1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 17
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Thursday, June 5, 2008
Commencing 9:50 a.m.
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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
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1 A P P E A R A N C E S:
2
3
4 SMITH MULLIN, ESQS.
5 Attorneys for the Plaintiffs
6 240 Claremont Avenue
7 Montclair, New Jersey 07042
8 BY: NEIL MULLIN, ESQ.
9 NANCY ERIKA SMITH, ESQ.
10
11 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
12 Attorneys for the Defendants
13 360 Passaic Avenue
14 Nutley, New Jersey 07110
15 BY: DANIEL R. BEVERE, ESQ.
16 DAVID M. PARIS, ESQ.
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1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4
5 FRANK LEANZA, ESQ.
6 By: Mr. Paris 7 128, 158
7 By: Mr. Mullin 79 141
8
9 E X H I B I T S
10 NUMBER DESCRIPTION PAGE
11 P-406 Mr. Leanza's bill, dated 4/25/04 85
12 D-314 May 2004 voucher and attached.
13 document 134
14 P-407 Mr. Leanza's bill, dated August
15 2004 154
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1 JUDGE CURRAN: I will note that
2 counsel are in the courtroom, the jurors are
3 not.
4 Mr. Paris.
5 MR. PARIS: Right, Your Honor, we
6 are going to continue with the direct testimony
7 of Mr. Leanza. At the conclusion of the direct
8 testimony the last thing I intend to do is to
9 play that tape.
10 I just wanted to again state for
11 the record that I intend to stop the tape where
12 it talks about that consent judgment with the
13 Department of Justice. At that point maybe we
14 will take a break or something. We will just
15 pass over that portion. It's not a lengthy
16 portion, but I really won't be able to do that
17 in the presence of the jury. And then we'll do
18 that -- you know, we will play it right back,
19 even if we can give the jury a five-minute or
20 ten-minute break at that point.
21 JUDGE CURRAN: Any objection?
22 MR. MULLIN: No objection.
23 JUDGE CURRAN: Okay. Anything
24 else?
25 MR. MULLIN: Your Honor, it's
5
1 possible -- I'm not sure this will be the case;
2 but when Mr. Leanza finishes testifying, in
3 light of the extremely late production of
4 documents in this case, I may want a little
5 break before I start cross-examining.
6 JUDGE CURRAN: That's no problem.
7 MR. MULLIN: I may not need it.
8 JUDGE CURRAN: No problem. You
9 just indicate whether you would like to proceed
10 or not.
11 MR. MULLIN: Thank you.
12 JUDGE CURRAN: Anything else? I
13 think we will probably need to turn off the air
14 conditioners when you're doing the tape. Before
15 that it's up to you one way or the other. The
16 jury will turn that one off if they want it off.
17 Okay?
18 Okay. And not that we need to
19 discuss it now; but I have just finished talking
20 with the people in the other building, so I've
21 arranged coverage for the court so that the
22 staff can go to lunch tomorrow. But they're
23 going to send me over a -- another court clerk
24 at 12:00 or whatever times you work out so that
25 we can do what we did last Friday, which is work
6
1 directly through.
2 MR. PARIS: So we would come back
3 tomorrow what time?
4 JUDGE CURRAN: 12.
5 MR. PARIS: Come back tomorrow at
6 12 and continue to work through the day?
7 JUDGE CURRAN: Right. Okay. But
8 normally we would have to take the lunch break.
9 We are not going to do that. They are going to
10 send over someone after from the rest of the
11 team. I don't honestly know if we would have
12 coverage for Miss Hawks, but we'll -- okay. But
13 I don't want you to have to work through lunch
14 either, so, you know, we will work it out. And
15 frankly, with just the attorneys here, we won't
16 have jurors, so that should be fine.
17 MS. HAWKS: Okay.
18 MR. PARIS: I am just going to set
19 myself up at this table.
20 JUDGE CURRAN: Okay. We will go
21 off the record.
22 (Whereupon, a discussion is held
23 off the record.)
24 MS. HAWKS: Jurors are
25 approaching.
7
1 COURT CLERK: On the record.
2 JUDGE CURRAN: Thank you.
3 (Whereupon, the jury is brought
4 into the courtroom.)
5 JUDGE CURRAN: Back on the record
6 in the matter of deVries and Carter versus
7 Secaucus, docket number L-3520 of the 2004 term.
8 I will note that the jury is
9 returning to the jury room. Counsel and the
10 parties are present.
11 Thank you, Ladies and Gentlemen.
12 We appreciate your being here.
13 Mr. Leanza, I'm sure it's not
14 necessary; but it's my obligation to remind you
15 that you are still under oath.
16 THE WITNESS: Thank you.
17 JUDGE CURRAN: Thank you.
18 Mr. Paris.
19 MR. PARIS: Thank you very much,
20 Your Honor.
21 CONTINUED DIRECT EXAMINATION BY MR. PARIS:
22 Q Mr. Leanza, I just want to state
23 where we were and move forward. You'd indicated
24 that the Hudson County Prosecutor was to be
25 called with regard to this matter, correct?
8
1 A That's correct.
2 Q Okay. Can you tell us what your
3 understanding was as to why the Hudson County
4 Prosecutor was to be contacted?
5 A There are two reasons. Number one,
6 because of the nature of the crime, it comes up
7 to a fourth degree crime because of the
8 enhancement under the bias statute. Only the
9 Prosecutor has the power to deal with a fourth
10 degree crime and determine whether to bring that
11 to a Grand Jury and indict it. That's number
12 one.
13 And number two, it is a bias crime in
14 and of itself, the procedure is it has to be
15 reported immediately to the County Prosecutor.
16 Q What was your understanding as to
17 the significance of convening a Grand Jury?
18 A Well, the significance of convening a
19 Grand Jury, because this wasn't an action that
20 was taken in the presence of a law enforcement
21 officer, that would be the only way that the
22 potential perpetrators could be indicted and
23 charged with a crime of the fourth degree or
24 more, number one.
25 And number two, in New Jersey under the
9
1 criminal law a Grand Jury is investigatory body
2 and it's vested with the power to both subpoena
3 witnesses and -- and force their testimony.
4 Q What do you mean --
5 A The Police Department doesn't have that
6 authority.
7 Q You said, "force their testimony."
8 What did you mean by that?
9 A What I mean by "force their testimony" is
10 what we alluded to yesterday. Everybody in this
11 country has the right not to incriminate
12 themselves as guaranteed by the Fifth Amendment
13 of the Constitution. And the Prosecutor, in the
14 context of a Grand Jury, if someone does decide
15 to exercise its Fifth Amendment Constitutional
16 rights, has the power under State statute to
17 grant that individual use immunity for his
18 testimony. And that grant of use immunity means
19 a person can't thereby incriminate himself; and
20 therefore, he'd be required to testify.
21 Effectively, to preclude people from taking the
22 Fifth Amendment, if the Prosecutor so desires.
23 Q Now, when you say, "if the
24 Prosecutor so desires," what do you mean by
25 that?
10
1 A Well, it's his determination because he
2 has the power to grant immunity. So he can only
3 force somebody to take immunity to testify if
4 they are granted immunity. And they call it,
5 "use immunity," meaning that anything that he
6 testifies to at that proceeding can't be used
7 against him.
8 And of course, there is an exception to
9 that. If the person lies during a proceeding,
10 they can always prosecute him if he doesn't tell
11 the truth. But if he tells the truth, they
12 can't prosecute him for anything that he says
13 against himself at that proceeding.
14 Q Who makes that decision?
15 A That decision is made by the County
16 Prosecutor or whomever he designates on his
17 staff.
18 Q Now, I want to go back very
19 briefly -- well, I want to go back to an issue
20 that we touched on briefly yesterday. That was
21 the issue of publicity in the media. And we
22 were dealing with a point in time, I believe
23 April 27th, immediately after the caucus
24 meeting. And I think you had spoken about a
25 letter that you wrote on April 28th to the Mayor
11
1 and Council?
2 A Correct.
3 Q And again, just to bring us
4 up-to-date, you indicated the plan was you would
5 deal with the media?
6 A Correct.
7 Q Okay. Now, let's focus on that
8 for a second. During that first week, starting
9 on -- after the caucus meeting of the 27th, did
10 you have contact with the media?
11 A I believe -- I had much contact with the
12 media for the next two or several weeks. And
13 by, "the media" I could name the local
14 newspapers, The Jersey Journal, The Bergen
15 Record. There is a Secaucus Reporter, which is
16 part of the Hudson Reporter series. And then
17 there is also the Secaucus Home News.
18 In addition to that, I met with and I
19 know footage was taken by Channel 9 and Channel
20 11 of the news bureaus. And I believe I may
21 have spoken with people from Channel 5 and
22 Channel 7, as well.
23 Q Did the -- did you contact the
24 media, or did you respond to contacts that they
25 made to you?
12
1 A Well, I was -- I responded to contacts
2 that were made to the Town of Secaucus. And
3 sometimes the Town of Secaucus gave the media my
4 name and phone number and they contacted me
5 directly. Other times I returned calls that
6 were made to the Mayor's Office by various
7 reporters.
8 Q And did you respond to the media?
9 A Yes.
10 Q Now, in -- in -- to your
11 recollection do you recall Mr. Carter or
12 Mr. deVries making statements to the media?
13 A Well, I recall statements attributed to
14 them in the media, quotes that so-and-so said
15 this and so-and-so said that.
16 Q Okay. Mr. Leanza, did you have
17 any involvement in the decision to reopen the
18 North End Firehouse?
19 A Yes.
20 Q In what respect were you involved
21 in that?
22 A On the morning of the 29th of April I
23 attended a meeting at Town Hall at which Mayor
24 Elwell was present, Police Chief Corcoran,
25 Detective Captain Buckley and Deputy Mayor John
13
1 Reilly. Deputy Mayor John Reilly also happens
2 to be the Town's liaison with the Fire
3 Department, and that was the reason for his
4 presence there.
5 Q Now, at that meeting -- at that
6 meeting did you express any concerns with regard
7 to reopening the firehouse?
8 A Yes. And --
9 Q What were the concerns that you
10 raised?
11 A Okay. I had a number of concerns. My
12 first concern was the reason that it had been
13 shut down in the first place was to keep peace
14 and order in the neighborhood and security for
15 the alleged victims. And I wanted to assure
16 myself that no matter what happened that that
17 would continue.
18 My second concern was to maintain the
19 integrity of the investigation, which was still
20 going on. I wanted to make sure that there was
21 no evidence potentially that could be tampered
22 with or that this so-called fraternization
23 wouldn't impede the investigation.
24 And thirdly, I wanted to -- I had
25 received inquiries from people representing the
14
1 Fire Department, primarily the liaison,
2 Mr. Reilly, who indicated, in effect, you know,
3 if we have like 70 or 80 firemen in the Town and
4 20 or 30 there, why should -- if three people
5 were bad apples, why should everybody else be
6 punished?
7 So those were the issues that were
8 addressed and discussed in detail at that
9 meeting.
10 Q Now, were your concerns, were your
11 three concerns addressed at that meeting?
12 A My three concerns were addressed. Police
13 Chief Corcoran and Detective Captain Buckley
14 indicated that it was their intention for the
15 foreseeable future, depending how circumstances
16 turned out, to make the location -- the location
17 being the parking lot and the adjacent
18 resident -- a police post, meaning that there
19 would be a marked or unmarked car there that
20 would continue surveillance 24 hours.
21 In addition to that -- the Town is
22 broken down into zones for police patrol
23 purposes. Whatever group and whatever police
24 cars were in that zone would be required to
25 check on the location in addition, at least on
15
1 an hourly basis.
2 And in addition, Detective Captain
3 Buckley indicated to me that the opening of the
4 firehouse and the presence there of the firemen
5 would not in any way impede his ongoing
6 investigation.
7 Q Now, did you take any notes of
8 this discussion?
9 A No.
10 Q Any particular reason why?
11 A Well, I had no particular reason to take
12 notes or not to take notes. I was there. We
13 all talked. And we made the decision based upon
14 the input from the individuals who attended the
15 meeting, and our determination that the opening
16 of the firehouse would not result in any adverse
17 consequences to the victim, the Town or the
18 investigation.
19 Q Now, are you aware as to whether
20 or not Mr. Iacono communicated that information
21 to Chief Walters?
22 A Yes. And it's kind of circuitous. I
23 conveyed the results and determination of that
24 meeting to Mr. Iacono by telephone. He was not
25 present in the State at that time. I think he
16
1 was on a family vacation. And he is the Town
2 Administrator, so he is the one who does manage
3 the Town from day-to-day.
4 So I told him who was at the meeting,
5 this is our determination with respect to the
6 firehouse. That was on the 29th.
7 I think on the next day I received a
8 copy of a letter that Mr. Iacono had probably
9 dictated from wherever he was on convention with
10 respect to opening up the firehouse.
11 Q Now, did you ever see a document
12 from the Police Department regarding the
13 surveillance or the hourly checks?
14 A No, I never -- well, it -- yes, in a way
15 I did. Didn't specifically mention this is what
16 we're doing; but in all the police reports there
17 were police cars who were stationed right there
18 when he made the reports, number one.
19 Number two, this location is on
20 Paterson Plank Road. The Town Hall is on
21 Paterson Plank Road. And quite frankly, during
22 that time with all the press, et cetera, I was
23 in Secaucus almost on a daily basis and I made
24 it my business to pass by the location. And
25 every time I passed there, there was either a
17
1 marked, an unmarked police car or both within
2 view of both the residence and the firehouse.
3 Q Now, did there come a point in
4 time when you became aware that Mr. Carter had
5 left a voice mail for the Mayor?
6 A Yes.
7 Q Okay. How did you become aware of
8 that?
9 A I believe I received a telephone call
10 from the Mayor. And my recollection now is that
11 he was quite upset about it because the tenor of
12 the message was, oh, I don't know, I'd say
13 accusatory; and it had some epithets in it.
14 Q Do you know what happened to
15 that -- to the voice mail message, itself?
16 A I suggested that the Mayor advise the
17 Police Department so they can keep it as part of
18 their investigation.
19 Q As a result of your discussion
20 with the Mayor what did you do?
21 A I told the Mayor --
22 Q Go ahead, I'm sorry.
23 A Can I continue?
24 Q Yeah, I'm sorry. I didn't mean to
25 interrupt.
18
1 A I told the Mayor, "I think -- under the
2 circumstances, I think it best if I return the
3 phone call, rather than yourself." And I
4 returned the phone call.
5 Q Did you actually return the phone
6 call?
7 A Yes.
8 Q Do you recall having a discussion
9 with Mr. Carter?
10 A Yeah. And again, as I said yesterday, I
11 don't remember whether it was Mr. Carter or
12 Mr. deVries. I, you know, just called the
13 number.
14 Q Okay. And do you recall the
15 conversation, itself?
16 A Yeah. Again, he -- very, very agitated,
17 very distrustful of the Police Department. How
18 could we conduct the investigation? There were
19 guys on the Fire Department who worked for the
20 Town who knew the police officers and -- as I
21 testified yesterday, I tried to, you know,
22 explain to them that the Police Department was
23 just doing the -- what I assumed was going to be
24 a preliminary investigation, and then everything
25 was going to be turned over to the Prosecutor's
19
1 Office. Then the Prosecutor's Office had no
2 connection to the Town, and I had all the faith
3 and confidence in the world in them.
4 And he didn't seem to be paying
5 attention or listening to anything I said. And
6 you know, as we discussed about yesterday, I
7 think it was the same thing, he was moving out.
8 Q Now, you were deposed in this
9 matter earlier this week, correct?
10 A Yes, I think it was Monday.
11 Q And how many conversations did you
12 recall when you were deposed?
