, Your Honor.

 13                 JUDGE CURRAN:  Thank you.  And

 14   with that, does the defense rest?

 15                 MR. BEVERE:  It does, Your Honor.

 16                 JUDGE CURRAN:  Thank you.

 17                  What that means, Ladies and

 18   Gentlemen, is now all the plaintiffs' exhibits

 19   are in and all the defense exhibits are in.

 20   You've heard reference to a number of documents.

 21   I probably couldn't even count all of the

 22   documents that we have had reference to,

 23   perhaps.  But only the items that have been

 24   moved into Evidence can go into the jury room

 25   with you.  So we will talk about that in a


 

00160

  1   little more detail in the jury charge.

  2                  But we have now reached the part

  3   of the trial which you often do see on TV.  We

  4   are going to have summations by counsel.  I will

  5   remind you that counsel are advocates.  They

  6   support the position of their clients.  And in

  7   doing so they are going to summarize the case

  8   from the viewpoint of their clients for you.

  9                  One thing I do want to indicate,

 10   because a lot of people these days do watch

 11   trial shows on TV, many times you will see an

 12   attorney at the end make a big point and then

 13   the other attorney will cut back that point and

 14   the first attorney will start out and say,

 15   "Yeah, but you have to consider this."  And it's

 16   very interesting television, but you can't do

 17   that in New Jersey under the rules.  Under the

 18   rules in New Jersey there is only one summation

 19   for each side; and that summation under the

 20   rules, the first summation must be given by the

 21   defense.

 22                  So I will ask you please to give

 23   your very careful attention to the attorneys for

 24   the defense.  The defense summation will be

 25   given by Mr. Paris.


 

00161

  1                  Mr. Paris.

  2                 MR. PARIS:  Thank you very much,

  3   Your Honor.  Good afternoon.  One other

  4   difference from the TV shows, I think a half

  5   hour show has about 22 minutes worth of content;

  6   and I regret to tell you that this is going to

  7   take a lot longer than 22 minutes, I'm sorry.

  8                  But you have been here for

  9   five-and-a-half weeks or so and a lot has

 10   transpired, and in order to summarize everything

 11   that has transpired on behalf of the Town of

 12   Secaucus it is going to take a little bit of

 13   time.

 14                  First thing I want to do is I

 15   want to thank you on behalf of the Town, the

 16   officials of the Town for the patience that you

 17   have had, the attention that you have given to

 18   us.  This is a very important case, not only for

 19   the plaintiffs but also for the Town of

 20   Secaucus.  And, I mean, some of you -- probably

 21   all of you made extraordinary efforts to be

 22   here.  Probably if any one of you didn't want to

 23   be here, you would have found a reason not to be

 24   here.  And I have to tell you we really do

 25   appreciate your service.  It really was


 

00162

  1   extraordinary.

  2                  Soon you are going to go into the

  3   jury room to deliberate on this case.  And when

  4   you do, you are going to take four things with

  5   you.  First, you are going to take the facts.

  6   And what are the facts?  The facts are the facts

  7   as testified to by the witnesses.  I am going to

  8   comment about our perception, my review of the

  9   facts and the way we perceive the facts.  Mr.

 10   Mullin, I am sure, is going to do the same

 11   thing.  But the bottom line is you have a

 12   collective recollection of what the facts were

 13   from the mouths of witnesses.

 14                  Second thing you are going to

 15   take with you is what the judge had mentioned,

 16   which are the exhibits in the case.  We have a

 17   notebook probably from each party.  You are

 18   going to have two notebooks.  You will have some

 19   tape material, and you are going to take that

 20   with you.

 21                  Third thing you are going to take

 22   with you is the law.  And that's the law as it's

 23   presented to you by Judge Curran at the end of

 24   the summations.

 25                  I may comment on the law.


 

00163

  1   Mr. Mullin may comment on the law.  But please

  2   understand it's the judge who is going to

  3   instruct you on the law.  You are going to take

  4   that in there with you.

  5                  And the fourth thing you are

  6   going to take with you into the jury room -- and

  7   it's the reason why I think that we try cases

  8   before juries, rather than panels of experts or

  9   anyone else -- juries, like yourself, who may

 10   come from different walks of life, all have

 11   different experiences; but the thing you all

 12   bring with you to put all this together is your

 13   own common sense.  And you take that with you,

 14   as well.

 15                  Now, when you apply the facts to

 16   the law, review the exhibits and put it all

 17   together and use your common sense, there is an

 18   undeniable conclusion that you will reach.  And

 19   that is the Town of Secaucus did not violate the

 20   Plaintiffs' Constitutional rights, the Town of

 21   Secaucus did not discriminate against the

 22   plaintiffs and the Town of Secaucus did not

 23   harass plaintiffs.  That's the unmistakable

 24   conclusion.

 25                  Now, Mr. Mullin is a great orator


 

00164

  1   and great lawyer.  You probably all know that by

  2   now, as I do.  But without regard to so many of

  3   the facts, he could ask you to leap from wrong

  4   assumption to wrong conclusion.  He could tell

  5   you to find bad in actions taken by the Town or

  6   bad in inactions of the Town, by the Town

  7   officials, the Fire officials, the Police

  8   Department, the detectives.  However, Secaucus'

  9   actions didn't violate the Constitutional rights

 10   of the plaintiffs.  And as you view the

 11   plaintiffs' claims, their case and their words

 12   may become clouded over.

 13                  But remember, if nothing else, of

 14   what Dr. Goldwaser said, actions speak louder

 15   than words.  And as -- as Dan, my partner, said

 16   at the beginning of -- of the case during this

 17   summation be guided by the facts.  Be guided by

 18   the facts.  Look at the inconsistencies in the

 19   plaintiffs' words, as compared to their actions.

 20   Look at the inconsistencies between their words

 21   and the facts.

 22                  Accepting that they were

 23   subjected to antigay harassment on April 25th,

 24   which was not caused or condoned by the Town or

 25   certainly not condoned by myself or Mr. Bevere


 

00165

  1   on behalf of the Town, this still does not

  2   justify negating or mischaracterizing the Town's

  3   response to what occurred.  Likewise, being

  4   subjected to antigay harassment does not justify

  5   embellishing or mischaracterizing the facts of

  6   what took place while the plaintiffs were living

  7   in Secaucus or thereafter.

  8                  Now, the first thing I -- this is

  9   a hard case to go through chronologically, but

 10   the first thing I would like you to think about

 11   and focus on is you are going to see police

 12   reports.  And the police reports you are going

 13   to see starting from April 25th, the first claim

 14   that the plaintiffs make is that they were

 15   subjected to three years of constant terror,

 16   threats, harassment from the Fire Department.

 17   And when you evaluate the facts in the case, you

 18   will find that this is not true.

 19                  What do we have?  You saw the

 20   testimony of -- of Officer O'Keeffe.  It's

 21   Detective O'Keeffe.  Said there was a speeding

 22   stop, there was a noise complaint.  We have the

 23   testimony of Mr. deVries.  He continued to walk

 24   past the firehouse on Paterson Plank Road, and

 25   no one ever said a word to him before this


 

00166

  1   incident.

  2                  And Mr. Carter testified that

  3   there were two verbal incidents, two verbal

  4   interactions that he had at the firehouse.

  5   Let's remember the first one was with Snyder,

  6   Sr.  And that was when he asked Snyder, Sr.,

  7   "Can I take those cut branches off the Christmas

  8   trees?"  Seems like a long time ago we heard

  9   about that.  That was the first contact.  And

 10   Mr. Carter described Snyder, Sr. as being

 11   gracious, saying, "Sure, go ahead."  He brought

 12   ice cream.  Positive interaction.

 13                  The same day Mr. Carter testifies

 14   he is outside in the firehouse parking lot where

 15   they're selling Christmas trees -- but this is

 16   at 1:00 in the morning now -- Christmas trees,

 17   grave blankets and wreaths.  And Mr. Carter is

 18   taking stuff from the firehouse to his home at

 19   1:00 in the morning.  And Snyder, Jr., who he

 20   identifies as Snyder, Jr., screeches his car,

 21   pulls in and says, "What are you doing here?

 22   What are you doing?"  And makes comments --

 23   makes comments about him not living in Town but

 24   renting in Town.  Did he make any antigay

 25   comments?  Absolutely not.  There is absolutely


 

00167

  1   no testimony about that.

  2                  And what do we have?  Those are

  3   the two incidents before the April 25th incident

  4   where Mr. Carter has had verbal communication

  5   with anyone from the Police Department.

  6   Mr. deVries has had none.

  7                  Remember, we're going back to the

  8   issue of three years of constant harassment.

  9                  There was doorbell ringing that

 10   was reported by Mr. Carter before you.  That

 11   occurred and ended in 2003.  Assuming that it

 12   happened -- because it wasn't reported to the

 13   police, but assume it happened.  Was it stupid?

 14   Yes.  Was it childish?  Yes, absolutely.  Was it

 15   ever reported to the police that they actually

 16   saw Snyder, Sr. running from the house?  Did he

 17   ever report that to the police?  No.  Was the

 18   Town given an opportunity to try to deal with

 19   the matter, if it was a matter of great concern?

 20   No.  Did it drive the plaintiffs out of

 21   Secaucus?  No.  And was there any testimony that

 22   this doorbell ringing caused them fear or

 23   terror?  And the answer to that is no, as well.

 24   That's an incident that occurred before this as

 25   reported by Mr. Carter.


 

00168

  1                  Then what we have are condoms.

  2   Mr. Carter reports three incidents in his

  3   statement to Lieutenant Amodeo, who is here.  He

  4   says that there were three incidents where

  5   condoms were thrown in the back.  The third and

  6   final time -- the third and final time

  7   Mr. Carter now calls the Town for the first

  8   time.  And he is connected by a secretary to

  9   Snyder, Sr., who works in DPW, because the

 10   secretary knew that Snyder, Sr. was a member of

 11   Company Number 2.

 12                  This was not a policy decision.

 13   This was not a policy decision.  It was a

 14   secretary who was trying to help and referred

 15   her over to Snyder, Sr.  But the secretary also

 16   referred the matter to Chief -- Deputy Chief

 17   Cieciuch.  And Cieciuch actually admonished her,

 18   actually said, "Why are you turning this over to

 19   Snyder?  Should be turning it over to me; I am

 20   the deputy chief."

 21                  Cieciuch, who was a full-time

 22   Town employee, did he ignore it?  No.  Was he

 23   indifferent to it?  No.  What did he do?

 24   Snyder, Sr. wasn't his supervisor at the time.

 25   But he sat down with Snyder, Sr. and he said --


 

00169

  1   he said there were two complaints.  One was

  2   about the condoms, and one was about a car that

  3   Carter had reported as being there for an

  4   extended time.  Carter never testified that he

  5   saw this as a bias incident.  Never said this

  6   was a bias incident.  Cart says in an e-mail

  7   that he never saw this as a bias incident.  And

  8   even Mr. deVries said he didn't see this as a

  9   bias incident.

 10                  What does Cieciuch say he did?

 11   He tells Senior, "I'm not saying you did it, and

 12   I'm not saying you didn't do it.  But I'm saying

 13   this:  If it's anyone from that company, I want

 14   it to stop.  I want it to stop.  And I want that

 15   car out of there by 4:00."  And what does he do?

 16   He does -- he goes and he makes sure that the

 17   car is moved.  And there is never another condom

 18   in the plaintiffs' backyard.

 19                  Was Walters -- was Cieciuch

 20   indifferent?  No.  Did he take inaction?  No.

 21   He made it stop.

 22                  Was -- now, Chief Walters'

 23   deposition says that there was an experiment

 24   throwing and, you know, off a second floor.  Was

 25   Chief Walters wrong?  Yeah, he turned it over to


 

00170

  1   Cieciuch.  I don't know if he thought there was

  2   an experiment going on, but Cieciuch told you

  3   very clearly exactly what he did.  And the

  4   bottom line is it stopped.

  5                  This was the first report to the

  6   Town.  And look at this.  When did Mr. Carter

  7   first report to the Police Department -- to the

  8   Police Department that he had information about

  9   a car involved in the condom-throwing?  That was

 10   six months after the condoms supposedly had

 11   begun.  That was on May 1st, when he said that

 12   he saw a car and he could -- could describe a

 13   license plate.

 14                  Okay.  And we have to talk about

 15   this a little bit.  May 1st.  By May 1st

 16   Mr. Carter had already had six interactions with

 17   the Police Department.  You are going to see the

 18   police reports.  Okay.  By May 1st.  In none of

 19   those interactions did he ever provide a license

 20   plate number for the car that was supposedly

 21   involved with the condoms.  But on May 1st he

 22   does.  And remember what he said to you three

 23   times in testimony.  Three times he said I saw

 24   the car.  It was a Stingray.  It was a Stingray.

 25   It was a Stingray.  He said that three times in


 

00171

  1   his testimony.

  2                  When the license plate is run

  3   down, what does it come back to?  It comes back

  4   to a BMW 325 owned by Councilman Kickey.  You

  5   heard from his son.  "Did you ever thrown a

  6   condom up there," Mr. Bevere asked him.  And the

  7   answer was, "No."

  8                  Cieciuch said -- said it as

  9   Mr. Carter did.  It was a disgusting incident

 10   that should not happen again.  And it didn't.

 11                  And at the time nobody saw this

 12   as a gay bias incident.

 13                  Now, you have heard the term

 14   "self-reporting," "self-reporting" by

 15   Dr. Goldwaser.  What was reported by Mr. Carter

 16   and Mr. deVries before the incident, okay?  The

 17   doorbell ringing wasn't reported before the

 18   incident.  The condoms were reported once.  It

 19   was dealt with by Cieciuch; never happens again.

 20   Never reported to the police regarding the

 21   information until after the incident occurs.

 22                  And that, Ladies and Gentlemen,

 23   is the three years of constant harassment that's

 24   on record that you have before you that

 25   Mr. Carter and Mr. deVries told the police about


 

00172

  1   on the night of the 25th.

  2                  Now, let's talk about the

  3   incident.  Let's go to the incident of

  4   April 25th.  Let's start by talking about what's

  5   reported by others.  All right.  You heard three

  6   things essentially regarding Dee Bardini.  Okay.

  7   First you heard a 911 tape.  What does she say

  8   in the 911 tape?  "There is some kind of

  9   disturbance going on.  It sounded like gunshots

 10   or something.  There is some guy yelling and

 11   screaming for somebody to come out of his house.

 12   There is some kind of craziness, like drunken

 13   disturbance going on out there.  There is some

 14   guy."

 15                  Then Bardini was interviewed on

 16   the 27th by Lieutenant Malanka.  She said she

 17   was awoken by partying and loud noise.  And you

 18   are going to see this document.  It's D-10.  You

 19   are going to have it.  "Awoken by partying and

 20   loud noise.  Heard three shots after an unknown

 21   male yelled, 'It's 1:30.  People are trying to

 22   sleep.'  A second male voice shouted, 'Come out,

 23   you chicken shits.  Go ahead and call the

 24   police, you chicken shits.'"  She said she

 25   didn't hear anything biased or sexual in the


 

00173

  1   report by Lieutenant Malanka.

  2                  Now, at trial what did

  3   Miss Bardini say?  Number one, she says she

  4   wouldn't know what a gun sounds like other than

  5   what she had seen on TV.  She heard the word

  6   "fag" and someone yelling for someone to come

  7   out.  She had no impression that it was more

  8   than one voice.  Did not recall hearing noise

  9   after she made her 911 call.  And she was called

 10   before the Grand Jury to appear.  That's what

 11   Dee Bardini said about the incident.

 12                  Pat Hjelms -- again, there are

 13   two statements or two incidents essentially from

 14   Pat Hjelms.  In her 911 call she says, "There is

 15   some kind of disturbance around the firehouse.

 16   The language coming from the firehouse is

 17   unbelievable.  They woke me up."

 18                  Her statement to the police -- if

 19   you can put that up, please.

 20                  Her statement to the police.

 21                  Are you able to read that?

 22                  What does she say?  "Tell" -- "In

 23   your own words tell me what happened."

 24                  "One particular voice I heard was

 25   yelling and using very foul language."  One


 

00174

  1   particular voice.  "Next I heard this person

  2   called Tim.  He told him that we don't want him

  3   in the neighborhood.  Began to say, 'I'll' --

  4   and at that time I didn't wait for him to finish

  5   because I was afraid he would do something.  So

  6   I called the police."

  7                  "How many different voices did

  8   you hear yelling that night?"

  9                  "Just one.  It was a man's."

 10                  And again she certifies that the

 11   facts are true and correct.

 12                  So what does Dee Bardini say in

 13   her statement?  She heard one voice yelling that

 14   night.  Okay.  Mr. deVries awakens.  Okay.  And

 15   we'll get to this a little bit later, all right.

 16   Mr. deVries is awakened by Mr. Carter.

 17                  Mr. deVries calls 911, and what

 18   does he say?  "There are three firemen yelling

 19   abuse."  Doesn't say there is a mob.  He says,

 20   "three firemen yelling abuse."  Does not say,

 21   "They are trying to break into my house."  Does

 22   not say that they're shaking the fence.  Doesn't

 23   even say that, "They're threatening to kill us."

 24   He says, "There are three firemen yelling

 25   abuse."  And he testifies that the police are


 

00175

  1   there within minutes.

  2                  Now, the deVries call,

  3   apparently, was cut off.  Mr. Carter calls after

  4   the deVries call is cut off.  And what does

  5   Mr. Carter say?  It sounds like he says, "We

  6   have one"; but clearly, he says "two" out here.

  7   He -- then he says, "I will hold up the phone;

  8   you can hear yourself."  Then repeats the nasty

  9   antigay names and epithets that are being

 10   directed at him.  And he is saying, "Whoever is

 11   yelling are animals."  He asks a second time to

 12   the dispatcher, "Do you want to hear" -- "Do you

 13   want to hear what they're saying?"

 14                  The dispatcher says to him, "A

 15   car is going out there" and that an officer will

 16   be directed to speak with him.

 17                  Mr. Carter ends, "Thank you.

 18   Thank you very much."  Doesn't say anyone is

 19   banging his fence or climbing on it.  Doesn't

 20   say anyone is trying to break into his house,

 21   threatening to kill him or his dogs.  Nor did he

 22   say he is afraid anyone is it going to break

 23   into his house or hurt him in any way.  Nor does

 24   he say anyone has a baseball bat.

 25                  He is angry.  No question about


 

00176

  1   it.

  2                  He expresses to fear for his life

  3   at that time.  Now, both Mr. deVries and

  4   Mr. Carter have had an opportunity to call 911;

  5   and neither has mentioned an explosion or a

  6   gunshot.

  7                  Now, there are certain things

  8   about the incident that bear hearing.  According

  9   to Mr. Carter, this did not happen as people

 10   were getting off of a bus.  If you recall

 11   Mr. Carter's testimony, he says he was listening

 12   to noise over a period of time and that what he

 13   decided to do was that he was going to wait

 14   until 12:50 -- excuse me, until 1:00 and then he

 15   was going to go and try to get them to be quiet

 16   but that he was working on his computer and that

 17   there was noise and he was waiting.

 18                  By that point in time do you

 19   recall what was going on?  People were going

 20   inside the firehouse.  You heard testimony there

 21   was a jukebox inside, there was music going on

 22   and people were going in the firehouse for their

 23   entertainment.

 24                  Now, what happens?  At 12:50

 25   Mr. Carter says -- and this is -- this is a


 

00177

  1   gentleman who has told the police he has been

  2   terrorized for three years.  He goes onto his

  3   outside deck, okay.  Goes out to his outside

  4   deck and he yells, I believe he said, five

  5   times, "Hello," raising his voice so that he

  6   could be heard over whatever noise there was in

  7   the parking lot.

  8                  You heard Mr. Carter under direct

  9   examination by Mr. Mullin testify for about an

 10   hour -- for about an hour or so about the

 11   incident that took place for about 12 minutes.

 12   Despite his ADD and despite his alleged

 13   posttraumatic stress disorder, he testified in

 14   complete detail.  He testified with great

 15   animation.  He did testify with anger and with

 16   bitterness.  But certainly, the story did not

 17   have to be coaxed out of him.  This will become

 18   important later on when we talk about the

 19   psychological issues.  Certainly it didn't have

 20   to get coaxed out of him.

 21                  He didn't tell the story

 22   fearfully.  He didn't tell the story

 23   reluctantly.  He didn't break down and cry

 24   during his telling of the story.  And according

 25   to my recollection, I don't even think he needed


 

00178

  1   a break telling the story.  And this we all

  2   observed in this courtroom.

