1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 1
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Monday, May 7, 2008
Commencing 10:35 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
2
1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
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1 JUDGE CURRAN: We are on the
2 record in the matter of deVries and Carter
3 versus the Secaucus -- the Town of Secaucus,
4 Docket Number 3520, the 2004 term.
5 I will note that counsel is
6 present. There are no parties present.
7 Shall we start with the precharge
8 request or do we have an in limine request first
9 or we can go back to issues that were not
10 totally reserved -- that were reserved, some of
11 which can be resolved, perhaps some of which
12 cannot, as I indicated when I reserved I would
13 basically, in regard, for instance, to the
14 expert, need to have a hearing outside the
15 hearing of the jury in regard to that issue.
16 MR. PARIS: Your Honor, I -- I
17 just created a very brief agenda. I just want
18 to see whether it matches what plaintiffs'
19 counsel has as being outstanding and what the
20 Court has as being outstanding.
21 I have number one is the effect
22 of the Fifth Amendment claims by witnesses. The
23 plaintiff has sought certain presumptions
24 against the Town, which, obviously, we object
25 to.
4
1 Number two, the issue of the
2 expert with the in limine motion we had
3 originally made was an in limine motion with
4 regard to Dr. Bursztajn being a treating --
5 excuse me, an examining psychiatrist, as
6 compared to being an expert in any other area.
7 By the same token, there was also an application
8 and the Court had also brought it up; and that
9 was with regard to the plaintiffs' need for
10 police practices expert. And I think that that
11 issue has to be dealt with prior to openings, in
12 the event that Mr. Mullin intends to talk about
13 what police should have done, could have done,
14 you know, would have done, if his clients had
15 their way, whatever.
16 And the third thing was with
17 regard to the incidents in Jersey City. Mr.
18 Mullin had sought some additional time to
19 respond to that.
20 Those were the three items that I
21 had as the opening, based upon the discussions
22 that were held in limine on the -- on the
23 29th -- 28th, excuse me.
24 The other -- you know, the other
25 issue and the last issue is regard to the
5
1 request for precharge.
2 JUDGE CURRAN: As I remember it --
3 and I usually say please correct me, if your
4 recollection is different; but we have Tracey
5 here, so -- as I remember it, in regard to
6 number two, I reserved on both issues,
7 especially in regard to the issue of police
8 practices because I think I even said it
9 would -- you know, normally I would tend to
10 think that a psychiatrist would not be able to
11 testify as an expert in that regard.
12 Plaintiffs' counsel asked me to hold off until
13 we had a hearing, so that he could talk about
14 the kind -- there was reference to the courses
15 that he taught and that kind of thing. I could
16 be wrong. I'll be glad to look at my notes.
17 MR. PARIS: Your Honor, I think
18 that -- respectfully, I think that does not
19 accurately state where I think that we had left
20 off. I think there were two separate issues.
21 One issue was an issue that you indicated that
22 you would have a Rule 104 hearing. And that was
23 a specific issue with regard to testimony in
24 terms of official municipal conduct in
25 practices. But that did not have anything to do
6
1 with Dr. Bursztajn being considered a police
2 practices expert. I don't think that anyone
3 could possibly contend that Dr. Bursztajn, a
4 medical physician, who is a psychiatrist, who
5 examined the plaintiffs and rendered an opinion
6 that they're suffering from posttraumatic stress
7 disorder, could possibly be conceived to be a
8 police practices expert.
9 And in fact, during the argument
10 which took place on the 28th, in looking at the
11 transcript of that argument, even Mr. Mullin
12 didn't argue that somehow Dr. Bursztajn was
13 going to come in and be an expert with regard to
14 police practices. Certainly, there is
15 absolutely nothing in his CV that would indicate
16 he had ever been involved in police practices,
17 other than examining people who might have been
18 affected by police or anything else. I mean,
19 he -- he is -- he is a physician. He is a
20 medical doctor. He is a psychiatrist. And the
21 opinions that he renders in this matter clearly
22 should be limited to medicine, the practice of
23 medicine and his diagnosis of the plaintiffs.
24 And again, Mr. Bevere's application was to limit
25 his testimony to that. But nowhere was it ever
7
1 argued that somehow Dr. Bursztajn was going to
2 come in and save the day as a police practices
3 expert.
4 JUDGE CURRAN: I'm going to ask as
5 we go through these motions -- and I'm sure
6 there will be others. Counsel on both sides
7 have presented excellent information to the
8 Court. We basically have -- I basically think I
9 have all the exhibits and anything to -- to
10 which reference could be made. It would help
11 me, because, obviously, you all are prepared for
12 your arguments, if you would indicate at the
13 beginning of the arguments to which documents
14 you're referring.
15 I believe in this case I have as
16 double I the curriculum vitae of Mr. -- of Dr.
17 Bursztajn. And I just want to be sure that
18 double I is his report. September 1st, 2006. I
19 just want to make sure I'm using the same
20 documents that you are.
21 MR. PARIS: He submitted two
22 reports. They're both dated September 1st,
23 2006. And his -- I'm looking at exhibit marked
24 at depositions.
25 JUDGE CURRAN: II and JJ appear to
8
1 me to be the two reports. Does that sound
2 right?
3 MR. MULLIN: That sounds right.
4 You are looking at our summary judgment
5 appendix; is that what it is?
6 JUDGE CURRAN: I am looking at the
7 large black book.
8 MR. MULLIN: Yes.
9 MR. PARIS: Then, Your Honor, I am
10 not sure it was submitted -- and I can double
11 check in terms of the defendants exhibits. But
12 we have a copy of Dr. Bursztajn's curriculum
13 vitae, which --
14 JUDGE CURRAN: Actually, II and JJ
15 appear to me to be duplicates.
16 MR. BEVERE: No, one is for
17 Mr. deVries and one is for Mr. Carter, Your
18 Honor.
19 JUDGE CURRAN: Got it. One is
20 longer. Okay.
21 MR. MULLIN: Shall I respond, Your
22 Honor?
23 JUDGE CURRAN: Surely.
24 MR. MULLIN: Okay. I just want to
25 put -- put a non-issue to bed.
9
1 JUDGE CURRAN: A, interrupt me,
2 Mr. Mullin, from now on. I don't need a
3 document, if that's what you're going to do.
4 MR. PARIS: Your Honor, excuse me.
5 Just for the record, you can interrupt me, as
6 well, during argument.
7 MR. MULLIN: And you all can
8 interrupt me. I just want to say, look, I'm not
9 going to call Dr. Bursztajn as a police conduct
10 expert. Never intended to; never will. We
11 should have a 104 hearing on whether he can
12 testify about the Constitutional observations.
13 JUDGE CURRAN: Exactly.
14 MR. MULLIN: But I'm not going to
15 do that.
16 JUDGE CURRAN: Thank you.
17 MR. MULLIN: So I just don't want
18 to fight a battle we don't have to fight.
19 JUDGE CURRAN: Good.
20 MR. MULLIN: The cases are
21 replete, the case law is replete with decisions
22 under U.S.C. 1946, the indifference standard,
23 like the City of Canton, Ohio V. Harris, U.S.
24 1989, a 1989 case. I have looked and looked and
25 looked; and I see no case law saying that in
10
1 order to prove deliberate indifference under the
2 Constitutional standard you have to have a
3 police expert. In fact, I don't see one
4 mentioned in that case. You know, maybe it's
5 buried there somewhere; but I sure -- sure don't
6 see it.
7 Your Honor dealt with this a bit
8 on in limine and said, look, if it's within
9 common knowledge, I can comment. It's when you
10 get into the more arcane issues that laymen are
11 not expected to know that I can't comment.
12 Well, I assume Your Honor will draw that line
13 during the trial. I'll be cautious in my
14 opening argument and assume Your Honor will draw
15 that line on the basis of objections during the
16 trial.
17 There is an awful lot within
18 common knowledge. You know, if you -- now let
19 me also add this. One of the exhibits we're
20 going to put into Evidence is the Secaucus
21 Police Department's Bias Crime Guidelines.
22 These were based on the Attorney General Bias
23 Crime -- Bias Crime Guidelines. This is a
24 standard of care imposed on the Police
25 Department by itself.
11
1 And they talk about at a bias
2 crime scene the need to immediately interview
3 witnesses in detail, about the need for
4 surveillance, for the need to secure the crime
5 scene. So when I refer to this, I intend to put
6 into Evidence this document, which is
7 indisputably the standard of care imposed, in
8 detail, by the State -- by Secaucus Police
9 Department on -- on its officers. No question
10 this is a standard of care. And it is derived
11 from the Attorney General's not guidelines but
12 standard operating procedures. I know earlier
13 someone referred to them as guidelines. These
14 are standard operating procedures. The Attorney
15 General requires all local police departments to
16 enforce them. No question about it. No room.
17 So -- so I will use that as a
18 standard of care at times in asking what
19 officers did and didn't do. And I think that's
20 totally appropriate. Who has more expertise on
21 this than the policymakers of the Secaucus
22 Police Department who created those guidelines
23 consistent with the policymakers in the Attorney
24 General's Office? So I'm not going to be
25 referring to --
12
1 JUDGE CURRAN: I'm sorry, do you
2 intend to lay a foundation?
3 MR. MULLIN: Of course. I will
4 lay a foundation by putting that into Evidence.
5 And I'm not going to -- but in my opening I --
6 I'll refer to some deviations from this, but I
7 promise you I will put it into Evidence. I am
8 not going to say anything that I don't intend to
9 prove. So that -- that's as to that.
10 I agree we have to do the --
11 comment on a few things on the Fifth Amendment.
12 Some of them -- some of the Fifth Amendment
13 issues fall away and they're simple; I also
14 notice that.
15 I have reread all the police
16 reports. What I realize is that there is no
17 evidence at all that the Snyders took the -- the
18 Snyders or Mutschler took the Fifth Amendment
19 with the Police Department of Secaucus during
20 their investigation. All the policemen report
21 is that the Snyders and Mutschler refused to
22 cooperate.
23 Then you recall the document
24 which the Police Department fired Snyder, Jr.
25 for refusing to cooperate. That is not a Fifth
13
1 Amendment issue. I can clearly comment on that,
2 especially the fact that the Police Department
3 fired Snyder, Jr. And the Town of Secaucus
4 can't come in here and say, well, we couldn't
5 fire Snyder, Jr. from the Fire Department.
6 Because they fired Snyder, Jr. from the Police
7 Department they would be estopped from saying
8 that.
9 The fancier issues come in with
10 respect to the Grand Jury. There is no evidence
11 here that any of the Snyders or Mutschler ever
12 took the Fifth Amendment with respect to the
13 Grand Jury, so no one should say that in this
14 trial. There is no evidence of that.
15 There is evidence that Snyder
16 took -- Snyders and Mutschler took the Fifth
17 Amendment in the depositions; and therefore,
18 under the law I have cited to you, they have to
19 take the Fifth Amendment when I put them on the
20 stand here. Whether Your Honor has to order it,
21 hold them in contempt if they don't is a matter
22 we can -- we can ask ourselves, but there is no
23 question you can't block discovery and then come
24 into court and start testifying. So I'll ask
25 you to order them when they take the stand to
14
1 take the Fifth. And if they deviate from that,
2 I will ask you to hold them in contempt and then
3 order them to take the Fifth again.
4 Now, here is -- there was an
5 issue raised, which may or may not be relevant,
6 now that I have pointed out the Snyders never
7 took the Fifth with the Police Department. The
8 statute that was pointed out to the Court by Mr.
9 Bevere is 2A:81-17.2a1. And I have a copy of it
10 here. Let me hand it up to you.
11 JUDGE CURRAN: Thank you. Thank
12 you very much.
13 MR. MULLIN: Now, this is -- this
14 is relevant to the more complicated topic is
15 what we ultimately -- what will you, Your Honor,
16 ultimately tell this jury about these men who
17 take the Fifth Amendment. And we -- we have
18 given you a series of cases on this. The simple
19 truth is that when parties like this take the
20 Fifth Amendment, then the jury gets told they
21 can draw a negative and adverse inference based
22 on it. That seems to be black letter law. They
23 can be -- the jury can be told that had they
24 testified, they would have testified in a way
25 that favored the plaintiffs.
15
1 JUDGE CURRAN: Well, that the jury
2 has the ability to infer that.
3 MR. MULLIN: That's right.
4 JUDGE CURRAN: Correct, okay.
5 MR. MULLIN: And the jury gets
6 instructed they may but not must draw an adverse
7 inference.
8 JUDGE CURRAN: Right.
9 MR. MULLIN: That seems to be all
10 over the cases, and I accept that that's the way
11 a jury gets instructed. One of the issues,
12 though, that was raised by Mr. Bevere -- I have
13 read the transcript of the in limine motions --
14 was that, well, there is a statute which would
15 have prohibited us from firing these guys
16 because they took the Fifth. Actually, the
17 statute says the literal opposite. And I
18 thought it did. But I'm not as -- I don't deal
19 with municipalities as much as these gentlemen
20 do, so I thought I ought to go back and check.
21 Here is a statute, 2A81-17.2a1.
22 Shall be the duty of every public employee to
23 appear and testify upon matters directly related
24 to the conduct of his office, position or
25 employment before any court, Grand Jury or the
16
1 State Commission of Investigation. Any public
2 employee failing or refusing to so appear and to
3 so testify after having been informed of his
4 duty to appear and testify under this act by the
5 prosecuting attorney or member of or attorney
6 for the State Commission of Investigation shall
7 be subject to removal from his office, position
8 or employment.
9 Well, let's take this a step at a
10 time. When the Snyders testify in the
11 deposition, they were testifying in this court.
12 Testifying in a deposition is under the aegis of
13 a court. And they took the Fifth. The
14 prosecuting attorney in this case -- it would be
15 the prosecutor of the Town -- should have and
16 could have advised them, "Look, if you don't
17 testify, you are going to get fired." If the
18 prosecutor had told them that, well, then they
19 had -- they would have to testify. And the good
20 news for them would be under this statute, if
21 they testified, they would have complete
22 immunity for what they said. So the Town --
23 there is no evidence the Town sought their
24 testimony.
25 Under this statute all -- all
17
1 they literally had to do is say, "If you don't
2 testify, you'll be fired." No prosecutor ever
3 did this. They never urged -- this is no
4 evidence they urged the State prosecutor to do
5 this. And maybe they can produce some. There
6 is no evidence that they had the municipal
7 prosecutor do this. So they made no effort to
8 force these men to testify, when all they had to
9 do was lift a finger and -- and these guys would
10 have had to do it.
11 Here is one thing the statute
12 doesn't say. The statute doesn't say that you
13 can't fire these guys because they refused to
14 cooperate with the police investigation. It has
15 nothing to do with it. So clearly I can comment
16 on that these men refused to cooperate with a
17 police investigation, the Town could have and
18 didn't fire them. As to whether they could be
19 fired for not -- for taking the Fifth in the
20 depositions and here, well, clearly the Town
21 could have taken action to require them to
22 testify. Just like that. So when Mr. Bevere
23 says, "Oh, we were hurt by this too," that
24 doesn't carry any water. Not at all. The Town
25 just had to snap their fingers, have a
18
1 prosecutor threaten them with termination and
2 they would have had to testify.
3 So this is like the Rad case that
4 I gave Your Honor the other day. The -- we have
5 witnesses here. One of them is a high level
6 witness, high level executive, if you will, for
7 the Town, battalion chief, destined to be chief.
8 While he is battalion chief he takes the Fifth.
9 Within the scope of his authority -- while still
10 within the scope of his authority while employed
11 by the Town he takes the Fifth. And as a result
12 of that I don't -- I don't get any discovery.
13 That's binding on the Town. That causes the
14 jury to take an adverse inference against the
15 Town under the Rad case. That's really clear.
16 And these arguments that, well,
17 it hurt us both, they don't amount to a hill of
18 beans, Your Honor. That argument was made in
19 the Rad case, by the way. You will see the
20 court's analysis of that argument, Judge.
21 And -- and the court says no, I don't think so.
22 The company benefited from the -- these -- these
23 guys taking the Fifth. Town has benefited
24 immensely from blocking discovery.
25 I wish the Town had followed the
19
1 procedures of 2A:81. I wish that they had
2 ordered these gentlemen to talk at the
3 deposition under threat of termination. And we
4 would have had a lot of information. And I --
5 and the Town would not have benefited from my
6 complete lack of discovery with respect to
7 Mutschler and the two Snyders. They made it so
8 difficult for me that in this case I have
9 subpoenaed someone who has knowledge of the
10 various jobs they hold, they wouldn't even
11 answer questions about what jobs they held. I
12 issued a subpoena for someone to come from the
13 Town to say what jobs they held with the Town
14 and everything. They blocked everything. They
15 benefited immensely from this.
16 So, Your Honor, down the road,
17 when we get to the jury instruction, it's clear
18 that there should be an adverse inference
19 against the Town based on these witnesses taking
20 the Fifth.
21 So those are my thoughts, Your
22 Honor, on this these motions for limine.
23 Again, simple thing is I should
24 be able to say the Town could have done what the
25 Police Department did. These guys didn't
20
1 cooperate with the police, and they fired them.
2 And they fired Chuck Snyder, Jr. Well, the Fire
3 Department should have done the same thing.
4 That has nothing to do with the Fifth Amendment.
5 And this statute does not prohibit a Town from
6 firing someone who simply doesn't cooperate with
7 investigation. This has to do with people who
8 take the Fifth.
9 JUDGE CURRAN: I have learned in
10 doing somewhat complex cases that I don't want
11 to assume anything at the beginning because you
12 all are so familiar with this, you have read
13 these documents. Frankly, I may have read some
14 of the documents to which you're referring when
15 there were motions or whatever; but to be frank
16 about it, I wouldn't trust that I've remembered
17 everything. I want to be exactly certain. In
18 regard to the Fifth Amendment we are talking
19 about the two Snyders and Mutschler, correct?
20 MR. MULLIN: That's correct, Your
21 Honor.
22 JUDGE CURRAN: Nobody else?
23 MR. BEVERE: Nobody else.
24 JUDGE CURRAN: And again, I will
25 tend to ask simplistic questions like that to
21
1 make sure I know where we are.
2 Mr. Bevere.
3 MR. BEVERE: Judge, and here is
4 where we get to the -- I hate to keep coming
5 back to police practices; but you know, this is
6 the problem we are running up against here. All
7 right. The Snyders and Mutschler were contacted
8 by the Secaucus Police Department. Their
9 response is, "We're not going to talk to you."
10 They have a Constitutional right not to speak to
11 the police. Who is going to come in here and
12 say from a police practices standpoint that the
13 police were allowed to talk to them when they
14 said, "We don't want to talk to you"?
15 Now, as lawyers, we all know that
16 you have no obligation to speak to the police.
17 And if the police -- and if the police say to
18 you, "I want to talk to you," you could say,
19 "I'm absolutely not talking to you, and there is
20 nothing the police can do about it."
21 Now, the Prosecutor's Office, the
22 Attorney General's Office, they can convene a
23 Grand Jury, they can subpoena you to come and
24 give testimony, subject, obviously, to your
25 Fifth Amendment right against
22
1 self-incrimination. But what are the police
2 supposed to do? I think we would all agree, if
3 one of our clients called up and said, "The
4 police think I was involved in a crime, and they
5 want me to come down and give them a statement,"
6 I think, as good lawyers, we would probably all
7 say, "You're not going down there because if
8 they had enough, they would come and charge
9 you."
10 So, I mean, everybody has a
11 Constitutional right not to speak to the police.
12 And not just people who are the targets of a
13 criminal investigation. Somebody who is a
14 witness has the right not to speak to the
15 police.
16 Now, if they get a subpoena to
17 appear before a tribunal, Grand Jury, trial,
18 probable cause hearing, certainly, they can't
19 refuse to honor the subpoena.
20 Now, what happens when they get
21 in that witness stand and they're posed
22 questions that then might require them or they
23 believe would be in their best interests to
24 assert the Fifth amendment privilege, that's a
25 different story.
23
1 But this is the problem with the
2 police practices, Judge. Who is going to come
3 in here and say that the police could have done
4 something else, once these guys said, "We're not
5 going to speak to you"?
6 And in addition, with regard to
7 this issue with the discipline and the statute,
8 Secaucus had no authority to grant these guys
9 use immunity from their testimony. This was
10 reported to the Prosecutor's Office within a day
11 of the incident. It went to the Attorney
12 General's Office. The Secaucus Police can't
13 give these guys use immunity. Only the Attorney
14 General or the County -- I would say the County
15 Prosecutor. But once the Attorney General took
16 it over, only the Attorney General could give
17 you use immunity. The Secaucus Police couldn't
18 give them use immunity. I mean, how is that --
19 how would that have possibly been binding and
20 enforceable? Attorney General would have said,
21 "We're not bound by that. We're going to use
22 this statement."
23 And this is another problem
24 without the police practices expert, Judge. And
25 that's why I keep coming back to that in this
24
1 case. Because who is going to say these things
2 could have, should have, would have been done
3 and that it was within a standard of care to do
4 these things?
5 You know, we are talking about
6 esoteric issues here. And a lot of attorneys in
7 this room -- Mr. Mullin has done criminal work.
8 I have done criminal work. You know, Mr. Paris
9 has done criminal work. Miss Smith has probably
10 done criminal work. But we can't testify and
11 Your Honor can't testify and tell them that,
12 yeah, witnesses can do this in this situation,
13 witnesses can't do this, yeah, when you say you
14 want to talk to the police, you know, that ends
15 the inquiry. So we're getting into -- I think
16 that's a fundamental -- fundamental issue in
17 this case.
18 Going beyond that, let's talk
19 about if someone is going to get up there and
20 plead the Fifth and an adverse inference is
21 going to be drawn.
22 JUDGE CURRAN: Do me a favor. I
23 don't want to go there yet.
24 MR. BEVERE: Okay.
25 JUDGE CURRAN: We really didn't
25
1 have to go into -- but let's go back to your
2 argument. If a day after the incident at the
3 firehouse these three had gotten a call saying,
4 "Come on down here. We have to talk about this"
5 and they said, "No," you're right. I mean, they
6 cannot, to use the word in the Constitution, I
7 believe, they cannot dragoon the individuals
8 down to police headquarters that day.
9 But let's move on to, for
10 example, the depositions. The standard is
11 different at a deposition than just in a
12 telephone call saying, "Come on down here and
13 talk to us."
14 MR. BEVERE: I understand, Judge.
15 Now, the Attorney General has closed their
16 investigation in this matter. But if Your Honor
17 recalls the Attorney General's letter, what the
18 Attorney General said was that we don't have
19 enough evidence to identify anybody at this
20 time. But as we all know, there is a five or
21 six-year statute of limitations on these types
22 of crimes.
23 The Attorney General clearly
24 indicated in their letter that they reserved the
25 right to reopen the criminal investigation, if
26
1 additional information was to come forth. It
2 wasn't like these guys went to trial and they
3 were acquitted and the State could never touch
4 them again. So once again, the Town couldn't
5 compel them to come to a deposition, waive their
6 Fifth Amendment --
7 JUDGE CURRAN: Did the Town try?
8 MR. BEVERE: -- and bind the
9 Attorney General.
10 JUDGE CURRAN: Did the Town try?
11 MR. BEVERE: The Town -- the Town
12 did not try, Judge, because the Town -- the Town
13 can't -- the Town can't say to them --
14 JUDGE CURRAN: Isn't that the
15 issue, whether or not the Town tried? Let's say
16 the Town tried and let's say the attorneys for
17 one or all of these guys went back and said,
18 "Gee, we want a real explanation of what this
19 letter means" and then they went to the AG's
20 Office and they said, "No, no, we really are
21 retaining jurisdiction." Because I think the
22 letter is -- could certainly, at the very least,
23 be read more than one way. Then that would be
24 an argument that says there was not, under 1983,
25 any kind of indifference, deliberate or not.