13 A When I was deposed I recalled one
14 conversation. However, on Tuesday I had the
15 opportunity to go through all of my billing
16 records. I charged the Town of Secaucus by the
17 hour; and so I could keep track of what I do and
18 what I charge and so they could keep track of
19 what's going on, I keep billing records. And my
20 billing records indicated the call on the
21 morning of the 28th and then also the call on
22 March 1st. And that -- and that refreshed my
23 recollection that there were two distinct and
24 separate calls.
25 Q Did you have a chance to review
20
1 your billing records before your deposition?
2 A No, I didn't.
3 Q And during your deposition were
4 you given an opportunity to review your billing
5 records?
6 MR. MULLIN: Objection.
7 MS. SMITH: Objection, Your Honor,
8 on many grounds.
9 JUDGE CURRAN: Sustained. I am
10 going to strike the question.
11 BY MR. PARIS:
12 Q After -- after May 1st did you
13 become aware as to whether or not the Attorney
14 General's Office was going to become involved in
15 the matter and take over the investigation?
16 A Yes. And I know I have in my files a
17 subpoena from the State Grand Jury signed by a
18 deputy Attorney General, dated, I believe,
19 May 10th of 2004, directing the Town to provide
20 certain information to the Attorney General in
21 connection with its investigation of this
22 matter. And the due date to have the
23 information over to the Attorney General was
24 June 1st.
25 Q Mr. Leanza, I'm showing you a
21
1 document which has been marked as Defendant's
2 Exhibit 230, dated May 10th. Can you tell us
3 what that is?
4 A This is a letter from Hester Agudosi, who
5 was the same person who signed the subpoena
6 advising the Police Chief that the Attorney
7 General's Office was going to assume the
8 investigation.
9 Q Did you -- had you seen this
10 letter back in May?
11 A Yes. I don't know -- I didn't see it May
12 10th. I think I saw the subpoena before I saw
13 the letter.
14 Q Now, on -- on the second page of
15 the letter there is a reference to
16 administrative action. Do you see that?
17 A Yes.
18 Q Okay. What was your understanding
19 at the time as to what that meant?
20 A The understanding -- and quite frankly, I
21 didn't even need this letter to tell me -- was
22 that we were to halt any administrative
23 proceedings pending the conclusion of the
24 Attorney General's investigation.
25 And in a criminal investigation that
22
1 would be normal. You wouldn't want two separate
2 people inquiring, asking questions of -- you
3 know, for the reasons we talked about yesterday.
4 You want to maintain the integrity and have one
5 criminal investigation because, in terms of
6 priority, the criminal proceeding was most
7 important.
8 Q Now, during the course of the
9 Attorney General's investigation what was your
10 involvement?
11 A During the course of that investigation
12 my involvement was, as I discussed before, for
13 the next several weeks I had much contact with
14 the media, both by telephone, some at Town Hall.
15 There was some film shot at Town Hall.
16 I also had some legal involvement with
17 the media because there were certain demands and
18 requests for some of the reports and
19 investigations by the Police Department. And I
20 advised them, after research, after looking at
21 the reports, that they were considered
22 investigatory reports and, according to
23 executive orders promulgated by the governor,
24 they were outside the scope of the Open Public
25 Records Act and those investigation reports
23
1 could not be disclosed.
2 I also was involved shortly thereafter
3 on whether some of these reports should be
4 disseminated to the Plaintiffs' counsel.
5 And I also helped the Town in terms of
6 complying with the requests of the Attorney
7 General with regard to the records that were
8 requested. And the records went above and
9 beyond the police reports. They wanted copies
10 of some of our ordinances and resolutions,
11 things of that nature.
12 Q Now, did you become aware of an
13 allegation by Mr. Carter that a DPW truck had
14 been sighted in Jersey City?
15 A Yes, I did. I believe that was sometime
16 in February of 2005.
17 MR. MULLIN: Could we have a
18 sidebar on this, Your Honor?
19 JUDGE CURRAN: Sure.
20 (Whereupon, the following sidebar
21 discussion is held.)
22 MR. MULLIN: Your Honor, when I
23 was moving in limine to try to get in the Jersey
24 City matter, counsel for the City made it very
25 clear on record that the Town didn't know about
24
1 any of the Jersey City events. I did my best to
2 try to suggest ways they learned of it. I had
3 pointed out that I had delivered these documents
4 to counsel in the course of documents
5 production. And they stood by silently, and
6 they didn't say anything.
7 Now I read in this deposition
8 that was taken just a couple days ago of Mr.
9 Leanza that they pretend or claim that they did
10 an investigation of the whole DPW thing. This
11 was not given to me in the course of discovery.
12 I have conducted no re -- no discovery in
13 connection with this issue. They stood by
14 quietly while I was straining to say the bloody
15 tissues should come in because they were on
16 notice of the bloody tissue issue through my
17 complaint, through my serving documents about
18 it.
19 They stood silently while I made
20 this effort. They never said to the Court, "You
21 know, actually, we did know about it, Your
22 Honor." So they violated their duty of candor
23 to this tribunal to put it mildly.
24 Now they want to compound that
25 error by having testimony about some sort of
25
1 investigation that was never given to me in
2 Answers to Interrogatories or in depositions.
3 They should be barred. As it is,
4 you know my position on this witness. This
5 witness should be barred. He is already going
6 beyond -- he is going beyond Interrogatory 50
7 and 51 and this testimony should be barred.
8 This is not the way to do it, Your Honor.
9 If they stood there even at that
10 late date and said, "You know what, there was an
11 investigation. We are going to give Mr. Mullin
12 details," I might take a different position.
13 But I think it's just -- it's just unacceptable.
14 JUDGE CURRAN: As I indicated
15 yesterday, the objection to Mr. Leanza as a
16 witness is preserved for the record.
17 MR. MULLIN: Thank you, Your
18 Honor, appreciate that.
19 JUDGE CURRAN: Mr. Paris, as to
20 the question of the investigation.
21 MR. PARIS: This issue -- this
22 issue has nothing to do with the tissues. This
23 has nothing to do --
24 JUDGE CURRAN: No, it's got to do
25 with the investigation --
26
1 MR. PARIS: Well --
2 JUDGE CURRAN: -- of the truck.
3 MR. MULLIN: Has to do with the
4 truck.
5 MS. SMITH: Exactly.
6 MR. PARIS: Well, Mr. Carter
7 testified about the truck, okay. He testified
8 about the truck. That's not the issue. Okay.
9 That's all I'm saying.
10 JUDGE CURRAN: He was even limited
11 in that regard because the Town never indicated
12 that it did any investigation. In fact, the
13 opposite, the -- when, if I remember
14 correctly -- and I could certainly stand to be
15 corrected. When the arguments were made by the
16 plaintiff at the beginning, it took me a minute
17 or two to figure out that they were saying,
18 okay, at the very least during the litigation
19 the municipality became aware.
20 The argument from the
21 municipality was you can't possibly hold us --
22 basically, you cannot possibly hold us
23 responsible for something that -- that was in a
24 document pile of hundreds of documents is the
25 way I remember it.
27
1 And therefore, he was really
2 limited not just -- assume that the bloody
3 tissue incident was out. But frankly, I might
4 not have, with all due respect -- I'm not going
5 to change the decision; but I might have even
6 looked at the bloody tissues differently, if
7 there was an acknowledgment by the Township that
8 they knew about the incident and that they did
9 an investigation because then it will be a
10 logical question as to did they or did they not
11 investigate the bloody tissues that were -- or
12 bloody elements that were reported a few days
13 later.
14 I found that that was just too
15 remote and, you know, there was no nexus because
16 there was no investigation done by the
17 municipality; and so I allowed him to testify
18 just to as to what he saw in regard to the
19 truck.
20 MR. PARIS: I don't want to --
21 JUDGE CURRAN: Hang on one second.
22 You knew about his testimony the
23 other day.
24 MS. SMITH: Just Monday.
25 JUDGE CURRAN: Why didn't you
28
1 raise the issue before he -- Mr. Paris --
2 MR. MULLIN: I assumed --
3 MR. PARIS: We don't know what he
4 is going into. We -- we thought -- I thought
5 Your Honor ruled no conversations.
6 MR. MULLIN: I --
7 MR. PARIS: I thought if there was
8 going to be an objection, there should be an
9 objection.
10 JUDGE CURRAN: No, but I see their
11 point.
12 MR. PARIS: I am not talking about
13 this, but I am talking about prior to the
14 testimony. I don't intend to go into this --
15 JUDGE CURRAN: I'm sorry?
16 MR. PARIS: I don't really intend
17 to go into this. I was going to ask him like
18 one more question; but if Your Honor says no,
19 no.
20 JUDGE CURRAN: But I am
21 concerned -- I'm sorry to interrupt you. Did
22 the Town know about the investigation or not?
23 MS. SMITH: Yes.
24 MR. PARIS: All that I -- all that
25 he indicated -- and the bloody tissue
29
1 incident --
2 JUDGE CURRAN: Forget the bloody
3 tissues.
4 MR. PARIS: There are a lot of
5 reasons for that.
6 JUDGE CURRAN: As to a Jersey City
7 allegation in regard to the Township at all made
8 by Mr. Carter?
9 MR. PARIS: About the truck, yeah,
10 he -- he only -- he only spoke about the truck
11 being sighted in Jersey City.
12 MS. SMITH: He testified -- tell
13 the truth.
14 MR. PARIS: Excuse me. You
15 know -- excuse me.
16 JUDGE CURRAN: Don't -- don't --
17 don't -- please don't do that.
18 MR. PARIS: That's not right. She
19 is saying it loud enough for the jury to hear.
20 MR. MULLIN: I don't think so.
21 MS. SMITH: The jury didn't hear
22 me.
23 JUDGE CURRAN: I don't know if
24 they did or they didn't, but I doubt that they
25 would be paying attention to us at this point.
30
1 But --
2 MR. PARIS: You know what, Your
3 Honor --
4 JUDGE CURRAN: What was it you
5 were going to say?
6 MR. PARIS: You know what, rather
7 than having aspersions cast, take a look at his
8 deposition from Monday, that's all.
9 JUDGE CURRAN: Okay.
10 MR. PARIS: Your Honor, frankly --
11 I don't even want to get off track here. I have
12 no problem withdrawing this.
13 MR. MULLIN: I think we are on
14 track because I think you may have opened the
15 door for all of this.
16 MR. PARIS: It wasn't just --
17 there were two parts of the -- of the issue.
18 One issue was the -- nobody was brought in. It
19 was a Jersey City investigation with regard
20 to -- the tissue, it was a Jersey City Police
21 investigation, okay. That was number one.
22 Number two, it was the fact that it
23 was -- it was prejudicial under Rule 403 to be
24 talking about that when nobody was tied to it.
25 What page are we on?
31
1 MR. MULLIN: This is the
2 unofficial transcript. Let me find it.
3 MS. SMITH: You can have my copy,
4 Your Honor.
5 JUDGE CURRAN: Excuse me, Tracey.
6 I will note for the record the
7 unofficial transcript was prepared how?
8 MS. SMITH: It was like we get
9 dailies, Your Honor. It was the -- it's the
10 same court reporter; it's just in a daily
11 format.
12 (Whereupon, sidebar discussion is
13 put on hold.)
14 JUDGE CURRAN: I am going to ask
15 the witness to step down, please, Mr. Leanza.
16 (Whereupon, the witness steps
17 down.)
18 (Whereupon, the following sidebar
19 discussion continues.)
20 MR. MULLIN: On page 73 of the
21 official transcript, Your Honor, may I read into
22 the -- what's --
23 JUDGE CURRAN: Is that similar to
24 page 39?
25 MR. MULLIN: May be. It begins
32
1 with, "There was also an incident -- there was
2 also an indent maybe little bit subsequent to
3 that that was advised where your clients may
4 have filed a complaint with the -- with the
5 Jersey City Police Department about a Secaucus
6 DPW truck being in Jersey City. It was being
7 investigated by the Jersey City Police
8 Department. I" -- this is Mr. Leanza. "I
9 followed up both through Mr. Iacono and through
10 Captain Buckley to see if we had anything in the
11 Town records with respect to any Town vehicle or
12 special DPW truck having business in or near
13 Jersey City. They were picking up something
14 from a vendor or dropping something off in
15 Jersey City, and there were no records or
16 indication from that and never received any
17 results of investigation was conducted by the
18 Jersey City Police Department."
19 "So Captain" -- Question: So
20 Captain Buckley conducted an investigation with
21 regard to the Jersey City incident?
22 Answer: No, I believe that was
23 handled by Jersey City Police Department; but he
24 was aware of it. I believe Mr. Iacono checked
25 through Town records and DPW personnel and
33
1 supervisors to find out if anybody was near or
2 could have been in Jersey City in the time
3 frame. And there was no indication that there
4 was any DPW truck from Secaucus in Jersey City
5 at that time.
6 Question: So Mr. Iacono
7 conducted an investigation with regard to the
8 Jersey City incident?
9 Answer: I don't know. But I
10 assume he spoke with the various DPW
11 supervisors, checked their time sheet, their
12 pickups and stuff like that. And the result was
13 nobody was near Jersey City at the time of the
14 alleged incident.
15 Then there is a read back.
16 Then the question is: He
17 reported back to you with that regard, Mr.
18 Iacono?
19 Answer: It wasn't an official
20 report. He told me he couldn't find anything
21 about anybody being near Jersey City with the
22 DPW truck on that day.
23 Question: So that was an
24 unofficial report?
25 Answer: Right, because we were
34
1 not doing the investigation. The official
2 investigation was from the Jersey City Police
3 Department.
4 Question: How did you learn
5 about the Jersey City event?
6 Answer: I don't recall whether I
7 was told by Captain Buckley or told by Mr.
8 Iacono.
9 Question: You discussed it with
10 Captain Buckley?
11 Answer: I believe we did discuss
12 it.
13 MR. PARIS: That's the end of it.
14 MR. MULLIN: That's the end of it.
15 And you know something, I took Mr. Buckley -- my
16 office --
17 JUDGE CURRAN: Excuse me, Tracey.
18 MR. MULLIN: My office took
19 Mr. Buckley's deposition, and we took Mr.
20 Iacono's deposition. And it never dawned on us
21 that we should explore this. I don't know what
22 Buckley knew or didn't know. I would be shocked
23 and surprise, based on this, if Mr. Buckley
24 didn't have the actual police reports from
25 Jersey City because that's the way detectives
35
1 work.
2 And I think it's just -- it's
3 very improper and a violation of, again, the
4 obligation of candor to the Court and also a
5 violation of discovery rules that I wasn't told
6 any of it. I should have been told this in --
7 back then, in 2005, when this was going on. I
8 was never ever told this.
9 I have asked very broad questions
10 in discovery about any efforts they made any
11 investigative efforts they made, and I never
12 received anything about this. And I didn't even
13 cross-examine witnesses in this trial about
14 this. Now Iacono and Buckley are off the stand.
15 I have no documents concerning this. This is
16 just grossly improper. The question about the
17 DPW that was just asked is grossly improper.
18 MR. PARIS: Your Honor, I think
19 this is absolutely consistent. He just said
20 there was no official police investigation.
21 JUDGE CURRAN: Oh, Mr. --
22 Mr. Paris, I really don't -- with all due
23 respect to both of you, I'm going to assume, as
24 officers of the court, that you didn't know what
25 your client just testified to, testified to on
36
1 Monday because -- the record will speak for
2 itself when we had these discussions -- it was
3 clear and unequivocal that there was no
4 knowledge.
