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
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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
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13
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15
16
17
18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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