27
1 But is it not, at least at this
2 point, a fair argument -- and if the plaintiffs
3 use it, they've got to be able to prove it. But
4 is it not at least a fair argument, although I
5 haven't heard any testimony, that the Town
6 didn't even try that?
7 MR. BEVERE: That when they
8 received deposition subpoenas we should have
9 gone to the Attorney General's Office and
10 said --
11 JUDGE CURRAN: No, no.
12 MR. BEVERE: -- and said to the
13 Attorney General --
14 JUDGE CURRAN: After the Attorney
15 General was finished or between when the -- and
16 you'll have to remind me on the chronology. Did
17 it go -- the State took it over, so, really, you
18 didn't have any chance with the prosecutor here.
19 But after the State sent that letter did the
20 Town try to get them to come in to be deposed,
21 to be part of an investigation? Isn't that the
22 issue?
23 MR. BEVERE: Well, Judge, the
24 issue -- the issue comes down to whether or not
25 we could tell these guys that they had use
28
1 immunity.
2 JUDGE CURRAN: It backs up. If,
3 let's say, after the Attorney General -- and
4 again, this is as I understand the law from the
5 cases. If, after the Attorney General sent the
6 letter, there was two ways of reading the
7 letter -- I, frankly, read it one way; but I
8 could understand there be another way to read
9 it. Two ways. A, there could have been --
10 there could have been a request for
11 clarification. But as I understand it, there
12 wasn't.
13 So then assume that the Attorney
14 General -- because I think the Town had the
15 right to assume it -- has basically, whatever
16 you want to call it, washed their hands, backed
17 away, decided to let -- didn't want to handle
18 it, whatever, they were not executing any kind
19 of jurisdiction. So then, as I understand it,
20 there is at least a possibility that the Town
21 could say, okay, we're going to do X, Y and Z.
22 Their argument, as I understand the plaintiffs'
23 argument, is that was never done.
24 Getting to use immunity at that
25 point, honestly, I don't think is a hard
29
1 question for the Town at that point. But you
2 don't even need to get there yet because, as I
3 understand their argument, it is nothing was
4 done. Therefore, that is part of their basis
5 for deliberate indifference under 1983.
6 MR. BEVERE: So the --
7 JUDGE CURRAN: Excuse me. Is that
8 a fair recitation of your argument?
9 MR. MULLIN: Definitely.
10 JUDGE CURRAN: Okay.
11 MR. BEVERE: Judge.
12 MR. MULLIN: Part of their
13 deliberate indifference.
14 JUDGE CURRAN: Part.
15 MR. MULLIN: Part of it.
16 MR. BEVERE: Judge, I -- I know of
17 absolutely, absolutely no case law that says
18 that that's deliberate indifference. The Town
19 gets a letter --
20 JUDGE CURRAN: No, no, it's the
21 juror that decides if it is or isn't.
22 MR. BEVERE: Here is what we're
23 talking about. We are talking about the Town
24 getting a letter. And I understand what Your
25 Honor is saying. I, quite frankly, read the
30
1 letter clearly to say that if we get
2 information -- and maybe that's information that
3 comes through the course of the civil trial,
4 depositions, maybe through some other -- other
5 source -- that we reserve the right to reopen
6 this investigation and have people -- have this
7 Grand Jury reconvened and pursue criminal
8 charges.
9 JUDGE CURRAN: That is a fair
10 argument.
11 MR. BEVERE: And quite frankly,
12 Judge, for us to have said to these guys that,
13 "You are going to either waive your Fifth
14 Amendment privilege and be subject to being
15 terminated or you're going to testify, possibly
16 incriminate yourself and run the risk of
17 criminal indictment because we can't do anything
18 to save you from that, if you say something to
19 incriminate yourself" -- and that's what we're
20 talking about here, Judge.
21 I mean, this is -- this is not a
22 situation where -- you're talking about it's
23 within the statute of limitations. The Attorney
24 General's Office clearly said that they're
25 closing their investigation but that if any
31
1 additional information comes to light -- I mean,
2 I don't see how to compel these guys to waive
3 their Fifth Amendment right against
4 self-incrimination.
5 And then, Judge, and then we
6 dovetail into the issue of what -- what's -- how
7 is -- how is this even employment related? How
8 is it even employment related? We come back to
9 the basic fundamental issue in this case,
10 private conduct versus public conduct. So now
11 you're asking them to waive their Fifth
12 Amendment privilege under penalty of possible
13 indictment because you're within the statute of
14 limitations. It wasn't as if somebody was found
15 not guilty at a trial and therefore they were
16 home free. But now you are talking about having
17 them waive their Fifth Amendment privilege,
18 subject them to possible reopening of that
19 investigation and indictment by the Attorney
20 General's Office. And quite frankly, it wasn't
21 even anything that was employment related. And
22 when we come back to the issue of adverse
23 inference, that becomes the issue.
24 And Judge, you know, we -- and I
25 come back to what I said before. There are
32
1 certainly questions that these guys could have
2 answered that would have exculpated the Town,
3 particularly on the color of law issue. And if
4 they come in here and plead the Fifth Amendment
5 on whether they did X, Y and Z, this, this, this
6 and this, they would have come in and exercised
7 their Fifth Amendment privilege, you know, on
8 certain issues. Your Honor will have to make
9 the ruling. But I think that there is certain
10 questions that they'd have to be compelled to
11 answer regardless of their Fifth Amendment
12 privilege.
13 JUDGE CURRAN: Mr. -- excuse me,
14 Mr. Mullin.
15 Did you want to add something?
16 MR. PARIS: The other thing is I
17 think there was intimation that somehow the Town
18 should have approached the Attorney General and
19 somehow that is a standard as to what the Town
20 should do in this circumstance. And even if --
21 even if we were to go to at that point to create
22 an adverse inference against the Town requires
23 that you assume and speculate that the Attorney
24 General would have given these three people use
25 immunity, you know, would have given their
33
1 immunity to testify at a deposition and
2 potentially identify themselves as the
3 perpetrators of a bias crime.
4 Now, where -- where is the
5 likelihood of that? So if the court is going to
6 say you should have contacted the Attorney
7 General, I don't think it's enough just to say
8 you should have contacted the Attorney General.
9 There has to be a presumption that the Attorney
10 General would have then granted immunity, even
11 though they basically said we're leaving this
12 open, even though the plaintiffs were in
13 constant contact with the Attorney General
14 constantly seeking to have this prosecuted and,
15 regardless of all that, somehow the Attorney
16 General would have granted immunity and they
17 could have testified at their deposition.
18 In order to make that kind of a
19 ruling I think it -- that ruling would rest upon
20 speculation as to what the Attorney General
21 would have done; and I don't think that the Town
22 should be penalized based upon some assumptions
23 that Attorney General would have given immunity
24 in a bias crime that the plaintiffs had
25 publicized, et cetera, et cetera.
34
1 JUDGE CURRAN: Thank you.
2 Mr. Mullin.
3 MR. MULLIN: I want to try to
4 simplify, rather than complicate. If you look
5 at the police reports, there is a time when
6 Snyder is talking about -- to the police. He
7 talks to Ulrich. And he admits to Ulrich,
8 Snyder, Sr., that they were just yelling.
9 Ulrich catches them red-handed, still yelling at
10 the scene. He talks to him.
11 There is a meeting that takes
12 place on April 25th with the Mayor and the Fire
13 Chief, and Charles Snyder, Sr. is there. And
14 he -- he admits, according to Walters'
15 testimony, to yelling. And he says at that
16 meeting, "Who are you going to believe; those
17 faggot cock-suckers or us?" And that's in
18 Walters' deposition testimony. So we don't have
19 a guy taking the Fifth. We have a guy not
20 cooperating with the police.
21 Finally the police call. And we
22 have that exhibit on the -- finally we marked it
23 P-255. The police call and say, look, we want
24 you to talk to us. And all it says is Snyder
25 refuses to talk to the cops, P-255.
35
1 P-215 in our exhibits, Mutschler
2 and Snyder, Jr. refuse to talk to the State
3 investigators.
4 So you don't have anybody
5 asserting the Fifth. You don't have attorneys
6 on the scene yet asserting the Fifth. You have
7 those guys picking and choosing I am going to
8 talk to you, I am not going to talk to you.
9 Well, the Police Department is
10 smart enough to know you can be fired for that.
11 Mr. Bevere said this statute prevented them from
12 being fired for that. This statute, if
13 anything, says the literal opposite. It sure
14 doesn't say you can't fire a Town employee for
15 refusing to cooperate with a police
16 investigation. So I should be clearly able to
17 comment on the Town's failure to deliberate
18 indifference, their failure to do the police --
19 the Fire Department's failure to do what the
20 police did, to fire these guys for refusing to
21 even cooperate with the police. This was not an
22 assertion of the Fifth.
23 Yeah, as to the Grand Jury, we
24 have no clue whether the Snyders, Mutschler
25 asserted the Fifth. I don't know that to this
36
1 day. They should say nothing about that. They
2 act in their arguments as if that happened.
3 There is no evidence of that. They will present
4 no evidence of that. So no one should say they
5 took the Fifth with respect to the Grand Jury.
6 JUDGE CURRAN: I thought we
7 resolved that the other day.
8 MR. BEVERE: I was not -- Judge,
9 we -- quite frankly, I will admit that I don't
10 know whether they went there, took the Fifth or
11 whether they said, "We are not coming at all."
12 I mean, I don't know.
13 MR. MULLIN: So now let me put
14 aside the issue of commenting that it was
15 deliberate indifference, that when these guys
16 didn't cooperate, they should have been fired
17 because I should be allowed to say that. The
18 police did fire Snyder, Jr. Let's get up to the
19 more complicated issue, which is what does Your
20 Honor do with the fact that these three firemen
21 are going to come in here and take the Fifth?
22 What are we allowed to say or not say? That's
23 really the -- the narrow issue. Laws flying all
24 over the place, but that's the practical issue.
25 Now, I think the most one should
37
1 say in an opening argument is that, "The Court
2 will comment on this, will give you the law on
3 this and you will see that we're entitled to
4 what is called an 'adverse inference.' That is,
5 you may give us an adverse inference. Now, you
6 may draw some conclusions in our favor; but the
7 Court will deal with that." I don't think a
8 whole lot should be said in an opening argument
9 about these guys taking the Fifth.
10 The second question is as this
11 trial goes along, how does Your Honor -- is
12 there any question anymore that the taking of
13 the Fifth should be attributed to the Town and
14 an adverse inference should be drawn against the
15 Town? Well, the Rad case settles that once and
16 for all. It just clearly says, yeah, yeah, the
17 Town -- yeah, the adverse inference may be taken
18 against the Town. Rad is absolutely clear on
19 that. But we can argue that down the road.
20 So I just wanted to be really
21 clear that -- about the arguments about their
22 lack of cooperation. No one should imagine for
23 a minute that these guys were taking the Fifth
24 in these police reports. They are doing some
25 talking. They are doing some talking, Mutschler
38
1 and the two Snyders, in the early stages.
2 They're saying what they want to police they
3 think were friends or to a fire official they
4 think is going to go along with them. And then
5 they start to clam up. And finally they refused
6 to cooperate. And they never assert the Fifth,
7 never. It's not there. I read every single
8 police report. I read every shred of paper in
9 this case. They never took the Fifth while
10 Secaucus was investigating.
11 I don't want to complicate any
12 further. We can talk about what the State
13 should have done, what the -- what the Town
14 could have and should have done after this was
15 kicked back to the Town on July 5th, 2005.
16 Of course, it's been three years.
17 Now, I certainly can talk about what the Town
18 did or didn't do after this thing is kicked back
19 to them by that July 5th letter. Your Honor
20 has, over my objection, allowed this letter in.
21 I have got to be able to comment on this letter.
22 The first letter, supersession letter, is when
23 the State took over the investigation. Second
24 letter is when -- and they say in that letter
25 don't take any administrative action until you
39
1 hear from them. This is them hearing from them.
2 This is a year later they are hearing from them.
3 I have to be able to talk about that. I have
4 said that it's going to confuse the jury to have
5 a letter concerning not identification under
6 reasonable doubt, criminal standard. I have to
7 be able to talk about that. And what the Town
8 did or didn't do after the investigation is
9 kicked back to them.
10 I also want to make this point.
11 If you look at Hester Agudosi's original
12 supersession letter, she says, look, we are only
13 taking over the April 24th, 25th riot.
14 Everything else that comes after that, that's
15 still Secaucus. So, clearly, I can talk about
16 what the Town did or didn't do, even during the
17 supersession period, about that and try to show
18 deliberate indifference in connection with those
19 incidents because it was in the Town's hands,
20 clearly, according to that letter. So I just
21 also want to make those points.
22 JUDGE CURRAN: Mr. Bevere.
23 MR. BEVERE: I think we are
24 starting to get far afield of the issue. First,
25 just as a matter of just for the record, I
40
1 didn't think there was an objection to Mr.
2 Mullin of -- of that letter from the Attorney
3 General. I thought he said he was happy to open
4 on it.
5 MR. MULLIN: I objected to it; but
6 when I lost the objection, I said I will open on
7 it.
8 MR. BEVERE: But that --
9 JUDGE CURRAN: Showmanship.
10 MR. BEVERE: -- Judge, irrelevant
11 at this point. But we're talking about what is
12 the jury going to be allowed to infer? And --
13 JUDGE CURRAN: No, with all due
14 respect, Mr. Bevere -- I apologize for
15 interrupting you -- what we are talking about
16 now is what can be said at opening. We're not
17 at the charge conference. We are not at what
18 they can or can't or should or shouldn't infer.
19 I don't mean to cut you off. I'm not making any
20 determination on that argument.
21 MR. BEVERE: But, Judge --
22 JUDGE CURRAN: I'm just concerned
23 about what can be said in openings.
24 MR. BEVERE: But, Judge, it was my
25 understanding Mr. Mullin was going to say in
41
1 opening they could draw adverse inferences from
2 the Town of these guys taking the Fifth. I
3 don't think it's proper at this point.
4 JUDGE CURRAN: I believe what Mr.
5 Mullin wanted to say was exactly that but then
6 add, "But that's our opinion. The judge will
7 tell you the law."
8 MR. MULLIN: That's right.
9 JUDGE CURRAN: Is that fair to
10 say?
11 MR. MULLIN: That's the way I want
12 to say it.
13 JUDGE CURRAN: You're free to say
14 the same thing because it is an issue. And I
15 think that you know --
16 MR. BEVERE: Judge, if it's an
17 issue, then it has -- it has the potential,
18 regardless of what I say, to prejudice this jury
19 in -- in an area of law that Your Honor may
20 decide a different way when we get to that point
21 in the trial. And I think nobody should comment
22 about adverse inferences. I think nobody should
23 comment on it.
24 JUDGE CURRAN: It's a fair
25 argument.
42
1 MR. BEVERE: If Mr. Mullin wants
2 to say that -- that when the police arrived on
3 the scene, these guys were in the parking lot
4 and -- I mean, that's one thing because those
5 are -- that's in the police report. I think
6 that's one thing. But to say that -- that
7 you -- you're going to be allowed to draw an
8 adverse inference against the Town in opening is
9 improper at this point.
10 JUDGE CURRAN: Mr. Mullin.
11 That's a fair argument.
12 MR. MULLIN: That's a fair
13 argument. They're going to see the witnesses
14 take the Fifth on the stand. And what's being
15 suggested is I shouldn't mention it. And then
16 they'll see that. And then you'll at some point
17 do something with that issue. I'll -- I will
18 not mention the adverse inference on the Fifth
19 Amendment to avoid a problem.
20 JUDGE CURRAN: I think that's a
21 fair way to approach it. This is a very
22 sensitive case, if you will; and I appreciate
23 everybody being fair on that. I think it's the
24 fairest way to go. And then, letting something
25 down the block --
43
1 MR. MULLIN: I will mention the
2 non-cooperative and the failure of the Fire
3 Department to fire --
4 JUDGE CURRAN: That's part of your
5 case.
6 MR. MULLIN: That's a part of
7 deliberate indifference.
8 JUDGE CURRAN: Any other issues on
9 the Fifth Amendment question other than the
10 charge? I think, if not, we move to the Jersey
11 City incidents.
12 MR. MULLIN: Right.
13 JUDGE CURRAN: Do you need --
14 MR. MULLIN: Judge, you asked me
15 to get some additional information on that.
16 What I have determined is that Jersey City
17 incident occurred on February 2005. And then we
18 produced to the lawyers for Secaucus the police
19 reports of the Jersey City investigation on
20 June 8th, 2005. We also produced photos of the
21 bloody rags. And -- and that was all before the
22 Town of Secaucus promoted Snyder, Sr.
23 So, again, the facts are
24 Mr. Carter will testify that he saw a Secaucus
25 Department of Public Works truck pull up in
44
1 front of his house in Jersey City, where it
2 would have no business. He saw it parked near
3 his house. He was frightened and hid. He saw a
4 man get out of the car and go into his lobby.
5 Then, a few days later, he opened the door to
6 his apartment in Jersey City and found bloody
7 rags there or bloody papers. He called Jersey
8 City Police. And they have conducted a bias
9 crime investigation.
10 We put Secaucus on notice both
11 through our first document production answer and
12 our -- we amended complaint. So the Town of
13 Secaucus was on notice of these events before --
14 in 2006 they decided to promote Snyder, Sr. to
15 battalion chief. He, Snyder, Sr., was and
16 continues to be a foreman and/or supervisor at
17 the Secaucus Department of Public Works, which
18 means he has control over the kind of trucks
19 that my client saw.
20 Now, of course, to some degree
21 I'm very limited because I have Mr. Snyder not
22 answering any questions. Okay. But this is, I
23 think, sufficient and circumstantial basis to go
24 to the jury. It goes to the jury on two things.
25 Number one, the circumstantial evidence that
45
1 because this guy wasn't fired from Public Works
2 and the Fire Department he continued to have
3 access to an opportunity to harass and scare my
4 client.
5 Number two, the Town was placed
6 on notice of this incident involving a
7 Department of Public Works truck 2005 February
8 and they don't do any investigation of this and
9 they promote this guy to battalion chief,
10 knowing that the guy is now stalking my guy or
11 people on his behalf are stalking my guy in
12 Jersey City.
13 So, Your Honor, I think it should
14 come in on both counts.
15 JUDGE CURRAN: What was the
16 outcome of the Jersey City investigation?
17 MR. MULLIN: We haven't heard any
18 outcome, so I don't know any outcome one way or
19 the other.
20 JUDGE CURRAN: Is there any reason
21 to know if Jersey City communicated with
22 Secaucus in regard to the investigation, or is
23 there any reason to know that they did not
24 communicate?
25 MR. MULLIN: I think there is
46
1 reason to know. I'd have to talk to my client
2 because they track -- they were trying to track
3 down the specific vehicle and to do testing for
4 blood in that vehicle. So that -- that my
5 client learned from a Jersey City police
6 officer. So it was a full bias crime
7 investigation. I don't know how they would do
8 investigation without doing that. But that's
9 what my client heard from a police officer in
10 Jersey City.
11 JUDGE CURRAN: But Jersey City
12 doesn't have any report? They haven't concluded
13 the investigation?
14 MR. MULLIN: I haven't seen any
15 report concluding the investigation. I haven't
16 seen anything further. I have the reports I
17 have.
18 MR. BEVERE: Judge.
19 MR. MULLIN: They are in the file.
20 JUDGE CURRAN: Mr. Bevere.
21 MR. BEVERE: Okay. When we left
22 this issue week-and-a-half ago my understanding
23 was that Your Honor was reserving because the
24 issue you were concerned about was whether or
25 not the Secaucus Police had some obligation to
47
1 investigate this incident when it happened. And
2 our position at the time was this was Jersey
3 City incident; they were investigating the
4 matter. And quite frankly, to notify us in June
5 of 2005, four months later after the Jersey City
6 Police Department was investigating and it was
7 their jurisdiction, you know -- so I mean, to
8 say that the Secaucus Police Department then had
9 some obligation to investigate an incident that
10 didn't occur in their jurisdiction -- and that
11 was the issue that Your Honor was concerned
12 about.
13 And I think that, you know, now
14 that we -- we are kind of putting this incident
15 in its context and fact that Jersey City has
16 made no conclusion that there was even a bias
17 crime, let alone that someone in Secaucus did,
18 is so far afield from this case -- in other
19 words, what you would do is you'd be asking --
20 well, I don't even want to go there.
21 My understanding of Your Honor's
22 ruling was that you wanted to find out whether
23 or not -- when the Secaucus Police -- the
24 Secaucus Police were notified and when they
25 would -- and whether they would have had some
48
1 obligation to investigate. This was a report
2 that was produced in discovery in the lawsuit
3 months after the incident. There is no evidence
4 that Jersey City Police called Secaucus Police
5 and said, "Hey, we want your help. We have this
6 complaint. Think it may be guys from Secaucus.
7 Want your help with the investigation." None of
8 that happened. So there is no evidence Secaucus
9 Police were involved at all.
10 And I think Your Honor's basis
11 for Your Honor's reserving and the issue of
12 relevance to the case, as I recall Your Honor
13 saying, was you would find it relevant if the
14 Secaucus Police had some obligation to
15 investigate the incident and failed to do so.
16 And I think, clearly, regardless of when
17 Secaucus was notified, they didn't have an
18 obligation to investigate an incident that
19 occurred in Jersey City. But you know --
20 JUDGE CURRAN: With all due
21 respect, Mr. Bevere, that's why the time was of
22 interest to me.
23 MR. BEVERE: I understand.
24 JUDGE CURRAN: Because you're
25 right; normally I'd say that. But considering,
49
1 A, there was this history and, B, there was
2 allegedly a Secaucus truck involved on at least
3 one day or present in Jersey City on at least
4 one day, it puts a little different parameter.
5 That's why I was concerned about the scenario.
6 MR. BEVERE: Right. Well, Judge,
7 what they say was that they saw a Secaucus truck
8 in the vicinity of their home sometime prior to
9 this. They didn't say they saw the Secaucus
10 truck on the day. They didn't say they saw
11 anybody in the building on the day. And I think
12 it is highly speculative and prejudicial for the
13 jury in this case to get that information,
14 particularly when there is no evidence that
15 Jersey City has concluded that anybody in
16 Secaucus was involved at all.
17 JUDGE CURRAN: Thank you.
18 Anything else?
19 MR. MULLIN: I'm not -- I'm not
20 suggesting that the Secaucus Police should have
21 investigated this. That's not what I'm saying,
22 and that wasn't what you were concerned with
23 when you last raised this. What I am saying is
24 that we put the Town on notice that this
25 happened, that a Secaucus truck was there,
50
1 Secaucus Public Works truck was there. It had
2 no business being there. People walked into my
3 clients' apartment building, and five or six
4 days later he found bloody rags there.
5 We put the Town on notice through
6 documents production request and through a
7 amendment of the complaint that was detailed.