  3                  Mr. Carter testifies that he goes

  4   upstairs to waken Mr. deVries.  And what does

  5   Mr. deVries testify to?  Whatever noise was

  6   going on, whatever noise there was that was

  7   bothering Mr. Carter did not wake up Mr. deVries

  8   because Mr. deVries says he awokened from a

  9   sleep.  And when Mr. Carter woke Mr. deVries,

 10   how did Mr. deVries describe Mr. Carter?  The

 11   word was "calm."  He was calm.

 12                  The only sound Mr. deVries heard

 13   that evening was a single person slapping the

 14   side of his house, yelling, "Homo, homo, homo."

 15   And that was the only sound that he heard that

 16   indicated anyone was contacting his house.  He

 17   did not -- did he not testify that he heard

 18   anyone banging the fence, trying to climb over

 19   it, despite what Mr. Carter had testified to.

 20                  But before the police get to the

 21   scene, okay, before they get to the scene what

 22   do Mr. Carter and Mr. deVries decide to do?

 23   They decide that they're going to open the front

 24   door, they are going to go out on the front

 25   porch and they are going to look around to see


 

00179

  1   if they can identify who's yelling at them.

  2                  Now, I want to show you a photo.

  3   At some point -- let me just set this up.  Here

  4   is a photo.  Okay.  Here is the parking lot.

  5   Here is the parking lot.  Here is the front

  6   porch.  There is a bush between them.  And what

  7   were they going to do?  The door opens out.

  8   They were going to go out on the front porch,

  9   and they were going to see if they could

 10   identify who was yelling at them.

 11                  Now, I would like you to take a

 12   look at the testimony of Mr. deVries.  Okay.

 13                  "Now, you indicated that you were

 14   going out onto your front porch when the police

 15   arrived, correct?"

 16                  "Yes, sir."

 17                  "Okay.  And when you opened the

 18   door and the police were standing there --

 19   excuse me, I think your testimony was actually

 20   when you opened the door the police were walking

 21   up the walk, correct?"

 22                  "I -- yes, but they could have

 23   also have reached the steps, you know, and were

 24   beginning to walk up the steps.  I mean, you

 25   know, it was --"


 

00180

  1                  "They were approaching the

  2   steps?"

  3                  "Yes, they were very, very close

  4   to the steps."

  5                  "Okay.  So when you opened the

  6   door, the police were approaching the steps.

  7   And when the police were standing there, people

  8   will note -- people were no longer shouting

  9   derogatory comments at you from the parking lot;

 10   isn't that true?"

 11                 "Yes."

 12                  So what happens?  They go out --

 13   they are going to go out on the porch, and they

 14   open the door.  And that's when the police are

 15   coming up the walk.

 16                  Okay.  Now, what's the

 17   significant of this?  This action that night

 18   speaks louder than words.  We weren't there, and

 19   we weren't inside their house.  They were not

 20   cowering in their home.  They were not lying on

 21   the floor crying.  What they were doing was that

 22   they were going to walk out on the front porch,

 23   open the door, leave their house and go see who

 24   was yelling at them.  As they opened the door,

 25   it was only then that it happened that the


 

00181

  1   police were walking up the walk.  And that's

  2   when they met with Officer Ulrich and Amodeo.

  3                  Okay.  Now, Officer Ulrich tells

  4   you that when he is there Mr. Mutschler is in

  5   the parking lot and he yells a comment.  It was

  6   not a bias comment.  It was a rude comment.

  7   Something about, you know, "Why don't you just

  8   leave us alone and shut the fuck up," I think it

  9   was.

 10                  Okay.  Ulrich tells him, "Shut

 11   up"; and Mutschler apologies.  That's what

 12   happened there.

 13                  Now, Sergeant Amodeo, who is

 14   here, arrives and take control of the scene.

 15   And you will recall the testimony.  Now it is

 16   Lieutenant Amodeo.  He felt badly for the

 17   plaintiffs.  He was extremely sympathetic.  Did

 18   his actions demonstrate that he was trying to

 19   violate the plaintiffs' Constitutional rights

 20   because they were gay?  Was he trying to protect

 21   anyone?  The answer is absolutely not.

 22                  He did everything he believed was

 23   the right thing to do.  He explained every one

 24   of his actions to you.  You heard him testify he

 25   ordered every person present be documented.  He


 

00182

  1   cleared the scene, so the plaintiffs could rest.

  2   He checked the side of their house for damage.

  3   He checked for objects that might have been

  4   thrown against the house.  He posted an officer

  5   there all night long and started hourly checks.

  6   He went into the firehouse, pulled out empty

  7   beer bottles for evidence.  He alerted the

  8   Detective Bureau.  And although Mr. Carter says

  9   this is not true, Lieutenant Amodeo testified

 10   for you that for the first time in his 24 years

 11   as a police officer he gave someone his personal

 12   cell phone number, in case they needed to call

 13   him.  And that's what he did.

 14                  Now, now Lieutenant Amodeo goes

 15   into the plaintiffs' home.  He develops a

 16   rapport with them.  He seeks to reassure them.

 17   Okay.  What do they tell him about?  You are

 18   going to see his report, okay.  What does he

 19   actually -- what do they actually tell him

 20   about?  They repeat the three years of continual

 21   verbal taunts and threats that we know -- we

 22   have dealt with that.  He says there was banging

 23   on the side of the house facing the lot,

 24   something may have been thrown against the

 25   house, as well verbal harassment, threats to


 

00183

  1   their lives and their dogs' lives.

  2                  What didn't they tell Amodeo?

  3   What didn't they tell him?  Okay.  People were

  4   climbing on the fence.  Okay.  If you recall

  5   Lieutenant Amodeo's testimony, he said,

  6   "Mr. Mullin, the first time I heard that was

  7   when I sat in during your opening."  No one ever

  8   said that anyone was trying to climb over their

  9   fence.  No one ever said people were trying to

 10   get into their home.  No one said anything --

 11   when I say, "no one," Mr. Carter, Mr. deVries

 12   did not mention guns, did not mention

 13   explosions, did not mention baseball bats.  Why?

 14   Amodeo and Ulrich were not indifferent to the

 15   plaintiffs; and certainly, they didn't violate

 16   their Constitutional rights.

 17                  Now, I have to talk about the

 18   party.  Okay.  I have to talk about the party.

 19   This was not a Town function.  It was paid for

 20   by the company, which there was testimony

 21   Internal Revenue 501(c)(3) organization.  It was

 22   paid for by their own fund-raising.  The people

 23   that were there were not performing any function

 24   on behalf of the Town.  They were not acting as

 25   DPW workers.  They weren't acting as firemen.


 

00184

  1   They were there for a purely social function.

  2   They were using a Town facility the same way

  3   that anyone else could use a Town facility.

  4                  There was testimony with regard

  5   to a communion party few weeks afterwards that

  6   was there.

  7                  Okay.  It is impossible for you

  8   to say or for you to find that the individuals

  9   who were there that night were acting within the

 10   scope of their employment for the Town.  It's

 11   impossible to find that they were acting under

 12   the authority of the Town or that they were

 13   acting under color of law about this incident,

 14   regarding this incident.  There is no evidence

 15   that anyone was acting within the scope of their

 16   employment.  The incident wasn't planned.  It

 17   wasn't organized.  No one was exercising

 18   supervisory authority to say, "Come on, let's

 19   go."  There was no one who led an assault, an

 20   attack, a mob.

 21                  You're going to hear words like

 22   that, I'm sure.  No one led an assault, an

 23   attack or a mob.  It is not even feasible to --

 24   this act, this incident, as disgusting as it may

 25   be -- and I don't want to minimize that.  But it


 

00185

  1   was spontaneous.  It was random.  It was a

  2   reaction.  Likely the people were drunk.  But it

  3   was not done for the purpose of carrying out

  4   anyone's function as a volunteer fireman.

  5   People who are volunteer firemen were also DPW

  6   workers.  They weren't there -- they didn't say

  7   or do anything that would further or in

  8   furtherance of their function as a DPW worker.

  9   On-duty, off-duty, doesn't matter.

 10                  Whether there was a Town bus that

 11   took them or no Town bus.  Whether or not it was

 12   on Town property or off of Town property.  You

 13   have to find that the attack was carried out for

 14   some Town purpose.  This incident was not

 15   committed for a Town purpose.  And it's

 16   impossible because there is no evidence that

 17   anyone was exercising authority in connection

 18   with this incident.

 19                  Now, Mr. Leanza and Mr. Iacono

 20   both testified that all full-time Town employees

 21   received bias harassment and discrimination

 22   training for years before this incident.  You'll

 23   see training materials from the Town.  I'm not

 24   going to go through it, but you will see

 25   training materials from the Town.  You will see


 

00186

  1   also Town policy on the issue.  They also

  2   testified that the Town had this antiharassment

  3   policy and discrimination policy which was

  4   provided to all Town employees for years before

  5   this incident.

  6                  Chuck Snyder, Sr. -- want to talk

  7   about him -- was a full-time Town employee.

  8   Chuck Snyder, Jr. had previously been a

  9   full-time Police dispatcher.  Richie Johnson was

 10   a DPW employee for a number of years.  Ray

 11   Cieciuch, who was the Deputy Fire Chief at the

 12   time and only became the Chief, I think, a year

 13   later, he was a full-time DPW employee.  Matt

 14   Kickey, who came to testify, he was an employee

 15   with the Hudson County Prosecutor's Office.

 16                  If -- how can it be said that if

 17   these individuals, okay, as employees, that

 18   if -- if they were involved in this incident,

 19   how can they then point to the Town and say,

 20   "Well, wait a minute.  It was because there was

 21   no training"?  Senior, Junior, Cieciuch, who

 22   investigated the condom matter, okay, how can

 23   you say that training had anything to do with

 24   this?  How can you say that?

 25                  Okay.  How is a Town supposed to


 

00187

  1   train people not to drink in excess when they

  2   are at a party with their wives and girlfriends?

  3   How is the Town to train people not to commit a

  4   bias crime?  Okay.  When -- when they're out at

  5   a social function how is a Town to train people

  6   not to act hatefully, not to act hatefully after

  7   a social event they have attended with their

  8   wife or girlfriend?

  9                  Now, another issue has to be the

 10   issue of publicity.  And -- and again, this kind

 11   of all fits together.  After Lieutenant Amodeo

 12   leaves, the testimony from Mr. Carter is that

 13   night, even before the sun rose, before Mayor

 14   Elwell, Chief Corcoran, Fire Chief Walters went

 15   to the home of Mr. Carter and deVries, even

 16   before that, Carter started an e-mail campaign.

 17                  The campaign speaks volumes for

 18   what Mr. Carter and Mr. deVries were already

 19   thinking at that time.  They e-mailed every New

 20   Jersey State Assembly person, Senator Corzine,

 21   who was not the governor at the time, was a

 22   Senator, the Attorney General, Senator

 23   Lautenberg, Barney Frank, a representative from

 24   Massachusetts, all of the major antigay violence

 25   groups, all of the professors at Rutgers,


 

00188

  1   someone at Columbia University, all the Harvard

  2   law professors, some well known gay writers,

  3   legal defense group, number of churches, to a

  4   minister at Harvard Episcopalian priest,

  5   Congressman Rothman and the Secaucus Home News.

  6                  In addition, Mr. Carter composed

  7   a separate e-mail for each and every one of them

  8   in his e-mails that night.

  9                  And then, within the days that

 10   followed, he said a number of interesting

 11   things.  He indicated the firemen had a baseball

 12   bat or bats.  He indicated that he didn't see

 13   the condom incident as being antigay.  He said

 14   they were already not receiving cooperation from

 15   the Town.  He said that the Police Department

 16   didn't want anyone else involved in the

 17   investigation, when we know that they

 18   immediately contacted the Prosecutor on Monday

 19   morning and he wrote, "We need publicity.  We

 20   need publicity."

 21                  Within hours of this incident --

 22   Mr. Carter wasn't overwhelmed by the incident.

 23   Okay.  He didn't react with fear and terror.  He

 24   was an extremely -- he was extremely rationale,

 25   and he was reaching out to multitude of people


 

00189

  1   in a -- in a very angry and an indignant way.

  2                  But he was already complaining

  3   about the Town's response, the Police

  4   Department, the investigation, even after he

  5   refused to speak to the Mayor and the Chiefs

  6   that Sunday morning when they went to talk to

  7   him.

  8                  You have to consider this in

  9   total, okay, because it talks about motivation.

 10   It talks about psychological state of mind.

 11   And -- and it reflects on his actions to follow.

 12                  Significantly what he did not say

 13   in the e-mail, okay, but he told you, is that he

 14   heard explosions.  Never said that.  He didn't

 15   say that in any e-mail.  He didn't talk about

 16   gunshots.  And, you know, didn't talk about the

 17   fact that the police were there protecting his

 18   house, they had somebody there.

 19                  Now I want to talk about the

 20   meeting that took place at Town Hall on

 21   April 25th.  April 25th.  That very morning,

 22   okay, an emergency meeting is a clear

 23   illustration of the seriousness with which the

 24   Town took the incident.  Mayor Elwell convenes

 25   the meeting of the fire chiefs, the Police


 

00190

  1   Chief, the captain of Company Number 2, Snyder,

  2   Jr., representatives of Company Number 2, which

  3   included Senior and Johnson, who were two more

  4   senior members there, the Deputy Mayor.

  5                  It was not a public meeting.  It

  6   was not a public meeting.  I think the Deputy

  7   Mayor -- yeah, Deputy Mayor was there, as well.

  8   This wasn't public meeting, so this wasn't a

  9   meeting under the Open Public Meetings Act.

 10   There was no quorum of the Council, so there was

 11   no minutes of the meeting.

 12                  First, we know there were a

 13   number of conversations going on at the same

 14   time among the people who were there.

 15                  Second, we know that not everyone

 16   at the meeting heard everything that everyone

 17   else at the meeting heard.

 18                  Third, we know that

 19   notwithstanding -- notwithstanding the protests

 20   of the members of Company 2 who were there, said

 21   that they didn't commit a bias crime, it was

 22   simply a shouting match with the plaintiffs, the

 23   Police Chief and the Town wasn't deterred.

 24   Police Chief indicated that they would continue

 25   with a full criminal investigation, including


 

00191

  1   notifying the Hudson County Prosecutor.

  2                  The Fire Chief Walters, he didn't

  3   ignore what happened.  He had shut down the

  4   firehouse for social events.  Chief Walters

  5   didn't ignore what happened.  He arranged -- he

  6   would arrange the next morning, Monday morning,

  7   for sensitivity training for the fire company.

  8                  And the Police Chief of the Town

  9   arranged that the plaintiffs would be secure in

 10   their house through checks and surveillance.

 11                  And right then and there the

 12   Mayor and the chiefs, deciding to talk to the

 13   plaintiffs, make sure that they were aware that

 14   the Town was taking action and to make sure that

 15   if there was anything that they needed, that it

 16   would be provided to them.

 17                  Now, when Mr. Mullin speaks to

 18   you, he is likely to talk about three different

 19   statements from Chief Walters, okay, that dealt

 20   with discussions at the meeting.  Two of those

 21   statements Chief Walters was asked whether he

 22   heard anyone at the meeting say, "Are you going

 23   to believe those cock-suckers over us?"

 24                  He was asked that, I believe, in

 25   his first and in his third statements.  Okay.


 

00192

  1   He said he didn't recall hearing it because

  2   there were multiple conversations going on.  The

  3   next day, when he was asked about it again, he

  4   told Detective Reinke that he recalled hearing

  5   the comment but he was not sure as to who in the

  6   room made that comment, as there were multiple

  7   conversations going on.

  8                  Frankly, Mr. Mullin will probably

  9   suggest to you that Chief Walters lied to the

 10   police.  And I submit to you that if Chief

 11   Walters wanted to lie about having heard the

 12   statement, he never would have admitted that he

 13   heard it.  Okay.  And further, if the Town

 14   wanted to cover up the statement that Senior

 15   made at the meeting, it wouldn't have been

 16   reported by Chief Corcoran, himself, as he said

 17   as soon as he heard the statement, he left the

 18   meeting, said, "I have an investigation to

 19   conduct."  It wouldn't have been reported by

 20   Mayor Elwell to the police, as it was.  It would

 21   never have been reported by Walters and Deputy

 22   Mayor Reilly.  And certainly wouldn't have

 23   appeared in any police report.  And you will see

 24   that it was.  Because those police reports were

 25   all going to be sent to the Hudson County


 

00193

  1   Prosecutor.

  2                  Within days the administrator,

  3   the Town attorney, they also reach out for the

  4   plaintiffs.  And what does that show?  The

  5   officials were not indifferent to the

  6   plaintiffs.  They did not take the matter

  7   anything other than seriously.  And certainly,

  8   they didn't violate the plaintiffs'

  9   Constitutional rights.

 10                  By April 27th -- and you heard

 11   Mr. Leanza talk about the meeting which you

 12   heard a tape of.  By April 27th Town officials

 13   are being called by the media.  Within a week of

 14   the incident Carter, as I said, sends an e-mail,

 15   "We need publicity."  Okay.  Mr. deVries poses

 16   by their kitchen window for a newspaper picture.

 17                  And by May 17th, okay, if we look

 18   at the report from Lieutenant Malanka, okay,

 19   Mr. Carter was advised the Attorney General's

 20   Office was now handling the case.  He said he

 21   knew that.  And he concluded by saying, "I have

 22   gotten past it"; but they still have to move

 23   because of all the publicity.  And that's what

 24   he tells Lieutenant Malanka on -- look at the

 25   date -- May 17th of '04.


 

00194

  1                  Okay.  Now, when the plaintiffs

  2   go to see Miss Hines and Dr. Goldwaser, they

  3   bring newspaper articles with them.  DeVries

  4   intends to make a movie out of the incident.

  5   Dr. Goldwaser testified that Miss Hines has a

  6   note or -- as he saw it, that making the movie

  7   brings him great joy.  Again, this becomes

  8   important later on when we talk about the

  9   psychological aspects.

 10                  You heard a tape of the meeting

 11   of April 27th.  This was less than two days

 12   after the accident.  If you will recall, Mr.

 13   Leanza testified that he specifically advised

 14   the Chief not to go into great detail.  Can't go

 15   into great detail regarding specifically what

 16   occurred or the incident.  It was an active

 17   criminal investigation.  Gave a very brief

 18   overview.

 19                  You heard the Mayor, Council,

 20   Police Chief, Chief Walters, who were genuinely

 21   concerned about what happened and had already

 22   taken significant steps in response.

 23                  The Fire Chief had already made

 24   arrangements for sensitivity training.  You

 25   heard that.  And he had closed the -- the house


 

00195

  1   for social functions.  He had already been told

  2   that he could not undertake any administrative

  3   investigation or take any action, as an active

  4   criminal investigation was ongoing.

  5                  What did the Police Chief do?  He

  6   reported he -- that the house was already under

  7   surveillance.  He reported that, in addition,

  8   the house was on a priority check, would be

  9   visited no less than every hour, 24 hours a day,

 10   seven days a week.  He indicated that they had

 11   already begun interviews.  He indicated that the

 12   Hudson County Prosecutor's Office had already

 13   been contacted, had been sent all the

 14   investigation material.  He indicated that the

 15   Detective Bureau intended to canvas the entire

 16   neighborhood, as well as speak in detail to

 17   Mr. Carter and Mr. deVries.  And most

 18   importantly, he indicated that no one was to

 19   interfere with the criminal investigation.

 20                  Mr. Leanza was heard expressing

 21   great concern about the nature of the

 22   allegations and the nature of the incident.  He

 23   mentioned the seriousness of the matter.  And he

 24   drew a parallel to a serious bias incident that

 25   had occurred in Texas.  He repeated that the


 

00196

  1   criminal investigation was not to be tampered

  2   with.  He gave his endorsement of the

  3   sensitivity training.  And he reflected on the

  4   fact that someone might see this incident as an

  5   opportunity to bring a civil action against the

  6   Town, such as the one we're now involved in,

  7   which began July of '04.

  8                  Mr. Leanza mentioned that the

  9   police could -- what they could confront in

 10   their investigation with regard to people

 11   claiming the Fifth Amendment.  I showed Mr.

 12   Leanza two police reports, D-12, D-13.  You're

 13   going to have them.