5 MR. BEVERE: I can tell you, Your
6 Honor, categorically I did not know.
7 JUDGE CURRAN: I believe that.
8 MR. BEVERE: I did not know.
9 JUDGE CURRAN: As an officer of
10 the court I am sure you wouldn't make the
11 representation. But this just -- this is just
12 totally improper. As far as whether the Town
13 did or didn't know, I don't have the
14 Interrogatories in front of me, but my guess is
15 that the answers to the Interrogatories on
16 probably more than one question were signed off
17 on with information that was either lacking,
18 incomplete or deliberately false on behalf of
19 the municipality.
20 I'm not saying either one of you
21 had any knowledge of that.
22 The fact that the Jersey City
23 Police did the investigation, nobody disputes
24 it; but that's not the issue here. Personally,
25 if we had been back -- if we were back a couple
37
1 of days ago and someone was saying, gee, it's
2 not logical that the Jersey City Police would
3 have investigated this and never given any
4 information to -- to Secaucus, I would have
5 tended to believe that and would have asked,
6 hey, let's get somebody in here, let's get
7 someone from Jersey City to say did you or did
8 you not get reports or get somebody from
9 Secaucus to say did you or did you not receive
10 them. We're beyond that now.
11 At this point, though,
12 anticipating what the next issue is going to be,
13 I am not opening up the door. I will note your
14 strong objection to that on the record.
15 I am going to strike that last
16 question. And this issue will remain for
17 whatever other purposes in regard to those
18 answers and the certification by the Town
19 attorney.
20 Again, none of my comments is
21 directed to Mr. Bevere, nor to Mr. Paris as an
22 individual. And I want that on the record.
23 MR. PARIS: Thank you.
24 JUDGE CURRAN: Thank you.
25 MR. MULLIN: Your Honor.
38
1 JUDGE CURRAN: Mr. Mullin.
2 MR. MULLIN: May I please have a
3 proffer as to what areas we're going to?
4 JUDGE CURRAN: Thank you. I think
5 that's a good idea.
6 MR. PARIS: That's fine.
7 JUDGE CURRAN: Thank you.
8 MR. PARIS: The next area is with
9 regard to Mr. Carter appearing at Town Hall in
10 December -- I think it was December 10th of
11 '04 -- requesting records and his involvement
12 when there was a complaint made about the
13 conduct of the civilian employee.
14 And then the questioning is going
15 to be in terms of what -- when he became aware
16 that the Attorney General's investigation was
17 complete, what -- what his involvement was at
18 that point in time in terms of any follow-up
19 disciplinary action.
20 And then I was going to ask him
21 questions with regard to Town ordinances and
22 harassment policies.
23 MR. MULLIN: Let me take -- the
24 last category is a little vague; but let me take
25 issue with the incident at Town Hall, if it's
39
1 the incident I think.
2 MR. PARIS: Probably is.
3 MR. MULLIN: When Tim Carter went
4 and sought records and the man behind the desk
5 used some expletive, Michael Mercurio. Here is
6 why that should be barred. In the recent
7 production of documents that we got Saturday at
8 5 p.m., just this last Saturday, there was a
9 report I have never seen in my life by an
10 Officer Keeffe.
11 MR. PARIS: O'Keeffe.
12 MR. MULLIN: That was never turned
13 over to me in discovery. It's about that
14 incident, and it -- and it talks about my client
15 breaking down and crying there. And I -- if I
16 had it, I would have put Keeffe on the stand. I
17 would have had my client testify about it. But
18 the Town hid this document. Again, I am not
19 talking about counsel. The Town hid this
20 document from me. Clearly relevant document
21 describing in detail -- I am going to ask -- in
22 fact, Officer Keeffe did appear sympathetic
23 because my client broke down crying and did he
24 reprimand the officer.
25 This is a defense counsel, and it
40
1 is not going to be spun in very favorable light.
2 I think they are going to say Keeffe might be
3 mentally disabled or something.
4 The Town hid this document. It
5 was clearly relevant to the core of the case,
6 the treatment by the Town, by Town officials of
7 my client.
8 JUDGE CURRAN: Mr. Bevere or
9 Mr. --
10 MR. BEVERE: Judge, let me address
11 that because I will also acknowledge that I was
12 unaware of that document until I saw it when Mr.
13 Leanza produced his file. It wasn't a document
14 that I knew of. But let me -- as -- as far as
15 the allegation of intentionally withholding
16 things in discovery, I mean, understand what
17 happens. I take discovery demands that I
18 receive from Plaintiffs' counsel. I send them
19 to the Town. I say, "Give me what you got."
20 JUDGE CURRAN: There is no
21 question about that.
22 MR. BEVERE: I think as a question
23 of interpretation of what I'm looking for, you
24 know -- and quite frankly, to say that the Town
25 is intentionally withholding documents, I mean,
41
1 I don't think that that is true.
2 JUDGE CURRAN: At this point --
3 MR. MULLIN: It was in Mr.
4 Leanza's file. Let me just make that clear.
5 JUDGE CURRAN: At this point I am
6 not finding that it was intentionally withheld.
7 MR. BEVERE: Okay.
8 JUDGE CURRAN: We'd need a little
9 more information. But if it was in Mr. Leanza's
10 file, I don't know who made the decision --
11 MR. PARIS: What is interesting --
12 JUDGE CURRAN: My concern on a
13 separate issue --
14 MR. PARIS: -- what's referred to
15 is a civilian complaint. That's what's it's
16 referred to as. It's not referred to as a
17 police investigation report.
18 JUDGE CURRAN: I believe -- but no
19 matter what, because they didn't get it, I am
20 not going to allow any questioning on it.
21 Again, I am not finding it was intentionally
22 withheld because I don't know all the facts at
23 this point.
24 Any other issues?
25 MR. PARIS: Any other issues?
42
1 JUDGE CURRAN: This is just a very
2 small point, minuscule, Mr. Paris; but because
3 I'm learning that things I don't recognize turn
4 out to be mountains, rather than molehills, when
5 Mr. Leanza testified, to the best of my
6 knowledge -- and Tracey, I think, heard the same
7 thing because I looked at the transcript -- you
8 asked him about his recollection of one
9 conversation or two. He said that he has since
10 found, by looking at his billing records, that
11 he had a second conversation. He said it was
12 March 1st. He didn't give a year. Did he mean
13 May 1st?
14 MR. BEVERE: He meant May 1st. I
15 heard it. He said, "March."
16 MR. PARIS: Can I clarify?
17 JUDGE CURRAN: I didn't know if
18 that was going to give me something the
19 following year, March 1st, '05 or something. I
20 think we ought to.
21 MR. PARIS: Yeah, I will clarify
22 that.
23 Okay. With regard to the
24 O'Keeffe matter?
25 JUDGE CURRAN: Nothing.
43
1 MR. PARIS: Okay.
2 MR. MULLIN: There is two -- I
3 understand about the follow-up. I assume it's
4 the follow-up after they learn in July '05 that
5 DAG's investigation --
6 MR. PARIS: Yeah.
7 MR. MULLIN: He testified at
8 deposition about why -- his recommendations
9 after that. I have my same running objection
10 for all of his testimony, nothing beyond that.
11 The last category, counsel says
12 he is going to elicit testimony about Town
13 ordinances and Town policy. I mean, may I have
14 a proffer on that?
15 MR. PARIS: The Chapter 12, the
16 fire code.
17 MR. MULLIN: Okay. No objection.
18 MR. PARIS: And with regard to the
19 EMT harassment training and --
20 MR. MULLIN: Sensitivity thing?
21 MR. PARIS: No, no, not
22 sensitivity thing, afterwards. But what's --
23 the document you have.
24 MR. BEVERE: We provided -- it's a
25 marked document prior to discovery. It's the
44
1 Town's training manual with the Town's sexual
2 harassment policy. That's all been provided.
3 MR. MULLIN: Is that the MEL, the
4 big thing?
5 MR. BEVERE: No, no, no, no, no,
6 it's the -- it's our D exhibit. It was the --
7 MR. PARIS: I will give you the
8 number.
9 MS. SMITH: Did he testify at all
10 about that in his deposition?
11 MR. PARIS: Yeah -- you know what,
12 I would have to look at his deposition. My
13 recollection is he indicated that he signs off
14 on that on a yearly basis.
15 MR. MULLIN: He did say he signs
16 off with Iacono on some certification.
17 JUDGE CURRAN: Right. Whether
18 it's that one or not, I don't know.
19 MR. BEVERE: The only thing we are
20 looking to establish that --
21 JUDGE CURRAN: He signed off on
22 it?
23 MR. MULLIN: I'm not going to --
24 JUDGE CURRAN: Thank you very
25 much.
45
1 MR. PARIS: Thank you, Your Honor.
2 (Whereupon, sidebar discussion is
3 concluded.)
4 JUDGE CURRAN: The witness may
5 take the stand, please.
6 (Whereupon, the witness re-takes
7 the stand.)
8 JUDGE CURRAN: Ladies and
9 Gentlemen, it had been so long, I'm not sure you
10 even remember it; but if you do, I'm going to
11 strike the last question under the rules. Thank
12 you.
13 Mr. Paris.
14 MR. PARIS: Thank you, Your Honor.
15 BY MR. PARIS:
16 Q Mr. Leanza, in your -- in your
17 testimony I think you -- I don't have the screen
18 in front of me, but I think you indicated you
19 had a conversation with either Mr. Carter or
20 Mr. deVries. I think you said March 1st?
21 A Oh, excuse me, May 1st.
22 Q Okay. That's what I was
23 wondering.
24 How did you find out that the Attorney
25 General was closing its investigation?
46
1 A Well, as I testified before, on or about
2 May 10th we received the first subpoena and
3 letter with regard to their investigation. My
4 experience in these matters is a Grand Jury is
5 normally impaneled for a one-year period. So
6 about May 2005, early June I kept inquiring of
7 the Police Department, particularly Chief
8 Corcoran and Detective Captain Buckley as to
9 what the status was.
10 And the reason I went through them is
11 they had contact with an investigator from the
12 Attorney General's Office to whom they provided
13 all of their investigations. And from reviewing
14 my time sheets, it looks like on or about
15 June 9th I had a discussion with Police Chief
16 Corcoran. And he advised me that their
17 discussion with the investigator from the
18 Attorney General's Office indicated that they
19 were going to drop their investigation, there
20 was not going to be any indictment by a Grand
21 Jury.
22 MR. MULLIN: Objection, Your
23 Honor. Motion to strike. There is no evidence
24 about the issue of whether or not an indictment
25 was issued or not issued. This witness doesn't
47
1 know that. Motion to strike and ask for an
2 instruction to the jury on the inappropriateness
3 of that statement.
4 MR. PARIS: Your Honor, can we be
5 heard at sidebar?
6 JUDGE CURRAN: Surely.
7 (Whereupon, the witness steps
8 down.)
9 (Whereupon, the following sidebar
10 discussion is held.)
11 MR. PARIS: Your Honor, I just
12 want to be clear, what was -- what was
13 originally ruled on is that the -- there
14 wouldn't be testimony as to whether the Grand
15 Jury issued a no bill or not. That was the
16 issue, as to whether or not anyone -- whether
17 there was an actual no bill. But I -- I think
18 it's not a dispute that nobody was prosecuted.
19 I didn't think that that was an issue. Nobody
20 was indicted for this. I mean, that's not an
21 issue.
22 JUDGE CURRAN: Well, yeah, it is
23 an issue in my mind because that letter at the
24 very least is less than definitive. And it
25 doesn't say they're not going to indict. It
48
1 doesn't say -- it says, "Right now we don't have
2 enough information." I mean, frankly --
3 MR. MULLIN: I am going to take
4 this trial transcript --
5 JUDGE CURRAN: Definitive is the
6 best view I could put of that letter.
7 MR. PARIS: Well, Your Honor,
8 there is --
9 MR. MULLIN: Excuse me. I am
10 going to take this trial transcript, and I am
11 going to give it to the U.S. attorney and the
12 Attorney General and ask them to reopen criminal
13 investigations.
14 MR. PARIS: That's fine.
15 MR. MULLIN: You don't know what's
16 going on down there; you really don't.
17 MR. PARIS: No, no, I agree, Your
18 Honor. That is not the issue.
19 MS. SMITH: We have an order in
20 this court not to talk about what the Grand Jury
21 did.
22 JUDGE CURRAN: Right.
23 MR. PARIS: Your Honor, all that
24 I --
25 JUDGE CURRAN: What we basically
49
1 have said -- I personally have issued curative
2 instructions to the jury with which there was no
3 objection --
4 MR. PARIS: Right.
5 JUDGE CURRAN: -- saying phrases
6 like there -- we have no information, Grand Jury
7 proceedings are secret, there is no information
8 as to the outcome of the Grand Jury or any
9 action or inaction. So for him to say as a
10 lawyer, the attorney -- I learned the Attorney
11 General was not going to issue an indictment, I
12 don't care if you call it a "no bill" or you
13 don't, it's basically the same thing. Frankly,
14 I don't think --
15 MR. PARIS: I see the point.
16 JUDGE CURRAN: -- jury probably --
17 MR. BEVERE: Could I say --
18 JUDGE CURRAN: I will note your
19 objection.
20 MR. PARIS: No, no, I guess what I
21 didn't think was at issue is up to that point in
22 time no one was being prosecuted, that nobody
23 had been charged, that's all. That's all I was
24 saying.
25 JUDGE CURRAN: I --
50
1 MR. PARIS: I didn't understand --
2 JUDGE CURRAN: I understand.
3 Thank you.
4 MR. MULLIN: Your Honor, I would
5 request a curative instruction. Again, what
6 Your Honor said is we can only say a Grand Jury
7 was impaneled and that was it. He has gone far
8 beyond that.
9 JUDGE CURRAN: Okay. I will do it
10 again.
11 MR. PARIS: Okay.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, sidebar discussion is
14 concluded.)
15 JUDGE CURRAN: Mr. Leanza.
16 THE WITNESS: Thanks Your, Honor.
17 (Whereupon, the witness re-takes
18 the stand.)
19 JUDGE CURRAN: Thank you.
20 I am going to strike the last
21 question, Ladies and Gentlemen. This has come
22 up in the past. What we know in regard to the
23 evidence in this case is that a Grand Jury was
24 impaneled. We have no information whatsoever as
25 to an outcome or lack of an outcome in that
51
1 regard. I'm going to strike that last question.
2 Thank you.
3 Mr. Paris.
4 BY MR. PARIS:
5 Q Mr. Leanza, without specific
6 reference to the Grand Jury or what the Grand
7 Jury did or did not do, all right, all that I
8 want to know is you found out that the matter
9 was being -- was not proceeding with the
10 Attorney General, correct?
11 A Yes. And over and above that,
12 subsequently --
13 JUDGE CURRAN: Sir, I apologize.
14 That was the question. Mr. Paris is well
15 prepared. I am sure if he wishes to have
16 another question, he will.
17 THE WITNESS: Thank you.
18 BY MR. PARIS:
19 Q And that was based upon a
20 conversation you had, I think you said, with the
21 Police Chief on June 9th, correct?
22 A Initially. Then, subsequently, I
23 reviewed a letter that was issued by the
24 Attorney General.
25 Q Okay. Well, we'll get to that.
52
1 Now, that was June 9th of 2005, correct?
2 A Yes.
3 Q So that was over a year after the
4 incident?
5 A Yes.
6 Q Okay. Now, after the conversation
7 with Chief Corcoran you mentioned you saw a
8 letter, correct?
9 A Correct.
10 Q Okay. I'm showing you a document
11 which was marked D-232 and ask if this is the
12 letter that you're referring to?
13 A Yes. July 5th is the date.
14 Q And who -- who authored that
15 letter?
16 A This author -- the author of the letter
17 was the same Deputy Attorney General,
18 Hester Agudosi, who had authored the letter you
19 had previously shown me with regard to turning
20 over the files, ceasing any administrative
21 proceedings and also assigned the subpoenas for
22 the information from the Town of Secaucus to go
23 to the Grand Jury.