8 They never investigated. Forget the police.
9 This has to do with whether this Town is -- has
10 any interest in investigating Chuck Snyder, Sr.
11 and his horrible behavior.
12 They never came to us. They
13 never came to me. They never interviewed my
14 client and said, "Tell me what you saw of the
15 truck. Did he catch the license plate number?
16 What color was the truck?" We have no knowledge
17 of any investigation. When you are deliberately
18 indifferent, that's what you do. You have Chuck
19 Snyder there. And he has already been accused
20 of all kinds of awful things. And there is some
21 evidence that he did it. And he has taken the
22 Fifth, and he is refusing to cooperate with
23 police. You have -- you have a police officer
24 that puts him right at the scene of the attack
25 on the house.
51
1 You have all this. You are the
2 Town of Secaucus. You know that he is a
3 superintendent of streets or supervisor of
4 streets, foreman of Department of Public Works.
5 Now you are put on notice in detail because you
6 are given the police reports, you, the Town of
7 Secaucus, that he may have sent one of his
8 trucks over there and they may have done
9 something dastardly in Jersey City.
10 We don't have to prove whether or
11 not the deed was done. What we can show is that
12 they didn't investigate it. They were
13 deliberately indifferent about it. They could
14 care less about it. And here is a reward for
15 you, Chuck Snyder, knowing this about Jersey
16 City. We're promoting you to battalion chief
17 after we learn of this.
18 How do I -- you know, I have
19 been -- a very high burden has been imposed on
20 me here, which I disagree with. Deliberate
21 indifference is a stiff burden. I'm going to
22 have to prove it with every shred of
23 circumstantial evidence I can muster. It would
24 be unfair to me to impose such a high burden of
25 proof on me while simultaneously shutting off
52
1 the circumstantial evidence I need to carry out
2 this burden.
3 My client can testify this is
4 what happened, that he saw this truck and later
5 he found these rags, that he complained to the
6 police about it. And he can say that he was
7 never contacted about any investigation
8 whatsoever. And I can say no investigation was
9 ever done because I have subpoenaed all the
10 documents about investigations in this case.
11 They don't have any investigations.
12 JUDGE CURRAN: You talked to the
13 Secaucus Police or the Jersey City Police?
14 MR. MULLIN: The Jersey City
15 Police.
16 JUDGE CURRAN: Right.
17 MR. MULLIN: I'm not going to say
18 anything about the Secaucus Police. I'm talking
19 about the Fire Department.
20 JUDGE CURRAN: Okay.
21 MR. MULLIN: They keep bringing in
22 the police. Forget the police. Let's suppose
23 the -- let's suppose --
24 JUDGE CURRAN: Did your client
25 contact the Fire Department?
53
1 MR. MULLIN: No, he wasn't allowed
2 to. The only way he could contact the Fire
3 Department was through these lawyers.
4 JUDGE CURRAN: Right. But the
5 Jersey City Police presumably did contact the
6 Fire Department or, if they didn't, there is no
7 case against Jersey City at this point. Did
8 your client give the Jersey City Police a
9 license plate number for the truck?
10 MR. MULLIN: No, he didn't have a
11 license plate number.
12 JUDGE CURRAN: See, that's my
13 concern is -- I can understand that -- that this
14 is a high burden. But by the same token, as I
15 understand, the incident had happened a few days
16 before the bloody rag incident. There was no
17 license plate. There was nothing identifiable
18 about the truck. It was reported to the Jersey
19 City Police. The Jersey City Police
20 investigated. We don't know if there was any
21 final determination because, as I understand the
22 documents, there is no final determination.
23 MR. MULLIN: I am not aware of any
24 final determination.
25 JUDGE CURRAN: Right.
54
1 MR. MULLIN: Again, I'm not trying
2 to prove -- let me say what I'm not trying to
3 prove. I am not going to try to prove or argue
4 to the jury that Snyder caused these bloody rags
5 to be placed at my clients' door or that Snyder
6 caused his truck to come and survey on my
7 clients in their new home.
8 What I'm saying is this is
9 suspicious stuff that the Town of Secaucus, its
10 Fire Department, should have investigated.
11 Given this long history, when they heard a
12 Department of Public Works truck was down there,
13 what a simple matter it is to check to see
14 whether a DPW truck from Secaucus had a right to
15 be in Jersey City at that time on that day at my
16 clients' house. And who ordered it? Which
17 foreman ordered that truck down there?
18 They never investigated this.
19 How do we know? Because the only way to
20 investigate it would be to contact me and say,
21 "Can I speak to your client?" In the world of
22 discrimination law investigations happen all the
23 time all the time. I get calls from adverse
24 attorneys from towns and corporations saying,
25 "Hey, Neil, you made this allegation. Can we
55
1 talk to your client?"
2 I say, "Sure, come on down. Talk
3 to my client."
4 And they do an investigation, and
5 usually they write a report.
6 Deliberate indifference is I
7 don't care if there is a DPW truck down there,
8 standing in front of -- just the fact of it
9 being in front of your clients' house is
10 terrifying to him. I don't care if it's
11 terrifying to him. I don't care at all. I'm
12 not going to investigate.
13 I'm not offering this evidence to
14 prove that -- that the DPW people planted the
15 bloody rags. Strong inference, but I'm not
16 arguing that inference. I'm arguing, knowing
17 this, which is highly suspicious, there was no
18 investigation of Chuck Snyder, foreman of the
19 Department of Public Works, no investigation of
20 him. They never came to us to ask about it, to
21 get the detail about it. And they never
22 disciplined him for it. And nothing was ever
23 done. And with this unresolved -- let's just
24 say it's unresolved. With this unresolved, they
25 promote him to battalion chief. I mean, what is
56
1 deliberate indifference, if not that?
2 JUDGE CURRAN: Mr. Bevere.
3 MR. BEVERE: Judge, once again, we
4 come down to issues of standard of care. And
5 who is going to come into this court and testify
6 that there was an obligation of the Town to
7 investigate that complaint? The Jersey City
8 Police did an investigation. They did an
9 investigation of the complaint. They did. The
10 Secaucus -- what we're talking about are the
11 plaintiffs saying, hey, listen, we saw Secaucus
12 Public Works truck in our neighborhood a few
13 days ago; and now, couple days later, we find
14 couple of bloody paper towels outside our door
15 and therefore Secaucus -- and we notified Jersey
16 City Police. They do a full investigation. We
17 don't know what the results of that
18 investigation were, but they did a full
19 investigation. And, you know, there is
20 certainly no evidence that they went to Secaucus
21 and they said, "Hey, listen, we think this was
22 your guys; and we want to inspect all your
23 trucks." None of that went on. None of that
24 went on.
25 MR. MULLIN: How do you know that,
57
1 Mr. Bevere, that didn't go on, that the Jersey
2 City Police didn't go over and look at the
3 trucks?
4 MR. BEVERE: I could tell you
5 because if you look at the report, Judge, if you
6 look at the reports of what the Secaucus
7 Police -- what the Jersey City Police did, they
8 tell you what they did. They tell you in the
9 reports what they did. And I read the reports.
10 MR. MULLIN: Those are the reports
11 we have. We don't know what they did.
12 MR. BEVERE: Well, I agree those
13 are the reports that we have. I can only tell
14 you what I know from the reports that we have.
15 And what we're talking about is imposing upon
16 the Town to do this investigation of this
17 incident, Judge, that is so speculative and so
18 far removed from what the issues are in this
19 case, it is highly, highly prejudicial. And who
20 is going to come in and say that Secaucus had an
21 obligation to investigate that? And Mr. Mullin
22 clearly wanted to say that it was Chuck Snyder.
23 That's exactly what he wants to do. And there
24 is no proof that it was Chuck Snyder. And
25 that's what he wants to use it for. And that's
58
1 improper.
2 MR. MULLIN: Judge, just add this.
3 It's the law of the State of New Jersey that
4 entities have to investigate claims of -- of
5 discriminatory harassment. That's the Lehmann
6 case and the Patent case that I have described
7 to you. You know, as much as counsel keeps
8 imagining this is a case put under 42 U.S.C.
9 1983, I didn't bring it under 42 U.S.C. 1983.
10 42 U.S.C. 1983 is not mentioned anywhere in my
11 complaint. Counsel is imposing this whole body
12 of jurisprudence on me that has nothing to do
13 with this, the New Jersey Constitution or the
14 way the New Jersey Supreme Court has interpreted
15 the Constitution.
16 The New Jersey Constitution
17 prohibitions of discrimination are implemented
18 through the law of discrimination. In
19 construing the law of discrimination the Supreme
20 Court has said when an entity hears a complaint
21 of discrimination, they have a duty to timely
22 investigate. Are we now supposed to disregard
23 that duty, which is embedded in law in the
24 Patent case and the Lehmann case because Mr.
25 Bevere imagines that this is a case brought
59
1 under 42 U.S.C. 1983?
2 Bad enough we have imported into
3 this case this whole legal standard that has
4 nothing to do with the New Jersey State
5 Constitution. I understand Your Honor's ruling.
6 I am going to ask you to revisit it before this
7 case is over.
8 But now Mr. Bevere is going
9 further. I'm not even sure that under 42 U.S.C.
10 1983 an entity doesn't have the same obligation
11 to investigate once there is a claim of
12 discriminatory harassment. I'm not sure that's
13 the case. But one thing I do know, in the State
14 of New Jersey, if you are a governmental entity
15 or corporation and its alleged that your -- your
16 people -- your employees are engaged in
17 harassment, you have an obligation to
18 investigate and remediate. And it must be done
19 in a timely way, and it must be done in a
20 thorough way. So when Mr. Bevere says there is
21 no such obligation, he is dead wrong.
22 Every one of these cases, every
23 one of these matters should have been
24 investigated by the employer of the -- of these
25 firemen and the employer of these Department of
60
1 Public Works. Every one of them should have
2 been thoroughly and timely investigated.
3 JUDGE CURRAN: Just right now we
4 are on the Jersey City one. How do we know that
5 the Town of Secaucus had knowledge that then
6 required timely investigation?
7 MR. MULLIN: They had knowledge
8 because I sent the documents over to the lawyers
9 for them in this case in the first documents
10 production request. All the police reports I
11 had, and then I amended the complaints.
12 JUDGE CURRAN: Which was roughly?
13 MR. MULLIN: It was --
14 MR. BEVERE: September.
15 MR. MULLIN: Oh, it was June 8th,
16 2005 is when I sent those documents.
17 JUDGE CURRAN: That's what you
18 said earlier, but then you talked about months.
19 MR. BEVERE: June was when the
20 document production was given. I believe the
21 complaint was amended, I thought, in September.
22 I could be wrong.
23 MR. MULLIN: I don't remember when
24 the complaint was, but I can certainly find
25 that.
61
1 MR. BEVERE: September amended
2 complaint.
3 JUDGE CURRAN: June of 2005.
4 MR. BEVERE: Was when the
5 documents were produced in discovery. I believe
6 it was September of '05 when the complaint was
7 amended -- oh, no, sorry, Judge. It was January
8 '06 when the complaint was amended.
9 JUDGE CURRAN: When the claim was
10 amended.
11 MR. BEVERE: January '06, I
12 apologize.
13 MR. MULLIN: It's at the end of
14 '06 -- Mr. Bevere, correct me if I'm wrong --
15 appoint Chuck Snyder, Sr. to be battalion chief.
16 And he actually assumes the roll, I believe,
17 January 1, '07.
18 MR. BEVERE: Judge, I have to say
19 that --
20 JUDGE CURRAN: Let me just
21 interject. How are you going to get this
22 information into the record?
23 MR. MULLIN: My client is going to
24 testify about what he saw.
25 JUDGE CURRAN: No, no, about
62
1 sending those documents to -- in document
2 production.
3 MR. MULLIN: He is a party to this
4 case. He can testify that he sent it over in an
5 answer to documents production request.
6 JUDGE CURRAN: And he can testify
7 he knows that?
8 MR. MULLIN: He has personal
9 knowledge of that. He gathered --
10 JUDGE CURRAN: Frankly, sometimes
11 we have plaintiffs who don't know a whole lot at
12 all about their cases.
13 MR. MULLIN: Well, Tim knows about
14 the case. He has personal knowledge of it. He
15 is the one that gathered the documents up for
16 that documents production request. He is the
17 one that got them, and he is the one that's --
18 directed me to send it over to him. So he will
19 testify to that.
20 JUDGE CURRAN: Mr. Bevere.
21 MR. BEVERE: Your Honor, I have to
22 check the date as to when there was a battalion
23 chief election --
24 JUDGE CURRAN: Okay.
25 MR. BEVERE: -- because -- because
63
1 I believe -- I believe that there was a -- well,
2 let me just check the date when there was a
3 battalion chief election; but I'll --
4 JUDGE CURRAN: What I'm going
5 to --
6 MR. BEVERE: And I think it's
7 important, Judge, because, listen, it's -- it's
8 not -- without revealing my strategy with regard
9 to the case, I mean, it is not so simple as a
10 matter of a promotion to battalion chief.
11 JUDGE CURRAN: Okay. I know you
12 need to know -- you need a decision before
13 openings. And what I'm going to do is ask both
14 sides to be -- as I asked in regard to the Fifth
15 Amendment, I am going to ask it be as
16 circumspect as possible. If, in fact -- and I'm
17 not doubting anyone's word. If, in fact, those
18 documents were produced and, in fact, if the
19 election of the battalion chief was after the
20 time, it's a fair argument.
21 But I'm going to ask you, Mr.
22 Mullin, to be very circumspect in the way you
23 make the argument. Because everybody is so
24 familiar with this case, you talk about bloody
25 rags or -- or bloody paper towels, you know,
64
1 that -- that's easy for people to remember,
2 it -- it is very prejudicial, frankly.
3 MR. MULLIN: I will be circumspect
4 about it. I understand what you are saying,
5 Your Honor. But let me say this. If this is
6 some information that should have been given to
7 me about promotion, I want to find about it
8 before I get up. I don't want to have missed it
9 before I get up on my feet.
10 JUDGE CURRAN: I understand.
11 MR. MULLIN: The only information
12 I have is from the official Town newspaper.
13 It's an official paper. Chuck Snyder, Sr. was
14 promoted to battalion chief the end of January
15 and -- and took -- took power in that regard on
16 January 1, '07.
17 Now, I have just heard some
18 implication -- all this stuff should have been
19 given to me in discovery, not opening. If there
20 was something that should be on the record that
21 corrects that, I would like to hear it.
22 MR. PARIS: Can I ask you what
23 official Town newspaper you're referring to?
24 MR. MULLIN: Secaucus whatever.
25 MR. PARIS: That is not an
65
1 official Town newspaper, Your Honor. And if the
2 implications are --
3 JUDGE CURRAN: With all due
4 respect, do they print the legals in this --
5 MR. PARIS: Yeah.
6 MR. BEVERE: Judge.
7 JUDGE CURRAN: I know it's not a
8 publication of the Town; but theoretically, that
9 is a phrase that can be used, if they print the
10 legals in it. But I would appreciate it if you
11 don't use the Town because that gives lay people
12 the idea that the Town prints it, which they
13 don't.
14 MR. MULLIN: I just need a
15 representation about these facts, Your Honor.
16 MR. BEVERE: Judge, Judge, let me
17 say this because it was testified to in
18 depositions. And what was testified to in
19 depositions, Your Honor, is that Chuck Snyder,
20 Sr. is not the battalion chief, was not elected
21 battalion chief. What came out in deposition
22 was that Chuck Snyder, Jr. was elected to the
23 battalion chief, not Senior, who was employed by
24 the DPW. That was in depositions.
25 JUDGE CURRAN: Now you know why
66
1 I'm asking what I asked in regard to Fifth
2 Amendment rights, exactly what people were
3 talking about.
4 MR. MULLIN: Okay. I will live
5 with that. I stand corrected. You know, the
6 trouble is I have a witness who's -- I have two
7 witnesses who aren't talking to me; they're just
8 taking the Fifth. And this shows you the kind
9 of damage it can be. I am glad to learn this
10 now.
11 MR. BEVERE: Judge, it was
12 testified to.
13 MR. MULLIN: I'll go with that.
14 MR. BEVERE: It was testified to
15 in depositions.
16 MR. MULLIN: I stand corrected.
17 Then I stand corrected on that.
18 JUDGE CURRAN: Okay. I am going
19 to move away from that to the proposed
20 precharge. I want to give you all a little time
21 to get lunch or whatever before the jury comes
22 in.
23 Mr. Mullin, have you had the
24 opportunity to review --
25 MR. MULLIN: I have, Your Honor.
67
1 JUDGE CURRAN: -- the submission?
2 MR. MULLIN: Let me just talk
3 about -- criticism about the process. This
4 thing is handed to me at 5/06 p.m. yesterday on
5 the eve of me getting ready for my opening
6 argument. I object to that. I don't know why
7 counsel sat with this in their bag during the
8 whole time we were here -- we were here for
9 hours -- other than -- other than to put me at a
10 disadvantage. I do object to that.
11 Secondly, I object to any
12 precharge of this nature. This -- this is a
13 statement of the law that should be worked out
14 in a charge conference on the record after
15 careful examination of all the relevant
16 precedents. It has nothing about the concept of
17 acquiescence, ratification, condonation, which
18 appeared in your Honor's summary judgment, which
19 eases my burden somewhat in showing official
20 Town policy or practice. It doesn't deal with
21 the body of law that has to do with what kind of
22 evidence can prove policies is an official Town
23 policy, as opposed to actual Town ordinance, all
24 the different kinds of circumstantial evidence
25 that can be used. It doesn't talk about the
68
1 kinds of acts and omissions that constitute a
2 Town policy. And doesn't say anything about
3 damages, I might add also.
4 So this last minute attempt to
5 lay out a summary of the entire body of the law,
6 really, of 42 U.S.C. 1983 without any citation
7 to any Federal case and, more pertinently, any
8 citation to any case remotely dealing with what
9 this case is being brought under, New Jersey
10 Constitution, it just has no -- it's not
11 appropriate to rush in and do this at this time.
12 Now, having said that, under the
13 standard that's been imposed we know that we'll
14 be dealing with the concept of color of State
15 law. We know we'll be dealing with deliberate
16 indifference. We know we will be dealing with
17 the issue of high-level policy-making officials
18 and the issue of whether something is an
19 official Town policy, custom or procedure.
20 I won't have any objection if
21 defense counsel mentions these terms, you know,
22 in their -- in their opening -- and I -- I
23 assume there won't be an objection if I also
24 mention these terms -- with the idea suggesting
25 to the jury or the judge will define these terms
69
1 later on, the way we often do in a case where
2 law is intertwined with facts.
3 But I would object to this. It's
4 a very one-sided undocumented statement. It
5 doesn't have any precedent citations.
6 JUDGE CURRAN: Mr. Paris.
7 MR. PARIS: Yes, if I may, Your
8 Honor. Essentially what we're trying to do is
9 we're trying to just make sure that the jurors
10 are aware that -- and it relates back to
11 question number 39. It relates back to all the
12 questioning that went on at sidebar.
13 And I think that before the case
14 starts, because of the number of jurors who came
15 with a preconceived notion that a municipality
16 is responsible for every -- for everything that
17 their employees, volunteers or officials do, I
18 think at the beginning of the case it's
19 important that they understand that under New
20 Jersey law a Town is not responsible for
21 everything that they do. And that's what we're
22 trying to set forth.
23 And that's -- and that -- the
24 necessity of that became clear when we were
25 talking at sidebar. The soliloquy between or
70
1 the dialogue between counsel and jurors, can you
2 follow a judge's instruction, doesn't replace
3 the necessity to overcome that preconception.
4 And now is the time, when the jurors say, "Yes,
5 I'll follow your instructions." The
6 instruction, frankly, can be as simple as,
7 "Please understand that a municipality is" --
8 "under the law is not responsible for everything
9 that an employee, volunteer or official does.
10 I'll give you" -- "you are going to hear facts.
11 I'll give you the law later. I will get into
12 more detail."
13 But just because it was an
14 important issue, nor -- it was an important
15 issue during voir dire, I think it's important
16 now that the jury understand that there is a
17 requirement that it be proven that the Town is
18 responsible or this wasn't an issue, such as
19 virtually every juror -- and I'm talking about
20 the entire pool, not just the jurors who are
21 seated. I don't think there was a single juror
22 that came up and said gays are not entitled to
23 the same Constitutional rights as straights.
24 Everyone came with that notion that
25 Constitutional rights should be equal. Everyone
71
1 came with the notion -- very few exceptions --
2 that the use of certain words are objectionable,
3 as though essentially the Town should be
4 responsible for the use of words by firemen.
5 But at the same time, there was a
6 huge number of people, in fact, at one -- when
7 we began the voir dire process, after we looked
8 at the questionnaires, it was our application to
9 excuse anyone who came with that notion because
10 that was just as prejudicial to the Town.
11 However, that was denied.
12 But I think at this point in time
13 the jury has to know that that is a legal
14 question because a Town is not responsible for
15 everything, that there are circumstances when
16 they are and there are circumstances when they
17 aren't and we'll give you the full charge at the
18 end of the case. So I -- that's -- that's -- if
19 we're going to minimalize it and overcome all of
20 the -- these objections that Mr. Mullin has, I
21 think at a minimum the jury needs to know that
22 in order to overcome what we saw here during
23 jury selection.
24 JUDGE CURRAN: Mr. Mullin.
25 MR. MULLIN: It's nothing to be
72
1 overcome during jury selection. Jury selection
2 was a time when Your Honor allowed us
3 considerable discretion to deal with this issue
4 of -- of jurors' views of when is a Town
5 responsible or not. And what I said -- and the
6 record will show it -- is, "Judge" -- "Can you
7 listen to the judge when she gives the
8 instructions at the end of the case?" And that
9 was a reasonable thing to say. And sometimes
10 defense counsel said the same reasonable thing.
11 There is no special problem that
12 took place during jury selection now has to be
13 overcome through this rather unique,
14 undocumented precharge. We should have a trial,
15 and then we should have a charge conference.
16 And we should show you our authorities, and then
17 you should charge the jury. And that's the way
18 it normally goes.
19 I don't think there are any
20 exceptional circumstances here for a precharge,
21 especially one that doesn't cite to any
22 authority whatsoever for its propositions and
23 one given to me at the last minute on eve of --
24 of an opening argument, when I have to focus all
25 my concentration on this opening argument and
73
1 these in limines. I wasn't about to get on-line
2 and start to do a -- you know, the 10, 15 hours
3 of research necessary to give Your Honor.
4 A careful and well documented
5 jury charge. But I can tell just by looking at
6 this that that document does not include the
7 standard that Your Honor used in the -- in the
8 summary judgment opinion. You cited to a case
9 whose name I can never pronounce. It begins
10 with B.
11 JUDGE CURRAN: I can't pronounce
12 it either.
13 MR. MULLIN: Bilowitz or something
14 like that.
15 JUDGE CURRAN: Right.
16 MR. MULLIN: Which had that very
17 important standard about acquiescence, about
18 condonation, ratification, that concept so
19 important to this case. Not just actions but
20 also omissions of high-level officials become
21 important pieces of evidence in deliberate
22 indifference. This is a mis-precharge, making
23 it a mischarge.
24 I ask we follow all the normal
25 process that we do in all charges, charge at the
74
1 end of the trial.