 14                  By the time of that meeting

 15   people had already indicated they weren't going

 16   to speak to police.  In addition, by the time of

 17   the meeting members of the -- of the governing

 18   body had already been contacted by various media

 19   outlets.  And a plan was in place to refer those

 20   matters over to Mr. Leanza.

 21                  Now, I suspect -- I don't get to

 22   talk to you again, as the judge had said.  I

 23   suspect that every nuance of that meeting is

 24   going to be picked over.  Okay.  You are going

 25   to hear that there was laughter.  You had heard


 

00197

  1   that there was laughter about the meeting when

  2   somebody mentioned maybe the beer bottles were

  3   there because of recycling.  Okay.  But don't --

  4   don't negate what was being discussed there.

  5   What's totally clear is that Chief Corcoran and

  6   Mr. Leanza both advised that the Police

  7   Department and the police investigation had to

  8   take priority over everything else at that

  9   point.

 10                  The number one concern was to

 11   investigate the criminal matter and try to bring

 12   people who had done that to justice.  Took

 13   priority over any administrative matters, any

 14   administrative hearings, any administrative

 15   investigations.  The number one issue is to

 16   investigate and prosecute anyone criminally,

 17   personally responsible.

 18                  The governing body did absolutely

 19   nothing wrong.  They were not indifferent to the

 20   plaintiffs, and they certainly did not violate

 21   the plaintiffs' Constitution -- Constitutional

 22   rights.

 23                  I have a tendency to go fast

 24   because I want to, you know, get it done for you

 25   and get it --


 

00198

  1                 JUDGE CURRAN:  Do you need some

  2   water, Mr. Paris?

  3                 MR. PARIS:  Pardon me?

  4                 JUDGE CURRAN:  Need some water?

  5                 MR. PARIS:  Got a little bit here,

  6   thank you.

  7                  I am going to talk to you about

  8   the decision to reopen the firehouse.  Okay.

  9   You heard a lot about it.  Frankly, it was

 10   discussed by Mr. Leanza, discussed by Chief

 11   Walters, Anthony Iacono and the Mayor before Mr.

 12   Iacono sent a letter to Chief Walters that

 13   essentially said the Town did not object to the

 14   firehouse being reopened because it wasn't -- it

 15   wasn't going to interfere a criminal

 16   investigation that was going on.

 17                  There was a letter.  You saw the

 18   letter.  The firemen threatened to quit, et

 19   cetera.  We will talk more about that a little

 20   bit later.  Frankly, this is what's known as

 21   a -- as a "red herring."  Okay.  Gets a lot of

 22   attention, but what does it really mean?  You

 23   have to take a close look, and you have to

 24   analyze this.  You have to analyze it.

 25   Reopening the firehouse.  Because the reopening


 

00199

  1   of the firehouse didn't cause them to move out

  2   of Secaucus.  Okay.  They would like you to

  3   believe that the reopening of the firehouse

  4   caused them to move out of Secaucus.  But again,

  5   you have to look.  Actions speak louder than the

  6   words, you know, years later.

  7                  The very night of the incident --

  8   you're going to see -- you're going to see the

  9   reports.  Patrol Officer Ulrich reported that

 10   Mr. Carter said to him that they felt they had

 11   to leave the area.  That night they said they

 12   had to leave the area.  The next day Mr. deVries

 13   told you that he turned down a job -- now,

 14   granted, there were -- you know, there are

 15   records.  I think it was Dr. Almeleh said there

 16   were negotiations and he was concerned about his

 17   health benefits and things like that.

 18                  But one thing Mr. deVries said,

 19   he said the next day, April 26th, he turned down

 20   a job in Secaucus, saying the reason was because

 21   he didn't want to stay in Secaucus.  That was on

 22   the 26th.

 23                  On the 27th Lieutenant Reinke

 24   reported that at 6 p.m. he received a call from

 25   Mr. Carter saying that the plaintiffs were


 

00200

  1   moving out of Town and would lieutenant Reinke

  2   please advise Snyder, Sr.

  3                  Okay.  This all occurred before

  4   the firehouse was reopened.  The night of the

  5   incident, 25, 26, 27, documented, they said that

  6   they were going to move out.

  7                  Thereafter, on May 17th, okay,

  8   Lieutenant Malanka -- oh, I'm sorry, you already

  9   saw that.  Yeah, you already saw Lieutenant

 10   Malanka's report.

 11                  Okay.  The reopening of the

 12   firehouse had nothing to do with them leaving

 13   Secaucus.  They had already made that decision.

 14                  Second, after the widespread

 15   publicity that this matter received, okay, when

 16   the firehouse -- prior to May 1st, when the

 17   firehouse was reopened, it's impossible to

 18   believe -- as bad as it is, it's impossible to

 19   believe that the -- that the reopening of the

 20   firehouse had anything to do with anything that

 21   may have occurred afterwards.  If people were

 22   going to drive by the plaintiffs' home after all

 23   the publicity, if these people were going to act

 24   horribly, this can't be blamed on the firehouse

 25   being reopened.


 

00201

  1                  And we are going to go through

  2   the incidents.  In fact, the plaintiffs had no

  3   contact with the firemen from the time of the

  4   incident until the time that they did move out

  5   of Secaucus in November of '04.  And in deciding

  6   to reopen the firehouse, what testimony did we

  7   hear?  What were the major concerns?

  8                  Chief Corcoran said, "I would

  9   never have shut the firehouse down in the first

 10   place."  Why?  He was providing protection to

 11   the plaintiffs.  They were safe.

 12                  Mr. Iacono testified it was the

 13   safest neighborhood in Town.

 14                  Mr. Carter knew that he was being

 15   protected by the police.  He saw the protection.

 16   And on various times you are going to see

 17   reports he took information to people who were

 18   on surveillance in his neighborhood right

 19   outside of his home.  He would go out to a

 20   police officer who was there and say, "I have

 21   got some more information for you."

 22                  The plaintiffs didn't violate

 23   the -- the defendants, the Town didn't violate

 24   the plaintiffs' Constitutional rights by

 25   reopening the firehouse.  By the time that


 

00202

  1   decision was made the plaintiffs had already

  2   made their decision.  And that was that they

  3   were going to leave Secaucus.

  4                  The event that caused any element

  5   of fear was the event of April 25th, and that's

  6   the event that the Town simply is not liable

  7   for.  Nothing after that was caused by the Town.

  8   There is no correlation between the firehouse

  9   being reopened and any incident.  And it's as

 10   likely that the publicity and people being nasty

 11   and hateful was responsible as anything.

 12                  Now, you also heard testimony --

 13   and I have to deal with it -- that there were

 14   all of these incidents that occurred afterwards

 15   and this is what drove them out of Town.  And I

 16   need to go through -- through these with you

 17   because when you look at the incidents and you

 18   think about the issue referred to earlier,

 19   self-reporting, self-reporting, it's important

 20   you see what these are all about.  Otherwise,

 21   they tend to be just a mishmash and just sounds

 22   like so many things occurred.

 23                  The first incident was reported

 24   May 1st, 2004.  I call it, "Two suspicious

 25   vehicles parked in lot."  2:42.  Mr. Carter --


 

00203

  1   remember, also, they testified they were not

  2   using the side of the house that faced the

  3   parking lot.  Okay.  They weren't using that

  4   side of the house.  They never went into that

  5   side of the house because they were afraid.  But

  6   at 2:42 a.m. on May 1st Mr. Carter reports that

  7   two vehicles parked in the parking lot.  Felt

  8   they were suspicious due to the length of time

  9   parked in the lot.  Doesn't report any harassing

 10   or disorderly activity or conduct.  And he is

 11   advised Engine 2 was called out on fire alarm.

 12   Area is checked by patrol.  No suspicious

 13   vehicles or activity.

 14                  That was May 1.  Next call is on

 15   May 1.  And I have used these catch phrases only

 16   because it probably is something we all

 17   remember.  And this is when somebody came by and

 18   said, "The homos are home."

 19                  Okay.  May 1 it was reported in

 20   the afternoon by Mr. Carter.  Mr. Hjelm, the

 21   next door neighbor, was doing yard work.

 22   Overheard an antigay remark from a vehicle which

 23   made a right turn onto Schopmann from Paterson

 24   Plank Road.  Wasn't coming from nor going to the

 25   Fire Department.


 

00204

  1                  Now, I have to tell you, Officer

  2   Cotter's -- Officer Cotter's report says someone

  3   yelled, okay.  But let's start with this.

  4   Neither Carter nor deVries were outside when the

  5   remark was made.  Neither Carter nor deVries

  6   heard the remark being made.  They were advised

  7   about the remark by Mr. Hjelm.  And Mr. Carter

  8   called the police.

  9                  Now, Patrick Hjelm gives a sworn

 10   statement under oath the next day.  Do we have a

 11   copy of his statement?  We may have to go back.

 12   If you take a look at Mr. Hjelm's statement,

 13   what is he saying?  He was doing yard work.  You

 14   are going to have a copy of this, so you can

 15   look at.  But it says he was doing yard work.

 16   He was -- he was behind a tree.  He didn't even

 17   think that the people who drove there noticed

 18   him.

 19                  What happened?  Working, the

 20   pass -- "He looked surprised to see me."  Okay.

 21                  Then, when he talks about the

 22   comment, what does he say?  "Just making a

 23   comment to the other kid."  He was just making a

 24   comment to the other kid.  It was one passenger,

 25   as far as Mr. Hjelm said, talking to another.


 

00205

  1   He had never seen the passenger before.  This is

  2   even though he lives right next to -- next to

  3   the firehouse.  Never seen the truck before.

  4                  And then, next page of this

  5   statement he says he went into the house, okay,

  6   told Mr. Carter; and Mr. Carter went into the

  7   house and called the police.

  8                  Okay.  Can you go back to the

  9   summary?

 10                  Okay.  Now, what happens?  Okay.

 11   You have heard the statement.  The police run a

 12   DMV check of the Bronco.  This is the infamous

 13   Bronco.  Okay.  And the search is negative.  See

 14   if any member of Company 2 has a Bronco.

 15   They -- the police check all firehouses

 16   throughout the evening to locate the vehicle

 17   search.  Negative.

 18                  Captain Buckley issues a memo to

 19   the Secaucus Police Department advising them to

 20   be on the lookout for any vehicle matching the

 21   suspect vehicle.  Captain Buckley locates the

 22   vehicle matching a description, dispatches

 23   Detective O'Keeffe to investigate.  The owner is

 24   not a fireman and was out of Town at the time of

 25   the alleged incident.


 

00206

  1                  Next incident, we will call this,

  2   "Lights shining."  It's reported May 4th, 11:15

  3   in the morning by Mr. Carter.  Mr. Carter calls

  4   Lieutenant Malanka and reports that the night

  5   before, 5/3, he believes members of the Company

  6   Number 2 were in vehicles with lights on until

  7   midnight.  He made no call to the police

  8   dispatch, while the activity was -- act was

  9   supposedly happening.  There is no report of

 10   such activity on 5/1 or 5/2.  No report of

 11   contact with the house.  No report of any

 12   comments made.  Okay.  Response, none is

 13   possible, as it wasn't reported when the

 14   activity was occurring.  Plaintiffs house was

 15   continued on surveillance and priority check.

 16                  Is this in your way?  A little?

 17   Let me move it.

 18                  Is that okay, Judge?

 19                 JUDGE CURRAN:  That's fine.

 20                 MR. PARIS:  That's the light

 21   shining incident.  That's how it's reported.

 22                 MR. MULLIN:  Your Honor, I'm

 23   sorry, can we just have an indication this is

 24   Mr. Paris' notes; this is not an official

 25   report?


 

00207

  1                 MR. PARIS:  I will.  I want you to

  2   understand we prepared this -- I prepared this

  3   just to give a quick brief summary of these

  4   incidents.  You are going to have the actual

  5   police reports in the notebook.  Okay.  These

  6   are not actual police reports.  All right.

  7   These are just quick little summaries.

  8                 JUDGE CURRAN:  And if I might

  9   interrupt you further -- I apologize for doing

 10   that -- there are a number of these summaries.

 11                 MR. PARIS:  Correct.

 12                 JUDGE CURRAN:  And you will

 13   indicate them?

 14                 MR. PARIS:  Absolutely, Your

 15   Honor.

 16                 JUDGE CURRAN:  Mr. Paris is using

 17   them for his own assistance, really, in doing

 18   his summation.  They are not evidence.  They

 19   will not be available to the jury, thank you,

 20   other than items that are marked as Evidence.

 21                 MR. PARIS:  Next incident is on

 22   May 15th, 6:40 in the evening by, again,

 23   Mr. Carter reporting.  Okay.  What does he

 24   report?

 25                  And you know, again, these are


 

00208

  1   just quick summaries.

  2                  While he is walking past the

  3   firehouse, walking past the firehouse, claims he

  4   saw persons drinking in the parking lot.  Looked

  5   inside open bay door, saw dozens and dozens of

  6   beer cans on tables in the firehouse.  Doesn't

  7   report any disorderly, harassing conduct.  Does

  8   not call police dispatch.  He leaves messages in

  9   the detective's voice mail.  When they get the

 10   message, they immediately dispatch patrol

 11   officers.  Granted, this is after the message

 12   was left.

 13                  What do they find?  No one is

 14   drinking outside the firehouse at that time.  No

 15   one is intoxicated.  And it is a permitted

 16   communion party for a nine-year-old girl.  And

 17   that's what they find.

 18                  Okay.  Next incident.  All right.

 19   We could talk about this as the dull gray, older

 20   model sports car.  We all remember the dull gray

 21   car reported May 18th, 4:15 by Mr. Carter.

 22   While walking on Paterson Plank Road, the driver

 23   of an older model, dull gray sports car calls

 24   him a "faggot."

 25                  Okay.  Vehicle is traveling on


 

00209

  1   Paterson Plank Road northbound.  Continue

  2   traveling on Paterson Plank Road after the

  3   remark.  Says the driver is thin, white male in

  4   his early 20s with dark hair.  Says he

  5   recognizes the vehicle to be one of the

  6   Northeast Fire Company 2 men.

  7                  Captain Buckley issues a memo

  8   advising all police personnel to be on a lookout

  9   for vehicle matching the suspect vehicle.  He

 10   sees a vehicle matching the description.

 11   Detective Reinke contacts the owner, who agrees

 12   to be interviewed and photographed.  The owner

 13   is not a fireman, denies knowledge of the

 14   incident.

 15                  What happens next?  Reinke and

 16   DeGennaro travel to Brooklyn, New York to

 17   photograph the vehicle at the owner's work.

 18                  Lieutenant -- Detective O'Keeffe

 19   sees another vehicle matching the description.

 20   DMV search reveals vehicle is registered to a

 21   33-year-old, who is not a fireman and does not

 22   fit the description of the alleged driver.

 23                  Next, additional information on

 24   the Hjelm incident vehicle.  So now we go to

 25   May 23rd.  And we have a report, okay, regarding


 

00210

  1   Mr. Carter providing information about something

  2   that happened three weeks earlier on May 1st.

  3   Patrol Officer Linda Mangone.  While Patrol

  4   Officer Mangone conducted a special detail

  5   assignment -- this is on May 23rd -- at 988

  6   Schopmann, which is where the plaintiffs live,

  7   approached by Mr. Carter.

  8                  Mr. Carter advises he was told by

  9   Patrick Hjelm that he saw a passenger from the

 10   Ford Bronco in a green SUV with license plate --

 11   he gives the license plate number.  Gives a

 12   physical description of the actor that had

 13   allegedly been provided by Mr. Hjelm.

 14                  The investigation.  License plate

 15   comes back as not on file with DMV.  Detective

 16   O'Keeffe contacts Hjelm, who denies having any

 17   additional information other than what he

 18   provided on May 1st.

 19                  O'Keeffe runs a DMV check to see

 20   if any Company 2 member has a vehicle registered

 21   to him that is a possible match to any of the

 22   reported vehicles, whether it's the Bronco, the

 23   gray sports car or green SUV.  Search is

 24   negative.

 25                  Detective Malanka and Torres


 

00211

  1   search the Secaucus DPW lot for any suspect

  2   vehicle.  The search is negative.

  3                  Next.  Mr. Carter reports the

  4   next day in the afternoon a suspicious person is

  5   sitting in a vehicle on Schopmann.  Heavy white

  6   male sitting in vehicle parked in front of 986

  7   Schopmann.  Carter makes eye contact with driver

  8   and drives away.  No verbal or physical contact.

  9   Carter does not report that he has ever seen the

 10   vehicle before.  Doesn't identify the driver of

 11   vehicle as being from the North End Firehouse.

 12   He waited over an hour after the vehicle left to

 13   call the police.

 14                  Response, Detective O'Keeffe

 15   contacts the State Police to conduct an off-line

 16   search of a partial plate provided by Mr.

 17   Carter.  What comes back are over 1,600 possible

 18   matches, which Detective O'Keeffe reviews, finds

 19   one match that comes back as a Secaucus

 20   resident; and it's a red VW.  Okay.  This is

 21   what the Police Department, the Town, does.

 22                  Next, white, older model American

 23   sedan in the Fire Department lot.  Supposedly

 24   said, "FU" to Mr. Carter.  This is the next day.

 25   May 25th, 9:12 p.m., while walking past the


 

00212

  1   firehouse, describes a car.  The passenger

  2   looked at him and said, "FU."  Describes the

  3   actor.  No one physically touched him.  Didn't

  4   verbally threaten to do anything.  Did not make

  5   any comment about his sexuality.  Did not call

  6   him any names.  Did not get a license plate.

  7   Does not report that he has ever seen the

  8   vehicle or actor before.

  9                  Next reported incident that you

 10   have is on August 15th.  August 15th.  This is

 11   reported by Sergeant Trusso at 11:40 in the

 12   evening.  Finds cardboard and newspaper on the

 13   front porch of the plaintiffs'.  As the house is

 14   on priority check -- this is August 15th -- he

 15   rings the doorbell.  The plaintiffs aren't home.

 16   He leaves what they call a "fact sheet."  The

 17   plaintiffs don't respond to the fact sheet, and

 18   they never complain about the matter.  Okay.

 19   You are going to see this, as well.

 20                  Now, September 15th, a month

 21   later, Mr. Carter -- 4:10 a.m. Mr. Carter

 22   observes a black vehicle entering and exiting

 23   the firehouse parking lot throughout the night.

 24   No harassment occurred.  Investigation, no fire

 25   company members were present at the time.


 

00213

  1                  And the final incident is the

  2   writing of "El Homo" on the wall.  Okay.  Look

  3   at the date.  November 2nd, 2004.  2:27 a.m.

  4   Officer Mangone observes Mr. Carter and

  5   Mr. deVries at 2:27 in the morning photographing

  6   writing on a retaining wall across the street

  7   from a fire -- the firehouse.

  8                  Okay.  Contacts the supervisor,

  9   who responds with a camera.  The wall is

 10   photographed by police.  The photo is logged

 11   into Evidence.

 12                  Okay.  Mr. Carter didn't see

 13   anyone do it.  Doesn't know who did it.  Wasn't

 14   their property, but he reports seeing two

 15   vehicles in the area earlier in the evening but

 16   can't say that either of those vehicles were

 17   involved.

 18                  After the wall is photographed

 19   for evidence the Town has the offensive graffiti

 20   removed.

 21                  Imagine this.  Officer Mangone

 22   finds two men standing, taking pictures at 2:27

 23   in the evening -- morning in front of the

 24   firehouse.  And it's Mr. Carter and Mr. deVries

 25   taking pictures of the words, "El Homo" on the


 

00214

  1   wall across the street.

  2                  These are the incidents.  These

  3   are the incidents that you heard about.  You

  4   heard the plaintiffs say that it occurred only

  5   because the firehouse was reopened.  And if the

  6   firehouse was never reopened, then do you

  7   believe that after all the publicity about the

  8   event, Mr. deVries posing for newspaper

  9   articles, that not one ignorant person would

 10   have said one word to them?  Doesn't justify it,

 11   but you can't say that reopening the firehouse

 12   caused this kind of thing to occur.

 13                  Now I want to talk to you -- next

 14   issue I need to talk to you briefly about is

 15   Snyder, Jr. and his function as a dispatcher.

 16   Chief Corcoran on the 7th of May stopped

 17   assigning Junior time.  Okay.  Junior was a per

 18   diem employee.  Means, you know, when they

 19   needed him, they could bring him in.  If they

 20   didn't need him, they wouldn't bring him in.  He

 21   knew he was present at the firehouse that

 22   morning.  Chief Corcoran also knew that he was

 23   still dealing with the Attorney General's Office

 24   and the plaintiffs on the matter.