24 Q And who was that letter addressed
25 to?
53
1 A That letter is addressed to Timothy
2 Carter and Peter deVries, the plaintiffs.
3 Q And did you see that letter on or
4 about July 5th of 2005?
5 A Sometime after July 5th, 2005. I don't
6 recall exactly when.
7 Q Was it months after July 5th?
8 A No, in -- during the month of July.
9 Q Okay. Now, with regard to the
10 letter, okay, what was your understanding as to
11 what happened with the Attorney General's
12 investigation? I'm just asking your
13 understanding.
14 A Okay.
15 MR. MULLIN: Objection, Your
16 Honor. Objection, Your Honor. Question is --
17 the form of the question is maybe contrary to
18 your recent ruling.
19 JUDGE CURRAN: Exactly. You can
20 rephrase.
21 MR. PARIS: I will.
22 MR. MULLIN: Question should be
23 very specific.
24 JUDGE CURRAN: The objection is
25 sustained, thank you.
54
1 BY MR. PARIS:
2 Q Mr. Leanza, without reference to
3 what a Grand Jury may or may not have done,
4 without reference to that my question is: What
5 was your understanding as to what happened with
6 regard to the Attorney General's investigation?
7 A The Attorney General had made a
8 determination that it had exhausted all of its
9 leads with regard to the criminal investigation
10 and you could not determine or identify anyone
11 who committed a criminal act of bias.
12 Q Now, as a result of finding this
13 out what did you do?
14 A Well, I did something previously. When I
15 first heard that the State was dropping its
16 investigation, I had directed Chief Corcoran and
17 Detective Captain Buckley to determine whatever
18 they could from the investigatory files of the
19 Attorney General so we would have it and we
20 might be able to proceed on that. I never got
21 anything except negative answers in terms of
22 what was received from the attorney -- from the
23 Attorney General's Office, basically nothing.
24 And then, when I received this letter
25 in July saying that all their investigation had
55
1 revealed nothing with respect to identifying
2 anyone who had committed a crime, internally I
3 made the determination that if the Attorney
4 General, who had the powers I alluded to before
5 with both regard to subpoenaing witnesses and
6 enforcing their testimony, couldn't do any
7 identification, that it would be hard-pressed or
8 impossible for me, as the Town attorney, to do
9 the same thing.
10 Q And based upon -- well, before --
11 before July 5th of '05 had you reviewed police
12 reports with regard to the incident of
13 April 25th and the police reports thereafter?
14 A Yes, Captain Buckley copied me with every
15 police report because everything was turned over
16 to the Attorney General.
17 Q Did you keep them in your file?
18 A I didn't keep them in my file. I make
19 that a habit not to keep the police reports in
20 my file because they're confidential. I receive
21 them not only on this but on other incidences
22 with regard to ABC matters, et cetera, like
23 that; and I don't like to have them in the
24 office. I review them and I either return them
25 or destroy them. And the Police Department
56
1 keeps a copy of them.
2 Q Now, based upon the information
3 that you had in terms of reviewing the police
4 reports and the information you just mentioned
5 about the Attorney General's investigation, what
6 did you determine?
7 A Based upon that, based upon my 30 years
8 practice as an attorney --
9 Q Just wait one second. I'm having
10 trouble --
11 A Okay.
12 Q Okay. I'm sorry, go ahead.
13 A Yeah, based upon my 18 years as a
14 municipal judge, based upon my representation of
15 five or six other municipal entities -- and I
16 have conducted these administrative hearings to
17 discipline people -- I concluded that there was
18 not enough evidence, not only to proceed
19 criminally but not enough to proceed
20 administratively, as well, in action against
21 anybody because there was no identification,
22 basically, of who said what that night or that
23 early morning of April 25th, 2004.
24 Q With regard to the issue of
25 firefighters pleading the Fifth amendment, did
57
1 you recommend that there be discipline for that?
2 A There was no way we could discipline
3 them. There was nothing in our rules with
4 regard to firefighters or nothing that I saw in
5 the bylaws of the respective companies that
6 provided for discipline for firefighters who
7 took or who exercised their Constitutional
8 rights with regard to their positions.
9 Q Now, who did you discuss your
10 findings with?
11 A I discussed my findings with the Town
12 Administrator at that time, who is Anthony
13 Iacono.
14 Q Mr. Leanza, have you prosecuted
15 other disciplinary actions against firefighters?
16 A Yes. As a matter of fact, at about the
17 same time, probably from April of 2005 to maybe
18 August of 2005, I was in the process of
19 prosecuting two disciplinary actions against two
20 separate firefighters, one was a Mr. Nielsen and
21 one was a Mr. Ballance.
22 We had -- as pursuant to law, they have
23 a due process right to a hearing. We had full
24 hearing, evidence. I believe there was
25 transcripts taken. We had an impartial third
58
1 person who was the hearing officer. There was a
2 determination made that they had violated the
3 Town ordinance with respect to conduct of a
4 firefighter, and both firefighters were
5 terminated.
6 Q Mr. Leanza, just want to talk a
7 little bit about Township codes and -- and
8 policies and things like that. Are you familiar
9 with the Chapter 12 of Secaucus's Code?
10 A Well, I know that Chapter 12 of
11 Secaucus's Code refers to the Volunteer Fire
12 Department. I'm familiar with it. And I can't
13 cite the verse and line, but I'm generally
14 familiar with the terms and conditions.
15 Q Are you familiar with the election
16 process for Fire Chief?
17 A Yes.
18 Q And what is that process?
19 A Well, the Chief is not elected. What
20 happens is there are three chiefs. There is a
21 battalion chief, a deputy chief and an overall
22 chief of the Department. Every two years a new
23 battalion chief is elected. And the battalion
24 chief's election is supposed to be someone from
25 a different house every year. So, for instance,
59
1 this company, Engine 2, had the battalion chief
2 from them in 2000. Then, in 2002 the battalion
3 chief couldn't come from Firehouse 2.
4 So the battalion chief would be elected
5 every two years. And then, after two years the
6 existing chief would retire, the deputy chief
7 would move up to chief. The battalion chief
8 would move up to deputy chief. And the recently
9 elected battalion chief would serve his two
10 years and await being moved up to deputy chief.
11 Q Does the entire Fire Department
12 vote on who is going to be the battalion chief?
13 A The fire -- all volunteer fire members in
14 good standing have the right to vote for who's
15 going to be the next battalion chief.
16 Q What is the role of the Mayor and
17 Council in the selection of a battalion chief?
18 A The Mayor and Council has no role at all
19 other than, my understanding is, we can
20 disapprove or veto the election of a battalion
21 chief. And if that were the case, then that
22 person would be entitled to a full hearing and
23 we'd have to prove why we didn't think he was
24 qualified for it.
25 Q Now, just want to show you another
60
1 document marked D-273. Is this Chapter 12 of
2 the Code of the Town of Secaucus that deals with
3 the Fire Department?
4 MR. MULLIN: What is the exhibit
5 number again?
6 MR. PARIS: 273.
7 JUDGE CURRAN: 273.
8 MR. MULLIN: Hold on a second.
9 BY MR. PARIS:
10 A It appears to -- I'm not reading every
11 word --
12 Q No.
13 A -- but I see the table of contents,
14 Chapter 12, that's it.
15 Q Be merciful --
16 A Copy is on the small side too.
17 Q We will be merciful and not ask
18 you to read every word, okay.
19 Now, in -- on April 25th of 2004 did
20 the Town of Secaucus have in place a written
21 antiharassment and antidiscrimination policy for
22 its employees?
23 A Yes, we had a, basically, an employee
24 handbook that had antidiscrimination,
25 antiharassment, generally workplace conduct
61
1 provisions in it.
2 Q Now, I am going to show you what's
3 been marked as D-249 through D-254 and ask you
4 is that the Town of Secaucus discrimination
5 and/or harassment policy?
6 A I will get -- word for word, without
7 looking at my signed copy, but it appears to
8 be -- it appears to contain all the material
9 provisions as I recollect them.
10 Q Okay. Now, in addition, Mr.
11 Leanza, did Secaucus also have harassment and
12 discrimination training for its employees in
13 place in April of 2004?
14 A Well, when you say, "in place in 2004,"
15 what happened is the policy together -- is given
16 to every employee. In addition to that,
17 periodically we have someone from the outside --
18 I believe we had -- at that time we were using
19 someone from Rutgers University. Now we have
20 another gentleman, Dr. Fox, who's from
21 Intervention Strategies.
22 They would come in, give a seminar and
23 disseminate, in addition to the policy, certain
24 procedures. A lot of it was anecdotal, how
25 would you react in a situation to try and
62
1 indicate -- and these people -- that sexual
2 harassment innuendos, anything of that nature,
3 anything racially, anything discriminatory would
4 not be tolerated and to make clear that even
5 jokes and things of that nature would be
6 violative of the policy.
7 So I don't remember what happened on
8 the 24th. I believe -- my recollection is, you
9 know, probably in 2000, 2002. I know last year
10 we had a seminar.
11 And actually, we run two or three of
12 them because we can't have everybody in from the
13 Town in at one time. But we have these outside
14 people in. We have it in the Town meeting room
15 where the Mayor and Council meet. And, you
16 know, we'll have a third or a quarter of the
17 Town employees in at a time; and somebody will
18 come in and give an update on the policy. And
19 it gives these examples.
20 Q Okay. And does -- does that
21 training -- is that training required of all
22 Town employees?
23 A Required of all Town employees.
24 Q I'm showing you document which has
25 been marked D-233 to 248 and ask you if you can
63
1 identify that?
2 A Yeah, these are some of the training
3 materials and some participants -- these are the
4 handouts that are given out and some of the
5 examples. However, I believe this is a more
6 recent one. I'm not sure if this -- there is no
7 date on this --
8 Q Okay.
9 A -- but this might be from the last three
10 or four years. I'm not sure if this is the one
11 that was given in 2002 or 2004.
12 Q In looking at this -- take a look
13 at it. Did you attend -- did you attend these
14 sessions?
15 A Yes, I believe I attended this one
16 because this one was given by a Dr. Fox from
17 Intervention Strategies.
18 Q Is this the type of material that
19 is provided by way of training --
20 A Yeah.
21 Q -- to Secaucus Town employees
22 prior to April of 2004?
23 A Yes, these are really the handouts.
24 There would be somebody who would give a
25 presentation; and generally, there would be some
64
1 type of slide show. Now they do it by this
2 computer or Power Point thing. Back then I
3 think it might have just been a slide show. And
4 there would be different slides that relate to
5 some of the handouts, going through anecdotes,
6 what is and what isn't allowed and what could be
7 deemed inflammatory or violative of the policy.
8 Q Just leave that there.
9 Mr. Leanza, as of April 2004 did the
10 Town have in place a procedure for responding to
11 complaints of citizens and employees with regard
12 to harassment or discrimination against Town
13 employees?
14 A Yes.
15 Q What was your involvement in that
16 process?
17 A Well, I reviewed the process because it
18 was all set forth in a manual. And in certain
19 cases the process is duplicative because some of
20 our employees are members of unions. So we have
21 for general people who are not members of the
22 unions these procedures. And some of the people
23 who are members of unions also have certain
24 rights. They have union delegates present, et
25 cetera, things like that. That's kind of what I
65
1 work on. And I generally worked on that, who --
2 with the person who was at that time the Town
3 Administrator, Mr. Iacono.
4 Q Okay. Was Mr. Iacono also the
5 EEOC compliance officer?
6 A Yes, he was.
7 MR. PARIS: If I could just have
8 one second, please, Your Honor?
9 JUDGE CURRAN: Surely.
10 MR. PARIS: Your Honor, if we
11 could, this is -- we were talking about playing
12 the tape from April 27th. I need to get that
13 from your chambers. And if I could, I may
14 reserve a question or so after that's done.
15 JUDGE CURRAN: Surely. Do you
16 want to start playing the tape now?
17 MR. PARIS: Yeah.
18 JUDGE CURRAN: Surely. Go off the
19 record for a moment.
20 COURT CLERK: Off the record.
21 (Whereupon, a discussion is held
22 off the record.)
23 JUDGE CURRAN: I will note for the
24 record that Mr. Paris has brought the cassette
25 tape player and a cassette tape; is that
66
1 correct, Mr. Paris?
2 MR. PARIS: That's correct.
3 JUDGE CURRAN: Do you have a
4 number on the cassette tape --
5 MR. PARIS: No.
6 JUDGE CURRAN: -- an exhibit
7 number? We'll mark it later.
8 MR. PARIS: Okay.
9 JUDGE CURRAN: Thank you.
10 MR. PARIS: Hopefully it's queued
11 up properly. Your Honor, there is a point where
12 we are going to need to take a break; I just
13 want to say that in advance.
14 JUDGE CURRAN: That's fine. Just
15 let us know.
16 MR. PARIS: I will.
17 (Whereupon, a portion of the
18 audiotape is played.)
19 JUDGE CURRAN: I really apologize.
20 MS. SMITH: Just stop for a
21 minute.
22 JUDGE CURRAN: I apologize. My
23 concern is, first of all, I think it would be
24 helpful to explain to the jury what this is.
25 MR. PARIS: I'm sorry.
67
1 JUDGE CURRAN: That's okay.
2 MR. PARIS: I'm sorry.
3 JUDGE CURRAN: Then I think there
4 may be a question. I don't have an unofficial
5 transcript; but if there is a question, we may
6 as well answer it now.
7 MR. PARIS: Is there a question?
8 MR. MULLIN: No, we have no
9 question.
10 JUDGE CURRAN: I'm sorry. I would
11 ask you to back it up, but I know you don't want
12 to do it.
13 MR. PARIS: I could do it a little
14 bit and be safe probably.
15 JUDGE CURRAN: If you can do it,
16 that's fine. But if you would just explain
17 first to the jury what they are hearing, what
18 voices.
19 MR. PARIS: I'm sorry. This is a
20 tape recording that was made during the
21 executive session portion of a caucus meeting of
22 the Mayor and Council that was held on
23 April 27th of 2004. And Mr. -- I don't want to
24 testify, but --
25 BY MR. PARIS:
68
1 Q Mr. Leanza, was the Police Chief
2 present at that meeting?
3 A Yes.
4 Q Were you present?
5 A Yes.
6 Q Were members of the Mayor and
7 Council present?
8 A Yes. And the Fire Chief.
9 Q And the Fire Chief Walters was
10 present?
11 A Yes.
12 Q Anyone else of significance -- I
13 don't want to say, "of significance"; we are all
14 significant.
15 A My recollection is that is all. If I
16 hear any extraneous voice, I will let you know.
17 MR. PARIS: I will try to -- you
18 know what, I think if I do this -- just give me
19 one second. I think if I do that, this backs it
20 up, I think, a little bit.
21 (Whereupon, a portion of the
22 audiotape is played.)
23 MR. PARIS: Okay. I think I'm
24 doing all right. Okay. Here we go.
25 (Whereupon, a portion of the
69
1 audiotape is played.)
2 MR. PARIS: Can I pause it right
3 there for a moment?
4 BY MR. PARIS:
5 Q Mr. Leanza, was that you speaking
6 to the Mayor and council?
7 A Yes, that was my voice.
8 (Whereupon, a portion of the
9 audiotape is played.)
10 Q Mr. Leanza, you recognize that as
11 Mayor Elwell's voice?
12 A Mayor Elwell.
13 (Whereupon, a portion of the
14 audiotape is played.)
15 MR. MULLIN: Can we identify that
16 voice?