2 Again, I would like the
3 opportunity to try to get you to charge the LAD
4 standard. I would like that opportunity. If I
5 persuade you, this might not even be the
6 standard. It is the standard we have to operate
7 under. That's your ruling, and we will. But,
8 Your Honor, I think it would be premature to
9 give this charge and unfair because it's
10 one-sided, doesn't cite precedent.
11 JUDGE CURRAN: Thank you.
12 Mr. Paris, just give me a moment.
13 MR. PARIS: Sure.
14 JUDGE CURRAN: Go off the record
15 for a moment.
16 (Whereupon, a discussion is held
17 off the record.)
18 JUDGE CURRAN: Anything that we
19 haven't discussed otherwise?
20 MR. PARIS: No, other than the
21 fact that precharge is not all that unusual.
22 There are times when jury receives a precharge.
23 And this happens to be -- even Mr. Mullin at
24 sidebar during voir dire said this is very
25 complex. I am not trying to get into the
75
1 overall law of the case. I just think it's
2 important that they understand as they begin
3 that there are times a Town is responsible and
4 times that the Town isn't responsible. If this
5 goes too far in that regard, so be it. But at
6 least the jury needs to know that at the outset
7 of the case.
8 JUDGE CURRAN: Miss Castelli, if
9 you would just check. Thank you. Back on the
10 record.
11 COURT CLERK: We are on the
12 record.
13 JUDGE CURRAN: Based on the
14 record, based on -- I make the following
15 findings. I am not going to read the proposed
16 precharge. You're quite right, Mr. Paris,
17 precharges are not that unusual. But usually,
18 as I indicated yesterday, the precharges are
19 very short, things like, "We want to tell you
20 people a corporation is considered a person
21 under the law," that kind of thing that would
22 not be controversial or would not be objected
23 to. Not always but usually those are the kinds
24 of precharges that I tend to see and to give.
25 My concern here is that your
76
1 concern -- and I understand it -- is with
2 question 39. I was concerned with the arguments
3 that you made. Even though I found against your
4 request, I was concerned about that. That is
5 why I went to pains to ask -- I'd say virtually
6 every time because we all make mistakes or
7 whatever. But virtually every time. It was my
8 intention, certainly, to every time we went
9 through that jury questionnaire, when we got to
10 that question, I looked at you and asked you if
11 you had a question.
12 I did that because I wanted you
13 to be able, you know -- and none of us here is
14 unsophisticated. You and Mr. Mullin, Miss
15 Smith, Mr. Bevere are all very good at couching
16 the questions in the language you prefer. But I
17 gave you first shot virtually every time --
18 sometimes you took it -- on 39 -- sometimes you
19 didn't. But I find that we had an extensive
20 amount of discussion on question 39.
21 I find that to the best of my
22 recollection and my judgment, everybody who is
23 sitting on that jury now understands that issue
24 after they went through the questioning. And
25 just to be openly fair, I just went through the
77
1 original questionnaires of these jurors because
2 we don't have a challenge argument here or
3 whatever. Of the ten jurors in the box now, the
4 initial question was answered no by six and yes
5 by four. So not even the majority -- not that
6 that should be definitive -- of the jurors in
7 the box now answered the question yes.
8 I have, obviously, no concern
9 about your addressing the question because that
10 is your responsibility in regard to your client;
11 but I am not going to give the charge.
12 And again, I would just ask that
13 you be circumspect and just add, not for me
14 personally, but just add at the end of the case,
15 you know, you will be given the law because,
16 frankly, as I see this going, this case going,
17 if I'm still alive after the charge conference,
18 you know, whatever we have to tell the jury
19 should be fairly decent by way of what the law
20 is. So you certainly may address it, but I will
21 deny your request.
22 Anything else?
23 MR. MULLIN: Judge, there is one
24 other minor matter.
25 JUDGE CURRAN: Thank you, Miss
78
1 Hawks.
2 MR. MULLIN: I think that we asked
3 you to prime the jury that there may be some bad
4 language used and shouldn't require to do it --
5 because it has to do with the case, hopefully
6 won't take any offense at lawyers or witnesses.
7 The other thing is I don't know
8 that counsel intended to raise this in his
9 opening; but I just want to deal with it, I
10 guess a 403 issue.
11 When Peter deVries was on the
12 porch right after the incident, he was crying,
13 he was upset and said something like, you know,
14 "If this was" -- "If I was a minority, this
15 place would be surrounded by police cars."
16 That's a racially inflammatory statement that
17 has no relevance to the case. Mr. deVries is
18 not going to testify about it. And I hope that
19 is not referred to at any time during the trial.
20 MR. PARIS: Your Honor, this
21 absolutely goes to his state of mind right from
22 the outset. He felt that the police weren't
23 responding appropriately right at the outset,
24 before they did anything. That absolutely goes
25 to his state of mind. Right on the porch he
79
1 didn't think that the police response was
2 appropriate, not even knowing how they would
3 respond. It's absolutely appropriate.
4 MR. MULLIN: Well, if he expressed
5 some displeasure with how the police were
6 responding, of course, he had reason to express
7 some displeasure. The -- that's one thing.
8 But the fact that he is comparing
9 it to how he imagined they would respond to
10 minorities, that's designed to inflame the jury;
11 and that's why -- it's really -- it's -- the
12 whole thing is of no relevance. Maybe that
13 fragment is of tangential relevance. Why is it
14 relevant even that -- that Peter deVries
15 imagined that the cops weren't responding with
16 enough force? That's -- that's barely an issue
17 in the case, what Peter deVries thought at that
18 moment. The racial comment is what they want to
19 get in, and that's what they should be barred
20 from getting in.
21 MR. PARIS: This is an admission
22 of a party. It's not the racial comment as much
23 as it's the fact right from the outset he didn't
24 know what the police were going to do, he didn't
25 know what the police response would be but right
80
1 at the outset -- and that's what the thrust of
2 the case is about -- that they're unhappy and
3 dissatisfied with the way the police responded.
4 They were unhappy and dissatisfied the moment
5 the police showed up, before they knew anything
6 about what the police were going to do; and
7 that's an important part of our case. He made
8 the comment, and now somehow they want to make
9 believe that it never happened. Go through his
10 deposition, he makes a lot of comments like
11 that. I don't mean racial comments, but he
12 makes various other comments.
13 MR. MULLIN: He makes no other
14 racial comments at all throughout.
15 MR. PARIS: He makes ethnic
16 comments, these people are like this, these
17 people are like that, at various times. But
18 that's not the point. That's not the point.
19 And, frankly, those comments probably we won't
20 even use. But for him to comment that he is
21 unhappy with the police response that moment,
22 that's absolutely essential to the case. He has
23 already commenting about -- about how the police
24 aren't responding appropriately, how they -- you
25 know, they would have had more people, they
81
1 should have had more people, if this were some
2 other type of situation.
3 You know, this whole issue, the
4 whole issue of this case, which is being lost
5 here, frankly, Your Honor, is the fact that the
6 plaintiff is required to some -- to prove that
7 the actions of the municipality were done in a
8 manner that was different because Mr. deVries
9 and Mr. Carter are homosexuals. Okay. That's
10 what the Constitutional issue is here, that
11 they're a member of a protected class. The
12 problem is there is no proof in this case that
13 somehow they would have been treated differently
14 if they weren't homosexuals. And that's -- and
15 again, Your Honor, I would say this is the equal
16 protection argument. Equal protection. That's
17 what they're entitled to. And yet what are you
18 comparing it to?
19 When you talk about racial
20 profiling, you're comparing the fact that
21 minorities are stopped at a greater percentage
22 based upon their population as compared to
23 non-minorities. Well, where is the proof here
24 that somehow they were treated differently
25 because of their homosexuality? And here, from
82
1 moment one, they already had this notion, this
2 notion that somehow the Town wasn't responding
3 properly. Now, why can't the Town use that in
4 its defense?
5 MR. MULLIN: I would answer that
6 question, say because it's completely
7 irrelevant. The issue of deliberate
8 indifference is, by an objective standard, was
9 the Town deliberately indifferent? What Peter
10 deVries thought one way or the other is not
11 going to prove this case. What he thought one
12 way or the other is not relevant to whether the
13 Town was under the legal standard deliberately
14 indifferent. So the answer to that question
15 is it's just not relevant. I -- I think that
16 this -- this injection of race into the case is
17 designed to inflame this jury.
18 And let me also go back to
19 this -- this topic that was raised as though
20 there was another motion on the table. Once
21 again Mr. Paris goes back to summary judgment
22 issues. When somebody is yelling at you, "I'm
23 going to kill you, you faggot," that's called
24 "direct evidence." I don't have to prove in a
25 direct evidence discrimination case that that
83
1 guy didn't go around yelling, "I'm going to kill
2 you, you faggot" to heterosexuals. That's
3 nonsense. In fact, that's preposterous. I
4 don't have to prove that. When you have direct
5 evidence of discrimination, you don't have to
6 use equal protection differential treatment
7 proofs. There is a huge, vast body of law on
8 that.
9 But, once again, Mr. Paris is
10 talking about something that has nothing to do
11 with the issue before the Court. The issue
12 before the Court is narrow in limine motion.
13 These defendants want to inject an inflammatory
14 race issue in this case.
15 Mr. deVries sat on the porch in a
16 state of extreme emotional upset. If this was
17 an attack on minorities, the words -- I'm
18 paraphrasing. This was an attack on minorities,
19 the place would be surrounded by police cars or
20 words to that effect. He was expressing upset
21 and displeasure. His home had just been
22 attacked. He was out of his mind with fear,
23 terror and horror. He was sobbing when he said
24 this. He wasn't expressing a measured opinion
25 about the evidence in this case, the objective
84
1 evidence.
2 To inject that issue, the
3 comparison to minorities, the claim that he is
4 not being treated as well as minorities might
5 have been treated, will inject a whole other
6 issue in this case and will inflame the jury,
7 perhaps the minority jury. So it has no
8 relevance to the case.
9 But even if it has marginal
10 relevance, under the relevance rule, under Rule
11 403 on balance, it poses a grave danger of
12 prejudice. I think it was the Green case in the
13 Supreme Court of New Jersey that dealt with the
14 enormous potency of racial references in a jury
15 trial. And -- and in that case the Court said
16 these racial references shouldn't have been
17 allowed.
18 This is not a race discrimination
19 case. Race has tremendous power to prejudice
20 and inflame. While Defense would like to play
21 minorities on the jury against the gays, that's
22 not what a trial should be about. There is no
23 basis for allowing this statement in. My client
24 is not going to testify about it. There is no
25 basis for allowing the racial component, his
85
1 statement on the porch, in. It will inflame the
2 jury.
3 Thank you, Your Honor.
4 JUDGE CURRAN: This is what I'm
5 going to do, Mr. Paris, because otherwise we
6 will argue the whole case all over again. I
7 apologize for interrupting you.
8 I find that the statement is
9 relevant, as the Town has pointed out, in regard
10 to the state of mind of Mr. deVries in that
11 Mr. deVries' state of mind is part of the damage
12 issue here.
13 I am going to ask, if you are
14 going to bring this up on cross, Mr. Paris, if
15 you feel that you can do so within the bounds of
16 what court rules would allow, if you could
17 rephrase that so that you don't even say the
18 word "minorities." Perhaps something like, "Did
19 you feel because you were a gay man that the
20 response of the police was not correct" or
21 something of that nature because my concern is
22 even if you use the word "minorities," that --
23 certainly, that is a -- an inflammatory and,
24 believe the plaintiff is arguing, overly
25 prejudicial phrase.
86
1 MR. PARIS: But, Your Honor, if I
2 rephrase that, I think I need to rephrase it --
3 if you want me to take out the word -- I think
4 the word he used was "blacks" or
5 "African-Americans." It was a reference to --
6 to a racial minority.
7 JUDGE CURRAN: May I suggest this?
8 Why don't you think about it --
9 MR. PARIS: Fine.
10 JUDGE CURRAN: -- and see -- I
11 want you to be comfortable. I'm asking you if
12 you can --
13 MR. PARIS: I will.
14 JUDGE CURRAN: -- rephrase it
15 because I -- I do think there is certainly that
16 potential. At this point I don't believe that
17 is unduly prejudicial, if the -- if the quote
18 can be rephrased, if you will.
19 MR. PARIS: I will work on that.
20 Before we cross-examine Mr. deVries we will talk
21 about it again.
22 JUDGE CURRAN: Sure.
23 MR. MULLIN: I will assume, Your
24 Honor, they are not going to mention in opening.
25 JUDGE CURRAN: Absolutely not. I
87
1 don't think that was at all intended.
2 Anything else?
3 MR. PARIS: I just --
4 MR. MULLIN: Judge, one other
5 thing. We don't necessarily have to resolve it
6 today. Maybe they agree with us. But I would
7 ask that the defendants' witnesses not be in
8 uniform when they testify.
9 JUDGE CURRAN: Now, truly, you
10 thought they were going to agree with you on
11 that one, Mr. Mullin? You said that with a
12 straight face.
13 MR. MULLIN: I had a straight
14 face. Hope springs eternal, Your Honor.
15 MR. PARIS: Frankly, if they were
16 going to make this and the prior motion in
17 limine, I would have liked to have notice of
18 that, as well, especially on the racial comment.
19 But you know, to bar a policeman
20 from coming into court in uniform, if he is a
21 uniformed police officer, that's preposterous.
22 JUDGE CURRAN: Anybody wants to
23 argue that in any further detail, we can do
24 that. We don't need to do that in opening --
25 before openings.
88
1 MR. BEVERE: Judge, and just so
2 the Court is aware, there will be police
3 officers here at 12:30. They may be in uniform.
4 MR. PARIS: We are not going to
5 strip them down between now and 12:30, Your
6 Honor.
7 JUDGE CURRAN: Not witnesses?
8 MR. PARIS: There are no witnesses
9 today.
10 MR. BEVERE: They are going to be
11 witnesses in the case.
12 MR. MULLIN: I am going to move
13 for sequestration.
14 JUDGE CURRAN: I was just going to
15 say that. My concern is there will be, I'm
16 guessing, sequestration requests maybe on both
17 sides. So if there are going to be officers
18 here who are going to testify, I need to know
19 that. And the court clerk is responsible for
20 making sure that I'm aware of everybody in the
21 courtroom. I -- A, I like to do that, anyway.
22 MR. BEVERE: I don't know who is
23 coming, Judge. And when they got here, I would
24 advise Your Honor.
25 JUDGE CURRAN: If you all can talk
89
1 among yourselves because you know what these
2 individuals look like, I don't. So if there are
3 any witnesses, then I will hear sequestration
4 motion. I am not deciding it now, but I'm
5 certainly anticipating it.
6 MR. PARIS: I would --
7 JUDGE CURRAN: If you are talking
8 about individuals who are members of the Police
9 or Fire Department who are here to observe,
10 separate issue.
11 MR. MULLIN: I'm worried about the
12 issue of intimidation of the jury.
13 JUDGE CURRAN: I got that. I got
14 that.
15 MR. MULLIN: I am very concerned
16 about that today during openings they could come
17 in here and show of force.
18 JUDGE CURRAN: He will decide that
19 the --
20 MR. PARIS: We are talking about
21 opening statements. If -- people who are going
22 to be witnesses or people going to assist us in
23 defense of the Town, will you sequester them for
24 opening statements? That's not even testimony.
25 JUDGE CURRAN: I don't know. I
90
1 don't have a request yet. I don't know what
2 the -- what the arguments will be. But
3 certainly in regard to witnesses, that's at
4 least a fair argument. In regard to individuals
5 who are assisting you on behalf of the Town and
6 they're not witnesses, separate argument.
7 MR. MULLIN: We make that argument
8 on the eve of when we see who's here, Judge?
9 JUDGE CURRAN: Yes, because I
10 don't know who's going to be here.
11 MR. MULLIN: Judge, by the way,
12 this is Lynn Centonze, former chief of police of
13 Fairfield. I know you like to know who is in
14 your courtroom.
15 JUDGE CURRAN: Thank you very
16 much.
17 MR. MULLIN: So I will introduce
18 you.
19 JUDGE CURRAN: Thank you.
20 COURT CLERK: Off the record.
21 JUDGE CURRAN: Thank you. Off the
22 record.
23 (Whereupon, a luncheon recess is
24 taken.)
25 A F T E R N O O N S E S S I O N
91
1 COURT CLERK: All rise.
2 JUDGE CURRAN: Thank you. Please
3 be seated.
4 Ladies and Gentlemen, if I might
5 have you at sidebar, please.
6 (Whereupon, the following sidebar
7 discussion is held.)
8 JUDGE CURRAN: I just wanted to
9 talk with you in regard to the photographers.
10 The Star Ledger photographers are here, and they
11 want to know where they can set up. What I
12 think would be helpful is if we bring them up to
13 sidebar and see what their request is. I don't
14 know what request you might have other than,
15 obviously, they can't photograph the jurors.
16 Mr. Bevere.
17 MR. BEVERE: Want to let you know
18 that, while we're here, witnesses are present.
19 You want to do it on the record, or do you want
20 to do it here? I mean, we're on the record.
21 JUDGE CURRAN: Okay. I have to
22 tell you, Mr. Bevere, I appreciate your being
23 very circumspect; but I have trouble hearing you
24 sometimes --
25 MR. BEVERE: Oh.
92
1 JUDGE CURRAN: -- when you're
2 speaking so low.
3 MR. BEVERE: No one has ever
4 accused me of being soft spoken, I have to tell
5 you, Judge.
6 JUDGE CURRAN: Okay. So if you
7 could tell me.
8 MR. BEVERE: I could tell you who.
9 Starting with the end --
10 JUDGE CURRAN: White?
11 MR. BEVERE: -- that is Police
12 Chief Dennis Corcoran.
13 JUDGE CURRAN: Chief?
14 MR. BEVERE: Chief, Police Chief
15 Dennis Corcoran. The individual next to him is
16 Detective Captain John Buckley.
17 JUDGE CURRAN: Just give me his
18 last name.
19 MR. BEVERE: B-u-c-k-l-e-y.
20 JUDGE CURRAN: Thank you.
21 MR. BEVERE: The man next to
22 him --
23 JUDGE CURRAN: Excuse me. Thank
24 you very much. Thank you. Okay. They have got
25 a list, okay, good.
93
1 MR. BEVERE: The person next to
2 him --
3 JUDGE CURRAN: Corcoran, Buckley,
4 okay.
5 MR. BEVERE: Person next to him is
6 Detective Captain Reinke, R-e-i-n-k-e.
7 JUDGE CURRAN: Thank you.
8 MR. BEVERE: Person next to him is
9 Detective Captain Thomas Malanka, M-a-l-a-n-k-a.
10 JUDGE CURRAN: Okay.
11 MR. BEVERE: Person next to him is
12 Patrol Officer Robert Ulrich. And then on the
13 end of the row, kind of sitting separately from
14 them is Secaucus Police Lieutenant Glenn Amodeo.
15 My understanding is that David
16 Drumeler, the individual, I'm sorry, sitting
17 behind us at counsel table, snuck in; I didn't
18 see him.
19 JUDGE CURRAN: Do me favor. Don't
20 point at them because it will make them nervous.
21 David Drum?
22 MR. MULLIN: Who is that?
23 MR. BEVERE: David Drumeler. He
24 is the Secaucus Town administrator.
25 JUDGE CURRAN: How does he spell
94
1 his last name? Never could get it the other
2 day.
3 MR. BEVERE: D-r-u-m-m-l-e-r -- or
4 e-l-e-r. Drumeler.
5 And the person next to him is the
6 Mayor of Secaucus, Dennis Elwell, E-l-w-e-l-l.
7 And that's all I have, Judge.
8 JUDGE CURRAN: I hope person
9 doesn't know him by sight, but that's a good
10 reason not to sit in the county where you live.
11 Okay. Are there going to be
12 sequestration motions.
13 MR. PARIS: We will seek
14 sequestration, Your Honor; but hopefully without
15 waiving it I will allow -- I will not object to
16 these gentlemen sitting here during the
17 openings, as long as it's understood I am not
18 waiving my request for sequestration.
19 JUDGE CURRAN: As long as it's
20 understood you are not waiving it, there is no
21 objection?
22 MR. PARIS: That's correct.
23 MR. BEVERE: That's understood,
24 Judge.
25 JUDGE CURRAN: I appreciate that.
95
1 Anything else before we bring up the
2 photographers?
3 MR. BEVERE: No.
4 MR. MULLIN: The reporter now?
5 JUDGE CURRAN: Yeah.
6 MR. MULLIN: Okay.
7 JUDGE CURRAN: If the individual
8 from The Star Ledger would please come up to
9 sidebar.
10 MR. PARIS: Hi. How are you?
11 JUDGE CURRAN: Good afternoon,
12 sir.
13 MR. BEN-ALI: Good afternoon.
14 JUDGE CURRAN: If you would be
15 kind enough to give me your name.
16 MR. BEN-ALI: Sure, sorry. Card
17 be okay?
18 JUDGE CURRAN: Sure. Excuse my
19 left hand. Thank you. Russell Ben-Ali; is that
20 correct?
21 MR. BEN-ALI: Yes.
22 JUDGE CURRAN: And you're the
23 writer?
24 MR. BEN-ALI: Yeah, this is me.
25 Ya Song, the photographer.
96
1 JUDGE CURRAN: Okay. And you
2 spell your last name S-o-n-g, correct?
3 MS. SONG: Yes.
4 JUDGE CURRAN: I am going to give
5 this -- excuse my left hand. I am going to give
6 back your copy of Judge Gallipoli's, you know,
7 agreement that pictures can be taken. You had
8 asked where to set up, but the attorneys were
9 out of the room and I indicated I wanted to talk
10 with them. Can you tell me what you're
11 requesting? Are you going to be here all
12 afternoon? Do you just want to take some
13 pictures? What's your request.
14 MS. SONG: It won't take long.
15 Probably it's like -- I'm shooting probably --
16 how long?
17 MR. BEN-ALI: I don't know. Do
18 you anticipate --
19 JUDGE CURRAN: Let me tell you
20 what's going to happen; that might help. What
21 we're going to do this afternoon are opening
22 arguments. So the plaintiff will open, and then
23 the defense will open. There will be no
24 witnesses this afternoon.
25 MR. BEN-ALI: Do you anticipate
97
1 both sides will open --
2 JUDGE CURRAN: Yes, sir.
3 MR. BEN-ALI: -- in the afternoon?
4 JUDGE CURRAN: They both will.
5 MR. BEN-ALI: May want to stay for
6 most of the afternoon, then.
7 JUDGE CURRAN: I'm not -- all I
8 really want to do is know where you would be.
9 You can see what the courtroom looks like. The
10 attorneys will be facing the jury. As you know,
11 you cannot take pictures of the jurors.
12 MS. SONG: Right, right.
13 JUDGE CURRAN: So if counsel
14 doesn't object, if you want -- see where the
15 gentleman is standing up there right now? If
16 you want to be over in that area, so that you
17 could take a picture of the attorneys facing the
18 jury, would any attorney have any objection to
19 that?
20 MR. MULLIN: No.
21 MR. BEVERE: No.
22 MR. PARIS: There will be no
23 flash, I assume?
24 MS. SONG: No flash.
25 JUDGE CURRAN: The two attorneys
98
1 will be first, Mr. Mullin and then Mr. Bevere.
2 MR. BEVERE: Thank you, Judge.
3 JUDGE CURRAN: These two gentlemen
4 right here.