 25                  And what did he say?  I didn't


 

00215

  1   want him answering Plaintiffs' calls about

  2   anything or any of the Attorney General's calls

  3   regarding the incident.  His involvement at that

  4   point in time was not yet determined; and he

  5   said at that point I could not take the risk of

  6   him handling any of the matter as a dispatcher

  7   with calls coming in.  The Chief said I can't

  8   fire or suspend anyone without a hearing, so

  9   just uses his discretion not to assign him

 10   hours.

 11                  I don't know whether the

 12   plaintiffs think it was punishment, it was a

 13   good thing or they think it was a bad thing.

 14   But the bottom line is this is why it was.  This

 15   is why he wasn't assigned.

 16                  Now, briefly, the Court is going

 17   to tell you about the Fifth Amendment.  Fifth

 18   Amendment has been discussed in this case.  And

 19   the Court is going to tell you that everyone has

 20   a right to plead the Fifth, they have a right to

 21   plead the Fifth and not to speak in court, not

 22   to testify, if they think it may incriminate

 23   them, not to speak to the police.

 24                  She will also tell you public

 25   employees have an obligation not to plead the


 

00216

  1   Fifth, but it's an obligation not to plead the

  2   Fifth only after they are given what they call

  3   "use immunity" by the County Prosecutor or the

  4   Attorney General.  If use immunity is granted by

  5   the County Prosecutor or the Attorney General,

  6   the Attorney General, after use immunity, the

  7   Attorney General can file an action in Superior

  8   Court against the public employee if he

  9   continues not to testify.

 10                  Okay.  Captain Buckley told you

 11   that because of this, because he knows of this,

 12   he asked the Hudson County Prosecutor's Office

 13   to convene a Grand Jury.  Here is the memo.

 14                  Okay.  Scroll up a little bit,

 15   okay.

 16                  This was apparently the second

 17   time that they sent material.  May 5th he says,

 18   "We are calling upon your input and expertise in

 19   dealing with these types of bias incidents.  And

 20   we also ask your office consider convening this

 21   matter before a Grand Jury."  He was reaching

 22   out to the Hudson County Prosecutor.

 23                  Now, you are going to see reports

 24   from the Police Department.  And if the Town was

 25   looking to protect anyone in this incident,


 

00217

  1   which they were not, would there have been

  2   reports of comments made by Snyder, Sr. at the

  3   meeting on the 25th?  Would Walters have been

  4   questioned three times about what he had heard

  5   at the meeting?  Would the Mayor, the Chief,

  6   elected official, have reported what he heard at

  7   the meeting, if he was trying to cover up for

  8   someone?

  9                  And why would Officer Ulrich have

 10   put the names of Snyder, Jr. and Mutschler in

 11   his initial report, if he was trying to cover up

 12   for them?  Why would Amodeo have submitted a

 13   supplemental report about comments he heard,

 14   that he remembered having heard Snyder, Sr.

 15   make?  There was no reason for anyone in the

 16   Secaucus Police Department to cover up for

 17   anyone or protect anyone.

 18                  You heard Officer Ulrich.  You

 19   heard Lieutenant Amodeo.  They had no motive to

 20   protect anyone.

 21                  Chief Corcoran and Captain

 22   Buckley, you heard them on tape.  His only

 23   concern was to have a thorough and complete

 24   investigation.  There was no one here who was

 25   trying to protect anyone.


 

00218

  1                  The Town priorities were twofold.

  2   Number one -- not in any order -- protect the

  3   plaintiffs and conduct a criminal investigation.

  4   Now, Mr. Mullin may pick apart everything that

  5   the Police Department did before this case was

  6   taken over by the Attorney General.  And he may

  7   pick apart everything the Police Department

  8   didn't do before this case was taken over by the

  9   Attorney General.

 10                  Remember, within ten days the

 11   Attorney General was in Secaucus and had gotten

 12   all of the material taken to the scene.  Okay.

 13   Now, somehow he is going to -- you know, he is

 14   going to plead, I think, that somehow this is

 15   evidence, that somehow the police were biased

 16   against his clients, which is absolutely no

 17   evidence.

 18                 MR. MULLIN:  Objection, Your

 19   Honor.  It is not in the case.

 20                 JUDGE CURRAN:  Sustained.

 21                 MR. MULLIN:  Thank you, Your

 22   Honor.

 23                 MR. PARIS:  Absolutely not -- no

 24   evidence in the case to indicate that anyone

 25   attempted to interfere with the plaintiffs'


 

00219

  1   Constitutional rights.  There was not one single

  2   thing, not one single piece of evidence to

  3   indicate any action taken by the police or

  4   inaction by the police was in any way to violate

  5   the rights of the plaintiffs as --

  6                  In the ten days, okay, they met

  7   with everyone who would speak with them.  They

  8   canvassed the neighborhood.  They took

  9   photographs.  They consulted with the Hudson

 10   County Prosecutor.  It's easy with the benefit

 11   of hindsight.  It is very easy with the benefit

 12   of hindsight and Monday morning quarterbacking

 13   to look at a police investigation afterwards.

 14                  However, every officer testified

 15   that they were doing what they were permitted to

 16   do under law, what they saw as being important

 17   to the investigation.

 18                  Now, on the 4th of May the

 19   Attorney General meets with the Secaucus Police

 20   Department.  It's only about ten days after the

 21   incident.  Every document that they have is

 22   turned over to the Attorney General.  Other

 23   documents are requested by the Attorney General,

 24   forwarded to them.  They are shown the scene.

 25   Within days the Town is advised the Attorney


 

00220

  1   General is taking over the investigation.

  2                  And on May 10th there is a letter

  3   that the Town receives, what is known as a

  4   "supersession letter."  Okay.  It says, "The

  5   office of Bias Crime and Community Relations

  6   will be reviewing the allegations and will take

  7   over the case investigation."

  8                  On the next page what does the

  9   Attorney General say?  Next page of the letter

 10   notifying Secaucus EEO Compliance Office that,

 11   "Attorney General will be reviewing the above

 12   case investigation.  The Town of Secaucus should

 13   withhold administrative action" -- and then they

 14   cite to the wrong statute, which we all

 15   concede -- "pending notification from the

 16   Division of Criminal Justice that their

 17   investigation has been completed."  That's what

 18   the Town of Secaucus gets.

 19                  And now they cooperate with the

 20   Attorney General.  They send everything that

 21   they have, all of -- every time Mr. Carter or

 22   Mr. deVries calls the Police Department, calls

 23   the Town, they send everything to the Attorney

 24   General's Office.  And every time the plaintiffs

 25   called, every report, whether they say they can


 

00221

  1   identify someone, they can't identify someone,

  2   everything is sent to the Attorney General for

  3   their investigation.

  4                  The Attorney General brings

  5   people to appear before a Grand Jury; and the

  6   Attorney General has the power to force, as we

  7   had said earlier, municipal employees to waive

  8   their Fifth Amendment right.

  9                  In fact, on June 10th Captain

 10   Buckley finds a picture in the local newspaper,

 11   picture of the fire company.  He sends that to

 12   the Attorney General.  Says, "Maybe you can" --

 13   "maybe this will help you identify somebody."

 14   He sends that.

 15                  Now, Carter says with that

 16   picture he can put names to faces.  But does he

 17   ever name a firefighter he can identify for any

 18   specific action?  And the answer is no.  And at

 19   this point he is working with the Attorney

 20   General.  Does he admit that?  No, because even

 21   on cross-examination he didn't want to admit

 22   when that picture came out he knew he was

 23   working with the Attorney General.  But the

 24   reports, you'll see, are replete he did.

 25                  And on October 18th the Attorney


 

00222

  1   General sends a letter that says, "We are only

  2   investigating April 25th."  Before that

  3   everyone, including Mr. Carter, everyone thought

  4   that the Attorney General was taking on the

  5   entire matter.

  6                  Now, at the end of the day what

  7   did the Attorney General do?  With all of their

  8   resources and everything that they had, what did

  9   they do?  They determined -- you could see this

 10   by way of the letter.  And really, what we know

 11   is contained in that letter that they were

 12   closing their investigation.  They sent the

 13   plaintiffs a letter.

 14                  They said that the -- obviously,

 15   they had everything; but what they say is, "At

 16   present there is insufficient evidence to

 17   establish the identities of the persons

 18   responsible for the crimes committed on

 19   April 25th in the City of Secaucus."  And that's

 20   what the Attorney General concludes after

 21   everything that the Town had provided, all the

 22   powers that they had and everything that they

 23   had by way of investigation.

 24                  Now, Mr. Leanza testifies that he

 25   determined that he wasn't going to bring


 

00223

  1   charges, administrative charges after that.  He

  2   said, "The Attorney General couldn't identify

  3   anyone.  I knew from our prior reports what we

  4   had sent."  He said he thought it was wrong to

  5   bring charges -- he is an experienced municipal

  6   attorney.  He said he was a municipal court

  7   Judge.  He said he didn't want to bring charges

  8   he could not prove against any individual.

  9                  Now, you heard the testimony of

 10   Detective Captain Buckley.  You have heard the

 11   testimony of Lieutenant Amodeo.  Heard the

 12   testimony of Frank Leanza.  It's not sufficient

 13   to say there were three firemen there, they

 14   admitted they were yelling and, therefore, they

 15   should have been charged with a crime.  In order

 16   to charge them you had to know who did what, who

 17   yelled what, who did what, who banged what.  You

 18   can't just say simply, you know, "A threat was

 19   made."  Who made the threat?

 20                  That was a problem that everyone

 21   ran into.  We're not allowed, we're not

 22   permitted by law to suspend, fire, et cetera, do

 23   anything to an employee just for exercising

 24   Constitutional rights.  And you will see what

 25   the Attorney General ran into and why the


 

00224

  1   decision was made by Mr. Leanza, why he advised

  2   the Town the way he did.

  3                  Now, Mr. Mullin may say to you,

  4   or, as he said -- he showed the letter from the

  5   Fire Company Number 2, saying, "If our firehouse

  6   isn't reopened, we'll all resign."  Okay.  Is

  7   that -- is that the answer here?  I mean, the

  8   whole company was not involved.  There were

  9   members of the company that weren't present that

 10   night of the event.  There were members of the

 11   company that were not at the firehouse.  And

 12   there were members of the company that were

 13   inside the firehouse with their wives and

 14   girlfriend when whatever outside happened.

 15                  Recall what Miss Bardini said.

 16   She recalled a voice.

 17                  Recall what Hjelm said.  Heard a

 18   voice.

 19                  Recall what Mr. deVries reported,

 20   "Three firemen are yelling abuse."

 21                  Mr. Carter said, "Sounds like

 22   one," he says, "or two.  You'll hear."

 23                  Okay.  What's -- and that's --

 24   and that's what they had.  What's the key?  The

 25   decision regarding administrative charges did


 

00225

  1   not violate the plaintiffs' Constitutional

  2   rights.  And think about this.  Think about

  3   this.  This comes back to the Town in July of

  4   2005, 14 months after the event.  By the time

  5   the attorney -- and you're going to hear a

  6   charge about proximate cause.  In other words,

  7   cause and effect.  Cause and effect.  What did

  8   somebody do, and what was the affect?

  9                  But there has to be some

 10   connection.  By the time of the Attorney

 11   General's investigation being completed, okay,

 12   and now we're permitted to think about

 13   administrative action, Mr. deVries and Carter

 14   had already moved out of Secaucus and were in

 15   their home in Jersey City for eight months.  You

 16   can't say that the decision not to bring

 17   administrative charges forced them out of Town.

 18   They had left eight months earlier.

 19                  Mr. deVries had already filed for

 20   disability.  So you can't say, well, the

 21   decision to not bring administrative charges

 22   somehow caused him to be disabled.  He was

 23   already out on disability.  To come here and

 24   imply that that decision -- that somehow that

 25   decision caused them to suffer damages because


 

00226

  1   the Town didn't pursue administrative charges 14

  2   months after the -- after the event, it's just

  3   simply not right.

  4                  Likewise, talk about the election

  5   of Snyder, Jr. as battalion chief by the fire

  6   company.  Not just Company 2, the whole

  7   department.  Okay.  It may have made them angry.

  8   It may have made them angry because it happened

  9   in December of '06.  He took -- he took that

 10   position after his election in January of '07.

 11   But that decision, that vote didn't violate

 12   their Constitutional rights.  It didn't cause

 13   them to suffer psychological damage.  It didn't

 14   cause them to leave the Town of Secaucus.

 15                  The events after April 25th may

 16   have caused them to be distraught or angry,

 17   okay; but it didn't cause them to move, and it

 18   didn't cause them disability.  Frankly, they

 19   sued the Town a year before the AG closed their

 20   investigation and two-and-a-half years before

 21   Snyder, Jr. was elected battalion chief.  They

 22   did not have a Constitutional right to block his

 23   election.

 24                  Now, again, I need to talk to you

 25   about the psychology of all this.  And let me


 

00227

  1   take -- maybe this will be a good time for you

  2   to take a drink.

  3                  Need to talk to you about the

  4   psychology.  Look, no question, Dr. Bursztajn

  5   testified up here, very charming man.  Great

  6   qualifications.  His practice is in academia.

  7   His practice is in a university.  Okay.  He said

  8   he is one of over 10,000 Harvard faculty

  9   members.  The thrust of his professional

 10   practice is different than the thrust of Dr.

 11   Goldwaser's professional practice.  No question

 12   about that.

 13                  In fact, Dr. Bursztajn is an

 14   expert on teaching other doctors how to be --

 15   how to go before juries and be a convincing

 16   expert.  He is an expert on being an expert.

 17   However, both Dr. Goldwaser and Dr. Bursztajn

 18   are board certified psychiatrists; and they are

 19   both forensic psychiatrists.  And Dr. Goldwaser

 20   certainly explained to you the difference

 21   between the two.  I won't.

 22                  They were qualified by this Court

 23   as experts based upon their education, their

 24   training or experience.  The fact that one

 25   practices in one way, one practices in another


 

00228

  1   way certainly has nothing to do with the fact

  2   that they are both board certified psychiatrist.

  3   The fact that Dr. Bursztajn -- Goldwaser does

  4   not put patients in hospitals, he doesn't treat

  5   out of hospitals, he treats out of his office

  6   and he is a forensic psychiatrist.

  7                  Now, need to talk to you a little

  8   bit first about Dr. Bursztajn.  He is retained

  9   by the attorneys for Mr. Carter and Mr. deVries

 10   to give an opinion that Secaucus caused some --

 11   some of -- psychological damage.  Okay.  He

 12   wasn't retained to treat them.  Okay.  He knew

 13   that Mr. deVries was already out on disability.

 14   He knew that a claim against Secaucus had

 15   already been made.

 16                  They traveled to Massachusetts to

 17   see him, and they stayed there for two days.

 18   Dr. Bursztajn decided to give objective

 19   psychological tests that would be sent to an

 20   independent agency for scoring.  Okay.  Remember

 21   that.  Dr. Bursztajn decided if he would give

 22   him tests.  He decided when he would give them

 23   tests.  And he decided how he would give them

 24   the tests.

 25                  And the results of one of


 

00229

  1   Mr. Carter's tests come back as invalid.  And

  2   one of the potential reasons -- two of the

  3   potential reasons for it being invalid was

  4   malingering and exaggerating.  Okay.  Those were

  5   potential reasons for the invalidity of those

  6   results.

  7                  Mr. deVries' results were common

  8   in -- this is on the MMPI-2, one of the tests.

  9   His results were common in personal injury

 10   litigation settings and showed a tendency to

 11   exaggerate symptoms.  The findings were

 12   consistent with someone whose psychological

 13   problems were chronic and long-standing.  His

 14   anxiety and stress was reported in the normal

 15   range.  The test indicated he does not appear to

 16   feel hopeless, self-esteem was largely intact

 17   and loss of appetite and weight, disturbed sleep

 18   and sexual dysfunction were not part of the

 19   clinical picture, according to the test results

 20   of Mr. deVries.

 21                  So what does Dr. Bursztajn now do

 22   once he gets these objective test results back?

 23   Okay.  He testified the results that were

 24   favorable in terms of the plaintiffs' claims and

 25   rejected and he gave you explanations why he


 

00230

  1   rejected the objective results that did not help

  2   the plaintiffs' claims.

  3                  What did he tell you?  He said,

  4   well, they were tired.  Well, the interview was

  5   inconsistent with the objective test results.

  6   The results were inconsistent with the

  7   plaintiffs self-reporting.  The plaintiffs were

  8   scared and terrified.  This is what the

  9   plaintiffs' condition was.  If this was what

 10   their condition was, then you have to ask, well,

 11   why did he give them the tests in the first

 12   place?

 13                  Let's talk about the observations

 14   of Dr. Bursztajn.  Recall the words he used.

 15   Okay.  Recall he said he had to coax the story

 16   out of Mr. Carter.  When he asked Mr. Carter the

 17   story, he had to coax him.  Is that consistent

 18   with your observations when Mr. Carter was on

 19   the witness stand before you?  Did you observe

 20   someone who had to have the story coaxed out of

 21   him?  Mr. Carter wasn't that person.  He told

 22   the story of the 12-minute incident probably for

 23   about an hour with relatively minimal

 24   questioning from Mr. Mullin.

 25                  Okay.  Mr. Mullin didn't have to


 

00231

  1   coax the story out of Mr. Carter in this setting

  2   with ten jurors, attorneys, a judge.  Yet Dr.

  3   Bursztajn says that in the privacy of his own

  4   office that the story had to be coaxed out of

  5   him.

  6                  You heard the testimony of

  7   Mr. deVries.  He came before you.  Okay.  Were

  8   your observations consistent?  Did you hear a

  9   person who was disorganized in his thoughts?

 10   Did you hear somebody who wasn't able to

 11   concentrate?  Mr. deVries was organized.  He was

 12   poised.  He was detailed.  He was indignant.

 13   And he was angry, no question about it.  But he

 14   was not sitting here scared or fearful.

 15                  Simply, Dr. Bursztajn reported to

 16   you what he saw.  But you have to ask yourself

 17   is that consistent with what you saw here in

 18   this courtroom?

 19                  On the other hand,

 20   Dr. Goldwaser's observations, which he testified

 21   to you, I submit, were absolutely consistent

 22   with what he saw.  He said they were very -- I

 23   don't know if the word was "charming."  They

 24   were very expressive.  They told the story very

 25   fluently and very well.  They weren't fearful.


 

00232

  1   "I didn't have to coax the story out of him."

  2                  And Mr. Carter -- so you have to

  3   take a look and determine where is the

  4   consistency here?  Remember we talk about action

  5   speaking louder than words?  I can say I'm

  6   fearful.  Did they appear fearful?  Did they

  7   appear disorganized?  Did they have they appear

  8   to have the story coaxed out of them?  Okay.

  9                  The issue of self-reporting is

 10   evidence.  All right.  You have to determine

 11   whether or not they suffered -- if you even get

 12   to this point.  And frankly, I don't think --

 13   frankly, I have to say I don't think that you

 14   need to get to it because of the liability

 15   picture.

 16                  But if you consider their actions

 17   as compared to their words, specifically their

 18   actions after the date of the incident -- and

 19   you have to consider Dr. Goldwaser's testimony

 20   when he interpreted Dr. Almeleh's notes.  You

 21   have to look at their actual actions and what

 22   they said to Dr. Almeleh with a very careful eye

 23   after this incident.

 24                  Mr. deVries was a medical editor.

 25   They are both very, very intelligent, well


 

00233

  1   educated men.  You have to consider after hours

  2   of interviews with Dr. Goldwaser -- you know,

  3   think about it.  Hours of interviews with Dr.

  4   Goldwaser with Mr. deVries.  And what does

  5   Dr. Goldwaser tell you even after all these

  6   hours of interviews?  He says, "Then I get this

  7   letter in the mail" -- or, "a writing in the

  8   mail where Mr. deVries has given me a

  9   typewritten list of all of his symptoms after my

 10   interview."  Didn't ask him for it.  He just

 11   sends a typewritten letter.

 12                  Okay.  Now, talk about PTSD.  It

 13   starts with a traumatic event that brings fear,

 14   helplessness and horror at the time of the

 15   event.  Dr. Goldwaser says it's an overwhelming

 16   of the person's ability to respond to the event.