17 THE WITNESS: That is Councilman
18 Kickey.
19 BY MR. PARIS:
20 Q Who was that?
21 MR. MULLIN: Who was that?
22 A Councilman Kickey.
23 (Whereupon, a portion of the
24 audiotape is played.)
25 Q Identify that voice.
70
1 A That is Chief Corcoran speaking, Dennis
2 Corcoran.
3 Q Okay.
4 (Whereupon, a portion of the
5 audiotape is played.)
6 MR. PARIS: Oh, I have to flip it
7 over.
8 MR. MULLIN: Can we have a voice
9 identification?
10 THE WITNESS: That was Councilman
11 Kickey who answered the question.
12 MR. MULLIN: "Chief, have any
13 charges been filed?"
14 THE WITNESS: Yes.
15 (Whereupon, a portion of the
16 audiotape is played.)
17 MR. MULLIN: Voice identity?
18 THE WITNESS: Kickey again.
19 MR. MULLIN: Kickey?
20 (Whereupon, a portion of the
21 audiotape is played.)
22 BY MR. PARIS:
23 Q Is that Chief Walters?
24 A That -- yeah, Chief Frank Walters, who
25 was at that time the Chief of the Fire
71
1 Department.
2 Q That was Chief Walters who was the
3 Chief at that time?
4 A At that time, right.
5 Q Okay. When did Chief Walters
6 finish his term as chief?
7 A I believe at the end of 2004, and then
8 Chief Cieciuch became chief after that.
9 Q Chief Cieciuch became the chief in
10 January?
11 A January of 2005.
12 MR. MULLIN: Hold on one second.
13 MR. PARIS: Stop it.
14 MR. MULLIN: I want to stop it for
15 one second.
16 Your Honor, could we have an
17 agreement that the witness will identify voices
18 as they come on because I don't want to keep
19 interrupting the tape but he can just call it
20 out?
21 THE WITNESS: As I hear them. If
22 I miss, just give me a nod or a point.
23 JUDGE CURRAN: Thank you, Mr.
24 Leanza.
25 (Whereupon, a portion of the
72
1 audiotape is played.)
2 THE WITNESS: Chief Walters again.
3 (Whereupon, a portion of the
4 audiotape is played.)
5 THE WITNESS: John Bueckner,
6 councilman. Councilman Bueckner.
7 (Whereupon, a portion of the
8 audiotape is played.)
9 THE WITNESS: That was the Chief
10 answering, police chief, excuse me.
11 (Whereupon, a portion of the
12 audiotape is played.)
13 THE WITNESS: That's still
14 Bueckner.
15 (Whereupon, a portion of the
16 audiotape is played.)
17 THE WITNESS: This is me.
18 (Whereupon, a portion of the
19 audiotape is played.)
20 MR. PARIS: Your Honor, I have to
21 stop this at this point, I think, Your Honor.
22 Okay. Your Honor, could we have a short
23 break --
24 JUDGE CURRAN: Sure.
25 MR. PARIS: -- and then we'll
73
1 continue with the tape?
2 JUDGE CURRAN: Ladies and
3 Gentlemen, you haven't had a break at all, so we
4 will take a ten-minute break. If you would like
5 to go into the jury room. Thank you.
6 Off the record.
7 COURT CLERK: Off the record.
8 (Whereupon, the jury is excused.)
9 (Whereupon, a brief recess is
10 taken.)
11 MS. HAWKS: Jurors are
12 approaching.
13 JUDGE CURRAN: Thank you.
14 MS. HAWKS: You're welcome.
15 (Whereupon, the jury is brought
16 into the courtroom.)
17 JUDGE CURRAN: Thank you. Thank
18 you, please be seated. Thank you.
19 MR. PARIS: We'll continue, Your
20 Honor.
21 JUDGE CURRAN: Surely.
22 (Whereupon, a portion of the
23 audiotape is played.)
24 THE WITNESS: This is Deputy Mayor
25 Reilly.
74
1 (Whereupon, a portion of the
2 audiotape is played.)
3 THE WITNESS: It's the Police
4 Chief.
5 MR. PARIS: I'm sorry, can you
6 hear that?
7 JUROR: Can't hear.
8 MR. PARIS: I'm going to try to
9 just rewind it a little bit. At times it gets a
10 little low.
11 (Whereupon, a portion of the
12 audiotape is played.)
13 THE WITNESS: Councilman Bueckner.
14 Bueckner.
15 (Whereupon, a portion of the
16 audiotape is played.)
17 THE WITNESS: That's Councilman
18 Chris Marra. And that is Fire Chief Walters.
19 (Whereupon, a portion of the
20 audiotape is played.)
21 THE WITNESS: That's the Mayor.
22 (Whereupon, a portion of the
23 audiotape is played.)
24 MR. MULLIN: Police Chief?
25 THE WITNESS: Police Chief.
75
1 (Whereupon, a portion of the
2 audiotape is played.)
3 THE WITNESS: That's me.
4 (Whereupon, a portion of the
5 audiotape is played.)
6 THE WITNESS: Bueckner, Councilman
7 Bueckner.
8 MR. MULLIN: Bueckner?
9 THE WITNESS: Bueckner, Bueckner.
10 (Whereupon, a portion of the
11 audiotape is played.)
12 THE WITNESS: Police Chief.
13 (Whereupon, a portion of the
14 audiotape is played.)
15 THE WITNESS: That's Councilman
16 Constantino.
17 (Whereupon, a portion of the
18 audiotape is played.)
19 THE WITNESS: Deputy Mayor Reilly.
20 Deputy Mayor Reilly.
21 (Whereupon, a portion of the
22 audiotape is played.)
23 THE WITNESS: Deputy Mayor Reilly.
24 (Whereupon, a portion of the
25 audiotape is played.)
76
1 THE WITNESS: Chief Corcoran,
2 Police Department.
3 (Whereupon, a portion of the
4 audiotape is played.)
5 THE WITNESS: That's Bueckner.
6 (Whereupon, a portion of the
7 audiotape is played.)
8 THE WITNESS: Bueckner again.
9 (Whereupon, a portion of the
10 audiotape is played.)
11 THE WITNESS: Kickey.
12 (Whereupon, a portion of the
13 audiotape is played.)
14 THE WITNESS: Deputy Mayor Reilly.
15 (Whereupon, a portion of the
16 audiotape is played.)
17 MR. MULLIN: Who's that?
18 THE WITNESS: Deputy Mayor Reilly.
19 (Whereupon, a portion of the
20 audiotape is played.)
21 THE WITNESS: This is Kickey.
22 (Whereupon, a portion of the
23 audiotape is played.)
24 THE WITNESS: Deputy Mayor Reilly.
25 (Whereupon, a portion of the
77
1 audiotape is played.)
2 THE WITNESS: Chief Walters, Fire
3 Department.
4 (Whereupon, a portion of the
5 audiotape is played.)
6 THE WITNESS: Kickey again.
7 (Whereupon, a portion of the
8 audiotape is played.)
9 THE WITNESS: Kickey and the
10 Police Chief.
11 (Whereupon, a portion of the
12 audiotape is played.)
13 THE WITNESS: Bueckner.
14 (Whereupon, a portion of the
15 audiotape is played.)
16 THE WITNESS: Fire Chief Walters.
17 (Whereupon, a portion of the
18 audiotape is played.)
19 THE WITNESS: Chris Marra.
20 (Whereupon, a portion of the
21 audiotape is played.)
22 THE WITNESS: Bueckner said, "Not
23 true." Bueckner said, "Not true."
24 (Whereupon, a portion of the
25 audiotape is played.)
78
1 THE WITNESS: The chief, the
2 Police Chief.
3 (Whereupon, a portion of the
4 audiotape is played.)
5 MR. MULLIN: I don't want to stop
6 there. Can we keep going, Your Honor? Just a
7 couple lines.
8 (Whereupon, a portion of the
9 audiotape is played.)
10 MR. PARIS: Your Honor, he is
11 still talking about the press and the minutes.
12 And it goes on for two more lines. Can we just
13 have the rest under completeness rule?
14 (Whereupon, a portion of the
15 audiotape is played.)
16 MR. MULLIN: That's it.
17 JUDGE CURRAN: Thank you.
18 MR. PARIS: I have no questions.
19 Thank you, Your Honor.
20 JUDGE CURRAN: Thank you.
21 MR. MULLIN: Your Honor, I'll
22 proceed. And we may want to take the lunch
23 break a little early to organize papers, but I
24 will go as far as I can.
25 JUDGE CURRAN: Okay. Just let us
79
1 know when there is a natural break.
2 CROSS EXAMINATION BY MR. MULLIN:
3 Q Well, sir, we just listened to the
4 non-public, the private executive session
5 meeting of the Town Council's meeting of
6 April 27th, 2004, true?
7 A Yes, sir.
8 Q That was two days after the
9 incident, true?
10 A Yes, sir.
11 Q And we heard some laughter; isn't
12 that the case, true?
13 A Yes.
14 Q And we never heard the names Tim
15 Carter or Peter deVries mentioned the entire
16 tape, right, true?
17 A That's correct.
18 Q And nobody said, "Well, how are
19 Tim Carter and Peter deVries doing? How are the
20 victims doing?" Nobody said that, right?
21 A That is --
22 Q True?
23 A That's correct.
24 Q Okay. And there was talk about
25 civil liability, right? That was the phrase
80
1 used, right?
2 A Correct.
3 Q And there was talk about
4 plaintiffs lawyers, people like me? That phrase
5 was used, right?
6 A Correct.
7 Q There was talk about maybe
8 somebody is going to sue the Town and we have to
9 protect ourselves from being sued? That theme
10 was there, right? The jury heard it and you
11 heard it, true?
12 A Correct.
13 Q And early on in the meeting we
14 heard Chief Corcoran describe the incident,
15 right, early on in the meeting?
16 A Early on in the meeting you heard me
17 first.
18 Q I'm not asking what I heard first.
19 I am focusing your attention on a narrow
20 question, sir. You are an attorney, an
21 experienced attorney and judge, so I am not
22 meaning to be rude; but I am going to ask you
23 some narrow questions that require -- so I am
24 asking you early on towards the beginning of the
25 meeting we heard the Chief describe what he said
81
1 was the incident, true?
2 A No, he gave a limited description of the
3 incident.
4 Q He gave a description of the
5 incident, true?
6 A A limited description based upon my prior
7 advice to him that we should not go into detail
8 about the investigation because it was
9 confidential.
10 Q That's a good --
11 A You heard that, didn't you?
12 Q That is a good point, the prior
13 advice, because the truth is you met with Chief
14 Corcoran before this meeting, right?
15 A Correct.
16 Q You met with Chief Corcoran on
17 April 25th, the day of the incident, right?
18 A No, I did not.
19 Q Okay. You met with Chief -- oh,
20 that's not in your billing that you met with
21 Chief Corcoran? Did I make a mistake? You
22 didn't meet with Chief Corcoran on April 25th,
23 2004?
24 A No, that's -- that -- I made a mistake --
25 whoever transcribed my billing. April 25th was
82
1 a Sunday. I did not meet with anybody. I just
2 had discussions with Mayor Elwell.
3 Q Okay. Well, hang on a second.
4 Maybe I made a mistake.
5 A I met with Chief --
6 Q No question pending, sir. You
7 submit bills to the Town of Secaucus that are
8 rather detailed, right?
9 A Yes, sir.
10 Q Okay. And that's your boss over
11 there? That's the Mayor sitting there while you
12 testify, right?
13 A Well, either one of them are my boss.
14 Q Who is the other gentleman?
15 A The Town administrator.
16 Q Who is the other gentleman? He is
17 the Town -- what's his name?
18 A David Drumeler.
19 Q Okay. And you submit bills to the
20 Town of Secaucus for the legal services you
21 provide, right?
22 A Yes. Actually, they're submitted to
23 Mr. Drumeler now.
24 Q Mr. Drumeler, sitting right there?
25 A Yes.
83
1 Q And you testified at a deposition
2 that you get paid somewhere towards about
3 200,000 a year, is that right, by the Town of
4 Secaucus?
5 A I believe somewhere between 100 and 200;
6 it depends upon the year.
7 Q How about -- how about the year
8 2007; what did you get paid?
9 A I don't recall.
10 Q Okay. But you submit bills every
11 month, right?
12 A Yes, sir.
13 Q And that's for a part-time job,
14 right?
15 A Sir, it's not a job; it's my whole firm.
16 Q I understand what you are saying.
17 But you are part-time -- you're not a full-time
18 employee of the Town, right? You work in a law
19 firm --
20 A Yes.
21 Q -- correct? And your law firm
22 submits bills to the Town, right?
23 A Right.
24 Q And on these bills you have to
25 swear that they're true, right? These bills
84
1 that you submit to the Town of Secaucus, they
2 have a certification and declaration, right?
3 A Yes, sir.
4 Q You actually sign that declaration
5 on all the bills, right?
6 A These -- actually, that's signed by my
7 secretary.
8 Q You authorized her to sign, your
9 secretary, right?
10 A Yes.
11 Q And it says, "I do solemnly
12 declare and certify under the penalties of the
13 law that the within bill is correct in all its
14 particulars." Then it goes on to make other
15 statements, right?
16 A That's correct, sir.
17 Q You signed that statement or you
18 authorized your secretary to sign it, correct?
19 A That's correct.
20 Q Let's look at your billing entry
21 for 4/25/04. And I probably should put a
22 Plaintiff's Exhibit sticker on it.
23 MR. MULLIN: Why don't we call the
24 bill of four -- of April -- for April '04, why
25 don't we call that Plaintiff's Exhibit 406.
85
1 JUDGE CURRAN: So ordered.
2 MR. MULLIN: Thank you, Your
3 Honor.
4 (Whereupon, Mr. Leanza's bill,
5 dated 4/25/04 is received and marked as
6 Plaintiff's Exhibit P-406 for
7 Identification.)
8 BY MR. MULLIN:
9 Q Your entry on 4/25 -- well, let's
10 look at -- did you sign that one? Is that -- is
11 that your signature, or is that your secretary
12 signing on your behalf?
13 A That's my secretary.
14 Q That month you got -- for your
15 work?
16 A That's what the bill says, yes, sir.
17 Q And on April 25th, 2004 -- well,
18 that's the day of the incident, right?
19 A That's correct.
20 Q And it says, "Meeting with Chief
21 Corcoran," right? It says, "Meeting with Chief
22 Corcoran and Linda Carpenter regarding printing
23 bids," right? But it does say, "Meeting with
24 Chief Corcoran," doesn't it?
25 A It says, "Meeting with Chief Corcoran and
86
1 Linda Carpenter," correct.
2 Q But you did meet with Chief
3 Corcoran on April 25th, 2004, contrary to what
4 you just told the jury; is that correct?
5 A Of course not.
6 Q Is that a false statement in this
7 bill; yes or no?
8 A That is an error. Should be the 26.
9 Q An error? You can remember all
10 the way back four years ago that is an error in
11 your bill?
12 A Will you allow me to explain it?
13 Q No, I believe your lawyer is going
14 to allow you to explain it at great length. I
15 want a simple answer to my question.
16 You signed a certificate saying the
17 particulars of this bill are true; and it says
18 meeting on April 25th, 2004 with chief. My
19 question is: Is that a false statement in the
20 bill, an inaccurate statement or a true
21 statement? That is my question, very narrow
22 question.
23 A My answer is that was an error. And if
24 that's the only error in all my bills, I would
25 be very pleased.
87
1 Q Okay. And do you think it is the
2 only error in all your bills?
3 A Probably.
4 Q You met with -- you testified to
5 the jury and you testified in deposition that
6 you had another meeting with the police on
7 April 26th, 2004, right?
8 A Right.
9 Q You testified you met with
10 Corcoran and Buckley, is that right, on
11 April 26th, 2004?
12 A Yes, sir.
13 Q Okay. Where is that in your bill?
14 That's omitted, isn't it?
15 A No, sir, a five and a six look very
16 similar. I probably wrote April 26th, and my
17 secretary thought it was April 25th.