5 MR. MULLIN: Thank you.
6 JUDGE CURRAN: I don't have any
7 objection if you move around a bit, as long as,
8 number one, you don't photograph the jurors and,
9 number two, you don't interfere with whoever is
10 speaking.
11 I will tell you, you know, I'm
12 Hudson County judge who never wants my picture
13 taken. So if you don't take my picture, nothing
14 you do will disturb me; I have no problems
15 whatsoever. But I would ask you to be courteous
16 to counsel. I am sure you will be.
17 MS. SONG: Okay. Thank you. I
18 appreciate it.
19 JUDGE CURRAN: Anything else?
20 MS. SMITH: Judge, I want a filter
21 to get rid of any of the wrinkles, if there are
22 any pictures of me, please.
23 MR. MULLIN: Please take 20 pounds
24 off me.
25 MR. BEN-ALI: Keep me out of the
99
1 shot.
2 JUDGE CURRAN: Thank you very
3 much. Thank you.
4 (Whereupon, sidebar discussion is
5 concluded.)
6 JUDGE CURRAN: Thank you. We will
7 bring out the jury. Thank you.
8 MS. HAWKS: Jurors are
9 approaching.
10 JUDGE CURRAN: Thank you.
11 COURT CLERK: On the record.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, the jury is brought
14 into the courtroom.)
15 JUDGE CURRAN: You may be seated.
16 Thank you, Ladies and Gentlemen. Please be
17 seated.
18 Other than counsel -- if counsel
19 will please be kind enough to put your
20 appearances on the record again for the jury.
21 On behalf of the plaintiffs.
22 MR. MULLIN: Good afternoon,
23 everybody. Neil Mullin and Nancy Erika Smith
24 for the plaintiffs.
25 JUDGE CURRAN: Thank you.
100
1 MR. BEVERE: Good afternoon,
2 Ladies and Gentlemen. I am Daniel Bevere, this
3 is David Paris on behalf of Town of Secaucus.
4 JUDGE CURRAN: Thank you.
5 Good afternoon, Ladies and
6 Gentlemen. We appreciate your being back here
7 so promptly. I am going to talk with you just
8 very briefly. As you know, this is the matter
9 of Peter deVries and Timothy Carter versus the
10 Town of Secaucus, Docket Number 3520 of the 2004
11 term.
12 I'm going to give to you now what
13 we call the model opening jury charge. And what
14 that means is that if you were listening to this
15 case north of us, up in Bergen County or south
16 of us, down in Burlington County, in some cases
17 you would hear the judge say the exact same
18 words that I'm going to say to you. I'm going
19 to read certain portions of this opening charge
20 to you, but before I do that let me talk about a
21 few other things.
22 First of all, I want to thank
23 you. I am sure the attorneys will thank you
24 too. You have been through a very long, very
25 difficult voir dire process. We appreciate your
101
1 patience, and we appreciate your honesty. And I
2 believe that all of you understand, because of
3 that situation and because of the questioning,
4 how important it is that the jurors be fair and
5 impartial. And we believe that you are because
6 you have told us that you will be. That is very
7 important for a number of reasons. And I'm
8 going to go through some of those with you.
9 First of all, though, let me ask
10 you a question. Is there anybody on the jury
11 now who wants to take a shot at telling me how
12 many judges there are in this case? Is
13 everybody nervous? Usually at least one person
14 will raise a hand. No? Nobody? Okay. I'm
15 going to call on somebody, just like they used
16 to do in school. Juror Number One, how many
17 judges do you think there are.
18 JUROR NUMBER 1: Eleven.
19 JUDGE CURRAN: Eleven, that's very
20 good. Okay, you get an A.
21 There are basically two kinds of
22 judges in this case. I am the judge of the law.
23 It is my responsibility to, as we go through the
24 case, explain the law to you, first of all, at
25 the beginning and then again at the end.
102
1 Also, on an individual daily
2 basis as we go through the trial you will see me
3 make some determinations. An attorney will say
4 something. I will sustain the objection or
5 overrule it right there and then, no question
6 about it. Sometimes, because these attorneys
7 are all very professional, we will go to sidebar
8 because they know that it's an issue that should
9 not be discussed in front of the jury until
10 there is a determination. And if it's a long
11 argument that has to be given, such as when you
12 were excused yesterday, we will excuse you
13 because we do try to be very respectful of your
14 time.
15 To the best of my ability I am
16 making these determinations based on the law as
17 I understand the law. I do not have a feeling
18 as to which side should receive the jury --
19 jury's verdict in this case. But even if you
20 felt that I did, even if you felt that you could
21 figure out what I had by way of an intention, it
22 would not be proper for you to consider that.
23 And the reason for that is that the deliberating
24 jurors are also jurors -- judges in the exact
25 same way as I am. You are the judges of the
103
1 facts. You are the sole judges of the facts. I
2 don't decide what the facts in this case are.
3 The attorneys don't decide what the facts in
4 this case are. The deliberating jurors decide
5 what the facts in this case are. And therefore,
6 it is very important that you listen very
7 carefully to all of the evidence in this case.
8 It is very important that you
9 make careful evaluations and determinations in
10 regard to the evidence in this case. And I
11 would go through at the end of the case all of
12 the evidence in the case. But basically, you
13 will need to decide in this case whether the
14 witness is a layperson or whether the witness is
15 an expert. You will need to decide on that
16 witness' credibility. In regard to a fact
17 witness or a layperson, you may decide to
18 believe all of what the witness says, some of
19 what the witness says or nothing at all of what
20 the witness says. That is your determination.
21 And in order to do that, there were certain
22 issues that you may want to consider.
23 You may want to consider, for
24 example, in judging the credibility of the
25 witnesses the witness' interest, if any, in the
104
1 outcome of the case, the witness' forthrightness
2 or lack of forthrightness, the witness' demeanor
3 on the stand, how the witness acts or reacts to
4 certain questions, the inherent reasonableness
5 of the testimony that the witness gives, any
6 contradictory statements or inconsistencies, if
7 you find they exist, in the testimony of the
8 witness. And then again, everything else that
9 is in Evidence is yours to consider as
10 deliberating jurors.
11 I will ask you to take that
12 responsibility very seriously, and I would also
13 ask you to keep an open mind. Because I will
14 indicate to you again -- you've already heard me
15 say it -- please don't discuss the case among
16 yourselves. Please don't discuss the case with
17 anyone else.
18 Also, it is not proper for you to
19 make up your mind until you are a deliberating
20 juror in that jury room with the evidence and
21 with the other deliberating jurors.
22 So we ask you to consider that
23 very carefully. As you know, I told you a
24 little about this case the other day. And I am
25 going to remind you by reading, again, for you
105
1 the contentions of the parties. And I've
2 already indicated to you that the burden of
3 proof is on any party to establish any claim
4 that party makes by a preponderance of the
5 credible evidence. In other words, if a party
6 makes an allegation, then that party must prove
7 the allegation.
8 In this case the plaintiffs
9 contend that this is a case involving the Civil
10 Rights of two gay men, the plaintiffs,
11 Mr. deVries and Mr. Carter, who claim they were
12 harassed and attacked by a group of Secaucus
13 firemen whose firehouse was next door to the
14 plaintiffs' rented home. Case will involve
15 testimony by the plaintiffs, Mr. Carter and
16 Mr. deVries and various others, including
17 Secaucus firemen, police, Town officials and
18 various expert witnesses, including psychiatric
19 doctors and an economist.
20 The Town, Town of Secaucus,
21 denies that it violated the plaintiffs'
22 Constitutional rights. It denies that the
23 Police Department or municipal officials
24 discriminated against the plaintiffs because of
25 their sexual orientation. The Town also denies
106
1 that it is legally responsible to the plaintiffs
2 for money damages for the alleged acts of
3 harassment complained of by the plaintiffs
4 because those acts were not committed by Town
5 employees or volunteers while performing their
6 duties for the Town.
7 You have heard me indicate -- I'm
8 going to repeat it -- that the standard in this
9 case is that the burden of proof must be proven
10 by a party making an allegation or contending an
11 issue by a preponderance of the credible
12 evidence. Term "preponderance of the evidence"
13 is that amount of evidence that causes you to
14 conclude that the allegation is probably true.
15 To prove an allegation by the preponderance of
16 the evidence a party must convince you that the
17 allegation is more likely true than not true.
18 In considering all of the
19 evidence you will be asked to consider both
20 direct and circumstantial evidence. Direct
21 evidence is direct proof of a fact, such as, for
22 instance, testimony of an eyewitness.
23 Circumstantial evidence, sometimes called an
24 "inference," consists of a chain of
25 circumstances pointing to the existence of
107
1 certain facts. Circumstantial evidence is based
2 upon deductions or logical conclusions that you
3 may reach from the direct evidence.
4 Doesn't that sound like it was
5 written by a lawyer? Let me just briefly
6 explain to you the difference between direct and
7 circumstantial evidence. If you went home
8 tonight and everything was as it is outside now,
9 dry, and you went to bed and if during the night
10 you were awakened by a -- a howling blizzard and
11 you looked out the window and that blizzard was
12 blowing in every direction, you would have
13 direct evidence that it had snowed during the
14 night. You would see it snowing during the
15 night.
16 If, on the other hand, you went
17 home, everything was dry outside, you went to
18 bed, didn't wake up until the morning; but if,
19 when you awakened in the morning, everything was
20 covered with snow, you would have circumstantial
21 evidence that it had snowed during the night.
22 You could reach the logical conclusion or
23 deduction or you could infer that it had snowed
24 during the night. It's the only difference
25 between direct and circumstantial evidence.
108
1 There is really nothing legalistic about it.
2 You make decisions every day in regard to direct
3 and circumstantial evidence. And that's what
4 we're asking you to do in this case during this
5 trial. Use your own good common sense in
6 evaluating both the direct and the
7 circumstantial evidence.
8 In regard to this case let me
9 just talk with you for a few minutes about
10 housekeeping issues. I already talked yesterday
11 about, please, once you come in that door back
12 there, turn off any electronic gadgets or
13 devices that you have. Do not turn those on in
14 the courtroom, and do not turn those on when you
15 are in the jury room. And I explained yesterday
16 our reasons for that. We are concerned that,
17 first of all, there should be no interruptions;
18 but also, we want to make sure that someone
19 doesn't text message a friend and get a message
20 that distracts you or text messages a friend to
21 ask a question about the trial because your
22 decisions as deliberating jurors must be based
23 solely on the evidence that you receive in this
24 courtroom, as well as the law as I will present
25 the law to you after conferring with the
109
1 attorneys at the end of the case. So, please,
2 no electronic gadgets.
3 Also, please do not talk about
4 the case among yourselves. Please do not talk
5 with anyone else about the case. If anyone does
6 talk with you about the case or ask a question,
7 please bring that to my attention as soon as you
8 possibly can.
9 Additionally, I'm going to remind
10 you, please do not do any research. If, for
11 some reason, you have to be in, for instance,
12 the Town of Secaucus, if you hear an address
13 during the trial or anything of that nature,
14 don't drive by that place, don't take a look at
15 what that facility looks like.
16 If there is a question that comes
17 up, maybe you didn't understand the word or
18 maybe you don't understand a concept or maybe
19 there is a difference of opinion on it, do not
20 do any research yourself. It is improper to do
21 so. So don't do any research on the internet or
22 anything like that.
23 I also will ask you for the
24 duration of this case not to read any stories
25 that you might see in a newspaper about the
110
1 case. Please don't listen to any radio or TV
2 stories, if they happen to come on the air,
3 about the case.
4 And also, I would ask you just to
5 be sure, if you see or come across anything of a
6 similar nature, please don't read that.
7 Certainly, you know, please don't talk with
8 anyone about that. Because, again, we want to
9 make sure that what you hear right here in this
10 witness box and then the exhibits are the only
11 evidence that is in your mind when you are a
12 deliberating juror.
13 At the -- as the case progresses
14 there will be a number of witnesses called by
15 the plaintiff and the defense. When the
16 witnesses are completely finished with their
17 testimony, when the party presenting them has
18 completed all the direct and redirect and the
19 opposing party has gone through all of the
20 cross-examination, maybe recross, we are going
21 to ask the jurors if you have any questions.
22 Starting tomorrow you will see on
23 the jury box pencils and note cards. If by any
24 chance I forget to ask you if you have any
25 questions, please do not hesitate to interrupt,
111
1 raise your hand and to indicate that you have a
2 question. We will ask you then to write your
3 question or questions down on the card.
4 I will take those cards over to
5 sidebar with counsel, and we will go over all of
6 the questions. If a question would not be
7 allowed under the rules for an attorney to ask,
8 then it's not a proper question and it cannot be
9 asked. But we don't expect you to know the
10 rules. If you have a question or questions, you
11 write them down, we will discuss them at
12 sidebar; and then we will come back and I will
13 read your questions without identifying the
14 jurors to the witness. The witness will then
15 answer the questions one by one.
16 After the first question I will
17 ask first the attorney presenting that witness
18 if that attorney has any follow-up. And then I
19 will give the other side the opportunity for
20 follow-up. And we will continue on those
21 questions until all of the follow-up questions
22 are completed. And then we'll move on to the
23 other jury questions, if there are some and if
24 it's appropriate to do so.
25 I will ask you -- and I will now
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1 and I will repeat later on, please consider the
2 questions and answers to the questions of jurors
3 the same way you consider all the other
4 evidence. Don't overemphasize them and don't
5 under -- under-emphasize them.
6 Okay. The last thing I'm going
7 to say is that we realize this is not the Taj
8 Mahal. I know it gets warm in here. We have
9 kind of two choices in this courtroom, too hot
10 or too cold. If -- because this is a long
11 trial, we are asking you, because of the trial,
12 not to take any notes.
13 And normally we would ask you not
14 to have anything in the jury box by way of
15 something to drink. But frankly, we're going to
16 break that rule a little bit. If you want to
17 bring a water bottle or something to drink and
18 you want to have it in the jury box, I believe
19 counsel, because we have talked it over, has no
20 objection; and therefore, I don't have any
21 objection.
22 I will also say to you that there
23 is an air conditioner to the left of Jurors
24 Number 1 and 6.
25 And I am going to ask the two of
113
1 you to keep an eye on it. If you feel that
2 the -- and your fellow jurors feel you want the
3 air conditioner on, fine. If you want it off,
4 that's fine too.
5 I am also going to ask Juror
6 Number 10, Mr. Mumford, if he would be -- nice
7 that you're tall. If you would be in charge of
8 the fan, Mr. Mumford. You can consult with the
9 jurors. If they feel that the fan is preventing
10 them from hearing properly or preventing them
11 from concentrating, if you'd be kind enough just
12 to pull the chain and turn it off, we'd
13 appreciate it. Same thing is true if you want
14 it to be turned on. You don't have to ask for
15 permission.
16 I will also indicate to you that
17 if there is any reason that you feel you need to
18 take a break -- I'm sure you will all be very
19 gracious to the professionals who are running
20 the trial; but if you feel that a break is
21 necessary, please raise your hand. And we'll do
22 our best to accommodate you.
23 The other thing is during the
24 testimony if there is a witness talking or if
25 there is a witness using an exhibit and you
114
1 can't see or you can't hear or you couldn't
2 understand, you know, what the person was
3 saying, not by way of the content but just
4 couldn't hear the words, please feel free to
5 raise your hand and let us know that.
6 To the best of our ability it's
7 our job to make sure that you can concentrate on
8 this case and that nothing interferes with that.
9 Anything going on in the courtroom that
10 interferes with your ability to concentrate,
11 please raise your hand and let us know that.
12 You are not being rude; you are not
13 interrupting.
14 Okay. Last, but certainly not
15 least, we're going to get to the opening
16 statements for today. You have heard me say
17 that I don't decide what the facts are and that
18 the attorneys do not decide what the facts are.
19 Also, I will tell you that what I say is not
20 evidence and what the attorneys say is not
21 evidence. But it is very important. Each
22 attorney for each party is going to give to you
23 now their opening case, their opening address to
24 the jury. They are going to explain the case
25 from the viewpoint of their clients. They are
115
1 advocates for their clients, so it is very
2 important that you concentrate on what they say,
3 even though it is not evidence. I am going to
4 ask you, therefore, to absolutely give your
5 attention first to the -- to counsel for the
6 plaintiff.
7 Before I do that let me just
8 explain to you things because some of you said
9 that you watch TV and watch some trial shows.
10 Sometimes in trial shows you see the attorneys
11 get up and one makes a very important point and
12 then the other one reflects that and then the
13 first one comes back with another argument.
14 Doesn't happen in New Jersey. In New Jersey
15 under the rules there are -- there is only one
16 opening statement for the plaintiffs. And under
17 the rules, the plaintiffs go first. And then
18 there is only one opening statement for the
19 defendants in this case. And those -- that
20 statement is second.
21 I will warn you, just by way of a
22 caveat, during maybe the summation, maybe the
23 introductory remarks, certainly during the
24 trial, there may be certain language -- I think,
25 honestly, there will be language used that is
116
1 very difficult, perhaps, for you to hear. It is
2 not polite language. It is not the kind of
3 language that you use or hear, I'm sure, in
4 everyday conversation; but I will ask that you
5 understand in regard to the plaintiffs and the
6 defendants, they will use only whatever language
7 is necessary in regard to the rules as they
8 apply to this case.
9 Would ask you please, then, to
10 give your very careful attention to the attorney
11 for the plaintiffs, Mr. Mullin.
12 Counsel.
13 MR. MULLIN: Thank you. Thank
14 you, Your Honor. Good afternoon, Ladies and
15 Gentlemen. It's been a long haul. Thank you
16 for your patience. It's been a long jury
17 selection.
18 You know this is a Civil Rights
19 case. What's more precious than our Civil
20 Rights? This is a Civil Rights case brought
21 under the State Constitution, the State of New
22 Jersey. And we can be proud of this document.
23 The Supreme Court of New Jersey has interpreted
24 our State Constitution to protect many, many
25 rights not protected under the Federal
117
1 Constitution.
2 Among those rights the Supreme
3 Court of New Jersey has found that gay people
4 have a right to be treated equally. Should be
5 proud of our State Constitution. Should be
6 proud of our State. What is more precious than
7 our right to be treated equally and our right
8 not to be discriminated against and our right to
9 live in peace and safety and not have that peace
10 and safety compromised because of who we are,
11 because of how we're born, what we are made of?
12 And you know, it's another great
13 aspect of this State, jurors are so carefully
14 selected. I like to say in this State we leave
15 prejudice at the courthouse door. We all have
16 biases and prejudices. But when you come into
17 this room, bias and prejudice is left out there
18 because if it isn't and I'm representing two gay
19 men, well, I lose now. I lose now in many cases
20 because what's the point of listening to the
21 evidence if there is bias and prejudice in the
22 jury box? But you have given us your oath and
23 your commitment that you will be unbiased in
24 hearing this evidence.
25 There is bias against gay men.
118
1 And you will hear evidence of the most awful
2 bias in this case.
3 My clients, I'm proud to
4 represent. That's Timothy Carter, here, Peter
5 deVries. They are gay men. They have had a
6 loving relationship, 22 years. They have lived
7 together as spouses, sleep together, they eat
8 together, they travel together. When Tim goes
9 up to Peter's family, Peter's nephews and nieces
10 call Tim "uncle." This means a lot to Tim.
11 This means a lot to Peter. Unfortunately, Tim's
12 family is not welcoming in the same way; and Tim
13 has suffered because of that. As you know, not
14 everyone accepts a gay son.
15 So they come as human beings,
16 imperfect with frailties. And you'll see
17 they're victimized in the most ugly way
18 possible.
19 Just because folks are
20 victimized, they're attacked, doesn't mean
21 they're going to be smooth witnesses like you
22 see on TV. Just because you're a victim doesn't
23 mean it's easy to tell your story.
24 Tim has suffered all his life
25 from ADD, attention deficit disorder. I'm sure
119
1 most of you are familiar with. Incredibly, he
2 has overcome this. He has compensated for it
3 and gotten an advanced degree in theology,
4 religion and has even preached at a major church
5 in Minneapolis, where he was living before he
6 moved here.
7 But he has ADD. You ask him a
8 question -- and you may see this here -- you may
9 see him wander. And the judge will bring him
10 in, and I'll bring him in. And he is going to
11 do his best to focus.
12 Peter is a very successful -- or
13 was a very successful managing editor in the
14 field of medical publishing. He had a great
15 career until the incidents in this case disabled
16 him psychologically. You may notice when Peter
17 is on the stand that sometimes he is looking at
18 you cross-eyed. Don't take it personally.
19 Peter was born with a birth defect, a lack of a
20 muscle in this eye.
21 And the other thing that will
22 make it hard for them to testify is because they
23 are damaged by the ugly events that occurred
24 that lie at the heart of this case.
25 You will hear member of Harvard
120
1 Medical faculty, expert witness come in, tell
2 you the damage they've suffered. Something so
3 ugly and horrible happened to them that they
4 suffer posttraumatic stress disorder, where the
5 horrible events keep looping around and looping
6 around and looping around and visiting them in
7 their dreams.
8 And I would say the last thing on
9 earth Peter deVries and Tim Carter want to do is
10 get up in a public room and talk about this
11 ugliness. And it will be hard.
12 So my clients were living in
13 Minneapolis when Peter got a good job in
14 Secaucus, lined a good job up in medical
15 publishing. So they figure, well, let's move to
16 Secaucus. And they did. They rented a house
17 owned by a family named the Hjelms, spelled
18 H-j-e-l-m-s. The Hjelms, Patricia Hjelm, the
19 mother, Pat Hjelm, the son. They rented this
20 house, Peter and Tim, from the Hjelms Family.
21 This house was right next door to
22 what Secaucus folks call the "North End
23 Firehouse." Had an engine company in it and a
24 rescue company in it. I believe there are five
25 firehouses in Secaucus. The other side will
121
1 correct me, if I'm wrong. And they're housed
2 by -- they're inhabited by and large by
3 volunteer firemen. But these firemen get a
4 stipend. They get some money according to how
5 many fires they respond to. And these firemen
6 are completely under the control, by the laws of
7 Secaucus, of the Fire Chief, the Town Council
8 and the Mayor; and even the Town Administrator
9 has some power over them.
10 Let's take a look at that house,
11 and let's take a look at that firehouse.
12 MR. BEVERE: Your Honor,
13 permission to observe? Thank you.
14 MR. MULLIN: Show you a document
15 that is marked P-163.
16 JUDGE CURRAN: I'm sorry, did you
17 say, "163"?
18 MR. MULLIN: 163, Your Honor.
19 This is one shot of the house.
20 This is a very small, modest house that they
21 rented on Schopmann Street, called "Schopmann"
22 in Secaucus. And this is their front porch you
23 see here. This is the firehouse parking lot.
24 And here you see the side door of
25 the firehouse. In here is a social quarters
122
1 where, for some reason, the Town of Secaucus
2 let's these firemen have parties with alcohol.
3 Sometimes the parties spill out onto the parking
4 lot.
5 You see my clients' windows, the
6 plaintiffs' windows face right out into this
7 lot. You see they're totally exposed to the
8 goings on in the parking lot, except for some
9 bushes.
10 This is my clients' house. This
11 is the North End Firehouse parking lot. This is
12 the side of the North End Firehouse. This is
13 all from the group of photographs called P-163.