 17                  I spoke to you earlier about how

 18   Mr. Carter and Mr. deVries responded to the

 19   event, what they did that night, when they went

 20   out on the porch, what they did that night by

 21   way of sending e-mails out.  You have to say, is

 22   this a overwhelming of the senses?  They called

 23   the police, and they did these things in a

 24   rationale manner.  Okay.  They were -- they did

 25   not demonstrate that they were overwhelmed by


 

00234

  1   the event.  You know, and that's certainly, you

  2   know, important -- an important consideration.

  3                  The next day, the Monday,

  4   Mr. deVries went to work the next day.  The next

  5   weekend he flew on a business trip to New

  6   Orleans.  Okay.  Mr. Carter said he was alone

  7   that weekend.  And remember we had that

  8   testimony.  You have to consider, you know, were

  9   they overwhelmed by the event?

 10                  Okay.  The second major criteria,

 11   they talk about avoidance.  And avoidance,

 12   Dr. Goldwaser talks about, is that they want to

 13   flee, they want to run.  What -- they avoid

 14   telling the story of the trauma.  They avoid the

 15   place of the trauma.  They avoid the people

 16   involved with the trauma.  Did you see that?  Do

 17   you see that?  Mr. Carter is walking past the

 18   firehouse.  He is watching the firehouse.  He is

 19   observing the firehouse.  He is calling the

 20   police.

 21                  Okay.  Now, Mr. deVries, he

 22   continues to live in Secaucus for about seven

 23   months after the incident.

 24                  Now, Dr. Goldwaser also tells you

 25   that Dr. Pumill's records indicate that three


 

00235

  1   weeks after the incident Mr. deVries was still

  2   outside walking his dogs.  Still walking his

  3   dogs.  Continued to see Dr. Pumill in Secaucus

  4   -- in Secaucus, okay, a year-and-a-half after he

  5   moved out of Secaucus.

  6                  In fact, Dr. Pumill has a record

  7   that -- that Dr. Goldwaser testified about that

  8   Mr. deVries had an EKG at Dr. Pumill's office in

  9   Secaucus in May of 2006, okay, six months after

 10   the date he reported he wasn't able to go back.

 11                  After moving to Jersey City he

 12   returns to Secaucus for time -- for a period of

 13   time for his dentist and his pharmacy.

 14                  Okay.  You talk about avoidance.

 15   What did Dr. Goldwaser tell you about Miss

 16   Hines, the therapist?  Mr. deVries, in July of

 17   '04, has begun creative activity about making a

 18   movie about the incident which brought him joy.

 19   He brought in newspaper clippings.  In July of

 20   '04 he said he had a good week, he was cheerful,

 21   working on the movie.  In April of '05, seems

 22   stable, despite the anniversary.

 23                  Carter's own actions speak louder

 24   than words.  He continued to walk, as I said.

 25   He looked inside the firehouse.  Continued to


 

00236

  1   lose -- use the Town library.  And continued to

  2   visit the pharmacy even after the incident.

  3                  In December -- and you know,

  4   again, actions speak louder than words.  In

  5   December 2004, all right, after he left

  6   Secaucus, when his attorneys wanted to retrieve

  7   police records, Mr. Carter was sent to Secaucus

  8   to get the records, to the Police Department to

  9   get them.  When I questioned Mr. Carter about

 10   that, he said, "Well, somebody had to get them."

 11   Think about that.  Think about that.

 12                  And perhaps one of the most

 13   telling things is that the morning of

 14   November 2nd, okay -- it was within days

 15   after -- after they were -- before they were

 16   going to move, 2:00 in the morning two men,

 17   Mr. Carter and Mr. deVries, are standing right

 18   in front of the firehouse that they say they are

 19   terrified of and they are taking pictures of

 20   some writing on the wall.

 21                  And the police come upon them.

 22   This is -- now they -- they didn't know where

 23   the perpetrators of this alleged event -- you

 24   know, this event were.  They don't know where

 25   they are.  They are in front of firehouse.  It's


 

00237

  1   2 in the morning, but they are out there taking

  2   pictures.  And again, you have to think about

  3   that.  What action does that indicate to you?

  4                  Now, there are self-reported

  5   nightmares.  And you heard Miss Smith question

  6   Dr. Goldwaser about them.  And you -- you know,

  7   did they -- did they generally report nightmares

  8   to Dr. Almeleh after this event?  Yeah, they

  9   did, both of them did.  Both of them did.  Okay.

 10   Is there any way to determine -- is there any

 11   way to determine whether or not they were

 12   actually suffering from the nightmares that they

 13   reported?  Okay.  There is not.

 14                  And there is one thing that you

 15   can look at as a strong -- you know, just look

 16   at it.  I'm not going to say whether it's strong

 17   or weak or whatever.  But Mr. deVries -- and

 18   this was testified to, again, by Dr. Goldwaser.

 19   When Mr. deVries -- actually, may have been Dr.

 20   Bursztajn.  When Dr. Bursztajn asked Mr. deVries

 21   to give him an example of a nightmare in their

 22   meeting, he was unable to do so.  And this was

 23   from a person who claims that he had been having

 24   nightmares on practically nightly basis for two

 25   years before his meeting with Dr. Bursztajn.


 

00238

  1   It's certainly a problem.

  2                  So what did Dr. Bursztajn say?

  3   Go home, think about it and send me a written

  4   example of one.  And that's what Mr. deVries

  5   did.  Okay.  If they had been having nightmares

  6   frequently for two-year period of time,

  7   certainly he would be in a position to at least,

  8   you know, talk about one nightmare.

  9                  You know, consider Mr. Carter's

 10   testimony about -- about the DPW truck in Jersey

 11   City.  Okay.  Remember I was asking him, you

 12   know, where were you?  He said, "I was following

 13   the truck.  I was behind the truck."  And I

 14   asked -- he said, "But I saw that seal.  I saw

 15   that seal.  Now the man opened the door."

 16                  So I'm thinking, here is a truck.

 17   He is behind the truck.  The doors of the truck

 18   open this way.  And the seal is over here.  How

 19   does he see the seal?  How does he see the seal?

 20                  Why are these questions asked?

 21   Questions are asked how long have you had the

 22   newspaper up?  Why do we ask these questions?

 23   Because we're trying to find out.  We're trying

 24   to test.  How long did you have the newspaper

 25   up?  What windows did you have covered in


 

00239

  1   newspaper?

  2                  I don't know.  Well, I had

  3   expensive draperies.  I had this.  I had that.

  4   I really can't tell you.

  5                  If I don't ask the question, he

  6   testified, "I had newspapers up over every

  7   window.  It was like a bunker in there."

  8                  Okay.  You have to consider the

  9   self-reporting on a lot of these things.  Okay.

 10                  Interesting.  All right.  Another

 11   thing.  Doctor -- Dr. Bursztajn talks about

 12   PTSD, and he talks about avoidance.  He says

 13   that as a child Tim Carter -- this is

 14   horrible -- was beaten by his father.  Okay.

 15   Mr. Carter reports that when he lived in Jersey

 16   City he was mugged.  He testified that three

 17   people -- here, okay.

 18                  "On April 4th of 2005, okay,

 19   April 4th, 2005, do you recall reporting to Dr.

 20   Almeleh that you were mugged in Jersey City?"

 21                  "Yes."

 22                  "Did you recall telling Dr.

 23   Almeleh that you were mugged by an apparent drug

 24   dealer or dealers?"

 25                  "They are alleged to be.  I'm not


 

00240

  1   certain."

  2                  "How many -- how many drug

  3   dealers mugged you?"

  4                  "Well" --

  5                  "Assuming that they were drug

  6   dealers, but how many people mugged you?"

  7                  "Yeah, assuming they're drug

  8   dealers because I don't know.  There at the end

  9   of Clinton Road that leads onto West Side Avenue

 10   on the evening of Good Friday."

 11                  "How many were there?"

 12                  "There were maybe three."

 13                  "Three?"

 14                  "Uh-huh."

 15                  "Did they make physical contact

 16   with you?"

 17                  "They tried to."

 18                  "I'm sorry?"

 19                  "They tried to."

 20                  "And what -- what prevented them

 21   from making physical contact with you?"

 22                  "I started running, and they

 23   ripped my shirt in half."

 24                  "And that was on the street of

 25   Jersey City?"


 

00241

  1                  "Uh-huh."

  2                  "Pardon me?"

  3                  "Yes."

  4                  Okay.  Now, what does that mean?

  5   All right.  What does it mean?  What does Dr.

  6   Bursztajn testify to about these two horrible

  7   events?  He is beaten by his father.  Okay.  He

  8   is mugged in Jersey City, where he has to flee

  9   and has the shirt ripped off his back.  These

 10   are horrible things.  But what was Dr.

 11   Bursztajn's --

 12                  "Now, Doctor, you are aware that

 13   Mr. Carter was mugged when he was living in

 14   Jersey City, correct?"

 15                  "Yes."

 16                  "And did you take that event into

 17   account in rendering your final opinions in this

 18   case?"

 19                  "I did.  And he was able to talk,

 20   as I think I mentioned, freely and without being

 21   petrified about being mugged.  In fact, you

 22   know, he overall -- when other incidents

 23   occurred in Jersey City, he actually felt that

 24   the police were helpful to him, so he wasn't --

 25   he is not a police-basher by any stretch of the


 

00242

  1   imagination."

  2                  "Well, and let me ask you this.

  3   All -- he also related to you problems that he

  4   had had with his family growing up.  I think you

  5   mentioned on direct examination a horrible

  6   incident, that his father had beaten him up,

  7   correct?"

  8                  "All right.  He did -- and again,

  9   he was able to do so without being petrified in

 10   the process, without being overwhelmed by his

 11   emotions.  He could talk about that."

 12                  "So" --

 13                  "That's something he could talk

 14   about."

 15                  "So the only things he couldn't

 16   talk about were the events in Secaucus?"

 17                  "And the aftermath."

 18                  "Well, the events in Secaucus and

 19   what happened afterwards?"

 20                  "Yes."

 21                  "Okay.  That's the only thing he

 22   had trouble talking about?"

 23                  You have to think about these

 24   things.  What are we dealing with?  Okay.  Is it

 25   credible for Dr. Bursztajn to come in here and


 

00243

  1   say these two horrible events, when he is

  2   running, rips his shirt, his father beats him,

  3   he could talk about, there is no PTSD; but what

  4   is happening when he is in Secaucus coming out

  5   of his porch, that is an event that caused the

  6   PTSD?

  7                  Now, in January of '05 Dr.

  8   Almeleh writes letters to Mr. Mullin and

  9   Miss Smith, one for deVries and Mr. Carter.

 10   They are both very different people, but Dr.

 11   Almeleh writes a letter, which you heard

 12   Dr. Goldwaser and Dr. Bursztajn testify about,

 13   both of them have PTSD.  Both have posttraumatic

 14   stress disorder.  And it's both severe, and it's

 15   debilitating in both cases.

 16                  You are going to see the

 17   documents.  You are going to see them from the

 18   disability claim that was filed by Dr. Almeleh,

 19   signed off by Mr. deVries in November of '05.

 20   The only diagnosis that's mentioned is major

 21   depressive disorder, a condition that Mr. --

 22   Mr. deVries had been treating with for a

 23   significant period of time before April 25th.

 24                  Letter -- not going to go into

 25   the letter about, you know, Mr. Carter,


 

00244

  1   considered hospitalizing him.  In fact, he was

  2   never hospitalized.  By the spring and summer of

  3   '06 Mr. Carter had found a new job, he was

  4   pleased he could control his ADD with,

  5   apparently, a watch he could use and a small

  6   amount of Adderall.

  7                  Let's talk about Mr. deVries'

  8   diagnosis, major depressive disorder.  There is

  9   no -- depressive disorder, he suffered from this

 10   for years.  He had been treated with psychiatric

 11   medication by Dr. Almeleh, according to

 12   Dr. Goldwaser, going back probably to the early,

 13   '90s.  Took depression medicine while he was

 14   living in Minnesota per Dr. Goldwaser,

 15   prescribed by Dr. Raffaelli, his primary care

 16   physician.

 17                  Okay.  Just want to talk to you

 18   about certain things.  Okay.  Mr. deVries --

 19                  Just scroll it up a little bit.

 20   Scroll it up a little bit.  The other way.  The

 21   other way.  Up.  This way.  Up.  I don't want to

 22   see the top of the page.  Okay.  I just want to

 23   see "November 2003."

 24                  Okay.  Dr. Goldwaser tells you

 25   that his review -- and again, these are


 

00245

  1   documents that I made, okay.  These are

  2   documents I made.  All right.  Dr. Goldwaser

  3   tells you that, according to his review of Dr.

  4   Almeleh's records, by November of 2003

  5   depression has returned, has been depressed

  6   since his heart surgery, taking antidepressant

  7   meds, feeling very bad, saw very little purpose

  8   in living, wanted to retire.

  9                  Okay.  And here is the

 10   antidepressant medication.  January, February of

 11   '04, now taking Adderall, which Dr. Goldwaser

 12   had told you he was actually using Mr. Carter's

 13   Adderall, in addition to his antidepressant.

 14   The combination made him feel good, more

 15   focused, able to concentrate.  Now he was liking

 16   his job.

 17                  March 2004, antidepressant

 18   medication is discontinued.  Remember what

 19   Dr. Goldwaser told you.  He said this was

 20   cyclical.  It was like waves; came, it went,

 21   came and went.

 22                  Now the antidepressant medication

 23   is discontinued.  He was only taking Adderall.

 24   Dr. Goldwaser tells you that in a few weeks of

 25   this continuation of antidepressant Mr. deVries


 

00246

  1   reports he is having problems at work and

  2   complains of having to work 12 to 13 hours a

  3   day.

  4                  This is all -- April 9th, 2004

  5   Dr. Goldwaser testifies that his review of Dr.

  6   Almeleh's records, feeling more depressed, he is

  7   sleeping longer, dislikes his job and wants to

  8   leave.  And remember, he was planning on taking

  9   a new job and quitting as of April 26th.  Dr.

 10   Almeleh questions whether it's biological

 11   depression has returned or whether his

 12   depression is environmental, related to the

 13   dislike of his job.

 14                  Dr. Almeleh wants to reintroduce

 15   antidepressant medication, but he is concerned

 16   about the heart.  You recall that testimony.

 17                  Now, contrary to what Dr.

 18   Bursztajn says, this is not the clinical picture

 19   of a person who's happily going through life

 20   with a few minor kinks or bumps in the road.

 21   It's a clinical picture of person who has

 22   persistent serious depression and who needed to

 23   be on medication to function properly.

 24                  Now, after April 25th of 2004 no

 25   emergency medical treatment.  Mr. deVries


 

00247

  1   continues to work full-time until May of '05, a

  2   year later.  In fact, he is continued working 12

  3   to 13 hours a day as he was doing before

  4   April 25th right up through the time that he

  5   moved from Secaucus.

  6                  And again, remember, this is a

  7   document we prepared based upon Dr. Goldwaser's

  8   review of Dr. Almeleh's notes.  Frequency of Dr.

  9   Almeleh visits with Dr. Almeleh did not change

 10   from November 2003 through April 2005.

 11                  October of 2004 he reports to

 12   Dr. -- to Miss Hines that he feels pressured to

 13   stay at a job he doesn't like.

 14                  November of '04, he is passed

 15   over for a promotion at work.

 16                  Okay.  And in December of '04 Dr.

 17   Almeleh prescribes an antidepressant for the

 18   first time since February of '04.  Okay.

 19   Remember the waves.

 20                  Now, in April '05, okay, doctor

 21   pointed out -- he reports to Miss Hines that his

 22   depression is returned.  He is having problems

 23   at work.  He files for temporary disability.

 24                  Reports to Miss Hines his

 25   displeasure with his work environment.  Says he


 

00248

  1   will use the time to job hunt.  He will use the

  2   time to job hunt.

  3                  November of '05 he files for

  4   permanent disability.  The only diagnosis

  5   listed, as we said before, is major depressive

  6   disorder, okay, a condition that he suffered

  7   from before this incident.  There is no

  8   indication on the disability form that he is

  9   taking a sleep aid or an antianxiety med.

 10   The -- only the antidepressant, heart and blood

 11   pressure medication.

 12                  Now, Mr. deVries' disability was

 13   not caused by the events in Secaucus but by his

 14   preexisting condition.  It was recurrent.  It

 15   was severe.  It was major depressive disorder.

 16   And it was long-standing dissatisfaction with

 17   his job environment.

 18                  Now I just want to talk to you

 19   about a few other things, and I won't use a

 20   chart on this.  Relationship issues.

 21   Relationship issues.  Okay.  December '03,

 22   12/03, okay, Dr. Goldwaser tells you Mr. Carter

 23   reports to Dr. Almeleh that Mr. deVries is

 24   upset, okay.  Carter reports to Dr. Almeleh

 25   regarding deVries being upset, okay.  That's in


 

00249

  1   December of '03.

  2                  May of '05 Miss Hines notes in

  3   her discharge summary that his relationship with

  4   Tim Carter has been strained by Tim Carter's

  5   unemployment and severe ADD.  His unemployment

  6   and severe ADD.  Smoking.  Important issue.

  7   Okay.  Again, as we go through this

  8   self-reporting, remember the testimony regarding

  9   smoking.

 10                  Okay.  Mr. Carter and Mr. deVries

 11   tell you it all started, the recurrence of the

 12   smoking started after the date of this incident.

 13   Okay.  And Dr. Goldwaser tells you that he notes

 14   that in February of '04 Dr. Almeleh notes that

 15   he has a smoking slip and he is smoking

 16   "10/day."  That's what Dr. Goldwaser reports

 17   that Dr. Almeleh -- that he saw, Doctor -- in

 18   Dr. Almeleh's file.  This is before -- before

 19   the incident.  And yet you have heard testimony

 20   that it only happened after -- somehow as a

 21   result of the incident.

 22                  Weight loss.  Okay.  July of '03.

 23   Okay.  Weight loss.  Okay.  7/03, the summer

 24   before, all right.  Dr. Pumill says that

 25   Mr. deVries has not exercised and has gained


 

00250

  1   weight.  In May of '04, all right, Dr. Pumill,

  2   the cardiologist -- okay, Dr. Pumill, the

  3   cardiologist, what does he know?  Dr. Goldwaser

  4   notes that Mr. deVries is dieting and walking

  5   his dogs.  What do you hear?  Later he has lost

  6   40 pounds; it was all because of Secaucus.

  7                  Significantly, Mr. deVries is

  8   working full-time, okay.  He is working

  9   full-time and is not taking any antidepressant

 10   medication between April 25th of '04 and the

 11   time he moves from Secaucus in early November of

 12   '04.

 13                  Okay.  He does not go out on

 14   disability from work until May of '05, over a

 15   year after the firehouse event, six months after

 16   leaving Secaucus.  The sole diagnosis under the

 17   disability form, recurrent severe depression.

 18   Okay.  I don't have to tell you about that and

 19   the history of that.

 20                  Now, I need to talk to you about

 21   Mr. Carter and some of the prior history that

 22   Dr. Goldwaser testified about.  This is

 23   Mr. Carter.  Okay.  He testifies that in July of

 24   '03, 7/03, okay, Dr. Goldwaser tells you that he

 25   sees indications of Paxil, okay, he sees


 

00251

  1   indications of panic attacks, okay, and he sees

  2   disturbed sleep.  Okay.  And he is taking

  3   Adderall and Ritalin for ADD.

  4                  Okay.  November '03 Dr. Goldwaser

  5   tells you what does he see?  He can get anxious

  6   and depressed on meds.  Okay.  Disturbed sleep.

  7   Panic and fears.  And he is taking Prozac.

  8                  Okay.  February '04.  Okay.  What

  9   does Dr. Goldwaser tell you?  Notation is,

 10   "always had a sleep disturbance."  Okay.  Taking

 11   Adderall.  And -- and in April of '04, before

 12   this incident, Dr. Almeleh is considering

 13   prescribing Lexapro.  Lexapro.

 14                  All right.  So that's the

 15   picture.  Is this the clinical picture?  Is this

 16   the -- no.  Is this the clinical picture?  It's

 17   the prior one -- of a person with severe ADD and

 18   anxiety, as well as a severe sleep dysfunction,

 19   who needs to be medicated in order to function?

 20   His medications, Mr. Carter's, before

 21   April 25th, included, in addition to ADD

 22   medication, medication for anxiety and

 23   depression.

 24                  All right.  Post April 25th

 25   Mr. Carter went to school, obtained a degree in


 

00252

  1   paralegal studies, went through training and

  2   obtained a job in digital media, learned to

  3   control his ADD through medication and, I guess,

  4   some sort of a therapy using the watch.