18 Q I'm not asking you to testify for
19 your secretary. I'm asking you if it says in
20 your bill that you met with the Police Chief and
21 that captain of the detectives the day after
22 this investigation, on April 26th, 2004? Is
23 that in that bill that you swore to? Is it
24 there?
25 A Of course it's not there.
88
1 Q It's not there. Well, I guess we
2 got two mistakes, huh?
3 A No, it's one mistake.
4 Q Okay. And you know, so you had
5 two meetings -- well, you'll at least admit to
6 one meeting with the Police Chief and the
7 Detective Captain the day before the meeting we
8 just heard on tape? You will at least admit to
9 one, right?
10 A Of course I would, yes.
11 Q Only you didn't report that
12 meeting on that bill, true?
13 A I reported it on that bill.
14 Q You didn't report the April 26th
15 meeting on that bill, did you?
16 A I did, but --
17 Q Well, show the jury where it is.
18 A It appears my secretary looked at the six
19 as a five, and that's the difference.
20 Q You have an entry for the 25th,
21 and you don't have an entry for the 26th. And
22 you're under oath and you're a lawyer and you're
23 a judge and you're swearing here there is an
24 entry for the 26th?
25 MR. PARIS: Objection, Your Honor.
89
1 A Yes, I'm swearing that --
2 MR. PARIS: Excuse me.
3 JUDGE CURRAN: Excuse me.
4 A Edge the entry for 26th --
5 MR. PARIS: This is argumentative.
6 The witness already indicated what the answer is
7 and explanation is, and this is nothing but
8 argumentative.
9 JUDGE CURRAN: I'll sustain that.
10 MR. MULLIN: I'll move on.
11 JUDGE CURRAN: Move on.
12 THE WITNESS: Thank you, Your
13 Honor.
14 JUDGE CURRAN: Just don't --
15 excuse me. Witnesses do not thank judges for
16 their decisions. Right or wrong, my decision is
17 made objectively as --
18 THE WITNESS: Sorry.
19 JUDGE CURRAN: No problem.
20 BY MR. MULLIN:
21 Q There is not a single police
22 report -- there is not a single police report by
23 Detective Buckley or -- or Chief Corcoran
24 reporting that you met with them on the 25th or
25 the 26th? Such a report doesn't exist, right?
90
1 You have never seen one?
2 A I have never seen such a report.
3 Q In fact, in your deposition and in
4 your billing records you had many meetings --
5 and we will go through -- you had many meetings
6 with Detective Buckley and Chief Corcoran during
7 the week, two weeks and three weeks and months
8 to file this incident?
9 A Correct.
10 Q There is not a single police
11 report that you have ever seen or that you are
12 aware of detailing what happened at those
13 meetings between you, the Town's lawyer and the
14 Detective Captain or the Police Chief? There is
15 no such police report that you were aware of,
16 right?
17 A Of course not.
18 Q Okay. So in a meeting that's not
19 recorded in a police report on April 26th, the
20 day before the meeting that you just heard
21 taped, you have a meeting with Corcoran and
22 Chief of the police and Detective Captain. Then
23 the next day there is this caucus meeting,
24 right?
25 A Yes, sir.
91
1 Q And Corcoran makes some sort of
2 summary about what happened at -- at the -- at
3 the incident, right?
4 A Yes.
5 Q When the jury just heard it, just
6 heard the tape, isn't it true that on that tape
7 Corcoran says on the early morning of Sunday,
8 Saturday night into Sunday the Police Department
9 received three -- three telephone calls that we
10 know of because they came in on 911 and we got
11 the phone numbers from them? That's what the
12 jury just heard on that tape, three phone calls,
13 right?
14 A That -- to the best of my recollection,
15 that's what the tape says.
16 Q That was a false statement by the
17 Chief of Police, wasn't it? Right?
18 A I -- I don't recall without having all
19 the reports in front of me. And as I alluded to
20 before --
21 Q You don't recall --
22 A -- the Chief was directed to limit the
23 discussion about his investigation.
24 Q He said there were three phone
25 calls on 911, true? That what he said, right?
92
1 A That's what he said.
2 Q And that was a false statement,
3 true?
4 A I don't know without looking at the
5 reports. I didn't add up how many there were.
6 Q There were four calls on the 911
7 tape, right?
8 A I don't remember, sir.
9 Q One of them was from a woman named
10 Dee Bardini claiming she heard something that
11 sounded like gunshots, right?
12 A Now I recall there was a report that
13 someone thought they heard something that could
14 have been a gunshot.
15 Q And then Lieutenant Malanka went
16 out a few days later and interviewed her; and
17 she didn't use the word, "I thought it sounded
18 like gunshots." Malanka wrote in a report this
19 jury saw many times saying she heard three
20 shots. Are you aware of that report, she heard
21 three shots?
22 A Yes.
23 Q You met with the Mayor the day
24 before the meeting at least you'll -- excuse me.
25 You met with the Police Chief and the Detective
93
1 Captain the day before the meeting, and then the
2 captain -- the Police Chief comes to the Council
3 meeting and he forgets to mention the Dee
4 Bardini calling on 911? Is that a true -- true
5 statement?
6 MR. PARIS: Objection, Your Honor.
7 How can the witness talk about what the Chief
8 may have remembered?
9 JUDGE CURRAN: Sustained.
10 MR. MULLIN: Okay.
11 BY MR. MULLIN:
12 Q And in fact, throughout this whole
13 tape you never hear the Chief say, "I heard
14 there is a woman who heard gunshots"? Not
15 mentioned in the entire meeting, right?
16 A Right.
17 Q True? Is that true?
18 A That's true.
19 Q And you don't mention it either,
20 right?
21 A That's correct.
22 Q You have told this jury at this
23 trial yesterday that when it came to a bias
24 investigation, the Town had no role, the Police
25 Department basically acted as the initial
94
1 investigatory arm of the Prosecutor's Office.
2 That's what you told them under oath yesterday,
3 right?
4 A Correct.
5 Q You deny meeting with Police Chief
6 Corcoran on April 25th, right?
7 A Yes.
8 Q You concede meeting with Police
9 Chief Corcoran and Captain Buckley, head of the
10 detectives, on April 26th, right?
11 A Yes.
12 Q Your bills show that you met with
13 Chief Corcoran and Captain Buckley on
14 April 28th, right?
15 A Yes.
16 Q Your records show that you met
17 with Chief Corcoran and Captain Buckley, among
18 others, on April 29th, 2004, right?
19 A Correct.
20 Q On May 1, 2004 you had a telephone
21 conference with the entire Detective Bureau,
22 true? "Telephone conference with Detective
23 Bureau," true?
24 A It doesn't say, "entire."
25 Q It says, "Detective Bureau"?
95
1 A That's what it says. It says, "Detective
2 Bureau."
3 Q Okay. On May 4th your billing
4 indicates that you had a telephone conference
5 and meeting with Chief Corcoran and Detective
6 Captain Buckley, right?
7 A Correct.
8 Q On May 5th you indicate on your
9 bill a meeting with Captain Buckley and Chief
10 Corcoran, among others, true?
11 A Correct.
12 Q During the very time that the
13 Detective Bureau was investigating this incident
14 you had repeated meetings with the Police Chief,
15 the Detective Bureau and the captain of
16 detectives; isn't that true?
17 A Of course, I did, yes.
18 Q And you had -- you claim you have
19 no notes of any of those meetings, right?
20 A That's correct.
21 Q In fact, you claim you have no
22 notes of any of your communications to or from
23 any member of the Town of Secaucus concerning
24 this incident for the last four years? That's
25 what you claimed under oath at your deposition,
96
1 true?
2 A That's correct.
3 Q You claim you have no e-mails
4 reflecting your communications with Detective
5 Buckley, Captain -- Chief Corcoran or the
6 Detective Bureau? You have no e-mails
7 reflecting those communications, true?
8 A In my eight years I have never e-mailed
9 Captain Buckley, anybody in the Police
10 Department.
11 Q That's what you said?
12 A Or Chief Corcoran; that's correct.
13 Q And as you sit here today you are
14 not aware of a single police record, a single
15 police report reflecting any of the meetings I
16 just brought to your attention on your billing
17 records with Captain Buckley, the Detective
18 Bureau or Chief Corcoran? You're not aware of
19 any police reports reflecting or summarizing
20 those meetings, right?
21 A And I would be surprised if there were
22 such a report.
23 Q See, that would be an answer to a
24 question, "Are you surprised?" That's not my
25 question.
97
1 A No.
2 Q Let me ask you my question.
3 A No, I am not aware of any report.
4 Q You are not aware of any police
5 reports reflecting those meetings with the
6 Police Chief, the Detective Captain or the
7 Detective Bureau? You're not aware of any such
8 reports, true?
9 A Of course not. I'm not aware of them.
10 Q You had no business under the law
11 going into that Police Department, when they
12 were in the middle of their investigation of
13 this crime or alleged crime, you had no business
14 under the law going into investigatory arm of
15 the Prosecutor's Office and having those
16 repeated conferences and discussions with the
17 Detective Bureau, true?
18 A False.
19 Q Okay. That's your position.
20 There is a general order that's in
21 Evidence concerning how bias crimes are
22 investigated. That general order of the
23 Secaucus Police Department doesn't mention any
24 role for the Town counsel, true?
25 A Town attorney.
98
1 Q The Town attorney. That general
2 order doesn't mention that, does it?
3 A No, but that's -- my function is to
4 provide legal counsel to them.
5 Q Well, when you wrote the letter --
6 let's not go there.
7 The general bias order of the Secaucus
8 Police Department concerning bias crimes says
9 the person who will determine if it's a bias
10 crime is first the reporting or the responding
11 officer and second, his superior? That's what
12 that general order, which the jury has seen and
13 heard read in part, that's what that general
14 order says, true?
15 A That's true.
16 Q See, you're the lawyer who's
17 responsible for, among many other things,
18 protecting the Town from lawsuits like this,
19 civil liability, right?
20 A Correct.
21 Q And it sure wouldn't help
22 defending a case like this if the Secaucus
23 Police Department made a finding identifying
24 specific individual firemen who were involved in
25 the incident of April 25th, 2004? That would
99
1 not be helpful to your case, right?
2 A I don't have any case. And I didn't have
3 any case at that time.
4 Q Well, but you said to the Town
5 Council a case might be filed?
6 A If the Town didn't take proper action.
7 Q Even if the Town took proper
8 action you were saying a case might be filed?
9 A Correct. Alls it takes is file the paper
10 and pay the fee.
11 Q And you came up with all kinds of
12 reasons for why the Town couldn't suspend or
13 fire any of the North End firemen during the
14 year 2004, right? You told the jury why no
15 action could be taken, right? True? That was
16 your testimony?
17 A My testimony was I followed the advice
18 that we received from the Attorney General,
19 which said to halt all the administrative
20 actions.
21 Q Even before --
22 A I -- well, I agreed with the same
23 analysis that the Attorney General did.
24 Q Even before you -- the Attorney
25 General came into the case May 10th or 11th,
100
1 2004. You told this jury you had reasons for
2 telling the Town not to take any action against
3 these North End firemen, true, before the
4 Attorney General took over on May 10th, 11th,
5 right?
6 A Yes. The same reasons the Attorney
7 General had.
8 Q You know that Chief Corcoran had
9 Chuck Snyder, Jr. working for him at the night
10 of the -- during the time of the incident had
11 been working for him for years as a part-time
12 Police dispatcher; you know that, right?
13 A I did not know it then. I know it now.
14 Q And Chief Corcoran in that little
15 window between May 5th, when the Secaucus Police
16 Department investigation ended, and May 10th,
17 when the Attorney General came in, in that
18 window, Chief Corcoran ended Chuck Snyder, Jr.'s
19 assignments to work as a part-time Police
20 dispatcher. Are you aware he did that?
21 A After the fact I was aware he did that.
22 Q Okay. And there was nothing
23 illegal about that, right?
24 A Nothing --
25 Q That was perfectly appropriate,
101
1 right?
2 A That was perfectly appropriate.
3 Q In that window the Fire Chief did
4 not fire or suspend any firemen, true?
5 A That's correct.
6 Q Then you told the jury -- well,
7 the Attorney General took over and you had this
8 year-long investigation that you learned came to
9 some sort of conclusion or end at about June or
10 July of 2005, right?
11 A Correct.
12 Q And you said, well, the Attorney
13 General's letter said we couldn't invoke that
14 statute that involves suspending or firing
15 firemen, right?
16 A Correct.
17 Q And you discussed how that
18 involves a hearing and all kinds of complicated
19 legal machinations, right?
20 A Well, your termination -- your
21 terminology, "legal machinations."
22 Q Did you try to make it sound
23 complicated to the jury?
24 A No.
25 Q No?
102
1 A I told them the truth.
2 Q It's really rather simple, isn't
3 it?
4 A No, it's --
5 Q Well, is it complicated or simple
6 to fire a fireman? Because you are going both
7 ways.
8 A No, there is a procedure.
9 Q Okay.
10 A And they have a right to a hearing and a
11 due process and witnesses, not unlike this
12 proceeding here.
13 Q There was a way to get rid of the
14 firemen in the North End Firehouse without ever
15 conducting a single hearing; isn't that true?
16 A Not to my knowledge.
17 Q Not to your knowledge? Let me
18 help you.
19 MR. MULLIN: Can we have a copy
20 for the witness? P-134. "P-134" it says on
21 there. You know what, I might have a hard copy
22 sitting right there. Hang on a second.
23 Q We have D-298, okay. It's the
24 same document. I'm going to show you, sir,
25 what's been marked as D-298.
103
1 Sir, you're familiar with that letter,
2 right? You have seen it before, right?
3 A I may have seen it four years ago. I'm
4 reviewing it now. Okay.
5 Q You saw that letter back then,
6 didn't you?
7 A I saw -- no, I didn't see this letter
8 back then.
9 Q Really?
10 A Really.
11 Q Mayor Dennis Elwell, your client,
12 never showed it to you?
13 A No, I don't know when he received it.
14 Q Fire Department liaison John
15 Reilly, he never showed it to you?
16 A No.
17 Q Town Administrator Iacono, he
18 didn't mention that the entire North End Fire
19 Department was threatening to resign? They
20 didn't mention this letter to you?
21 A Not until sometime earlier in May.
22 Q Deputy chief -- you heard about
23 this letter early May 2004; is that what you are
24 saying now?
25 A Early May 2004.
104
1 Q Okay. And in this letter the
2 North End Firehouse threatened to resign. They
3 hereby resign their membership unless the
4 company's quarters, right, their quarters where
5 they party and fraternize, is reopened by May
6 2nd? That's what it said, right?
7 A That's what it seems to say.
8 Q And all the Town of Secaucus had
9 to do to get rid of the North End firemen was to
10 say, "Fine, we're going to keep your social
11 quarters closed until Mr. Carter and Mr. deVries
12 move out of Town. And if you want to resign,
13 resign"? That's all they had to do to get rid
14 of the North End Firehouse, true?
15 A I don't know.
16 Q You don't know?
17 A I don't know.
18 Q Okay. You don't know that?
19 A I don't know that.
20 Q And you're the Town lawyer, right?
21 And you are -- how many years did you say you
22 were a judge?
23 A Eighteen years.
24 Q How many years have you been a
25 lawyer?
105
1 A Thirty years.
2 Q Where did you go to law school?
3 A Same place you and your wife did.
4 Q Same place we went. Got a law
5 degree?