14 Another photograph. Just shows a
15 different angle. There is the house. There is
16 the parking lot. There is the side of the
17 firehouse. But here it has photo of fence.
18 This becomes important later. See, there is a
19 fence here. And the fence separates the parking
20 lot of the Fire Department from a porch on the
21 back of my clients' house. So when I talk about
22 that, you will have a visual image of that.
23 Now, for some time after my
24 clients, Peter and Tim, moved in, they'd walk
25 down the street going about their life, two gay
123
1 men walking together, going to the store. And
2 they'd notice some hostility coming from these
3 firemen. These firemen wore distinct T-shirts,
4 shorts. These firemen had cars with firemen's
5 license plates on them. These men would glare
6 at them, stare at them, seem surly. Peter and
7 Tim, as gay men, well, they were used to that;
8 and they certainly were going to let that pass.
9 Around December 2001 the evidence
10 will show Tim wanted to make for better
11 relations with the firemen. Went across the
12 street and ordered 5 gallons of ice cream for
13 them. He noticed they were out in the parking
14 lot. This was at Christmastime 2001. They're
15 out in the parking lot selling Christmas trees
16 and he presumed, you know, for a good cause. So
17 he ordered 5 gallons of ice cream for them.
18 Came over, Tim did, and he spoke
19 to a gentleman who he later learned was fella
20 named Chuck Snyder, Sr., captain of the Fire
21 Department. Told him, "Hey, I'm going to get
22 you some ice cream." Conversation went okay.
23 And Tim said, "Look, I'm decorating my house. I
24 see you are trimming these trees. Can I have
25 some of those evergreen branches?"
124
1 "Okay, okay," he said.
2 Later that night Tim is out to
3 collect some of these branches. He is out in
4 the lot. He sees a car. He hears screeching
5 tires. Car comes racing up to him, headlights
6 blasting, right at him and stops so close to him
7 he has to jump out of the way of the headlight.
8 And the brakes squeal. Inside Peter hears the
9 squealing brakes. A man rolls down the window.
10 You will later learn that this man is Chuck
11 Snyder, Jr., fire captain, North End Firehouse,
12 son of Chuck Snyder, Sr.
13 "What the hell are you doing?"
14 "Well, I'm just gathering some
15 branches. You know, Mr. Snyder said I could."
16 Said, "What? You have no
17 business being here."
18 "Well, I live here."
19 "You don't live here. You rent
20 here."
21 First sign of hostility from
22 Chuck Snyder, Sr., a chance for my client to
23 hear what that voice sounds like.
24 And they drive away.
25 Some time goes by. Doorbell
125
1 keeps ringing. Tim and Peter check. Nobody is
2 there. Doorbell rings. Doorbell rings.
3 Doorbell rings. Peter, Tim checks. Nobody is
4 there.
5 Finally, Tim figures I'm not
6 going to go to the front door when it rings; I'm
7 going to run to the back, see if someone is
8 running around the sides of the house. He does.
9 What does he see? He sees this grown man, Chuck
10 Snyder, Sr., fire captain, running as fast as he
11 can to a bunch of firemen laughing.
12 All right. We have hostility.
13 Now we can add to that some stupidity. We have
14 some form of harassment going somewhere, but
15 where and why?
16 We're in January, February,
17 March 2004. Tim let's his dogs out the back,
18 the back porch, separated from the firehouse
19 parking lot by that fence I showed you. Starts
20 to notice there are used condoms there on the
21 porch. Wouldn't be easy to get it there by just
22 throwing it over the fence because there is a
23 roof overhanging. Someone wanted to get that to
24 the porch would have to go to the end of the
25 fence, aim it and throw it. He let's it go. He
126
1 is disgusted, but he let's it go.
2 It happens again. He is
3 disgusted and let's it go.
4 Now he sees firemen in cars with
5 firehouse plates on it having sex with some
6 women out there. He sees that when he looks out
7 his kitchen window from time to time.
8 This one night he sees a car out
9 there with a man and a woman in it. He needs to
10 let his dog out. He turns the light on to the
11 back porch, which would have been visible to the
12 people in the car. He goes out, lets the dog
13 out. He doesn't notice anything on the porch.
14 Brings the dog back in.
15 Other dog has to go out. Lets it
16 out. Now he comes out and there is a hot,
17 steaming wet condom. To get it there someone
18 would have had to almost be aiming for him and
19 knew he was there. The light came on, and he
20 heard his presence. It's right there where he
21 was standing.
22 This disgusts him. This is an
23 aggressive act. This is a crude, sexual
24 harassment. He decides to do something about
25 it. He has kept his silence. They're quiet
127
1 men. They just want to live in peace. He has
2 kept his silence, but this is too disgusting.
3 So he calls down to the Police
4 Chief. Calls down to City Hall. Can I speak to
5 the Police Chief?
6 "What do you want?"
7 "Well, it's private."
8 "No, what do you want?"
9 "Well, firemen are throwing
10 condoms on my back porch. I want to speak to
11 the chief."
12 "He is not here."
13 "Well, does he have an office?"
14 "No."
15 "I want to speak to someone about
16 this."
17 Finally they direct him to
18 someone at the Department of Public Works who
19 identifies himself as Chuck Snyder, Sr.
20 Chuck Snyder, Sr., "What do you
21 want?"
22 "Well, firemen are throwing
23 condoms on my back porch; and I want it to
24 stop."
25 Guy is rude, and you will hear
128
1 Tim testify about it. The guy is dismissive.
2 "I am the guy who lives next door
3 with the dogs."
4 "Yeah, your dogs are smelly."
5 Tim gives up. Forget it.
6 Now, unknown to Tim, his
7 complaint worked its way up to the Fire Chief,
8 himself, a man named Frank Walters. Frank
9 Walters never comes to Tim or Peter and says,
10 "Look, I'm going to investigate this. Tell me
11 what happened. How many times has it happened?
12 Let's try to find some of these condoms. Let's
13 do some search back here. Let me talk to my
14 firemen."
15 No, Frank Walters does a phony,
16 bogus, fake investigation. Here is what he
17 does. He claims that he heard that the condoms
18 were being thrown from the building -- I showed
19 you the firehouse building -- over to the porch.
20 He said, "Well, I had my deputy, Ciecuch, check
21 it out; and it was physically impossible."
22 Of course it's physically
23 impossible. That's never what my clients said.
24 That's a fake investigation. That's make
25 believe. This is the chief of the Fire
129
1 Department of Secaucus doing a phony, fake
2 investigation, just so he could say, well, that
3 wasn't physically possible. Doesn't write a
4 report on it. Never talks to my client and say,
5 "What happens?" Never asks to see the condoms.
6 My client had the license plates
7 of one of the cars that was there when they were
8 having sex when they threw these condoms over.
9 Turns out he got it right. Went back to a guy
10 named Kickey, who has a relative named Kickey in
11 the North End Firehouse. He never gets that.
12 You know, this is a problem.
13 You're the Fire Chief, and your firemen are
14 throwing condoms over at a house occupied by gay
15 men. That could be a problem. That's probably
16 something, unless you're going to show
17 deliberate indifference, ignore it. That could
18 be a train coming at someone. That could be a
19 serious problem building up.
20 Here is what he does also. Does
21 a phony investigation. There is a party coming
22 up. April 24th that fire company has been
23 approved at the highest levels on an approval
24 form to have a party that is going to involve a
25 whole lot of drinking. It's an official party.
130
1 It's a company function. It's a company night
2 out. It has to be approved by a captain and by
3 the chief, himself. And needs insurance
4 approval at the bottom.
5 Chief knows his fire company
6 party is coming up. He has just heard this
7 complaint about the condoms. There is going to
8 be a lot of drinking at -- off-site. They are
9 going to a place off-site, then they're going to
10 come back and they are going to be allowed to
11 serve booze at the firehouse. Going to be hours
12 and hours and hours of drinking.
13 Think the chief might say, "Hey,
14 look, before you guys go out, get drunk and come
15 back, we are going to get to the bottom of who
16 is throwing these condoms over here, who is
17 throwing this attitude toward these gay men
18 living next door. I don't want any trouble."
19 He doesn't do that. He goes to
20 that party. They have that party. The people
21 from that party get in a bus. They party for
22 hours, drink and drink and drinking. Open bar.
23 And they get into a big bus, and they come back
24 to the firehouse.
25 They get back to the firehouse
131
1 sometime shortly before 12 midnight on
2 April 24th, 2004. Tim Carter is coming home
3 from work. He turns the corner in his car and
4 sees the parking lot filled with 40, 50 firemen.
5 He knows; he has seen their faces. He goes
6 inside.
7 Peter deVries is upstairs
8 sleeping. Sleep is important to Peter deVries
9 because Peter deVries had just had heart
10 procedures. Peter deVries is frail and healing.
11 Tim is downstairs. And he hears this noise,
12 this party going on and on and on; but then the
13 noise takes on an odd quality. Starts having a
14 sexual sound. "Ooh, ooh," he hears these
15 firemen moaning and yelling near his house.
16 Goes on and on and on.
17 He figures, look, I am going to
18 wait for an hour. I am just going to live with
19 these people. I'm going to wait an hour. But
20 he is worried about it waking up his partner,
21 who is recovering.
22 So, finally, he can't take it
23 anymore. He goes out to the back porch. Turns
24 the light on. "Hello. Hello. Hello." Nobody
25 answers him. Through the slats he sees many,
132
1 many people milling around. He looks around the
2 end. He sees Chuck Snyder, Sr. is there, some
3 sort of blazer. He pulls back. He says, "Look,
4 would you please shut the hell up? It's 1:00 in
5 the morning."
6 Voices start. "You want us to
7 shut the hell up? You faggot asshole, you want
8 us to shut the hell up?" All of a sudden he
9 hears an incredible bang. Feels it in his body.
10 Shortly after that an eyewitness
11 completely unrelated to them, named Dee Bardini,
12 calls 911. "There is some kind of disturbance
13 going on on Paterson Plank Road off Schopmann
14 Drive. There is -- it sounded like gunshots or
15 something."
16 My client is terrified. Grabs
17 his dog, who had run out. Runs inside. What
18 happens next is a physical attack upon this
19 house. These men are attempting to climb over
20 the fence, and he sees their hands on top.
21 They're rocking it back and forth, and it sounds
22 like its going to snap. There is pounding on
23 the walls.
24 Let me read from the police
25 reports some of the language because it is so
133
1 offensive I think I need to read it. And
2 forgive me for this language.
3 "He heard voices yelling, 'Want
4 some cum, faggots? Want to lick the cum out of
5 our condoms? You want to suck our dicks? You
6 like our cum, faggots? We will kill you and
7 your faggot dogs. You want to report us,
8 faggot? Come out, faggots, we will kill you and
9 your dogs.' A man is running around the house,
10 pounding on it, yelling, 'Homo, homo, homo,
11 homo. We don't want your kind here. We've been
12 here long, and you get the fuck out of our Town.
13 Want to give them more of our condoms? Did you
14 like our dirty condoms? We don't want you here,
15 you village dick-lickers. Get out of our Town.
16 Show your faggot face, we will kill you. We
17 will kill you, faggots and your faggot dogs.'"
18 Now, reading it doesn't quite
19 capture it. They're in a house. It's dark.
20 Someone is racing around the house and pounding
21 on it. They've heard this enormous bang. There
22 is a large mob out there. Windows are rattling.
23 Walls are being hit. And this goes on, Tim will
24 testify, for 12 minutes.
25 Another caller calls in 911.
134
1 Language coming from that firehouse, she says,
2 is unbelievable. That's Patricia Hjelm.
3 People are calling 911.
4 Something is going crazy.
5 I could stop and say, "Can you
6 picture that for 12 minutes?" I would never
7 make you sit here for 12 minutes because it
8 would be way too long, but we can sit here for
9 30 seconds.
10 It went on 24 times longer than
11 that interval that they were in there feeling
12 that a mob was about to come into the house and
13 do what they say, "We're going to come in and
14 kill you."
15 At some point Peter is awoken.
16 He comes downstairs, groggy, confused. He hears
17 all the horrible things that are being said and
18 at first can't understand it, thinks maybe there
19 is some gang fight going on out there. Then he
20 realizes, "Tim, they're coming for us." He
21 tells him, "Get down on the floor," when he
22 hears the walls rattling, banging. "They might
23 shoot. There might be a rock coming through.
24 Get down on the floor."
25 They're terrified. They're
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1 paralyzed with fear. Grabbing the phone, Peter
2 drops the phone. Try to get through to 911.
3 Finally they do get through to 911. Peter calls
4 the 911 operator. We have that tape. And twice
5 he says, "You want to hear what they're saying?"
6 He has the cell phone. He could have held it
7 up, and they would have had it on their 911
8 reel. They have no interest in that. They have
9 no -- "We will have someone out there." They
10 send the police out.
11 Now, you know, a lot of this case
12 is going to be about the Fire Department and its
13 failure to protect these guys, my clients, their
14 failure to fire the guys that did this, their
15 failure to prevent this with a serious
16 investigation and the Town leaders, their
17 failure to take care of this problem, their
18 deliberate indifference.
19 The police, well, that's going to
20 be more of a mixed matter. I will say this for
21 the police. They came out there promptly when
22 they got the call, they did. But you'll see how
23 it's mixed.
24 Officer Ulrich responds, and he
25 is on the porch with my client. And my
136
1 clients -- the three men who were leading the
2 yelling, they're still out there. The
3 perpetrators are still out there. They're
4 yelling. My client is trying to see, to get a
5 look at them. Ulrich stands there and blocks my
6 client's view with his body.
7 And when my client tries to tell
8 Ulrich the details of these awful things that
9 were being said, Ulrich doesn't even get that
10 it's a bias crime. He goes, "Whoa, whoa, whoa.
11 I don't want to hear that kind of language." He
12 is not taking notes.
13 But to Ulrich's credit, Ulrich
14 goes down into the parking lot and identifies
15 the three men who were yelling. Chuck Snyder,
16 Sr., Chuck Snyder, Jr., Charles Mutschler, two
17 ex-captains and the current captain, Chuck,
18 Chuck Snyder, Jr. So there they are identified.
19 He even takes a note of what they said where
20 they admitted they were the ones yelling and
21 screaming. You'll see his report. You'll hear
22 his testimony. That was a good thing.
23 He arrests no one. No one gets
24 arrested. Where does Chuck Snyder, Jr. work?
25 Chuck Snyder, Jr., the fire captain, works as a
137
1 Police dispatcher also, the Secaucus Police
2 Department. There is no way they're going to
3 arrest Chuck Snyder, Jr., not for standing there
4 and acting like a drunk in the public, not for
5 disorderly conduct, not for yelling. No one is
6 getting arrested in Secaucus that night.
7 And a sergeant comes on the
8 scene, Sergeant Amodeo. Sergeant Amodeo, to his
9 credit, goes into the firehouse -- they're
10 having the party -- make sure that the names of
11 everyone there are taken down, to his credit.
12 Gets a big barrel that's filled with empty
13 liquor bottles to prove how they were drinking,
14 make sure that's taken into Evidence, to his
15 credit.
16 Charles Mutschler is now in the
17 firehouse. He charges at Amodeo. As Amodeo is
18 telling them to all go home, disburse, he comes
19 charging at him, has to be restrained. What
20 happens when a citizen charges at a cop? Not
21 firefighters. Not only does Sergeant Amodeo not
22 arrest Mutschler for attempting to assault him,
23 he doesn't write in his report that that
24 incident happened.
25 Chuck Snyder, Sr. is there. He
138
1 says to Amodeo, "Who are you going to believe,
2 those faggot cock-suckers or us?" Well, there's
3 some evidence that this is the guy that's using
4 this language. Does that end up in the report
5 of Sergeant Amodeo? Not the first time he
6 writes it. It's not there. It's important to
7 protect the firemen. And they do.
8 Two or three times Sergeant
9 Amodeo tells the crowd to disburse. And they,
10 all these firefighters, disobey that order.
11 What happens when a citizen disobeys a police
12 officer's order? They get arrested. Not that
13 day. Volunteer firemen of the North End, well,
14 they get a free pass. Nobody is arrested that
15 night. Nobody is ever arrested.
16 Next day there is a meeting, the
17 Mayor and some of these firemen. And at that
18 meeting Chuck Snyder says, "Who are you going to
19 believe, those faggot cock-suckers or us?" Says
20 that in front of the Mayor. No problem. Chuck
21 Snyder, Sr. doesn't get fired. No problem.
22 But they did one thing good. And
23 again, I am going to credit the Police
24 Department for this. That night Police
25 Department shut down the social wing of the
139
1 firehouse. They shut it down, said no more
2 parties this week, you're shut down. Good. And
3 during the next few days, while my clients were
4 living in a state of terror, they felt like
5 prisoners in their own house, scared to go out
6 and God forbid they should run into one of these
7 firemen, but at least there were no more
8 incidents that week.
9 What did these firefighters do
10 when their -- their party headquarters is shut
11 down? These firefighters write a letter -- this
12 is four days after the incident, April 29th,
13 2004 -- to Chief Walters.
14 "The alleged incident of 4/25
15 that is being investigated has yet to be proven,
16 and no charges have been filed."
17 Now, mind you, what's going on?
18 Charles Snyder, Sr. and Jr. and Charles
19 Mutschler are refusing to talk to the police.
20 They're refusing to talk to them and help with
21 the investigation. And now they're saying, hey,
22 you haven't proved anything.
23 What are all these other firemen
24 doing? They're talking to the police, but what
25 are they saying? We didn't see anything. We
140
1 didn't hear anything.
2 Wait a minute. Dee Bardini heard
3 a gunshot. Patricia Hjelm, a couple houses
4 down, heard unspeakable language screamed.
5 You're right there.
6 We didn't hear anything. We
7 didn't see anything.
8 Snyder is not talking. Snyder,
9 Sr. is not talking. Snyder, Jr. is not talking.
10 Mutschler is not talking.
11 Now, they say, hey, you haven't
12 proved anything. Our company quarters have been
13 closed for five days. They feel this is unjust.
14 "We, the members of Rescue 1 and Engine 2,
15 hereby resign our membership, unless you reopen
16 our firehouse by Sunday, May 2nd."
17 The unbelievable arrogance of
18 these firemen. Here they all sign it. Charles
19 T. Snyder, Captain. Matthew Kickey. Chris
20 Snyder. Charles Mutschler. Charles F. Snyder.
21 What does the Fire Chief do?
22 What does the Town do? Here is a golden
23 opportunity, isn't it? They should have fired
24 these guys for not cooperating with the
25 investigation.
141
1 Again, the Police Department, to
2 its credit, to its credit, fired Chuck Snyder,
3 Jr. from his dispatch role, saying you didn't
4 cooperate with our investigation and it's clear
5 you were at the scene of this incident. To
6 their credit, they showed the Fire Department
7 what could have and should have been done.
8 Not Frank Walters, Chief. So
9 what if they're not cooperating with the
10 investigation? He has the power to fire them.
11 The Town Council and the Mayor have the power to
12 fire them. They don't fire them. And now
13 they're being told, hey, you don't reopen our
14 party quarters, we're going to quit.
15 And what should Frank Walters
16 have done then? "Here is your hat. What's your
17 hurry? Yeah, go ahead and resign. You're a
18 bunch of thugs. You're a mob. You're lying to
19 the cops. Yes, thank you, good-bye."
20 No. The highest levels of Town
21 government, showing deliberate indifference to
22 the rights of two gay men, did something
23 despicable. This is April 30th, 2004, five days
24 after the incident, one day after the firemen's
25 letter. He is writing to Chief Walters. He is
142
1 describing himself as the Town's Equal
2 Employment Opportunity officer. He says in that
3 capacity he is required to review the incident
4 which took place on the 25th.
5 "Please be advised, as the EEO
6 officer, I can't comment on the ongoing police
7 investigation. However, my initial review does
8 not preclude, from a municipal compliance
9 position of the Town, full use of this house
10 without any restrictions."
11 Copy to the Mayor Elwell; members
12 of the Council; Frank Leanza, Town attorney;
13 Police Chief Corcoran. All these Town leaders
14 are aware of this. All these Town leaders
15 approve of this. They are about to reopen the
16 social wing of this firehouse and let this mob
17 back in, back in right next door to where my
18 clients are living in terror, showing deliberate
19 and callus disregard for the rights of these
20 human beings.
21 What happens next? Well, it's
22 inevitable. Don't have to be a rocket
23 scientist. What happens next? What happens the
24 day after it opens, May 1st? My clients call in
25 down to the Mayor in a message that we have and
143
1 we'll play for you, saying "Somebody is running
2 around saying, 'The homos are home. The homos
3 are home.'"
4 Now, the firemen have a new
5 thing. They park their cars with the nose
6 facing into my clients' windows at night,
7 shining the light for hours. They drive by and
8 say, "Faggot. Hey, fag."
9 Finally, one day my clients look
10 out their window; and right across the street
11 from the firehouse they have just seen two cars,
12 one of which they recognize as having come from
13 the firehouse parking lot. Someone has sprayed,
14 sprayed in big letters, "El Homo."
15 Police investigate. Chief
16 Corcoran, who has done some good things, is
17 reported in the police report to have said
18 that's not a bias incident. It's not treated as
19 a bias incident. The evidence isn't preserved;
20 it's washed away. There is no further
21 investigation.
22 My clients are sickened by all
23 this. And it goes on and on. And they're
24 desperately trying to find a place to move.
25 Finally, after a bunch of months, sometime in
144
1 November they move to Jersey City. Goes on and
2 on. And you know, even without "El Homo" and
3 the lights and the screaming, just the fact that
4 these firemen who attacked them and attacked
5 their home is scaring the hell out of these men,
6 who were already fragile in many ways. And it
7 breaks them down, and it cracks them up. And it
8 brings home to roost all the ghosts and fears
9 that a gay man has.
10 In other words, manifested in
11 crying jags or Tim not being able to sleep for
12 literally days on end, weight gain, weight loss,
13 horrible nightmares, Peter noticing that Tim to
14 this day is always checking out the window, see
15 if someone is coming, Peter paralyzed by
16 depression, unable to get out of bed, can't get
17 out of bed, loses his job, loses his career.
18 They seek treatment. They seek
19 medical treatment. They want to get up. They
20 want to get on their feet. They are here today.
21 They take medication. When you have a pot on
22 your head and someone bangs on it with hatred
23 for 12 minutes and then months follow where you
24 are being attacked and attacked and attacked and
25 the Fire Chief can't seem to do anything to
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1 protect you, well, you know, it takes a toll.
2 Did the Fire Chief even
3 investigate this incident after it happened?
4 Forget what the police are doing on their side
5 of the fence. You'll hear us -- you'll hear --
6 I will put the chief on the stand, but you will
7 hear us read his sworn testimony.
8 Chief, can you tell me everything
9 you did to investigate the incidents which took
10 place during the early morning hours of April
11 25th, 2004?
12 "I had a very informal
13 conversation with Captain Chuck Snyder and
14 Lieutenant Johnson."
15 "Chuck Snyder, Sr. or Jr.?"
16 He says, "Junior."
17 "Did you talk to Chuck Snyder,
18 Sr.?"
19 "No".
20 "When you spoke with Chuck
21 Snyder, Jr., what did he tell you?"
22 "Basically, as I already said, it
23 was just a general shouting match."
24 "He admits he was yelling in the
25 parking lot during the early morning hours of
146
1 April 25th, 2004?"
2 "Yes, I believe he was one of the
3 yellers."