  5                  Okay.  That's post April 25th of

  6   2004.  This is not the clinical picture of a

  7   person who has been severely and permanently

  8   disabled from posttraumatic stress disorder, but

  9   the clinical picture of a person suffering from

 10   severe preexisting anxiety and ADD who has

 11   learned to manage his condition and secure

 12   employment.

 13                  What's clear, both Mr. Carter and

 14   Mr. deVries have been under psychiatric care

 15   decades before April 25th.  They were receiving

 16   medications for their conditions.  They were

 17   still receiving care and meds up to the time of

 18   the incident.  Life and their psychiatric

 19   condition was not good before the incident.

 20   Okay.  The incident caused them to be upset.  It

 21   caused them to be angry.  There is no question

 22   about it.  But it did not cause permanent

 23   psychiatric damage.

 24                  The events after 4/25 caused them

 25   to be angry but not psychologically damaged.


 

00253

  1   The Town actions and inactions after the

  2   Attorney General investigation was over did not

  3   cause them psychological harm and did not cause

  4   them to move.

  5                  I just want -- again, I don't

  6   think you are going to get to this.  And just

  7   because I'm talking about it doesn't mean I

  8   think you should.

  9                  I have to just tell you very

 10   quickly about Dr. Marcus.  Dr. Marcus was

 11   basically -- he gave you testimony based upon

 12   numbers and assumptions.  He made assumptions,

 13   and he provided you numbers.  He didn't say that

 14   Mr. Carter -- Mr. deVries was disabled.  He is

 15   not a medical doctor.  Okay.  He basically said

 16   this is what he was making before; and if he had

 17   continued to work, this is what he was making.

 18   He is not saying that Mr. deVries was disabled.

 19   He certainly is not saying that he was disabled

 20   because of anything that Secaucus did.

 21                  In any case, you know, he didn't

 22   go through medical records to see if Mr. deVries

 23   was already thinking about getting -- retiring

 24   or leaving his job or anything of that nature.

 25                  Now, I just want to talk to you a


 

00254

  1   little bit about the jury verdict form.  Okay.

  2   You are going to have a jury verdict form that

  3   the Court is going to give you at the end of

  4   this case.  And the first question you have to

  5   ask is has the Plaintiff, Timothy Carter, proven

  6   by a preponderance of the evidence that the Town

  7   of Secaucus violated his rights under the Law

  8   Against Discrimination and the State

  9   Constitution?

 10                  And I submit to you the answer to

 11   that question clearly has to be no.  The Town of

 12   Secaucus did not take any action, did not do

 13   anything, did not -- did not refrain from acting

 14   in a manner to violate Mr. deVries' or

 15   Mr. Carter's rights under the Law Against

 16   Discrimination or the State Constitution.

 17   That's number one.

 18                  Number two, you have to determine

 19   whether or not anything that was done -- and

 20   this is not easy stuff.  This is not easy.  But

 21   you have to determine that -- if you find that

 22   Secaucus didn't do this or didn't do that, then

 23   you have to determine was that the cause of some

 24   harm?  Was that the cause of some harm?  Because

 25   the answer to that question is also a no.


 

00255

  1                  You are going to go through as

  2   to -- and make this determination as to whether

  3   there was actions under color of law, whether

  4   anyone was acting in a supervisory capacity.

  5   These are very difficult things to do.  But when

  6   you do the analysis, what you find is that the

  7   Town of Secaucus did not do anything here.

  8                  Were people acting under color of

  9   law, Town officials and the police?  Yeah, the

 10   police and the Town officials act under color of

 11   law; but they didn't violate their rights, okay.

 12   Is an act of harassment a violation of someone's

 13   Constitutional rights?  Yeah, but that wasn't

 14   taken under color of law.  That's the thing.

 15                  The Town officials, they are

 16   acting under color of law; but they didn't

 17   violate the rights.  If people were out there on

 18   April 25th, they weren't acting under color of

 19   law.  They weren't acting within their capacity.

 20   They weren't doing anything within the scope of

 21   their authority.  They weren't doing anything in

 22   the course or furtherance of their employment

 23   with the Town of Secaucus.

 24                  Now, Mr. Mullin will follow me.

 25   He gets the last word.  These are almost my last


 

00256

  1   words.  And I'm not going to be able to speak to

  2   you again.  But remember, when he makes a

  3   statement or comment that does -- may not

  4   conform with your recollection, it's your

  5   recollection that governs.  And ask yourself,

  6   you know -- and I'm not going to be able to

  7   respond again -- you know, what would the Town

  8   say about that?  What would the Town say about

  9   that?

 10                  I also expect -- expect

 11   Mr. Mullin to follow with an amazing oratory of

 12   the events of April 25th.

 13                 MR. MULLIN:  Objection, Your

 14   Honor.

 15                  Thanks for the compliment; but

 16   Objection, Your Honor.

 17                 MR. PARIS:  I don't think it's

 18   objectionable, Your Honor, I think that's what

 19   Mr. Mullin is going to be.  It's going to be

 20   tremendous oratory.

 21                 JUDGE CURRAN:  One tremendous

 22   oratory followed by what I expect on both sides.

 23                 MR. PARIS:  Okay.  And you know

 24   what, there may come a point in time during a

 25   summation where you feel like you are in the


 

00257

  1   room or you are being -- you know, you are going

  2   to feel the words.  You are going to hear

  3   descriptions of what people did, what people

  4   didn't do, what people are alleged to have done.

  5   You are going to hear questions about why people

  6   did what -- what they did.

  7                  And from the perspective of 20/20

  8   hindsight and rear vision, you may hear

  9   criticism about the Town actions of police

 10   officers, officials, fire officials, Town

 11   officials, et cetera.  And with the luxury of

 12   rear vision, you know, it's easy to pick apart

 13   what officials may have done what they didn't

 14   do.  But can you say that, Gee, you know,

 15   Mr. deVries and Mr. Carter would be without

 16   psychological problems today if these things had

 17   been done or these things had not been done?

 18                  You know, would Mr. deVries now

 19   be working?  Would they still be living in a

 20   rented house next to the Fire Department?  You

 21   have to -- you know, you have to look at that

 22   and you have to pick this apart because the

 23   answer to those questions come back to the fact

 24   that Town of Secaucus didn't do these things.

 25                  What's clear and what you cannot


 

00258

  1   forget is that the people who verbally assaulted

  2   the plaintiffs on the 25th are not on trial

  3   here.  The Town of Secaucus is on trial here.

  4                  What is also clear is that you're

  5   obligated to decide the case without sympathy

  6   towards any party.  We can be sympathetic as

  7   people.  But as jurors you need to decide the

  8   case here, head versus heart.  And you can't

  9   transfer to the Town the disgust that we all

 10   have for the words and actions of the morning of

 11   the 25th.  We all have that feeling about it,

 12   but you can't transfer that feeling to the Town

 13   because the Town didn't cause those actions in

 14   words.  Didn't cause them.  The Town didn't

 15   endorse those actions in words.  The Town didn't

 16   show deliberate indifference to the words and

 17   actions or to the plaintiffs.  And last and most

 18   importantly, the Town isn't responsible for

 19   those words and actions.

 20                  Thank you.

 21                 JUDGE CURRAN:  Thank you.  I would

 22   like to see counsel at sidebar.  Is there any

 23   objection to letting the jury take five-minute

 24   break?

 25                 MR. MULLIN:  No, it's a good time


 

00259

  1   for a break.

  2                 JUDGE CURRAN:  Ladies and

  3   Gentlemen, if you can find your way out amongst

  4   all the exhibits.  If you would like to go sit

  5   in the jury room, please do.  Thank you.

  6                 (Whereupon, the jury is excused.)

  7                 (Whereupon, the following sidebar

  8          discussion is held.)

  9                 JUDGE CURRAN:  First of all, I

 10   wanted to know what Mr. Mullin's preference is;

 11   does he want to start now, or does he want to

 12   start -- does he want to do his whole summation

 13   tomorrow?  My concern is that, you know, there

 14   is basically an hour left and that may not be

 15   enough time.

 16                 MS. SMITH:  You mean he has to

 17   stop at 4:30?

 18                 JUDGE CURRAN:  Not has to, but my

 19   concern is -- we're kind of instructed not to

 20   keep the jury much beyond 4:30; and my concern

 21   is that if they start not paying attention, it's

 22   so hot out today.

 23                 MS. SMITH:  I'm sure that his

 24   preference, he -- he is probably going to be

 25   done in an hour, Judge.  It's possible he won't.


 

00260

  1                 JUDGE CURRAN:  I'm not trying to

  2   rush him; I am just asking.

  3                 MR. BEVERE:  Could we keep them

  4   until 5?

  5                 JUDGE CURRAN:  It's fine -- it's

  6   fine with me.

  7                 MS. SMITH:  Can we ask them -- I

  8   got to ask him about that.

  9                 JUDGE CURRAN:  Absolutely.  As

 10   long as he is ready -- you think he will finish?

 11   He is going to finish.

 12                  I am going to bring the jury back

 13   at 9:30 tomorrow for charge.  Any objection to

 14   that?

 15                 MS. SMITH:  No, that sounds fine,

 16   Your Honor.

 17                 JUDGE CURRAN:  I just did want to

 18   mention -- it's very minor point.  But I looked

 19   at my notes; and I looked, basically, at

 20   Tracey's transcript.  Mr. Mullin withdrew the

 21   adverse inference request.

 22                 MS. SMITH:  Right.  That's one of

 23   my objections.

 24                 JUDGE CURRAN:  Okay.

 25                 MR. PARIS:  What did I say?


 

00261

  1                 JUDGE CURRAN:  You said he may

  2   talk about this, but --

  3                 MR. PARIS:  I didn't mention about

  4   the adverse inference, did I?

  5                 JUDGE CURRAN:  About taking the

  6   Fifth.

  7                 MS. SMITH:  I have various

  8   objections.  I'm waiting until we're both,

  9   Judge, done.

 10                 JUDGE CURRAN:  Okay.  We will go

 11   back to that later.  I just wanted to -- to be

 12   on the record.

 13                 (Whereupon, a brief recess is

 14          taken.)

 15                 JUDGE CURRAN:  Bring out the jury.

 16                 MS. HAWKS:  Jurors are

 17   approaching.

 18                 JUDGE CURRAN:  Thank you.

 19                 MS. HAWKS:  You're welcome.

 20                 (Whereupon, the jury is brought

 21          into the courtroom.)

 22                 JUDGE CURRAN:  Thank you, Ladies

 23   and Gentlemen.  We appreciate your being back so

 24   promptly.  And now we're going to continue with

 25   the summation by the plaintiffs.  So I will ask


 

00262

  1   you please to give your very careful attention

  2   to Mr. Mullin on behalf of the plaintiffs.

  3                  Mr. Mullin.

  4                 MR. MULLIN:  Thank you, Your

  5   Honor.

  6                  Good afternoon, Ladies and

  7   Gentlemen.  I'm not going to go long.  I'm too

  8   tired and I'm too hot to be eloquent.  I -- so

  9   here is what I know.  You have seen this jury --

 10   you have seen this trial, rather.  You have seen

 11   these witnesses.  Here is what I think.  It's

 12   not the case that Dr. Goldwaser telling the

 13   truth and Dr. Bursztajn wasn't.  Is that what

 14   you heard?  Is that what you saw?

 15                  My partner Miss Smith examined

 16   Dr. Goldwaser and pointed out that he had

 17   omitted, I think, over 40 mentions of important

 18   data in the case of Carter concerning nightmares

 19   and over 20 mentions of important data

 20   concerning nightmares with respect to

 21   Mr. deVries.  He omitted to mention specific and

 22   concrete nightmares Mr. deVries reported, like

 23   that dream about the dog with the bile coming

 24   out of his mouth that Mr. Paris said he didn't

 25   relate any specific nightmares.


 

00263

  1                  Here is what I have to say.  This

  2   is not about Mr. Paris and his charts.  This is

  3   where the jury exercises its power.  Its power

  4   and it's important as the judge's when it comes

  5   to the law.  This is when the jury exercises its

  6   power to be the finder of fact.  This is when

  7   the jury, you, the jury, trust your memory and

  8   your recollection and your assessment of whether

  9   the truth was being told.  You can put all the

 10   charts you want up in the world.  Mr. Paris'

 11   documents, but it doesn't fix what you saw and

 12   heard -- it doesn't change, excuse me, what you

 13   saw and heard or fix what their witnesses did.

 14                  Let me give you an example.

 15   Mr. Paris just said Mr. Carter came in here and

 16   he testified without a problem telling his

 17   story.  I want you to search your memory.

 18   Mr. Carter testified.  He got up to the incident

 19   of April 25th, 2004.  And his hands trembled so

 20   much that he spilled water all over himself.

 21   And did his forehead break out in sweat.  And

 22   did his hair become matted with sweat?  And can

 23   you fake sweat?

 24                  So when Mr. Paris says Mr. Carter

 25   had no problem testifying, you have to ask


 

00264

  1   yourself, is that what I saw?  Is that what I

  2   heard?  Was I really in this courtroom?

  3                  Mr. Paris started off by

  4   repeat -- by uttering a phrase and then

  5   repeating it many times.  To Mr. Carter, he

  6   said, testified about three years of terror.

  7   I'm quoting Mr. Paris.  Mr. Carter never

  8   testified about any such thing.  Mr. Carter did

  9   not come in here and testify about three years

 10   of terror.  False.

 11                  Mr. Carter and Mr. deVries talked

 12   about a few incidents that preceded the big

 13   horrible incident.  Mr. Carter did not use the

 14   word "terror."  Mr. Carter did not say, "three

 15   years of terror."

 16                  There is a report by Officer

 17   Ulrich, D-1, the man who takes no notes.

 18   Officer Ulrich responds to the scene.  He takes

 19   no notes.  He writes a report.  He mentions some

 20   of what he observed, including that the three

 21   perpetrators you have heard over and over were

 22   right there, red-handed on the scene; and he,

 23   Ulrich, writes that Carter mentioned that they

 24   had gone through three years of harassment.

 25   Well, that's Ulrich's words without notes.  And


 

00265

  1   Carter mentioned that over the course of three

  2   years there have been some incidents, just as he

  3   did here.  Of course he did.

  4                  Why would Mr. Paris say that

  5   Carter has come in here and alleged three years

  6   of harassment?  Why would he do that?

  7                  Mr. Paris used a phrase, "red

  8   herring."  He accused us of raising red

  9   herrings, in other words, issues that really

 10   aren't in the case.  That's a red herring, I

 11   would say.  You see, you say, Well, the

 12   plaintiffs, they exaggerated.  The plaintiffs

 13   came in and said three years of terror, and I'm

 14   going to prove that that never happened.  There

 15   weren't three years of terror.  But what have

 16   you proved, Mr. Paris?  You have proved that

 17   something we never said was untrue.  Why would

 18   you waste time?

 19                  Mr. Paris spoke as if all the

 20   witnesses from Secaucus were truth-tellers and

 21   Mr. Carter and Mr. deVries were exaggerators and

 22   malingerers.  Is that what you heard?  Is that

 23   what you heard when Town Lawyer Leanza was on

 24   the witness stand?  Did you hear the telling of

 25   truth?  When Mr. Leanza said, "I never saw the


 

00266

  1   letter of resignation by the firemen, dated

  2   April 29th, until sometime in May" and then I

  3   said, "But you met with three of the recipients,

  4   three of the people listed on the letter, the

  5   Mayor and Reilly, Deputy Mayor," he said, "Well,

  6   how do I know if they received it?"

  7                  P-395, a three-page police

  8   report.  Towards the end of that long

  9   single-spaced -- last page, kind of in the

 10   middle, actually.

 11                  Police Chief Walters comes in on

 12   April 29th with the letter of resignation, hands

 13   it in to the detective; and it's taken into the

 14   evidence room.  On April 29th, that letter was

 15   received by the Town.  On April 29th, according

 16   to the billing records of Leanza, he met with

 17   these people that were on that letter.  And he

 18   comes in and says, "I had no idea.  I had no

 19   idea about that letter."  Well, he has to say

 20   that, doesn't he?  Because all they had to do

 21   was accept the resignation of those firemen and

 22   my clients would have lived in peace at least

 23   the next six months while they didn't move out

 24   or they didn't move fast enough.

 25                  How fast should you run when both


 

00267

  1   of your legs are broken?  How fast should you

  2   move when you have just been attacked in the

  3   most brutal way?  Exactly how fast are you

  4   supposed to get your act together when you

  5   already were fragile to begin with, you already

  6   had problems with depression, you already had

  7   problems with ADD?  Exactly how fast, Mr. Paris?

  8   People who are already broken and now shattered,

  9   exactly how fast do they have to move out of

 10   Town to satisfy your criteria?  I say six months

 11   to pretty good.  If I recall the testimony, by

 12   September they ha,d already lined up an

 13   apartment.

 14                  Mr. Leanza, Town counsel,

 15   policy-making position, Mr. Leanza had a problem

 16   to solve.  The Mayor gets this heart-breaking

 17   call for help after they reopened the firehouse

 18   on May 1st.  You have heard the tape.

 19                  One of the jurors asked Mayor

 20   Elwell, "Why didn't you listen to the whole

 21   thing?"  That's a good question.  After getting

 22   that tape, saying, "My God, you have reopened

 23   the firehouse.  Now there is an incident.  They

 24   are calling, 'The homos are home.  The homos are

 25   home.'  I would read them such the riot act,


 

00268

  1   Mr. Mayor.  I don't understand.  I'm scared."

  2                  This is such a problem in a case

  3   where part of the legal standard is, you're

  4   going to hear from the judge, is did the Town of

  5   Secaucus, did their policymakers and leaders act

  6   with deliberate indifference?  Oh, my God, they

  7   didn't answer the call ever.

  8                  Mr. Leanza gets on the stand and

  9   says, "No, no, no, see, the reason the Mayor

 10   didn't answer the call on May 1 is because I

 11   told everybody, 'Don't talk to any witnesses.

 12   Don't interfere with the police investigation.'

 13   I told everyone, 'Don't talk to any witnesses.

 14   Don't talk to the victims.  I told them that on

 15   the 25th, on the 26th, on the 27th, on the 28th,

 16   on the 29th.'"  Plaintiff's Exhibit 56.

 17                  Well, this is after Leanza

 18   supposedly gave that advice, Leanza said to the

 19   Town leadership, "Don't talk to the victims."

 20                  So this is May 3rd, 2004.  It's a

 21   letter by Iacono.  And look, it's cc'd to Frank

 22   Leanza.  "Dear Mr. Carter and Mr. deVries, Allow

 23   me to introduce myself as not only the Town

 24   Administrator of Secaucus but the EEO compliance

 25   officer.  My responsibilities include the


 

00269

  1   assurance that the Town of Secaucus and its

  2   agents conduct themselves in a fair,

  3   nondiscriminatory manner, in a harassment-free

  4   environment.  I have been fully informed and am

  5   familiar with the complaint you have lodged with

  6   the Secaucus Police Department.  And I want you

  7   to be aware that separate of your involvement

  8   with the Police Department you may feel free to

  9   contact and meet with me directly."  And he

 10   copies this to Leanza.

 11                  What -- how can this be?  Leanza

 12   has spent a lot of time telling you, "I told the

 13   Mayor don't call them back.  I told the

 14   Mayor" -- it wasn't because I was deliberately

 15   indifferent; it's because as a matter of policy

 16   I thought if people in Town leadership called

 17   them back, that might interfere.

 18                  He is copying Leanza.  He is

 19   inviting them to contact and meet with him

 20   directly.

 21                  You should consider whether the

 22   attorney, the Town attorney of the Town of

 23   Secaucus, came in here and took an oath and lied

 24   under oath.  You should consider that.  And you

 25   should consider all the implications of that.


 

00270

  1   When he told you, "I told them you can't return

  2   that call because it would interfere," you

  3   should consider whether that wasn't a lie under

  4   oath.  Because if that was the truth, this

  5   letter never would have been written.  And if it

  6   was written through some screw up, Mr. Leanza

  7   would have written back right quick.

  8                  The truth is Mr. Leanza never

  9   told the Mayor, "Don't return that call."  The

 10   truth is, the Mayor didn't return that call

 11   because he was indifferent.  He was deliberately

 12   indifferent.  These people were invisible.

 13   These were two gay men.  They didn't count.

 14                  The defendants made the terrible

 15   mistake of playing the executive session of

 16   April -- of April 27, 2004.  Did you hear the

 17   names Tim Carter and Peter deVries mentioned?