6 A Yes, sir.
7 Q And you don't know that if you
8 accepted the resignation of these people, they
9 would be gone? You can't figure that out?
10 Don't know? Don't know, right?
11 A I didn't know about this.
12 Q Didn't know about the letter.
13 Didn't know if you accepted the resignation,
14 they would be gone? That's your testimony,
15 true?
16 A I didn't know about this until after the
17 firehouse was opened.
18 Q You actually met the day that that
19 letter is dated, April 29th, 2004. Your billing
20 record for April, Plaintiff's Exhibit 406, shows
21 on that day you actually met with Mayor Elwell,
22 right, Deputy Reilly, who also is on that
23 letter, right, and Anthony Iacono, who is also
24 on that letter, right?
25 A That's correct.
106
1 Q And your testimony is they didn't
2 tell you at that meeting, "Hey, we just got a
3 letter a few minutes ago or couple hours ago
4 where the whole North End Firehouse threatened
5 to resign"? They didn't mention that at that
6 meeting?
7 A I don't know if they received the letter
8 at the time of that meeting. The letter is
9 dated the 29th. The meeting was the 29th.
10 Q Do you know if there is a police
11 report reflecting when that letter was put into
12 the evidence and record room after Fire Chief
13 Walters received it? Don't know that?
14 A Don't know that.
15 Q Okay. You don't know that. Now,
16 you testified here that on April 26th, 2004 you
17 had a conversation. Was it with the Mayor,
18 where your advice was essentially don't talk to
19 the victims or any witnesses? That was your
20 testimony, right?
21 A Right.
22 Q People -- right? But there is no
23 record in your bills reflecting such a meeting,
24 right? The April 26 meeting you say you had
25 with Mayor Elwell, where you advised him, hey,
107
1 don't talk to the victims, there is no billing
2 for April 26th for talking to the Mayor, right?
3 True?
4 A That's true.
5 Q That's because that meeting never
6 happened? That's why it's not there, right?
7 A No, that's not why it's not there.
8 Q See, you know that the Mayor has
9 testified here and there is other evidence here
10 that after Tim Carter called in and left a voice
11 mail message on the Mayor's phone on May 1st
12 after the reopening the firehouse, the Mayor
13 never called him back? You're aware of that
14 claim, aren't you, that the Mayor never, ever
15 called him back?
16 A I told the Mayor not to call him back.
17 Q That's what you're saying. So
18 you're trying to help the Mayor by saying,
19 "I" -- "That was my advice. I gave him that
20 advice on April 26th"? That's what you're
21 telling the jury, right? "He was just following
22 my advice that I gave him on April 26th," right?
23 A I gave him that advice many times.
24 Q Many times. Including on
25 April 26th, right?
108
1 A Yes.
2 Q Only you don't have a billing
3 record for April 26th, true?
4 A I have a billing record for April 26th.
5 Q It says, "April 25th."
6 A But I have -- just like -- sir, just like
7 you had the wrong exhibit number on what you
8 just showed me, mistakes happen.
9 Q Well, here is the difference. I
10 don't have to swear under oath that my exhibit
11 number is right, do I? Do I?
12 A I don't know.
13 Q Don't know? You're a lawyer how
14 many years?
15 A I don't know what happened before, what
16 you submitted, when you are submitting all your
17 exhibit numbers.
18 Q So here is another way you're
19 trying to help the Mayor out on that point. In
20 your deposition you said you only called Tim
21 Carter once, and that was on April 28th, 2004,
22 right? That's what you said on page 139 of your
23 deposition and page 141 of your deposition,
24 true?
25 A I don't know the page numbers, but
109
1 that's --
2 Q But you remember that you
3 testified to that effect under oath?
4 A Yes, I do remember quite well.
5 Q Now, that doesn't help the Mayor
6 because what you have told the jury here is two
7 things. After the Mayor got the call on May 1 I
8 told the Mayor -- I have been telling him all
9 along -- don't call anybody in this case. So
10 what you told the jury here today is I called
11 back on behalf of the Mayor on May 1, right?
12 A That's correct.
13 Q Only you had a problem because you
14 had said under oath -- we'll get to your billing
15 in a minute. I'll help you out. Because you
16 had said under oath in the deposition, "I only
17 called him once and that was on April 28th,
18 2004," right? That's what you said in the
19 deposition?
20 A That's correct.
21 Q But now you want to come in here
22 and say something different, right?
23 A No, I --
24 Q Say, "Oh, I looked at my records;
25 and now I remember. I called him after that
110
1 tape recording came in," right? Right?
2 A Correct.
3 Q Do you have any notes that reflect
4 calling Mr. Carter on that day?
5 A No.
6 Q Have you come to court with your
7 phone records to show you made that call, cell
8 phone records --
9 A I --
10 Q -- any records?
11 A I don't even know how I could dig that
12 up. I don't know what his number is. I don't
13 know what his calls were.
14 Q You don't know his number?
15 A I don't even know if they keep them from
16 four years ago. And I certainly don't keep
17 those records from four years ago, my four years
18 ago telephone bills.
19 Q And you told this jury that this
20 telephone message left by Tim Carter on May 1
21 was, I think your phrase was, "accusatory
22 epithets." "Epithets" means kind of curses or
23 insults, right?
24 A Yes.
25 Q "Accusatory" means accusing. Did
111
1 you listen to that tape?
2 A No.
3 Q You didn't listen to the tape. So
4 you don't -- you didn't listen to the tape
5 because you didn't care, true? You didn't care
6 what he was saying, true?
7 A Of course not.
8 Q If you cared what he was saying,
9 you would have listened to the tape, true?
10 A I found out about it from my office. The
11 Mayor called me from out of his office to tell
12 me about it, and that's how I knew about it. I
13 couldn't listen to the tape. I wasn't in the
14 Town Hall then.
15 Q Now, you told this jury that after
16 the Attorney General gave you some indication in
17 June or July '05 that the Attorney General's
18 proceedings were in some way concluded.
19 Then you say during July you gave
20 certain advice to certain members of the Town
21 government, especially Mr. Iacono -- you
22 mentioned the Town Administrator -- to the
23 effect of, well, if the Attorney General
24 couldn't get -- get -- identify criminal
25 activity in this case and name the criminals,
112
1 how could we possibly bring administrative
2 charges to suspend and fire them? That's
3 essentially what you told the jury, right?
4 A Basically.
5 Q Right? Now, you know that in
6 order to terminate an employee, well, you don't
7 have to prove they're guilty of a crime, right?
8 You know that? We can agree on that principle,
9 correct?
10 A Correct.
11 Q And the Attorney General, well,
12 that Prosecutor was investigating a crime,
13 right?
14 A Correct.
15 Q And to prove a crime you have to
16 prove criminality beyond a reasonable doubt,
17 right? True?
18 A Yes.
19 Q That's the highest legal standard,
20 right?
21 A Yes.
22 Q That's's different from the
23 standard in court like this, right?
24 A Yes.
25 Q The standard in a court like this
113
1 is I just have to prove whether something is
2 more likely than not by a preponderance of the
3 evidence, right?
4 A Correct.
5 Q You're not saying that in order to
6 fire an employee of the Town of Secaucus you had
7 to prove something beyond a reasonable doubt,
8 right? You're not saying that, right?
9 A Of course not.
10 Q And yet you advised -- your
11 testimony is you told the Town not to proceed
12 against these firemen after July '05 because,
13 well, they couldn't find enough evidence to
14 make -- to reach the criminal liability
15 standard, so therefore we shouldn't proceed?
16 That's essentially what you told them, right?
17 A I think -- let me be a little bit more
18 precise, if you would allow me. What the
19 Attorney General said is they could find no
20 evidence with which they could even identify the
21 individuals. So it wasn't really rising to a
22 standard; it was rising to who was a
23 participant. And that's a problem.
24 Q Are you aware that this jury has
25 heard evidence, even written evidence, even
114
1 police reports identifying some of the
2 perpetrators, some of the individuals who were
3 in the parking lot that night immediately upon
4 the arrival of the police to the scene? Are you
5 aware of that -- that information?
6 A I am not aware of anything that the jury
7 has heard.
8 Q Are you aware of the police
9 reports to that effect?
10 A I am aware of the police reports.
11 Q Okay. Are you aware that firemen
12 refused three to five orders the night of the
13 incident by Sergeant Amodeo to leave the
14 premises? Are you aware of that?
15 A I have reviewed the police reports for
16 that after the fact.
17 Q Are you aware of that?
18 A Yes.
19 Q Are you aware that ex-captain,
20 North End firefighter Charles Mutschler came
21 charging at Sergeant Amodeo the night of
22 incident with a -- and had to be restrained by
23 fellow firemen? Are you aware of that?
24 A I don't recall that incident
25 specifically. If it's -- if it's in reports --
115
1 Q With all the meetings that you had
2 with the police in April and May of '04 nobody
3 brought that to your attention?
4 A They did not. My meetings with the
5 police did not detail their investigation.
6 Q And your testimony is that in '04
7 no action could be taken to suspend or terminate
8 any of the North End firemen, true?
9 A Correct.
10 Q And your testimony is that in '05
11 the Town of Secaucus could take no action to
12 suspend or terminate the employment of any North
13 End firemen in '05, right?
14 A No, that's not my testimony. We could
15 have taken action; but if they appealed it, my
16 opinion is we would have been lost and -- we
17 would have lost and firemen would have been
18 restored and we would have been potentially
19 liable for the damages they incurred.
20 Q Because there was a problem with
21 some of the evidence the police gathered, right?
22 Didn't really nail down the case, in your view,
23 right?
24 A I -- I don't -- I'm not following you.
25 Q You're having trouble following
116
1 me? I will give you an example, and you tell me
2 if you're aware of this.
3 A Okay.
4 Q Dee Bardini on a 911 tape calls in
5 and says she hears something like shots. Couple
6 days later she tells Lieutenant Malanka, "I
7 heard three shots." No police officer of the
8 Town of Secaucus brings Dee Bardini in to take a
9 sworn statement, true?
10 A I don't recall.
11 Q The night of the incident, when
12 Dee Bardini makes that call about shots, no
13 member of the Detective Bureau goes over to that
14 firehouse while those firefighters are still
15 there and seeks forensic evidence of gun powder
16 residue on their hands or their clothes that
17 night, true?
18 MR. PARIS: Objection, Your Honor.
19 JUDGE CURRAN: Basis?
20 MR. PARIS: The earlier rulings
21 regarding standard.
22 JUDGE CURRAN: Sustained.
23 Withdraw the question.
24 MR. MULLIN: Well, Your Honor, I
25 should be heard sidebar.
117
1 MR. PARIS: I ask that question be
2 stricken.
3 JUDGE CURRAN: Okay. We will go
4 to sidebar.
5 THE WITNESS: Step down or stay up
6 here? Okay.
7 (Whereupon, the witness steps
8 down.)
9 (Whereupon, the following sidebar
10 discussion is held.)
11 MR. MULLIN: Judge, I think
12 perhaps counsel forgot that when I
13 cross-examined Detective Captain Buckley I had
14 him testify in detail about the kind of forensic
15 evidence that could be gathered when a gunshot
16 is fired. I went through a pistol. I went
17 through a shotgun. He talked about gunshot
18 powder residue on the hand and the clothes. He
19 talked about searching for shell casings, things
20 of that nature.
21 I then had him establish that no
22 reports were done of that nature. I had him
23 establish that there are no reports reflecting
24 any of that. So this is in Evidence. This
25 was -- this was their witness. I don't recall
118
1 any objections. If there were, they were --
2 they were not sustained and I proceeded. So
3 I'm going -- I'm going over evidence this jury
4 has heard come out of the mouth of Detective
5 Captain Buckley.
6 MR. BEVERE: The fact that Captain
7 Buckley said what you can find on a hand is
8 residue or if it's a shell casing doesn't mean
9 it's within the standard of care for it to have
10 been looked for that night based upon the
11 evidence that was presented. And that's
12 where -- they knew at the time and that's the
13 issue that I come back to, with regard to the
14 police practices expert. Who sets the standard
15 that when someone calls and said, "I heard
16 something that sounded like a gunshot" that
17 there would be probable cause to bring somebody
18 in, test their hands for residue? I mean,
19 that's so far beyond.
20 JUDGE CURRAN: Mr. Bevere -- hold
21 on.
22 MR. MULLIN: I'm sorry.
23 JUDGE CURRAN: Frankly, I forgot
24 what Mr. Mullin just put on the record because I
25 remembered the first discussion in regard to we
119
1 can't get anything exotic in. Even granting
2 that that might be true, I would sustain the
3 objection in regard to the gunshot residue. But
4 what about the testimony in regard to whether or
5 not there would be cartridges, what -- which
6 kinds of guns would or wouldn't eject
7 cartridges? All of that was on the record with
8 Buckley.
9 MR. BEVERE: Judge, I mean, I
10 really have to go look at Buckley's testimony
11 because I don't recall if we objected to that or
12 what the -- you know, I'm not --
13 JUDGE CURRAN: Okay. But in
14 fairness, as Mr. Mullin says, right or wrong, if
15 you did object to it, I must have overruled the
16 objection because that evidence did come in. I
17 don't honestly remember if you objected or not.
18 But I'm going to allow the question. I'm going
19 to ask you to rephrase it too.
20 MR. MULLIN: As to the cartridges
21 or casing?
22 JUDGE CURRAN: Exactly. But the
23 objection is preserved. Thank you.
24 (Whereupon, sidebar discussion is
25 concluded.)
120
1 JUDGE CURRAN: Mr. Leanza, you may
2 return.
3 (Whereupon, the witness re-takes
4 the stand.)
5 JUDGE CURRAN: Thank you.
6 Mr. Mullin.
7 MR. MULLIN: Thank you.
8 BY MR. MULLIN:
9 Q You're not aware of any police
10 reports reflecting any search done ever by the
11 Secaucus Police Department of the North End
12 Firehouse or its parking lot for shell casings,
13 bullet shell casings or cartridges, true?
14 You're not aware of any such report?
15 A No, I'm not aware of any such report.
16 Q Sir, Mr. Bevere put a Town policy
17 concerning sexual harassment in front of you,
18 drew your attention to it. Do you recall that
19 testimony?
20 A Mr. Paris.
21 Q I'm sorry, I apologize.
22 Mr. Paris. He put -- he drew your attention to
23 a Town policy --
24 A Yes.
25 Q -- concerning sexual harassment
121
1 and so forth, right?
2 A Yes.
3 Q There has been testimony by -- by
4 several members of Town government in this trial
5 that that policy did not apply for volunteer
6 firemen. That's true, isn't it?
7 A Correct, it applied to Town employees.
8 Q Not Town firemen, true?
9 A If they weren't employees, if they were
10 just volunteer firemen, it didn't apply to them.
11 Q Just give me a moment to check,
12 Your Honor.
13 JUDGE CURRAN: Sure.
14 Q You mentioned -- strike that.
15 During the hearing of the tape
16 recording of the 4/27/04 meeting, on several
17 occasions you identified Councilman Kickey as
18 having spoken up at that meeting, right?
19 A Yes.
20 Q Councilman Kickey's son was a
21 firefighter in the North End Firehouse, true?
22 A Correct.
23 Q Tim Carter reported to the police
24 that used condoms had been thrown over the fence
25 between the firehouse parking lot and his
122
1 backyard and that on one occasion he got a
2 license plate number of a car that was there in
3 which people were having sex in his view shortly
4 before he found the used condom on his porch.
5 Are you aware of that?
6 MR. PARIS: Objection, Your Honor.
7 The report was made to the police after this
8 meeting. It was a 5/1 report with the
9 identification of the vehicle.
10 MR. MULLIN: I didn't ask about a
11 date. I asked him if he was aware of the
12 incident.