4 Did he indicate who else was
5 yelling in the parking lot that morning?
6 "No."
7 "Did you ask him?"
8 "No."
9 "Did you ask him whether he said
10 anything gay or homophobic?"
11 "No."
12 Referring to his talk with
13 Richard Johnson, "Chief, was he able to identify
14 anyone who was standing in the parking lot
15 yelling?"
16 "I didn't ask him specifically
17 who was there."
18 Did you ask either one of these
19 individuals anything about what happened that
20 night?
21 "No."
22 "Not a single thing?"
23 "No, other than I said an
24 informal question of what took place."
25 "Was there ever any kind of
147
1 internal administrative investigation done
2 within the Fire Department?"
3 "We were waiting until the police
4 investigation was completed. And to my
5 knowledge, it still hadn't been completed
6 because we were never notified by them of the
7 ends of its completion."
8 "So the correct answer is no?"
9 "Correct."
10 "Did the Police Department ever
11 tell you not to do your own investigation until
12 after the police investigation was complete?"
13 "No."
14 Waiting until the police
15 investigation ended to do an investigation, but
16 the Police Department never told them to wait.
17 He talks to these people, and he doesn't ask
18 them who was there and what was said. That's as
19 phony as his investigation into the condoms.
20 That's the chief of police, the policy-maker,
21 high-level official showing deliberate
22 indifference.
23 Excuse me, if I misspoke. Fire,
24 Fire Chief, pardon me.
25 And why, aside from just common
148
1 decency? One of the reasons he never did
2 anything -- and I won't read you this
3 transcript, but you will hear me read it during
4 the trial -- this Fire Chief was never trained.
5 Here we are in the 21st century, this guy was
6 never trained. The volunteer Fire Department
7 was never trained before this incident about
8 discrimination, harassment. No training.
9 What will the Town say? I don't
10 know exactly what my friend Mr. Bevere is going
11 to say. And he is a good lawyer. One thing
12 they're going to say or have to say at some
13 point in the trial is they're going to have to
14 refer to the law in the case. The law -- one of
15 the aspects is, well, was what these guys were
16 doing under what's called "color of State law"
17 or "color of law"? They'll say, perhaps, "Hey,
18 why should the Town be responsible? This was
19 just a bunch of firemen off on a fling after
20 hours." The judge will give you the law on
21 this.
22 One aspect you're going to look
23 at is was it under color of law? This was an
24 official Town-sponsored party, authorized in
25 writing by the highest levels of the Town.
149
1 The attack on my clients took
2 place on Town property, Town -- the firehouse
3 parking lot and spilled out from the firehouse
4 building, itself.
5 The men who led the attack,
6 Mutschler and the two Snyders, were the leaders
7 of the mob because of the power and authority
8 vested in them as captains by the Town of
9 Secaucus. This is not some incident that
10 happened in a party, say, up in the Bronx, bunch
11 of Secaucus firemen go up to the Bronx, have a
12 party, do something stupid.
13 And when Sergeant Amodeo went
14 into the firehouse and told Snyder to get out,
15 here is something Snyder insisted. Snyder
16 insisted, "Hey, I'm on-duty here. I'm on-call."
17 So if somebody comes here and says to you that
18 these men were off-duty, I promise you, I will
19 produce the testimony of Sergeant Amodeo under
20 oath saying that Snyder insisted to him that he
21 was on-duty. These actions happened while
22 on-duty under color of State law.
23 You may hear reference to our
24 obligation to prove that what these firemen did
25 flowed somehow from the high-level Town policies
150
1 and practices. And of course, it did. If the
2 chief of the Fire Department had done what he
3 ought to have done about those condoms, he
4 probably would have fired a bunch of the guys
5 that ended up leading this mob. Any reasonable
6 employer would have done that; but he did a
7 phony, sham investigation designed to cover it
8 up. He didn't want to get to the bottom of it.
9 Then he let this party happen, in the face of
10 condoms being thrown on a neighbor's property.
11 So, yeah, when a high-level
12 policy-making official acts, that is a Town
13 policy. Town policies don't have to be written.
14 And when the high -- when the Fire Chief chose
15 not to fire these firemen, when they were
16 refusing to cooperate with the cops and he left
17 them in place, when they allowed the firehouse
18 to reopen, that was Town policy from -- from the
19 top.
20 You may hear the Town say, look,
21 the police, in the course of doing some good
22 work, ultimately brought in the State to
23 investigate this bias crime. And they did. And
24 you know, they brought them in. And when they
25 did, to the credit of the Police Department,
151
1 they kept in touch with the State Police. If
2 another incident happened, they would forward a
3 report up there.
4 But here is the thing. So they
5 would say, well, how could -- how could we have
6 taken any action against these guys because the
7 State had? We have to pay attention to detail
8 here. The incident happened on April 25th,
9 2004. The State did not take over until May
10 10th or 11th, 2004. That's 15 days.
11 During those 15 days the police
12 were wise enough to fire Chuck Snyder, Jr.
13 Okay. During -- they had the right to do it
14 because the State hadn't taken over yet. It was
15 in Secaucus' hands still. But did the Fire
16 Department fire anyone for having participated
17 in this mob, for refusing to cooperate, for
18 threatening to resign? They fired no one during
19 that period.
20 Then the State took over the
21 investigation. They took it over from, as I
22 say, May 10th, '04 until they finished it up on
23 July '05. And of course, they're working under
24 criminal justice standards, can we prove the
25 identity of these guys beyond a reasonable
152
1 doubt, which is not your standard here. Here
2 it's a lower standard. Is it more likely than
3 not that these men did this?
4 Well, what did the police have to
5 work with, the State Police? They had the file
6 of Secaucus, and also they did their own
7 investigation. What did they face? A blue wall
8 of silence, right? Just look at the State
9 Police -- look at the police reports. None of
10 these firemen saw anything. None of them heard
11 anything. Mutschler and the Snyders, they ain't
12 talking.
13 Of course, by July 10th, 2005 the
14 State writes and say, look, we haven't developed
15 sufficient evidence to identify these men; but
16 anything else arises, let us know. So then it
17 was back in Secaucus' hands.
18 From July of 2005 to the present,
19 three years, Secaucus has had this case. Have
20 they fired any of these firemen? No. Have they
21 brought charges against any of these firemen?
22 No.
23 Tell you what they did. Number
24 one of the ring leaders, one of the mob leaders
25 was Chuck Snyder, Jr. He is identified as such
153
1 in several places, including Officer Patrolman
2 Ulrich's report. He is there on the scene,
3 caught red-handed.
4 At the end of 2006 Secaucus Town
5 Council and Mayor took Chuck Snyder, Jr. and
6 promoted him to one of the highest positions in
7 the Fire Department. They made him battalion
8 chief. That puts him automatically in line to
9 become the full chief of an entire Fire
10 Department. That's the Town Council and the
11 Mayor saying, "You're fine. You led a mob of
12 drunken, homophobic thugs to attack people; and
13 you drove them out of their home. We say you're
14 fine. Some day you can be our chief."
15 Ladies and Gentlemen of the Jury,
16 I will have to show you that high-level Town
17 officials acted with deliberate indifference of
18 the Civil Rights of my clients. I will prove
19 everything I have told you. And the evidence
20 will be overwhelming. Secaucus should be
21 ashamed of itself that it violated the Civil
22 Rights of two quiet and honorable gay men.
23 Thank you.
24 JUDGE CURRAN: Thank you.
25 Mr. Bevere.
154
1 MR. BEVERE: Thank you, Your
2 Honor. Ladies and Gentlemen, before I start I
3 want to make one thing clear. If what happened
4 in the parking lot that morning is what the
5 plaintiffs say, then it was terrible, it was
6 hateful, it was bigoted, it was inexcusable.
7 And if you think that Mr. Paris and I are here
8 to defend that conduct, we are not. That is not
9 what this case is about because if that's what
10 this case was about, the plaintiffs would be
11 suing the people who they say did -- did these
12 things. But they haven't sued them. They have
13 not brought them before you to judge them or to
14 hold them accountable for their actions.
15 We are here, Mr. Paris and I, to
16 defend the Town of Secaucus because the
17 plaintiffs want the Town of Secaucus to be
18 responsible for what happened in the parking lot
19 that morning. And they want the Town of
20 Secaucus to pay them money for it.
21 Well, the Town of Secaucus is not
22 responsible for what happened in the parking lot
23 that morning, and the Town of Secaucus should
24 not be paying them money. A Town is not
25 responsible for every act that is committed by
155
1 an employee or a volunteer simply because they
2 happen to work for the Town. And that's
3 particularly true when that act occurs on the
4 employee's own time, like after a party on a
5 Saturday night.
6 The Town of Secaucus is
7 responsible for the Town of Secaucus' action.
8 And as the evidence in this case will show, the
9 Town of Secaucus did not violate Mr. deVries or
10 Mr. Carter's Civil Rights.
11 Now, Ladies and Gentlemen, trials
12 are about facts and evidence. Mr. Mullin's job
13 in his opening statement was to get your
14 attention right away, to make you feel sympathy
15 for his clients and contempt for the Town of
16 Secaucus. But that doesn't make one word of
17 what he said in this opening statement fact.
18 Facts come from the evidence in the case. And
19 the evidence in the case comes from the
20 testimony of the witnesses you see on the stand,
21 from the documents and the photographs and the
22 other hard evidence that is put in in this case
23 from either side.
24 Again, the plaintiffs have told
25 you what they would like you to believe the
156
1 facts will be. But it is your job, your job to
2 determine the facts based solely upon the
3 evidence that you hear coming from this witness
4 stand.
5 Now, Ladies and Gentlemen, when
6 you hear the testimony of the witnesses in this
7 case, when you see the documents and the other
8 physical evidence, there will be certain truths,
9 certain facts that will be inescapable.
10 First, that no act of harassment
11 was ever committed by a Secaucus employee or a
12 volunteer firefighter for the purpose of
13 carrying out their job or while performing their
14 job for the Town. And that's vital. That's a
15 vital aspect of this case.
16 Second, that it was certainly
17 not -- well, first of all, that the Town of
18 Secaucus did not condone, did not authorize, did
19 not sanction any act of harassment. The Town of
20 Secaucus in no way assisted in its commission;
21 and it certainly was not the municipal custom,
22 practice or policy of the Town of Secaucus to
23 allow its employees to engage in acts of
24 harassment, bias or otherwise against any
25 citizen.
157
1 And third, the Town of Secaucus
2 did not discriminate against the plaintiffs.
3 Now, Ladies and Gentlemen, there
4 are certain facts, other facts that the evidence
5 will show. That for two-and-a-half years that
6 Mr. deVries and Mr. Carter lived next to this
7 firehouse prior to April 25th, 2004, no one from
8 that firehouse made any derogatory remark or
9 comment to them at all, let alone a derogatory
10 remark or comment based upon their sexuality.
11 There is absolutely no evidence of any antigay
12 or bias comments coming out of any fireman's
13 mouth to them prior to that night.
14 Now, with regard to this
15 complaint about the condom, Mr. Carter made a
16 phone call to the Town to complain that one
17 morning he got up and he found a condom in his
18 yard. He believed that the condom had come
19 there from the Fire Department parking lot.
20 Now, Mr. Carter at the time -- even Mr. Carter
21 didn't consider the finding of that condom to be
22 an act of antigay harassment. And he certainly
23 didn't think that it was serious enough to file
24 a police report or even call the police.
25 The complaint made its way to the
158
1 deputy chief of the Fire Department. He will
2 testify for you in this trial. He will tell you
3 from his mouth how he dealt with the complaint
4 and how he believed that he had resolved it and
5 that he was comfortable and confident in that
6 belief because, guess what, there was not one
7 report of a condom being thrown thereafter.
8 Now, I want to talk about the
9 night or the morning of April 25th, 2004. The
10 evidence will show that the firemen were not
11 working that night. They were having a party.
12 That party had been started at a restaurant in
13 Cliffside Park. The Town did not organize the
14 party. The Town did not pay for the party.
15 This was their party. This was their private
16 party.
17 What happened in the parking lot
18 that morning happened as firefighters and their
19 dates were walking from the vehicles they had
20 gone to the restaurant in and back into the
21 firehouse to continue their party. Not working,
22 having a party, a party for which they had to
23 get written permission to use the firehouse that
24 night. They had to get written permission the
25 same as any private citizen in Secaucus would
159
1 have to get if they wanted to use the firehouse
2 for a wedding or a christening or a birthday
3 party.
4 What happened in the parking lot
5 that morning, Ladies and Gentlemen, was not an
6 organized or planned mob attack, as the
7 plaintiff said. What happened in the parking
8 lot that morning was a spontaneous reaction of a
9 person or persons very badly behaved and most
10 likely drunk to Mr. Carter's question that they
11 keep the noise level down.
12 Now, the police -- and I credit
13 Mr. Mullin for acknowledging this -- responded
14 immediately upon receipt of the 911 calls. Not
15 one but two officers were dispatched to the
16 scene, plus a supervisor. Whatever had been
17 going on in the parking lot was no longer going
18 on when the police officers arrived, so they
19 personally did not witness any such conduct.
20 Didn't personally witness any acts of bias,
21 harassment, which is vital when you judge the
22 police officers' conduct in this matter.
23 Now, upon arrival at the scene
24 the police officers went to Mr. deVries and
25 Mr. Carter's home to get information about the
160
1 complaint and to make sure that they didn't need
2 medical attention, which they didn't. No person
3 had been physically injured. No property was
4 damaged. There had been no physical contact
5 between anyone in the parking lot and
6 Mr. deVries or Mr. Carter.
7 The plaintiffs were asked if they
8 could identify anyone involved, and they said
9 no.
10 Now, the responding -- and they
11 certainly, Ladies and Gentlemen, Mr. deVries and
12 Mr. Carter certainly didn't report that a gun
13 had been fired or that they had heard a gunshot.
14 The responding supervisor,
15 Lieutenant Amodeo, he spent a significant time
16 with Mr. deVries and Mr. Carter in their home by
17 all accounts, between a half-an-hour and an
18 hour, getting information from them about their
19 complaint and trying to make them feel
20 comfortable.
21 Now, Sergeant Amodeo prepared a
22 detailed report reciting all of the language and
23 all of the behavior that Mr. deVries and
24 Mr. Carter said occurred that night. Now, is
25 this an officer who is trying to cover up?
161
1 The initial responding officer,
2 Officer Ulrich, he puts the names of the three
3 individuals that he saw in the parking lot in
4 his report. Now, does that sound like an
5 officer who is trying to -- to cover something
6 up and make sure that somebody doesn't get in
7 any kind of trouble?
8 Now, when Sergeant Amodeo left
9 the plaintiffs' home to go to the firehouse, he
10 gave the plaintiffs his cell phone number, his
11 personal cell phone number. He said, "If you
12 have any problems, any issues, give me a call on
13 the cell phone. It will be on all night long."
14 And guess what, they took him up on it. They
15 called him on that cell phone later on in the
16 night just to talk about what had happened.
17 Now, Sergeant Amodeo and the
18 responding officers went to the firehouse. They
19 got the names and addresses of every person in
20 that firehouse, so that the Detective Bureau,
21 the department of the Secaucus Police Department
22 with the most experience in investigating
23 crimes, could do their job.
24 But most importantly, the reason
25 that lieutenant -- then sergeant, now Lieutenant
162
1 Amodeo got everyone's names and cleared that
2 house was because he knew that the plaintiffs
3 were uncomfortable. He wanted to remove any
4 potential source of friction between people in
5 that firehouse that night and the plaintiffs.
6 So even though the people using the firehouse
7 that night had had a written permit, as any
8 private citizen would have, to stay there and
9 have a party, Sergeant Amodeo said, "I don't
10 care. You're all getting out, and you're going
11 home. I don't want to hear anything about it."
12 And was there some resistance
13 initially from people who had been drinking to
14 leaving the firehouse? Yeah, there was some
15 resistance at that. But did everybody go?
16 Everybody went. Even Mr. Snyder, who said, "Oh,
17 I can't go, I'm on-duty" after he had been
18 drinking. Well, he certainly wasn't on-duty.
19 And I can tell you category clear here, no one
20 in that firehouse was on-duty that night. They
21 were at a party.
22 Now, Ladies and Gentlemen -- oh,
23 another vital and important fact. Just to make
24 sure, just to make sure that nothing else would
25 happen that night, do you know what Lieutenant
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1 Amodeo did? He posted a guard. He posted a
2 guard outside the plaintiffs' house in the
3 parking lot. Posted a guard so that they would
4 be protected from any potential further incident
5 of harassment, comment, whatever. He made sure
6 they were protected.
7 Does this sound like a man who
8 was deliberately indifferent? Does this sound
9 like a man who didn't care about Mr. deVries and
10 Carter? Does this sound like a man who was
11 biased or prejudiced against gay people? He did
12 everything in his power that night to make sure
13 they were comfortable and that they were
14 protected.
15 Now, Ladies and Gentlemen -- oh,
16 another thing Lieutenant Amodeo did was he put
17 the plaintiffs' house on what's called "priority
18 check," which meant that every hour a zone
19 officer was supposed to drive by and make sure
20 that the plaintiffs' house was okay, that there
21 was nothing going on. And guess what; the very
22 next morning -- the very next morning the Chief
23 of Police of Secaucus issued a memo to its
24 officers renewing that priority check. And the
25 plaintiffs' house stayed on priority check for
164
1 the rest of the time that they were living in
2 Secaucus.
3 Does this sound like a man who
4 was deliberately indifferent to the rights of
5 Mr. deVries and Mr. Carter? Does this sound
6 like a man who wanted them to get hurt, who
7 wanted to drive them out of the community?
8 Absolutely not, Ladies and Gentlemen.
9 Now, the evidence will also show
10 that on the very morning of the incident, Sunday
11 morning, a meeting was held at Town Hall. The
12 purpose -- the Mayor was there. The deputy
13 Mayor was there. A Police Chief was there. The
14 three fire chiefs were there. Chief, deputy
15 chief, battalion chief, they were all there.
16 And the officers of Engine 2 were there.
17 And the purpose of the meeting,
18 the purpose of the meeting was to inform the
19 members of Engine 2 that whatever had happened
20 in the parking lot that night -- there had been
21 a report, a complaint by Mr. deVries and
22 Mr. Carter -- it was going to be investigated as
23 a bias crime and that the Hudson County
24 Prosecutor's Office was going to be notified and
25 their involvement in the investigation was going
165
1 to be requested.
2 Now, does that sound like a group
3 of people that were deliberately indifferent,
4 that were biased or prejudiced or wanted to have
5 harm come to Mr. deVries and Mr. Carter? Ladies
6 and Gentlemen, absolutely not.
7 After that meeting was over the
8 Mayor, the Police Chief and the Fire Chief went
9 to Mr. deVries and Carter's home for the purpose
10 of telling them that the Town was taking the
11 matter seriously, that it was going to be the
12 subject of a criminal investigation; and
13 Mr. deVries and Mr. Carter refused to speak to
14 them.
15 That very morning before they
16 knew anything that the police were doing or
17 anything the Town was going to do, they refused
18 to speak to the Town officials that went there
19 to try to tell them that, yes, this matter is
20 going to be investigated as a criminal act. And
21 we are even going to seek the intervention of a
22 higher authority to get to the bottom of this.
23 Now, Ladies and Gentlemen, the
24 Secaucus Detective Bureau, this is the
25 department, the agency within Secaucus within
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1 the entire Town of Secaucus who is best suited
2 to conducting criminal investigations. And
3 guess what; they launched a criminal
4 investigation into this matter. They
5 interviewed every single person at that
6 firehouse who agreed to speak to them.
7 They don't interview -- they
8 couldn't make people give statements who didn't
9 want to speak to them. That's the law. If
10 someone says, "I don't want to speak to the
11 police," there is nothing the police can do
12 about that. However, they certainly interviewed
13 everybody who agreed to speak to them.
14 They interviewed people who
15 weren't at the firehouse that night. They
16 canvassed the neighborhood to see if any of
17 the -- the other persons in the community had
18 any information about the incident. And no one
19 did.
20 They photographed the scene.
21 Those photographs got logged into Evidence.
22 The alcohol bottles that
23 Sergeant -- that Lieutenant Amodeo seized when
24 he left the firehouse that morning got
25 photographed and logged into Evidence.
167
1 Now, does this look like a
2 department who is trying to cover up a blue wall
3 of silence? Everything is in those reports.
4 And I'll tell you about the importance of that
5 in a few minutes.
6 The evidence will show that at
7 least twice during the brief period of time that
8 the Secaucus Police Department had this
9 investigation the Secaucus Police Department
10 requested the intervention of the Hudson County
11 Prosecutor's Office. They asked the Hudson
12 County Prosecutor's Office to convene a Grand
13 Jury. And why? Because the Secaucus Police
14 Department knows that they can't compel
15 witnesses to speak. But the Hudson County
16 Prosecutor's Office can convene a Grand Jury,
17 and they can make people come down and give
18 testimony.
19 They tried twice during the
20 course of the investigation to get the
21 Prosecutor's Office to do that. The Attorney
22 General's Office advised the Secaucus Police
23 Department on May 10th or May 11th, 2004 that
24 they were taking over the criminal investigation
25 and that the Town of Secaucus was not to do any
168
1 further investigation with regard to the
2 incident.
3 Now, vitally and crucially, the
4 Secaucus Police Department gave to the Attorney
5 General's Office their entire file. Every
6 report, every piece of evidence, every witness
7 statement went to the Attorney General for use
8 in their investigation. The Attorney General's
9 Office conducted an investigation. The Grand --
10 the Attorney General's Office convened a Grand
11 Jury. The Attorney General's Office closed
12 their investigation for insufficient evidence to
13 show who did or said what that evening. The
14 Attorney General's Office had every piece of
15 information that was generated by the Secaucus
16 Police Department.
17 And Ladies and Gentlemen, that
18 doesn't stop with the incident of April 25th.
19 Every time that Mr. deVries and Mr. Carter
20 contacted the Police Department thereafter and
21 complained that -- well, let me say this. After
22 Mr. deVries and Mr. Carter were in the
23 newspapers talking about the incident,
24 Mr. deVries and Mr. Carter reported that cars
25 drove past them and people yelled from those
169
1 cars antigay remarks to them.
2 Every time Mr. deVries and
3 Mr. Carter contacted the Secaucus Police to
4 report what they believed to be an incident of
5 harassment that took place after April 25th,
6 2004, the Secaucus Police sent an officer who
7 prepared a detailed report. A follow-up
8 investigation was performed by the Secaucus
9 Detective Bureau. And all documentation was
10 sent to the Attorney General's Office.
11 In fact, you will hear evidence
12 that when Mr. deVries and Mr. Carter --
13 Mr. deVries or Mr. Carter reported one of those
14 vehicles, the physical description of that
15 vehicle each time was recorded. And not only
16 was it put in a report, but members of the
17 Secaucus Detective Bureau ran Motor Vehicle
18 checks of Town employees and volunteer
19 firefighters to see if any of those vehicles
20 matched the description of any vehicles owned by
21 these individuals. And none did.
22 They made checks of Secaucus Fire
23 Department parking lots and Town DPW parking
24 lots to see if they could identify any of these
25 vehicles that Mr. Carter, Mr. deVries claimed
170
1 people yelled from on the street. And there
2 were no vehicles matching any of these
3 descriptions.