 18   Two days after the incident.  Did you hear

 19   anyone express genuine concern?  What did you

 20   hear?  Something that sounded like locker room

 21   laughter among the guys.

 22                  And above all, above all, this

 23   deep and abiding worry about civil liability,

 24   about whether some day Mr. Carter and

 25   Mr. deVries would come to court and stand in


 

00271

  1   front of a jury and a jury would judge their

  2   actions and ask the question, did they

  3   discriminate?  Did they -- that is, did they --

  4   did they condone and allow and permit this

  5   discrimination?  Were they deliberately

  6   indifferent?

  7                  Notice at the very beginning of

  8   that tape the Mayor or the Town Council reminds

  9   everyone this is on tape.  Be careful of what

 10   you say.  Some day this may be subject to

 11   discovery.  That is the way we get documents

 12   before a trial.  This is said on the tape.

 13                  And then they go through the

 14   motions, knowing that some day a jury might

 15   listen to that tape.  We knew there was some

 16   sensitivity training.  Fire Chief says, "Yeah,

 17   we're going to have some sensitivity training."

 18   Well, that's too late.  It's too late.

 19                  You have heard testimony that

 20   this Town's highest leaders had a policy of

 21   excluding the Volunteer Fire Department coverage

 22   under the Town's sexual harassment and

 23   discrimination policy.  How is that possible in

 24   the year 2004?  Here is a whole department that

 25   interacts with the public on a regular basis.


 

00272

  1   And they're not covered by any discrimination

  2   and harassment policy and that's uncontested.

  3   They say that has no effect, the fact they were

  4   never trained, that they had no policy.

  5                  Mr. Paris said the condom

  6   incident happened six months before May 1.  I

  7   read the deposition of Frank Walters who said he

  8   heard about it a week before the April 25th

  9   incident.  I read it to you.  That's when he

 10   heard about it.  It was ongoing, and it was

 11   right near the incident.  Let's suppose they had

 12   some training.  Condoms, used, filled condoms

 13   are being thrown on a back porch.  That's not

 14   nothing.  That's something.  And it took some

 15   doing.

 16                  P-163B.

 17                 JUDGE CURRAN:  Thank you.

 18                 MR. MULLIN:  See, remember I

 19   brought this out.  There is an overhang on top

 20   of the fence that separates the back porch from

 21   the firehouse parking lot.  You want to get

 22   condoms onto that porch, you got to go over

 23   here.  You got to stand on something.  You got

 24   to reach over and throw it under that overhang.

 25   You got to want to get those filthy used condoms


 

00273

  1   there.  And it happened many -- several times.

  2                  So suppose there had been a

  3   sexual harassment and discrimination policy for

  4   the volunteer firemen.  What's the first thing

  5   that would have happened?  They would have

  6   investigated.  How do you investigate?  Here is

  7   an idea.  Talk to the victims.

  8                  Chief Cieciuch comes in.  Well,

  9   let me slow it down.  Read the deposition of

 10   Fire Chief Frank Walters.

 11                  "Were you, at any time since the

 12   year 2000, made aware of any problems of any

 13   nature with Engine Company Number 2?"

 14                  Chief says, "Yes."

 15                  Question, "What problems were

 16   those?"

 17                  "That was the morning after the

 18   major one, the morning after the 25th.  The week

 19   prior" -- he says, "The week prior to the 25th

 20   of April.  I don't remember offhand.  My deputy

 21   had informed me that one of the residents in the

 22   area had complained to the firehouse about a

 23   problem with the firehouse up in the North End."

 24                  "Which deputy?"

 25                  "Ray Cieciuch."  "Supposedly a


 

00274

  1   complaint of them throwing something from the

  2   second floor window.  Supposedly a condom."

  3                  "And what did your deputy chief

  4   say about how he handled that problem?"

  5                  This is the Chief talking about

  6   Deputy Chief Cieciuch.  "That he had gone with

  7   another member of the company up to the second

  8   floor window in question and determined that it

  9   would have taken a southwest wind at about 5

 10   miles an hour and throwing it out and it making

 11   a massive right-hand turn because there is no

 12   direct view of the rear deck from that window.

 13   There were too many obstructions."

 14                  "Was there a report about this?"

 15                  "Not to my knowledge."

 16                  "Did deputy Chief fill out a

 17   report?"

 18                  "No."

 19                  Cieciuch comes in.  And I said

 20   say to him, "And then Chief Walters in testimony

 21   I read to this jury said something like you

 22   performed some sort of experiment.  You went up

 23   to the second floor of the firehouse.  Is that

 24   right?"

 25                  He says "Myself?"


 

00275

  1                  Answer, "Yes, sir."

  2                  "No," he says, "that's absolutely

  3   false."  This is a deputy fire chief.

  4                  "That never happened?"

  5                  "No, sir."

  6                  "So if Chief Walters said that,

  7   that would not be true?"

  8                  "That's definitely not true."

  9                  I read you testimony under oath

 10   by the Fire Chief where he pretended under oath

 11   that he did some sort of -- that he had his

 12   deputy do some sort of investigation, at least

 13   go to the second floor.  And Cieciuch says

 14   that's not true.

 15                  I'll take Cieciuch at his word.

 16   The Chief lied under oath about whether or not

 17   he did any sort of investigation concerning the

 18   condom.  You may conclude from that that no

 19   investigation at all was done about the condoms.

 20   Mr. Paris said nothing came of it.  Cieciuch --

 21   Cieciuch stopped it.  Cieciuch went up to Snyder

 22   and it stopped.

 23                  Did it stop?  That is a week

 24   before the incident.  Supposedly Cieciuch goes

 25   up and says something about this to Snyder.


 

00276

  1   Does no investigation.  What happened a week

  2   later after that?  Oh, Mr. Paris forgot to make

  3   the connection.  A group of volunteer firemen

  4   attacked my clients' house.  That's what

  5   happened.  Yelling and screaming, among other

  6   things, about what?  "You want some more of our

  7   cum?  You want some more of our condoms?  You

  8   want us to throw some more of your condoms on

  9   the porch?"  And someone fired a gun.  And

 10   somebody heard three shots.  And it went on and

 11   on and on.  And they were pounding the side of

 12   the house.  "The homos are home.  The homos are

 13   home" -- "Homo, homo, homo," that's what it was.

 14                  And before all that took off,

 15   poor Tim was out in the back.  And he heard a

 16   loud noise, and he saw hands and fingers coming

 17   over the fence.  And it went on and on and on.

 18                  And poor Peter, who is recovering

 19   from a heart condition, is awakened and comes

 20   downstairs and hears a phrase he will never in

 21   his life forget.  "We will kill you.  We will

 22   kill you and your faggot dogs.  We will kill

 23   you."

 24                  And later he is driving from work

 25   and he is trying to drive that phrase out of his


 

00277

  1   mind, so he turns the radio up incredibly loud

  2   and he thinks about it would be a good idea to

  3   steer this car into an embankment.

  4                  And they say nothing happened.

  5   They can't have it both ways, Ladies and

  6   Gentlemen.  If there is -- if they are

  7   admitting, as they are, that my clients were

  8   fragile before this happened -- and I concede

  9   that readily they were people who had -- you

 10   know, Peter had been an alcoholic and had

 11   recovered, thank God, clean and sober for like

 12   20 years.  But had incidents of depression.

 13                  Tim had occasional incidents of

 14   anxiety, had severe ADD.  That's what they say.

 15                  If that's the case, if they had

 16   those fragilities, why wouldn't they have

 17   shattered on April 25th, 2004 when this group

 18   attacked their home with such violence and for

 19   so long?  Why wouldn't they have fallen into so

 20   many pieces?  It's not possible.  We're human

 21   beings.

 22                  And you're allowed to use your

 23   common sense.

 24                  And then he says, Mr. Paris,

 25   well, you can't connect reopening the firehouse


 

00278

  1   with these incidents of driving by, calling them

  2   "faggot" because they didn't make any IDs

  3   connecting it up to the firemen because the

  4   police never followed up, even when Patrick

  5   Hjelm and Tim Carter said, "Look, I can

  6   recognize that person.  I recognize him."  You

  7   will see it in the police reports, "I could" --

  8   "If I saw him again, I could recognize him."

  9                  Then you saw me cross-examine a

 10   couple officers.  Said, "Did you take photo

 11   I.D.s?  Did you bring photos?"

 12                  "Well, we didn't have photos of

 13   the firemen."

 14                  Oh, please.  Take photos of the

 15   firemen.

 16                  Captain Buckley comes in here,

 17   captain of the detectives, said, "You know that

 18   June 10th photograph of the whole entire

 19   company?  Couldn't you have taken that and shown

 20   it to Peter and to Mr. Hjelm?"

 21                  Oh, no, because that doesn't

 22   satisfy certain rules and regulations about how

 23   you use photographs.

 24                  Yeah?  Then how come the evidence

 25   books you are going to get allege the same


 

00279

  1   Captain Buckley sends that photo to the Attorney

  2   General of New Jersey to see if he could use it

  3   for any identification proceedings?  In this age

  4   of photo-shopping or how about scissors, please.

  5                  What was going on with that

  6   so-called investigation?  Leanza kept saying

  7   it's very important that we not interfere.

  8   Leanza is down talking to the Police Chief.

  9   April 25th Police Chief has a meeting that day

 10   with the Mayor and the alleged perpetrators that

 11   day.  What?  Leanza has a meeting with the

 12   Detective Captain April 26th.  More meetings.

 13   April 28th with the cops.  With the whole

 14   Detective Bureau May 1.  With the whole

 15   Detective Bureau, Leanza?  Leanza is not the

 16   Prosecutor.  Prosecutor is the lawyer in charge

 17   of the Police Department.

 18                  Leanza had said in another part

 19   of his testimony during a bias investigation the

 20   Police Department is the investigatory arm of

 21   the Prosecutor.  Leanza is the lawyer for the

 22   Town who's consumed with issues like is somebody

 23   going to sue me civilly?  What is he doing down

 24   there?  All those days I read from his bills.

 25   He is down there.


 

00280

  1                  He says, well, I had to decide

  2   whether or not it was a bias incident or not.

  3                  Actually, no, the bias general

  4   order is in Evidence; and you have seen it.  The

  5   police are the ones who make the determination

  6   as to whether it's a bias incident.  You heard

  7   me go through that with a police officer, with

  8   Buckley.  So that can't be it.

  9                  Well, he says, "At one point I

 10   was giving them advice."

 11                  Yeah, advice about what?

 12                  He didn't say.

 13                  Where are you notes?  Probably

 14   you have notes because you see lawyers take

 15   notes.

 16                  I don't have any notes of my

 17   meetings with the police.

 18                  Well, how about any notes ever in

 19   the last four years concerning anything you did

 20   in giving, quote/unquote, advice to the Town?

 21                  I have no notes.

 22                  How about e-mails?  I don't

 23   really use e-mail.

 24                  Are you aware of any police

 25   report that talks about what you conversed with


 

00281

  1   these detectives and the Police Chief?

  2                  No.

  3                  Well, Buckley, the captain of the

  4   detectives and Corcoran, the chief of police,

  5   testified not once -- not once did they mention

  6   their conversations with Mayor Leanza -- excuse

  7   me, with Mr. Leanza.  Pardon me.  Not once.  Not

  8   once.  Leanza.

  9                  We can certainly ask that

 10   question.  What's happening during those days?

 11   What's happening to the police investigation?

 12   Witnesses like Pat Hjelm and Tim Carter said,

 13   "If I saw the face, I could identify the guy who

 14   yelled, 'faggot.'"

 15                  Then they do a check on the car,

 16   the Bronco; but they don't show photo IDs,

 17   photographs of the guys in the North End

 18   Firehouse?

 19                  Some other guy goes canvassing

 20   and makes a nice little list of all the people

 21   he saw; only he didn't stop in to see Patricia

 22   Hjelm, he didn't stop in to see Dee Bardini, two

 23   witnesses who saw important things and called

 24   911.  That he has a nice long list, 14 of the

 25   people went home and the -- the officer admits,


 

00282

  1   "I didn't follow up."

  2                  Captain Buckley, the head of the

  3   detectives, what's left, I ask him, What's left?

  4   What kind of evidence is left when you fire a

  5   gun three times or just once?

  6                  Well, it depends what kind of gun

  7   it is.

  8                  Well, suppose it's a pistol.

  9                  Well, you might find a cartridge.

 10                  I say, or a shell casing?

 11                  Yeah, shell casing.

 12                  How about gunpowder residue?

 13                  He didn't volunteer that; I had

 14   to ask him.  Yeah, might be gunpowder residue on

 15   the hand.

 16                  How about the clothes?

 17                  Yeah, yeah, on the clothes.

 18                  And there is not a single police

 19   report, is there, Officer, showing that the

 20   police look for any of that?

 21                  No.

 22                  What happened the night of the

 23   crime -- the night of the incident, excuse me,

 24   April 25th?

 25                  Amodeo is down there.  He is


 

00283

  1   familiar with the general bias order.  He is the

  2   sergeant.  Two other officers have responded.

  3   He determines it's a bias crime.

  4                  What are they supposed to do next

  5   under the general bias order?

  6                  Get investigatory personnel down

  7   there.  Get detectives down there, people who

  8   know how to deal with forensic evidence.  He

  9   calls Detective Reinke.  Detective Reinke calls

 10   Captain Buckley.  Captain Buckley says, "I don't

 11   see any need to get down there right away."

 12                  I have a detective admit that the

 13   fence was unpainted, in part.  Hands.  Where is

 14   the police report about wood tracings,

 15   splinters?  Where is the police report about

 16   gunpowder residue?  Where is the police report

 17   referencing the search of the parking lot for

 18   casings or cartridges?  Well, it doesn't exist

 19   because it was never done.

 20                  Buckley says, "If it's not in

 21   writing, it didn't happen."

 22                  Create excuses for never do

 23   anything to these firemen that did this.  Well,

 24   we couldn't fire them, suspend them because

 25   there was an ongoing police investigation.


 

00284

  1                  Well, that ended May 5th.

  2                  Well, but then the Attorney

  3   General's investigation started.

  4                  No, actually, that didn't start

  5   until May 10th.

  6                  Well, still, in all we knew, it

  7   was going it come.

  8                  Wait a minute.  Your own Chief of

  9   Police Corcoran terminated the employment of

 10   Chuck Snyder, Jr.

 11                  Oh, okay, that's not a

 12   termination.  All he did was stop assigning him

 13   work.

 14                  Chief, you stopped assigning him

 15   work as of that day?

 16                  Yes, I did.

 17                  Did you ever in the next four

 18   years assign him any more work?

 19                  No, I didn't.

 20                  Well, they have to say that,

 21   don't they?  Because if the Chief between May

 22   5th and May 10th could fire Chuck Snyder, Jr.

 23   from his part-time job as a police dispatcher,

 24   you bet something could have been done to those

 25   firefighters in that window.


 

00285

  1                  Then got the next problem.

  2   Attorney General's Office takes over the

  3   investigation.  They all hide behind that.  Oh,

  4   couldn't do anything.  There was investigation.

  5   You see this letter from Agudosi, Attorney

  6   General's person.  They say we can't take any

  7   action.

  8                  Well, she doesn't say you can't

  9   close down the social wing of the North End

 10   Firehouse at least while Tim Carter and Peter

 11   deVries are living there.  She doesn't say that.

 12   She doesn't say you can't take these

 13   firefighters, at least pending the

 14   investigation, send them to other firehouses, so

 15   my clients don't have to feel, as Peter deVries

 16   say, like prisoners in their own home.

 17                  Then comes another problem for

 18   them.  July 2005 the Attorney General writes a

 19   note saying this investigation is over.

 20                  Oh, surprise, surprise.  She

 21   couldn't make an I.D.  I wonder why.  They get

 22   the files from the Secaucus Police Department.

 23   Nothing followed up.  Witnesses not -- IDs not

 24   sought.  Forensic work not done.

 25                  But now they got a problem.  Now


 

00286

  1   what's going to be their excuse for not firing

  2   these guys, not suspending these guys?

  3                  Oh, well, Leanza says, I'm a

  4   municipal court judge.  So he deals with

  5   speeding tickets, good.  He said, you know what,

  6   if they couldn't get a criminal I.D. on these

  7   guys, how would I succeed in administrative

  8   hearing?  It could never happen.

  9                  And I say, you know, even if that

 10   were true -- and by the way, it's not -- you

 11   could have got rid of these men without a

 12   hearing.  He doesn't know the answer.  How could

 13   that be?  All you had to do, sir, was accept the

 14   letter of resignation of April 29th, 2004.  And

 15   that's when he pretends he never heard about it

 16   until later.

 17                  Mr. Paris says, you know, the

 18   reopening of the firehouse didn't cause them to

 19   move because they had already decided to move.

 20   Well, they sure said that to the police in the

 21   case right after the incident, "We want to

 22   move."

 23                  Let's ask another question.  On

 24   April 25th this group of firefighters attacked

 25   their home and them in the most horrible and


 

00287

  1   unspeakable way.  And now that group, whether or

  2   not they did anything at all, simply appearing

  3   under their windows, simply being there, talking

  4   loudly, sometimes showing up with their silver

  5   bullet beers, did that strike terror in the

  6   hearts of Mr. deVries and Mr. Carter?  You bet

  7   it did.

  8                  And here I will say something

  9   that will embarrass Peter.  What kind of terror?

 10   Kind of terror that makes you wet your pants

 11   when Dr. Bursztajn begins to interview you.

 12   Kind of terror that makes a grown man wet his

 13   pants, as really happened.

 14                  Everything my clients did to keep

 15   standing, to not be malingerers is turned

 16   against them.  The last thing on earth they want

 17   it do is to give those people -- the last thing

 18   on earth they want to do is lay down.  Peter

 19   kept working.  Yes, you're darn right; Peter

 20   kept working until, Dr. Bursztajn says,

 21   posttraumatic stress disorder and now the

 22   increased depression took over and his tank

 23   gradually ran out of gas.

 24                  At some point after many months

 25   Tim started to explore the possibility of


 

00288

  1   getting some kind of job.  Heard he took

  2   training in digital imaging.  You heard he

  3   didn't get a job, even though that image put up

  4   by Mr. Paris said he did.  You heard testimony

  5   that is undisputed by anybody or any document

  6   that he didn't get a job.

  7                  And note on the report on the

  8   cardiologist test did not say he went to

  9   Secaucus.  He was referred by Secaucus.  On the

 10   top it says, "Edgewater."  And Dr. Goldwaser

 11   didn't know whether it was Edgewater or

 12   Secaucus.

 13                  Tim testified his therapist told

 14   Tim, "Hey, walking by the firehouse, it's called

 15   counter-phobic activity.  Don't give in to the

 16   fear you're feeling."  He did it a few times,

 17   and now that's thrown in my client's face by Mr.

 18   Paris.

 19                  Hey, they walked past the

 20   firehouse.

 21                  How many times?

 22                  They didn't show any signs of

 23   avoidance behavior.

 24                  Well, that's posttraumatic

 25   stress.  Yeah, how about moving out of Town; is


 

00289

  1   that avoiding something?  How about dropping a

  2   job you wanted at Dowden.  You really wanted

  3   that job -- or was it Thomson?  Is that

  4   avoidance?  How about living on the side of your

  5   house for the next six months away from the

  6   firefighters?  Is that avoidance?  How about

  7   putting up newsprint to cover up the windows

  8   because you are afraid they will see in or you

  9   will see out?  Is that avoidance?  How about not

 10   going on your back porch anymore because you're

 11   afraid?  Is that avoidance?  How about not

 12   walking the dogs anymore because you are afraid

 13   of going on the streets?  Might that be

 14   avoidance with diagnosis posttraumatic stress

 15   disorder?

 16                  Dr. Bursztajn, our expert, is a

 17   scientist.  Man with incredible credentials.

 18   Over a hundred articles published in peer

 19   reviewed journals.  Faculty member of one of the

 20   great medical schools in the world, Harvard

 21   Medical School.  In his testimony to you he

 22   referred to scholarly works to justify all of

 23   his conclusions.

 24                  Unlike Dr. Goldwaser, he was not

 25   caught in some grand lies or concealments or


 

00290

  1   omissions.  He told it like it was.  He reported

  2   everything.  And he concluded that both of these

  3   men are suffering from posttraumatic stress

  4   disorder, that they will not get better, that

  5   Tim Carter's ADD was made worse by the

  6   situation, since posttraumatic stress disorder

  7   is something that operates on the ability to

  8   focus and already he had compromised focus.