4 The one time that Mr. deVries and
5 Mr. Carter provided a license plate number, it
6 came back as not even on file with the DMV.
7 Now, Ladies and Gentlemen, the point of all this
8 is that does this sound like a Police Department
9 that doesn't care? Does this sound like a Town
10 that is deliberately indifferent, that is trying
11 to cause harm to Mr. deVries and Mr. Carter?
12 Now, Ladies and Gentlemen, the
13 plaintiffs have claimed in this case that they
14 have been singled out for unfair or unequal
15 treatment by the Town of Secaucus because they
16 are gay. Nothing could be further from the
17 truth. And quite frankly, the Town of Secaucus,
18 we're offended at that allegation.
19 The plaintiffs will not come to
20 you with any evidence as to how any other
21 criminal act was handled by police and law
22 enforcement authorities at all, let alone that
23 they were somehow treated differently because
24 they were gay. And that's because they weren't
25 treated differently. It wasn't treated
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1 differently because they were gay.
2 They will not present you with
3 testimony of any law enforcement officer who
4 will come before you and say that anything that
5 the police did or failed to do that morning of
6 the 25th or any subsequent day was somehow
7 improper under the given circumstances, and
8 that's because it wasn't.
9 They argue the Town conducted no
10 investigation in the matter and did not bring
11 any discipline against anyone. Ladies and
12 Gentlemen, the Town conducted investigation.
13 The Police Department, the department of the
14 Town, once again, with the most experience, the
15 best suited to handle investigating and
16 allegation of criminal conduct, handled the
17 investigation. The Attorney General's Office,
18 using all of its skill and resources, conducted
19 an investigation.
20 And as far as failure to bring
21 discipline, we will present to you evidence that
22 the Town, the Fire Chief, Town Administrator's
23 Office, everyone was instructed first by their
24 Town attorney and then by the Attorney General's
25 Office that they were not to conduct any
172
1 investigations, they were not to take any
2 discipline or administrative action against
3 anyone because there was a pending criminal
4 investigation and anything that the Town did in
5 addition or aside or complimentary to the police
6 investigation could have the ability to impede
7 and contaminate that investigation.
8 So the directive came -- want to
9 talk about high-level policy decisions? The
10 decisions that were made at high -- at the
11 highest levels, including the highest levels of
12 the State of New Jersey, said you are to do
13 nothing. This matter is to proceed solely as a
14 criminal investigation.
15 Now, Ladies and Gentlemen, the
16 evidence will also show that the Town of
17 Secaucus did take the plaintiffs' complaint
18 seriously. In addition to all of the things
19 that the Police Department did, not only to
20 investigate but to protect Mr. deVries and
21 Carter, in addition to those things and keeping
22 in mind the fact that the Town was told that
23 they could not conduct any separate
24 investigation, could not bring any discipline
25 because of the pending criminal investigation,
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1 notwithstanding those things the Town did do,
2 Town did do what it can do, it did take the
3 complaint seriously.
4 Number one, that firehouse was
5 shut down for five days after the incident.
6 That firehouse was shut down the morning of the
7 incident and it stayed closed for five days.
8 Now the plaintiffs complain it was reopened, and
9 they will tell you it was some willy-nilly
10 knee-jerk decision by the Town to --
11 deliberately indifferent to their client.
12 Nothing could be farther from the truth.
13 The Town at the -- the decision
14 to reopen that firehouse -- oh, and -- I'm
15 sorry. And one thing that the plaintiffs will
16 not be able to show -- and that's because it's
17 not true -- is that the decision to reopen that
18 firehouse was in any way designed or intended to
19 cause Mr. deVries and Mr. Carter harm. In fact,
20 the evidence will show that the decision to
21 reopen the firehouse was one that was made after
22 careful consideration and the balancing of the
23 interests of everyone involved, including the
24 plaintiffs, but also of the volunteer firemen,
25 innocent until proven guilty, investigation
174
1 going on. But certainly had to consider the
2 fact that not every fireman was involved, not
3 every fireman was even there that night. And
4 quite frankly, Town had to make a decision.
5 And in addition to considering
6 the rights of the Mr. deVries and Mr. Carter and
7 in addition to considering the fact that, yes,
8 no one had been charged with a crime, it was
9 still under investigation, not everyone who was
10 a member of that company was involved or was
11 even there that night. But in addition to that,
12 the Town had to take into consideration the fact
13 these guys are volunteers. They donate their
14 time. They put their lives on the line. They
15 sacrifice themselves and their families every
16 time an emergency call comes in. They put their
17 lives on the line. And the Town had to factor
18 that into its decision too, as well as the
19 interests of the department and the community as
20 a whole.
21 So no, it was -- it was not a
22 knee-jerk reaction to reopen the firehouse. And
23 it certainly wasn't a decision that was made to
24 cause Mr. deVries and Mr. Carter harm.
25 In addition the firehouse being
175
1 closed for that period of time, the Town -- Mr.
2 Mullin complains about the fact that there was
3 no harassment or discrimination training for
4 volunteer firefighters prior to April 25th.
5 Well, Ladies and Gentlemen, when this incident
6 happened -- when this incident happened the Town
7 made it mandatory for every volunteer
8 firefighter to attend harassment discrimination
9 now you -- training. Made it mandatory.
10 Now, does that sound like a Town
11 that doesn't care, that is deliberately
12 indifferent, that is not taking what happened in
13 the parking lot that night seriously or
14 Mr. deVries and Mr. Carter's complaint
15 seriously? Does that sound like deliberate
16 indifference to you?
17 Ladies and Gentlemen, perhaps
18 most significantly, the plaintiffs will not
19 present to you one iota of proof that this
20 incident received any less of a response from
21 police or municipal perspective to -- excuse me,
22 that this incident did not really -- my mouth
23 got a little dry. If you don't mind, I am going
24 to get a little water. I apologize.
25 The plaintiffs will not present
176
1 to you one iota of proof that this incident
2 received any less of a municipal response by the
3 Police Department or the Town to any other
4 report of criminal conduct, let alone that
5 Mr. deVries and Mr. Carter were singled out
6 because they were gay. It's just not true.
7 You -- this is not a Town that didn't care.
8 This is not a Town that was deliberately
9 indifferent. This is not a Town that washed its
10 hands of the -- of the situation.
11 Now, while I don't believe that
12 you are going to need to reach the issue of
13 damages or injury to this case because the Town
14 of Secaucus is not liable, the Town of Secaucus
15 did not violate Mr. deVries and Mr. Carter's
16 Constitutional rights, you will hear testimony
17 in this case about depression and posttraumatic
18 stress disorder. And Mr. deVries and Mr. Carter
19 are both claiming that they suffered
20 posttraumatic stress disorder from what happened
21 in the parking lot that morning. In fact,
22 Mr. deVries is claiming that about a year after
23 the incident he had to leave his job, no longer
24 able to work. And he is blaming the Town for
25 that, and he wants the Town to compensate him
177
1 for that.
2 Ladies and Gentlemen, I would ask
3 that you listen to the medical testimony on
4 depression, posttraumatic stress disorder. Then
5 I ask you to evaluate the statements and the
6 conduct of Mr. deVries and Mr. Carter following
7 this incident and determine for yourselves
8 whether their statements and their conduct are
9 consistent with people who suffer from
10 posttraumatic stress disorder. Ladies and
11 Gentlemen, I respectfully submit to you that
12 that diagnosis will not be supported by the
13 evidence.
14 Now, at the end of the testimony
15 in this case, after hearing all of the evidence,
16 no matter what you think or believe happened in
17 the parking lot that morning, no matter how you
18 feel about what happened in the parking lot that
19 morning, there are certain conclusions and
20 certain facts that will be manifest, they will
21 be clear.
22 Again, no act of harassment was
23 committed by any Secaucus volunteer firefighter,
24 employee, whatever in -- while performing their
25 job for the Town or for the purpose of carrying
178
1 out their job for the Town. That no act of
2 harassment was in any way sanctioned, authorized
3 or condoned by the Town. The Town did not
4 assist in its commission. And it certainly was
5 not the municipal custom and policy of the Town
6 to allow its employees to commit acts of
7 harassment. That the Town was not deliberately
8 indifferent. In fact, the Town responded more
9 than appropriately to the complaints that
10 Mr. deVries and Mr. Carter had that morning.
11 That the Town -- the plaintiffs were not the
12 subject of any unequal treatment directed
13 against them by the Town either in the manner in
14 which the police investigated the incident or
15 the manner in which the Town responded to it and
16 that nothing that was done or not done in this
17 case was in any way designed to hurt Mr. deVries
18 or Mr. Carter and certainly wasn't -- wasn't
19 designed or intended to discriminate against
20 them in any way.
21 Now, in cases like this -- and
22 I'm going to put my notes down because now I
23 feel like I'm reading too much to you. In cases
24 like this, where someone is claiming to be the
25 victim of harassment, it is natural to feel
179
1 sympathy. And one thing that Mr. Mullin said,
2 which was very telling and I agreed with, is
3 that when you walk through that door, you have
4 to leave your biases and your prejudices and
5 your sympathies at that door.
6 You are the judges of the facts
7 in this case. And in order to judge the facts
8 in this case, in order to determine the truth
9 you need to look at the evidence in this case
10 fairly, unbiased, without prejudice, without
11 anger or emotion because to decide this case
12 based upon anything else but the facts as you
13 determine them to be would not be fair. And it
14 certainly would not be justice for any party in
15 this case.
16 And Ladies and Gentlemen, I
17 respectfully submit to you that after you have
18 had the opportunity to hear all of the evidence
19 in the case, to judge that evidence without
20 passion, without bias, without prejudice, you
21 will come to the conclusion that the Town of
22 Secaucus -- the Town of Secaucus did not violate
23 Mr. deVries or Mr. Carter's Constitutional
24 rights. Thank you.
25 MS. SMITH: Sidebar, Your Honor.
180
1 JUDGE CURRAN: Pardon me?
2 MS. SMITH: Sidebar?
3 JUDGE CURRAN: Why don't you come
4 up here, so Tracey can stay right there, then?
5 (Whereupon, the following sidebar
6 discussion is held.)
7 JUDGE CURRAN: What is this about?
8 MR. MULLIN: I am going to ask for
9 jury instruction.
10 JUDGE CURRAN: At this point?
11 MR. MULLIN: Yeah.
12 JUDGE CURRAN: What's the
13 request --
14 (Whereupon, sidebar discussion is
15 concluded.)
16 JUDGE CURRAN: Ladies and
17 Gentlemen, why don't you go into the jury room
18 for a moment.
19 (Whereupon, the jury is excused.)
20 JUDGE CURRAN: Are we all set,
21 Tracey? I think we may do this to you. I think
22 we may have to do this at sidebar. I'm really
23 sorry to drag you up here again. Sorry.
24 (Whereupon, the following sidebar
25 discussion is held.)
181
1 JUDGE CURRAN: What is the
2 request?
3 MR. MULLIN: Judge, two curatives.
4 We entered into an agreement with the defendants
5 when we dismissed the individuals that there
6 would be absolutely no mention in front of a
7 jury or suggestion about our dismissing
8 individuals. And Mr. Bevere went on at great
9 length about how we -- if we really had a claim
10 here, we would be suing individuals. That is
11 directly violative of that agreement. And,
12 also, it's a blankety wrong statement of the
13 law.
14 I don't necessarily say we have
15 to -- well, what I'm saying is the jury should
16 be told that it's absolutely not essential for
17 the plaintiffs to have sued individuals in order
18 to prove this case and any suggestion to the
19 contrary should be disregarded.
20 The other thing is Mr. Bevere
21 made reference to my job was to make you feel
22 sympathy for his clients and contempt for the
23 Town of Secaucus. That's not my job. Nobody
24 raised any objections during my opening
25 argument. It is my job to present the facts as
182
1 the plaintiffs view them. It's not to make the
2 jury feel sympathy, and it's not to make them
3 feel contempt. Those are inflammatory and
4 inappropriate remarks, and I would like you to
5 point out to jury that those were inappropriate
6 remarks and they should disregard them.
7 JUDGE CURRAN: Mr. Bevere.
8 MR. PARIS: Can I be heard on
9 this?
10 MR. BEVERE: Doesn't matter to me.
11 JUDGE CURRAN: Hold on one second.
12 Mr. Bevere.
13 MR. BEVERE: Thank you, Judge.
14 Judge, first of all, with regard to the
15 agreement, I certainly never said to the jury
16 that they had brought claims against individuals
17 and then dismissed them.
18 JUDGE CURRAN: No, I don't think
19 Mr. Mullin argued that.
20 MR. MULLIN: I'm not saying that.
21 MR. BEVERE: But he said it was
22 violative of an agreement that we made to
23 dismiss certain individuals. The three
24 individuals who were dismissed were the Town
25 administrator, the Police Chief and the Fire
183
1 Chief. They were dismissed. I made no
2 reference to the fact that they were dismissed.
3 The reference that I made was to the fact that
4 the alleged perpetrators of this incident were
5 not brought before these people to have them
6 held accountable or to have justice done to them
7 in this case. And I don't see why that's an
8 inappropriate comment for me --
9 MR. MULLIN: Totally
10 inappropriate. I'm sorry. It's totally
11 inappropriate because it gives the jury the
12 impression I have to sue individuals to state a
13 Civil Rights case, and that's not true. That's
14 misstatement of the law. I think this jury
15 should be told there is no requirement that I
16 name individuals.
17 JUDGE CURRAN: Excuse me,
18 Miss Catapano, can you hear? Can you hear? Do
19 you want to come over here?
20 MS. CATAPANO: I can hear them.
21 It's not you very well.
22 JUDGE CURRAN: You can hear? I
23 just want to make sure my law clerk heard the
24 argument.
25 MR. MULLIN: Your Honor, I would
184
1 like the jury to be told there is no requirement
2 that we sue individuals in order to state a
3 claim under the Civil Rights laws and that any
4 suggestion to the contrary should be
5 disregarded.
6 And I certainly did not get up
7 there with -- it's improper to say that I was
8 trying to make the jury feel sympathy for my
9 clients and contempt for the Town of Secaucus.
10 That's not fair. That's -- there were no
11 objections to my statements. I was just a
12 lawyer commenting on the evidence in a light
13 most favorable to my client. That's a very
14 strong and inflammatory statement to say, and
15 it's improper statement.
16 JUDGE CURRAN: Mr. Paris.
17 MR. PARIS: Yes, number one, I'm
18 not sure what agreement Mr. Mullin is referring
19 to because, number one, the people who were
20 dismissed were not the people who Mr. Bevere
21 referred to. Again, I don't want to repeat what
22 he said; but he referred to the perpetrators.
23 In addition, he never said that
24 in order to bring a case, they had to bring it
25 against them. He was really talking about
185
1 identification and trying to differentiate
2 between -- he said the individuals who allegedly
3 committed the harassment are not the people
4 being judged here; the Town is who is being
5 judged. That's, I think, context of what he
6 said.
7 In addition -- in addition, look,
8 you know, Mr. Mullin is a great advocate. He
9 talks about phony investigations. He laughed
10 about -- you know, divisively during the opening
11 with regard to the actions that were taken by
12 the Town, et cetera. I don't think it's
13 inappropriate for Mr. Bevere to say that it's
14 his job to sway you to gain sympathy for his
15 clients' case and to -- to hold -- hold Secaucus
16 in contempt. That's exactly what Mr. Mullin
17 tried to do. I don't think it's inflammatory.
18 And that's why we didn't object. But that's --
19 MR. MULLIN: You know it's
20 inflammatory to -- I don't -- it's inflammatory
21 to cast dispersions on a lawyer.
22 MR. PARIS: I don't --
23 MR. MULLIN: I don't have any
24 problem with strong language. And indeed, Dan
25 Bevere used some strong language. He implied my
186
1 clients were less than truthful or exaggerate.
2 And I think that's fair. But I don't think we
3 should be commenting on each other. I don't
4 think I should comment on Dan, and I don't think
5 Dan should comment on me and talk about my
6 motives.
7 You don't know my motives, and my
8 motives are not at issue in this case. My
9 intent to make the jury feel sympathy and feel
10 contempt for Town of Secaucus, actually, when
11 you look at my opening, was praising the police
12 to a considerable degree; it wasn't to show
13 contempt. I think Mr. -- it was to show
14 deliberate indifference. I think that's an
15 inappropriate comment. But the quote that Nan
16 wrote down is, "Plaintiffs haven't sued the
17 individuals." That's just wrong.
18 JUDGE CURRAN: Okay. Separate --
19 I didn't mean to cut you off, but I am aware
20 jury is waiting in there. In regard to suing
21 individuals Mr. Mullin did refer to the
22 agreement that you had. Honestly, I don't see
23 the argument that way, as far as whether there
24 was an agreement or there wasn't. I don't see
25 the agreement being germane here, but I do think
187
1 that it is appropriate to indicate that there
2 was comment in regard to suing the individuals
3 and that I am simply indicating to them that it
4 is not essential, in a case like this it is not
5 essential to sue individuals, that it is
6 perfectly appropriate to sue a Town, that's it.
7 I am not going to say any more.
8 MR. MULLIN: That's fine.
9 JUDGE CURRAN: And then -- I'm
10 writing that down because sometimes you make a
11 decision -- and what I'd really like to do then
12 is now say, "Tracey will read to you what I'm
13 going to tell you."
14 Okay. Okay. In regard to the
15 comments about sympathy or contempt, I think
16 what I will indicate to the jury is that I'm
17 going to remind them that each side is an
18 advocate for his client and that any comments
19 that they made in regard to any motives of -- of
20 the other attorney or any valuations that were
21 made are just that, therefore argument says they
22 are not evidence, period. I will not get into
23 details because then we could have --
24 MR. MULLIN: That's fine.
25 JUDGE CURRAN: I am going to send
188
1 the jury back out. I am going to send the jury
2 home and ask them to come back at 9. Anything?
3 MR. MULLIN: Come back at 9
4 tomorrow?
5 JUDGE CURRAN: Yeah, is there
6 anything? I am aware we are getting close to 3.
7 MR. BEVERE: Can I just -- I don't
8 know if my -- that looks like they're staying,
9 okay. Looks like they're staying.
10 JUDGE CURRAN: Okay. Thank you.
11 Miss Hawks, if I might see you at
12 sidebar.
13 (Whereupon, sidebar discussion is
14 concluded.)
15 JUDGE CURRAN: Okay. We'll bring
16 the jury back out.
17 MS. HAWKS: Jurors are
18 approaching.
19 JUDGE CURRAN: Thank you.
20 (Whereupon, the jury is brought
21 into the courtroom.)
22 COURT CLERK: On the record.
23 JUDGE CURRAN: Thank you. We're
24 back on the record.
25 COURT CLERK: On the record.
189
1 JUDGE CURRAN: Juror Number 4,
2 come on up, if you will, please.
3 If I might see counsel at
4 sidebar.
5 (Whereupon, the following sidebar
6 discussion is held.)
7 JUDGE CURRAN: What is your
8 question?
9 JUROR NUMBER 4: I was just
10 wondering what happens if we get emotional.
11 JUDGE CURRAN: I really -- the
12 only answer I can give you for that --
13 JUROR NUMBER 4: Do we have to
14 just try and -- just try and hold it in?
15 JUDGE CURRAN: Yeah.
16 JUROR NUMBER 4: Okay.
17 JUDGE CURRAN: You know, because
18 it -- it is difficult and it may be difficult --
19 I shouldn't say it is difficult, but I -- you
20 know, we're going to advise you very strongly,
21 which we did, you know, informally. Sympathy,
22 bias, prejudice, even though, you know, emotions
23 are certainly a part of this case, it is up to
24 each juror to make sure to the best of their
25 ability that you do not let your emotions in any
190
1 way affect your decisions or your evaluations in
2 this case.
3 The other thing is that there
4 is -- this is not time for decision or
5 evaluation. That comes at the end of the case.
6 JUROR NUMBER 4: Yeah.
7 JUDGE CURRAN: But I would ask
8 every juror to be very circumspect, to make sure
9 that if something does or could elicit an
10 emotional response from you, to try your best
11 not to reveal that to other people.
12 JUROR NUMBER 4: I wasn't
13 referring so much as it having -- affecting my
14 judgment but just, you know, at the time.
15 JUDGE CURRAN: Okay.
16 JUROR NUMBER 4: That's all.
17 JUDGE CURRAN: I understand that,
18 but I would appreciate it if you -- you could
19 deal with some very difficult questions in your
20 line of work. And I'm sure you're cognizant of
21 the fact that -- let's just say that something
22 that is said maybe, to use an extreme example,
23 you think is really funny. A witness is
24 speaking theoretically factually; but you think
25 it's funny, you don't believe at all. Wouldn't
191
1 be proper to laugh or to snicker, anything like
2 that.
3 JUROR NUMBER 4: That's exactly
4 what I --
5 JUDGE CURRAN: I realize it's --
6 other end of the spectrum is probably area
7 you're talking about, but it wouldn't be proper.
8 And it could adversely affect someone else on
9 the jury.
10 JUROR NUMBER 4: Okay. All right.
11 JUDGE CURRAN: Any other questions
12 counsel wishes to make?
13 MR. MULLIN: No.
14 MR. BEVERE: No, Judge. Thanks.
15 JUDGE CURRAN: Thank you.
16 (Whereupon, sidebar discussion is
17 concluded.)
18 JUDGE CURRAN: Ladies and
19 Gentlemen, I just wanted to clarify two issues
20 for you before I excuse you for the day. I will
21 remind you, as I said earlier, that the opening
22 statements are statements by counsel as
23 advocates for their clients. So any comments as
24 to motives of adversaries or any comments as to
25 how either counsel evaluates things or any terms
192
1 that might be used to describe something is
2 basically argument on behalf of the client of
3 that attorney. It's not fact, and it's not
4 evidence.
5 So I just would ask you to take
6 that into account. Advocates are supposed to
7 argue strongly for their clients, and in this
8 case both Mr. Mullin and Mr. Bevere did.
9 The other thing I would indicate
10 to you is that there was an issue raised in
11 regard to the plaintiff in this case suing the
12 Town of Secaucus, not suing individuals. And I
13 will just tell you that in a case like this it
14 is perfectly appropriate for a plaintiff to sue
15 a Town. It is not necessary to sue individuals.
16 Okay. All right. We are going
17 to excuse -- are there any other comments or any
18 other issues at sidebar? Thank you.
19 I will excuse you for the day. I
20 want you to obviously keep what was said in the
21 back of your mind; but again, I will remind you,
22 as I will most days, please understand this is
23 just the first day. And it is not proper to
24 make any decisions at all or any evaluations
25 until basically you have heard all of the
193
1 evidence and you know the law. So I would just
2 remind you to keep an open mind.
3 You will be excused until 9:00
4 tomorrow morning. Again, please don't discuss
5 the case among yourselves. Don't discuss the
6 case with anyone else.
7 I am going to ask Miss Hawks if
8 she would be kind enough, please, to escort the
9 jurors to the elevators. And I would ask anyone
10 else who's in the courtroom to remain in the
11 courtroom for a short time. Thank you.
12 Thank you, Miss Hawks.
13 COURT CLERK: Off the record.
14 JUDGE CURRAN: Thank you. Off the
15 record.
16 (Whereupon, the jury is excused.)
17 (Whereupon, the proceeding is
18 adjourned at 2:50 p.m.)
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1 C E R T I F I C A T E
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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.
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18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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