  9                  He diagnosed Tim Carter as having

 10   an enduring personality transformation or change

 11   as a result of a catastrophic incident.  And

 12   during -- lastly, he said Tim Carter's

 13   depression after the incident, as compared to

 14   before the incident, well, it's like comparing a

 15   little rain to something in a rainforest, a

 16   downpour.

 17                  And you know, actions do speak

 18   louder than words.  Before this incident with

 19   whatever they had in their Almeleh file, whether

 20   it was a passing anxiety, depression, what was

 21   going on before this incident?  Peter deVries

 22   worked without break for 20 years as a medical

 23   editor rising into a management position.  Did

 24   he have some problems occasionally?  Is there

 25   anyone on earth that doesn't have occasional


 

00291

  1   problems with work?  But he kept on working.

  2                  Tim Carter before this got a

  3   masters degree in theology or religious studies.

  4   And according to Peter, Tim preached at major

  5   religious institution in Minneapolis right

  6   before they moved here.  It's not who they are

  7   now.

  8                  Posttraumatic stress disorder,

  9   well, the best way to think of it or the awful

 10   way to think of it is memory.  You know, we all

 11   suffer tragic events in our lives.  Perhaps the

 12   loss of a love one.  And then we go into

 13   mourning and it's painful because we still

 14   vividly remember our time with them and so it

 15   hurts.  And then, as the years go on, the

 16   vividness of those memories decline; and so

 17   we're able to come out of mourning and even

 18   though we still love them, still remember them.

 19                  Posttraumatic stress disorder,

 20   according to Dr. Bursztajn, the memory recurs

 21   with intensity.  "We will kill you" recurs and

 22   recurs and will recur.  Peter deVries will live

 23   at least another 20-plus years if he just

 24   follows the average life-span.

 25                  Tim Carter will live at least


 

00292

  1   another 28 years and.  Will they remember this?

  2   Yes, they will.  Because they had posttraumatic

  3   stress disorder.  And when they remember it,

  4   will the feelings come back with the same

  5   intensity?  Yes, they will because that's what

  6   posttraumatic stress disorder is.

  7                  Is there someplace they can

  8   escape?  Well, not in their sleep because there

  9   they get nightmares.  Dr. Bursztajn testified

 10   about how these two men had some fragility and

 11   damage and they found each other and they

 12   supported each other.  And to use a fancy term,

 13   I think he may have used, "in a synergistic

 14   way."  They helped each other and so they were

 15   able to function in the world.

 16                  Now, let's say Tim and Peter just

 17   are in, say, an auto accident, not a major one.

 18   But at least they would be able to come home.

 19   Let's say one of them was in an accident and

 20   came home -- say Peter.  He could come home, and

 21   Tim could give him support and comfort.  Say

 22   they were both in an auto accident.  They could

 23   at least come home and in their home find some

 24   peace.

 25                  What happens when both of you are


 

00293

  1   traumatized by an attack on your home?  Where do

  2   you go then?  Who do you go to for support and

  3   comfort, when both of you are damaged?  And you

  4   heard extensive testimony why their relationship

  5   has been damaged by this, torn by this, though

  6   they both love each other.

  7                  And Dr. Bursztajn did testify,

  8   contrary to what Mr. Paris said, that the

  9   promotion, hearing -- he said their hearing of

 10   promotion of Chuck Snyder, Jr. to battalion

 11   chief, guaranteeing he would be Chief for the

 12   whole Fire Department -- did hear that -- they

 13   felt helpless.  All along they felt helpless.

 14   They felt like nobody was with them.

 15                  And what does the Town do?  In a

 16   gross act of deliberate indifference, say, I

 17   know, let's take the guy who was identified by

 18   Officer Ulrich -- one of the three guys

 19   identified by Officer Ulrich, who was there

 20   right that minute, caught red-handed after Peter

 21   deVries called in a call, after he woke up,

 22   saying, "There are three guys out there

 23   screaming abuse" and then Ulrich comes

 24   immediately and there were three guys, Snyder,

 25   Jr., Snyder, Sr. and Mutschler, the Town Council


 

00294

  1   and Mayor say, I know, let's make him battalion

  2   chief.  Let's make him battalion chief,

  3   guaranteeing that he will be Chief of the

  4   Secaucus Fire Department some day.

  5                  And Mr. Leanza says, well, you

  6   know, we could -- our hands were tied.  You

  7   couldn't do anything because what happens is the

  8   fire companies, well, they vote to see who's

  9   going to be battalion chief and then hands are

 10   tied.  If the Mayor and Council vote it down,

 11   there would have to be a hearing.  P-116 Chapter

 12   12, Secaucus code governing the Fire Department.

 13   You will have this in your book.  You will see

 14   page 1206.  Talks about, "The battalion chief,

 15   being elected by the companies, shall be

 16   declared elected subject to the approval of the

 17   Mayor and Council.  Such person shall be

 18   confirmed.  The Mayor and Council or the Mayor

 19   and Council may choose for a good cause not to

 20   confirm such person; whereupon, a new election

 21   will be held."

 22                  Where does it say, "hearing"?  It

 23   doesn't say, "hearing."  It doesn't say that the

 24   Mayor and Council have to hold a hearing in

 25   order to vote down the battalion chief.  They


 

00295

  1   can approve him or disapprove him.  If they

  2   disapprove him, there is a new election.

  3                  I'll submit to you Attorney

  4   Leanza lied to you again when he said to you

  5   that a hearing was necessary for the Town

  6   Council if it turned down this obscene

  7   promotion.

  8                  And you also heard evidence that

  9   sometime in 2005 or 2006 -- and -- and the Mayor

 10   testifying -- they promoted Chuck Snyder, Sr. to

 11   what the Mayor said was something like a

 12   department head.  Is that deliberate

 13   indifference by high-level Town officials?  Of

 14   course it is.

 15                  When high-level Town officials

 16   decided to reopen the firehouse five days after

 17   the incident, you heard testimony by Town

 18   Administrator Iacono about that.  Why did you

 19   reopen the firehouse?  What went into it?

 20                  And he mentions a couple factors

 21   like, "Well, I didn't think the investigation

 22   would be compromised."

 23                  And there was the issue of morale

 24   with the firefighters, you know, may have been

 25   not involved.


 

00296

  1                  And there was some sort of

  2   perception in Town.

  3                  Objection.

  4                  Sustained.

  5                  But what did he leave out?  He

  6   left out, "I considered the safety of Tim Carter

  7   and Peter deVries."  Deliberate indifference.

  8   Ignoring them.  They don't exist.  Deliberate

  9   indifference.

 10                  Ladies and Gentlemen, you're

 11   going to hear some charges read by the judge.  I

 12   suppose it will happen -- well, it will happen

 13   whenever the judge does it, later today or

 14   tomorrow morning.  And you're going to hear the

 15   judge refer to two causes of action.  Okay.  You

 16   know, one is going to be under the law -- New

 17   Jersey Law Against Discrimination/the State

 18   Constitution.  That's one in the same thing.

 19   And the other one is going to be under the New

 20   Jersey Civil Rights Act.

 21                  New Jersey Civil Rights Act,

 22   well, that's the one that has to do with

 23   deliberate indifference by high-level

 24   policymakers.  All over this case.  All over

 25   this case.


 

00297

  1                  The New Jersey Law Against

  2   Discrimination/Constitution has a different

  3   legal standard.  You are going to hear that

  4   legal standard read by the judge.  She is going

  5   to say, well, number one, did the conduct occur?

  6   Of course, it I occurred.  It's not just our

  7   clients saying this stuff happened.  It's

  8   Patricia Hjelm.  It's Dee Bardini.  Remember,

  9   Lieutenant Malanka said she didn't hear any bias

 10   words.  Yes, she did.  Lieutenant Malanka has a

 11   way of forgetting.  Did the conduct happen?  Of

 12   course it happened.

 13                  Next thing the judge will read

 14   you, did the conduct occur because of their

 15   sexual orientation?  All you have to do is think

 16   of the ugly words that were yelled.  Of course,

 17   it did.

 18                  Would a reasonable gay person, is

 19   the next piece of it, have found this conduct to

 20   have created a hostile or abusive environment?

 21   I have argued that; but if this is not abusive,

 22   I don't know what is.  If this is not hostile, I

 23   don't know what is.

 24                  The next question will be should

 25   the Town be held liable?  And there are series


 

00298

  1   of theories under that.  One is supervisory

  2   liability, liability created by the action of

  3   supervisors.  There is no doubt that one of the

  4   three leading the charge was a supervisor.  He

  5   was the captain, chuck Snyder, Jr.  And then

  6   there was a Department of Public Works

  7   supervisor, Chuck Snyder, Sr.  Two captains led

  8   the charge.

  9                  And then the Court will instruct

 10   you you should look at whether the actions they

 11   took were within the scope of the employment or

 12   outside the scope of the employment.  So if it

 13   was outside the scope of the employment, the

 14   jury instruction is going to say, "Did the Town

 15   delegate some authority to these people, and did

 16   they abuse that authority?"  Of course, the Town

 17   delegated authority to these people.  They are

 18   the ones that made them the captain.  They are

 19   the ones that promoted them.  They are the ones

 20   that approved the captain promotion.

 21                  It is pursuant to the laws of the

 22   Town of Secaucus, Chapter 11, that he is

 23   captain.  Of course, they delegated the

 24   authority.  Did they delegate authority to Chuck

 25   Snyder, Sr.?  Sure, they did.  He was at that


 

00299

  1   time a supervisor in the Department of Public

  2   Works.  Did he -- did they abuse their delegated

  3   authority?  If this isn't abuse of delegated

  4   authority, I don't know what is.  They used

  5   their position of leaders of that fire company

  6   to lead an attack.

  7                  And therefore, under that

  8   standard they're liable under the New Jersey Law

  9   Against Discrimination and State Constitution.

 10                  Going to hear the rest of charge.

 11   Town of Secaucus can even be held liable for the

 12   actions of non-supervisory employees, like

 13   Charles of Mutschler, like Kickey, who our

 14   client saw at the moment when the -- his car --

 15   at the moment when the condom was thrown over,

 16   one of the incidents.  And that says should the

 17   Town -- did the Town know or reasonably should

 18   it have known that this activity was going on?

 19   And then, did they take appropriate remedial

 20   steps to stop it?

 21                  Well, of course, they knew about

 22   the incident of April 25th.  Of course, they

 23   knew about that.  What steps did they take after

 24   it to stop further such actions?  They closed

 25   the firehouse for five days.  And then they


 

00300

  1   reopened it without telling my clients that.  So

  2   they were exposed merely to the presence of

  3   these people who attacked them, much less the

  4   headlights and the drive-bys.

  5                  Did they take appropriate

  6   remedial action after they knew that?  No, they

  7   didn't.  How about before the incident?  Maybe

  8   administrator with half a brain and a sexual

  9   harassment policy, which the Volunteer Fire

 10   Department didn't have, you're throwing condoms

 11   on somebody's porch, we're going to investigate.

 12                  Here is what they did.  They

 13   didn't investigate.  Here is what else they did.

 14   They didn't cancel the party that was coming up.

 15   Here, here is a bus.  Here is a Town bus.  Here

 16   is a Town bus driver.  Go get drunk.  Right

 17   after these men complained about condoms being

 18   thrown over.  Did they know or reasonably should

 19   have known that harm might come?  Yes.  They

 20   take appropriate remedial action?  No.

 21                  There is a whole other theory of

 22   liability that you are going to hear, still

 23   under the New Jersey Law Against Discrimination.

 24   Negligence.  Did they have a training program?

 25   Did they have a harassment policy?  Did they


 

00301

  1   have a system whereby complaints about

  2   harassment were engaged and brought forward?

  3   They had no such thing.  Their policy was to

  4   exclude the Volunteer Fire Department from the

  5   Town Sexual Harassment and Discrimination Code.

  6                  So should there be liability

  7   found under the New Jersey Law Against

  8   Discrimination/State Constitution?  Absolutely,

  9   yes.  There are four different theories to find.

 10   It always work.

 11                  Second cause of action will be

 12   under the New Jersey Civil Rights Act.  And

 13   that's pretty much what Mr. Paris concentrated

 14   his attention on.  There you have to show that

 15   people that harmed the plaintiffs of their

 16   Constitutional rights acted under color of State

 17   law.

 18                  Well, certainly, all the people

 19   that made the decision not to investigate the

 20   condom incident, that made the decision to

 21   reopen the firehouse after five days, that made

 22   the decision to keep that firehouse reopened

 23   after Tim Carter's telephone call -- telephone

 24   message of May 1, people that made the decision

 25   never, ever to take any disciplinary action


 

00302

  1   against these firemen, people that made the

  2   decision to promote the two Snyders to high

  3   levels within the Town government, those were

  4   all people that acted pursuant to their official

  5   positions.

  6                  Fire Chief, Town Administrator,

  7   Town lawyer, Town Council, Mayor.  How about the

  8   firemen that night?  Captains, the two

  9   ex-captains and the captain that led the charge.

 10   They act under color of State law?  You'll hear

 11   that just because someone is doing something,

 12   say, for personal and proper reasons doesn't

 13   mean they are not acting under color of State

 14   law, in they are using their mantel of authority

 15   in order to carry out the bad act.

 16                  Why were they in the forefront of

 17   that gang, the two ex-captains and the captain?

 18   Well, they were the two ex-captains and the

 19   captain pursuant to municipal law.  They had the

 20   North End, the prestige and the stature in the

 21   firehouse.

 22                  Where was the attack launched

 23   from?  It was launched from the property owned

 24   by the Town, from the Town parking lot.  How did

 25   they get there in that state?  On a Town bus


 

00303

  1   with a Town bus driver.  Who was at the party

  2   right before it happened?  The Mayor, many

  3   members of the Town Council, the Fire Chief.

  4   Top executives of the Town were at the party

  5   right before the bus took them from -- from

  6   there.

  7                  What about the official form?

  8   You have seep the official form so many times, I

  9   don't have to put it up again.  It's in

 10   Evidence.  It's a company party.  It's signed

 11   off on by the Chief.  Was this under color of

 12   State law, all these actions?  It's not even

 13   close.  And under color of State law did they

 14   violate my clients' rights, Constitutional

 15   rights?  Yeah, for all the reasons I have been

 16   talking to you about today.  And were

 17   high-level, policy-making officials, did they

 18   show indifference, did they show deliberate

 19   indifference that caused harm to my clients for

 20   all the reasons that I have laid out?  Yes and

 21   yes and yes again and yes again.

 22                  So yes, you will get a jury

 23   verdict form.  First question will be has the

 24   Plaintiff, Timothy Carter, proven by a

 25   preponderance of the evidence that the Town of


 

00304

  1   Secaucus violated his rights under Law Against

  2   Discrimination and the State Constitution?  The

  3   answer is yes for all the reasons I told you.

  4                  I urge you to consider what I

  5   have said.

  6                  The second -- second question

  7   asks the same question about Peter deVries.  I

  8   rely on everything I have said to you.

  9                  The third question asks if Tim

 10   Carter's rights were violated under Civil Rights

 11   Act.  That's the one where that other standard

 12   about color of law, deliberate indifference.  I

 13   urge you to consider everything I have said to

 14   you in that regard.  And the answer should be

 15   yes to all of these.

 16                  The fourth one asks that question

 17   about Peter deVries.  The answer to all those

 18   questions, I submit to you, respectfully, Ladies

 19   and Gentlemen, should be yes.  For all the

 20   reasons I have offered and more than that.  For

 21   what you have heard independent of me, what you

 22   have heard during this trial.

 23                  The next question is how much do

 24   you award Peter deVries for economic damages

 25   proximately caused by the Town's violation?


 

00305

  1   Only Peter is seeking economic damages.  And you

  2   may recall my economist was very conservative.

  3   He did not include various benefits.  We are

  4   being conservative -- and you will have that

  5   document -- roughly $900,000.

  6                  Of course they disabled him.  He

  7   worked 20 years no problem.  Then he -- then he

  8   breaks down completely and meets the incredibly

  9   high standard -- the very high standard, Dr.

 10   Bursztajn said, for Social Security disability.

 11   Of course they disabled him.  They took him from

 12   merely depressed to collapsed and sleeping all

 13   day and not getting out of bed and not getting

 14   out of the bathroom.

 15                  Then, the next two questions are

 16   about how much you award Tim and Peter for

 17   emotional distress and/or pain and suffering.

 18   And here, Ladies and Gentlemen, I'm not allowed

 19   to mention a number or suggest a number.  I am

 20   allowed to do this, though.  I am allowed to ask

 21   you in your deliberations, if you consider it

 22   significant, consider the time periods involved.

 23   Consider the anguish and pain that these men

 24   suffered during the incident and during the 12

 25   months -- the six months when they were


 

00306

  1   prisoners in their own home.  Consider the

  2   anguish they felt in all the years up to today.

  3   Consider the anguish and pain they will suffer

  4   going forward.

  5                  You have heard even today Peter

  6   deVries says Tim Carter looks out the window and

  7   thinks he sees people in the trees.  Tim Carter

  8   says Peter doesn't get out of bed.  This is

  9   serious injury.  It's for you to decide how

 10   serious it is based on the testimony you've

 11   heard.  It's not for me to suggest a number.

 12                  But I ask you to consider that

 13   this is a serious injury.  If you are not safe

 14   in your own home, if you are not safe in your

 15   dreams, then you're not safe anywhere at all

 16   ever.  This has been a long trial.  And I thank

 17   you for the attention you've given, commitment

 18   you've made.  You have all been an attentive

 19   jury, and I thank you from the bottom of my

 20   heart.

 21                 JUDGE CURRAN:  Thank you,

 22   Mr. Mullin.

 23                 MR. MULLIN:  Thank you.

 24                 JUDGE CURRAN:  Ladies and

 25   Gentlemen, you have now heard the summations


 

00307

  1   from both sides.  I am not going to charge the

  2   jury today.  This is a long, complicated charge.

  3   And my concern is you have been here a long

  4   time, and it would be just too much to start

  5   that so close to 4:30.  So I am going to excuse

  6   you for today.

  7                  I will ask that you return

  8   tomorrow at 9:30, as you're accustomed to doing.

  9                  I would just caution you this

 10   way.  Please do not make up your minds tonight.

 11   Please do not think this all the way through and

 12   make up your minds because you have not heard

 13   the law.  You must keep that decision in the

 14   back of your mind.  Don't move it up to the

 15   front until you have heard the law, until you

 16   have heard exactly what your responsibilities

 17   are for deciding what the facts are because only

 18   you decide what the facts are.  And then apply

 19   those facts to the law as I outline it to you

 20   tomorrow.

 21                  So again I will remind you,

 22   please do not discuss the case among yourselves.

 23   Please don't discuss it with anyone else.  We

 24   will see you tomorrow morning at 9:30.

 25                  I will just indicate in a


 

00308

  1   practical way that this is so mundane, but the

  2   least that can be done is that we will provide

  3   lunch for you tomorrow.  So you may -- need not

  4   bring lunch, if you were concerned about that.

  5   Okay.  But you're free to bring anything you

  6   want by way of drinks.  We will also provide

  7   drinks for you.  Okay.  Is there anything

  8   further I have forgotten?

  9                 MR. MULLIN:  Nothing further, Your

 10   Honor.

 11                 JUDGE CURRAN:  Thank you very

 12   much.  We will see you tomorrow.

 13                 (Whereupon, the jury is excused.)

 14                 JUDGE CURRAN:  Does counsel have

 15   anything else to put on the record, or else they

 16   can close the computer?

 17                 MR. MULLIN:  No.

 18                 MR. PARIS:  Nothing further.

 19                 JUDGE CURRAN:  Thank you.

 20                 (Whereupon, the witness is

 21          excused.)

 22                 (Whereupon, the proceeding is

 23          concluded at 4:25 p.m.)

 24  

 25  


 

00309

  1                 C E R T I F I C A T E

  2  

  3        I, TRACEY R. SZCZUBELEK, a Certified Court

  4   Reporter and Notary Public of the State of New

  5   Jersey, do hereby certify that the foregoing is

  6   a true and accurate transcript of the

  7   stenographic notes as taken by and before me, on

  8   the date and place hereinbefore set forth.

  9   

 10  

 11  

 12  

 13  

 14  

 15  

 16  

 17  

 18             ________________________________

 19             TRACEY R. SZCZUBELEK, C.C.R.

 20             LICENSE NO. XIO1983

 21  

 22  

 23  

 24  

 25  


 


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