13 JUDGE CURRAN: You can address
14 that on cross.
15 MR. PARIS: Fine.
16 BY MR. MULLIN:
17 A Yes.
18 Q Okay. You're aware of that
19 incident, right?
20 A I just said yes.
21 Q And the license plate that Tim
22 Carter got came back as belonging to a car owned
23 by Councilman Bob Kickey, true?
24 A That's correct.
25 Q You're aware? Nowhere in the tape
123
1 recording of the April 27th, '04 executive
2 session meeting with do we hear anyone say, "I
3 think Mr. Kickey should probably recuse himself,
4 step out of this meeting"? No one says that,
5 right?
6 A That's correct.
7 Q And in fact, at some point in the
8 discussion you talk about the rights of the
9 accused assert Fifth Amendment Privileges not to
10 testify, right?
11 A That's correct.
12 Q And in your testimony you talked
13 about that, true?
14 A That's correct.
15 Q And you pointed out to the jury
16 that a Prosecutor has the power under certain
17 circumstances to force a witness to abandon the
18 Fifth Amendment privilege and testify before a
19 Grand Jury; is that true?
20 A Correct.
21 Q And the jury has heard some
22 testimony about a statute. Are you familiar
23 with the statute which says it is the duty of a
24 public employee to testify before the court, a
25 Grand Jury or the State Commission of
124
1 Investigation? Are you familiar with that
2 statute?
3 A I'm somewhat familiar with the statute.
4 If you give me a copy of it --
5 Q I don't think I have it handy. I
6 want to know if you are familiar with it.
7 A I'm generally familiar with it.
8 Q Are you familiar with the concept
9 that --
10 MR. BEVERE: I have it, Judge.
11 JUDGE CURRAN: Do you need a copy,
12 Mr. --
13 MR. MULLIN: Copy would be fine.
14 I don't even need a copy; but if he wants to
15 bring it up while we're talking, that would be
16 fine too.
17 BY MR. MULLIN:
18 Q And you can use it to refresh your
19 recollection.
20 Are you familiar with the process --
21 how long have you been a town attorney for how
22 many towns?
23 A Well, I have been Town attorney for
24 Secaucus from January 2000.
25 Q And how about for other towns?
125
1 A It's the only town where I have been Town
2 attorney, except back in -- from '79 to '84 I
3 worked for a law firm that was a town attorney
4 for the Borough of Fort Lee. And I was
5 occasionally assigned to cases with respect to
6 the Borough of Fort Lee.
7 Q Okay. And your -- the Attorney
8 General, well, they have criminal prosecutors,
9 right?
10 A Yes.
11 Q You mentioned Agudosi, right, who
12 wrote some letters from the Attorney General's
13 Office, right?
14 A Yes.
15 Q And she was on the criminal side
16 of the Attorney General's Office, right? Right?
17 A I believe so.
18 Q Okay.
19 A I'll look at the letter again.
20 Q And you testified to this jury --
21 and here, again, there are some court rules on
22 this, so I am going to keep this very narrow and
23 limited. You testified to this jury that you
24 know a Grand Jury was impaneled in regard to
25 this matter, true?
126
1 A Yes.
2 Q And under the statute -- if
3 counsel wants to give it to you to refresh your
4 recollection, I have no problem with that.
5 Under the statute we're referring to, if a
6 public employee is told, "You'll be fired if you
7 don't testify in front of the Grand Jury or
8 testify in court. You'll be fired if you assert
9 the Fifth," then the Prosecutor has the power to
10 grant immunity to that witness and force them to
11 testify, true?
12 A That's correct.
13 Q Okay. I think sometimes that's
14 referred to as a "Garrity process," right?
15 You're familiar with that, right? Now, here is
16 something we can agree on. There is no letter,
17 there is no e-mail from you or anyone else in
18 the Town of Secaucus Government to the Attorney
19 General's Office before or during the Attorney
20 General's Grand Jury requesting or demanding or
21 asking that the Attorney General, that
22 prosecutor immunize, say, Chuck Snyder, Sr. or
23 Chuck Snyder, Jr. or Charles Mutschler under the
24 Garrity process, under the statute? There is no
25 such letter or e-mail, right?
127
1 A Correct.
2 Q That request was never made,
3 right?
4 A Correct.
5 Q Are you aware, sir, that the day
6 of the incident some hours after the incident of
7 April 25th, 2004 that the Chief of Police,
8 himself, Chief Corcoran with various other Town
9 officials, including the Mayor, sat down and met
10 with the alleged perpetrators of the activities
11 of April 24th, April 25th, 2004? Are you aware
12 that they did that?
13 A Yes.
14 Q You're not aware of any tape
15 recording of that meeting, are you?
16 A No.
17 Q You're not aware of any notes from
18 anybody who attended that meeting concerning
19 what happened at that meeting, right?
20 A I was not at that meeting.
21 Q You were not at that meeting,
22 right?
23 A Right.
24 Q And during that meeting you got no
25 phone calls from the Mayor or anyone else,
128
1 right?
2 A After the meeting I got --
3 Q During the meeting?
4 A During the meeting, no.
5 Q You got no phone calls from Mayor
6 Elwell or anyone else, true?
7 A No.
8 MR. MULLIN: I have nothing
9 further.
10 JUDGE CURRAN: Thank you.
11 MR. PARIS: Thank you.
12 REDIRECT EXAMINATION BY MR. PARIS:
13 Q Mr. Leanza, let's start at the --
14 A How about the beginning?
15 Q How about the end. Let's start at
16 the end, rather than the beginning. Let's start
17 at the end. With regard to the meeting of the
18 morning of April 25th, are you familiar with the
19 Open Public Meetings Act?
20 A Yes.
21 Q Okay. Was there any requirement
22 that that meeting be tape recorded?
23 A There is never a requirement that a
24 meeting be tape recorded. What the requirement
25 of the Open Public Meetings Act are twofold.
129
1 Number one, that we give notice, unless there is
2 an emergency; and then the notice can be given
3 later on.
4 And number two, if there is a majority
5 of the governing body present, then the Open
6 Public Meetings Act comes into force and effect.
7 Q Okay. And to your understanding
8 was there a majority of the governing body
9 present at the meeting on Sunday morning?
10 A No, not to my understanding.
11 MR. MULLIN: Objection, no
12 foundation. He wasn't there.
13 MR. PARIS: I asked for his
14 understanding to whether there was a quorum
15 present.
16 MR. MULLIN: Objection, no
17 foundation.
18 MR. PARIS: I asked --
19 MR. MULLIN: What is the
20 understanding.
21 JUDGE CURRAN: I am going to allow
22 him to answer the question. The objection is
23 overruled, but you can certainly address it.
24 MR. MULLIN: Thank you.
25 BY MR. PARIS:
130
1 A Yeah, my understanding is that there was
2 not a majority of the governing body in
3 attendance at that meeting on Sunday morning, I
4 believe it was.
5 Q Now, let's go back, I guess, to
6 the beginning. Do you have your bills up here?
7 A No.
8 Q Okay. Let's take a look at your
9 entry that's dated 4/25/04. Do you see that?
10 A Yes.
11 Q What's -- what's the problem with
12 that entry of 4/25/04 in terms of your
13 activities of 4/26, 4/27?
14 MR. MULLIN: Objection, leading,
15 suggesting there is a problem.
16 MR. PARIS: Your Honor, the
17 witness has already indicated there was a
18 problem before counsel. He indicated that he
19 wanted to explain, and all that I'm asking him
20 to do is to explain. I'm really directing him
21 back to his prior testimony where he said there
22 was a problem.
23 JUDGE CURRAN: You can ask him if
24 he wants to explain, rather than indicate a
25 problem.
131
1 BY MR. PARIS:
2 Q Can you explain -- you had
3 testified, I think, that there was an error,
4 correct?
5 A Right.
6 Q I think that was the word you
7 used, an error?
8 A Right.
9 Q Can you explain to the jury what
10 the error was?
11 A 4/25 is the wrong date. It really should
12 be broken down between 4/26 and 4/27. 4/25 was
13 a Sunday. And some of the things that happened
14 that are listed for 4/25 would have been
15 impossible to have happened on 4/25.
16 For instance, Linda Carpenter works 9
17 to 5 Monday through Friday as a purchasing
18 officer. I would never meet with her on a
19 Sunday. That was Monday morning.
20 I remember I met with Chief Corcoran
21 and Captain Buckley on Monday morning.
22 And the second part of it, attendance
23 at the caucus and regular meetings, we know from
24 the tape and the official records and the agenda
25 that that meeting was, in fact, on the 27th.
132
1 So, apparently, a couple of days were
2 lumped together. And as I alluded to before, I
3 am known for sloppy handwriting; and I probably
4 wrote, "4/26" or whatever and my secretary
5 thought it was 4/25.
6 Q Is the entry of 4/25 then combined
7 a couple dates worth of --
8 A It's 4/27 and -- 4/26 and 4/27.
9 Q Now, does your billing record
10 reflect the first phone call to either
11 Mr. Carter or deVries that you testified to as
12 the first call?
13 A Yes, on 4/28/04 I have an entry that
14 says, "Telephone conference with alleged
15 victim."
16 Q Let me ask you this also. These
17 records, are they -- when are they prepared?
18 A You -- sometimes I will prepare them
19 contemporaneously. Actually what I do is I have
20 a clipboard --
21 Q Well, what I'm referring to --
22 just to save time, what I'm referring to is the
23 records -- the document that's sent to the Town
24 that you have in front of you.
25 A Oh, the documents sent to the Town?
133
1 Q Yeah.
2 A As a matter of fact -- for example, this
3 is June 5th or whatever it is. I have been out
4 of the office for a couple weeks. So my
5 secretary doesn't even have all my handwritten
6 time sheets. She puts them into the computer,
7 and then they're all typed up like this and --
8 Q Okay. But here is my question.
9 The time sheet you have in front of you --
10 A Right.
11 Q -- was that prepared back in the
12 spring of 2004?
13 A Yes.
14 Q Okay. So in the spring of 2004
15 you have an entry of a phone call on -- what's
16 the date -- with one of the plaintiffs?
17 A The first one is April 28th.
18 Q Okay. I want to show you -- and
19 this hasn't been marked for Identification, so I
20 guess this should be marked as the next D
21 number.
22 MR. PARIS: Do you have that?
23 MR. BEVERE: 314.
24 MR. PARIS: 314?
25 MR. BEVERE: I believe it's 314.
134
1 JUDGE CURRAN: 314, is that the
2 next number you have, Miss Castelli? 314,
3 D-314?
4 COURT CLERK: Yes, I believe so.
5 (Whereupon, May 2004 voucher and
6 attached document are received and marked
7 as Defendant's Exhibit D-314 for
8 Identification.)
9 JUDGE CURRAN: And just indicate,
10 if you would, for the record what it is.
11 MR. PARIS: Sure. First page is a
12 voucher. And then attached to the voucher it's
13 for legal professional services supplied for the
14 month of May 2004.
15 BY MR. PARIS:
16 Q Okay. In your -- in your billing
17 submitted to the Town back for May of 2004, was
18 that billing prepared in the spring of 2004?
19 A Yes.
20 Q Is there -- does it indicate you
21 had a second phone call?
22 A Well, actually, it says the date it was
23 prepared, 6/7/04.
24 Q But does it indicate you had a
25 second phone call with one --
135
1 A Yes.
2 Q Okay. What does it indicate?
3 A May 1st, 2004 telephone conference with,
4 it says, Detective Bureau and alleged bias
5 victim.
6 Q Okay. And that's the second phone
7 call?
8 A That's the second phone call that I
9 testified to on May 1st.
10 Q Okay. What's your understanding
11 as to why there was no -- there is no police
12 report prepared of your meetings with the
13 police?
14 A There -- to my understanding --
15 MR. MULLIN: Objection. That
16 would be getting into the reasons by the police
17 for not preparing a report.
18 JUDGE CURRAN: Sustained. You may
19 rephrase it.
20 BY MR. PARIS:
21 Q Okay. Mr. Leanza, in your prior
22 testimony you were asked as to whether you had
23 seen any reports prepared by the police of your
24 meetings with the police?
25 A Correct.
136
1 Q Is that true?
2 A Yes.
3 Q Okay. Did you anticipate at the
4 time that reports would be prepared by the
5 Police Department regarding your meetings?
6 A I in my eight years as Town attorney I
7 have had numerous meetings with the Police
8 Department about these, other matters --
9 MR. MULLIN: Objection,
10 nonresponsive.
11 A -- Alcoholic Beverage Control --
12 MR. MULLIN: Objection,
13 nonresponsive.
14 THE WITNESS: May I finish?
15 JUDGE CURRAN: I am going to
16 overrule the objection, but it's noted for the
17 record.
18 BY MR. PARIS:
19 Q Thank you very much.
20 A Okay. And I have never seen in our
21 police report any reference to discussions with
22 me. And I have seen police reports involving
23 all these different matters where the police
24 consulted with me and I advised them. If there
25 is something that I think that I need to direct
137
1 the police or to give them the advice of my
2 counsel, I will put it in writing. Otherwise, I
3 discuss it with the police, review it and we
4 move on from there.
5 Q Now, when you were at the Council
6 meeting of April 27th, did you understand that
7 Chief Corcoran was providing the Mayor and
8 Council of each and every detail of the
9 investigation up to that point in time?
10 A To the contrary, as my opening statement
11 was, I just wanted a general description for the
12 reasons I have said three or four times. I
13 didn't want to taint the investigation, and
14 everything at that time was just allegations.
15 Q Okay. Now, in your testimony
16 also -- and I thought this had been cleared up
17 on direct, but when you said the Town had no
18 role -- and I think Mr. Mullin questioned you
19 about it -- what were you -- what did you mean,
20 that the Town had no role?
21 A Any -- well, you know, even though it's
22 the Secaucus Police Department, they're
23 employees of the Town of Secaucus. In terms of
24 investigating a crime, especially something when
25 it is that -- could rise to an indictable
138
1 offense or under a State statute, such as a bias
2 crime, they are under the direct supervision of
3 the County Prosecutor. And the County
4 Prosecutor can supersede anything that the Mayor
5 and Council or myself, as Town attorney, can do.
6 Q You -- you were questioned on
7 cross-examination about having repeated meetings
8 with various Police Department officials,
9 detectives, Chief while the investigation was
10 ongoing?
11 A Yes.
12 Q Had you ever done that in the
13 past?
14 A Yes.
15 Q Did you handle this matter any
16 differently than you have handled other legal
17 matters involving the police in the eight years
18 that you were Town attorney?
19 A Exactly the same. And you'll see from my
20 billing records there is numerous meetings with
21 the police about various different matters,
22 exactly the same.
23 Q Did you believe that you were
24 doing anything wrong by meeting with the police
25 while this investigation was going on?
139
1 A Of course not.
2 Q Mr. Leanza, what was your
3 understanding as to why there would be no
4 administrative action taken while the criminal
5 investigation was going on?
6 A Any administrative action taken during
7 the criminal investigation would most likely
8 result in a challenge of that action by the
9 individuals against whom it was taken. They
10 would be entitled to a hearing and would get
11 into a difficulty where, in order to conduct a
12 hearing, I would have to divulge to them some of
13 the investigatory records that we had.
14 And notwithstanding that, the Attorney
15 General told us not to do it. From my own mind,
16 I couldn't give these guys what we had or what
17 the witnesses said or anything of that nature
18 because that could taint the whole
19 investigation.
20 Q Mr. Leanza, can you take a look at
21 the statute which was placed before you, the
22 statute with regard to the --
23 A Yes.
24 Q -- the testimony of public --
25 A NJSA 2A:81-18.2a1.
140
1 Q Can you take a look at -- I
2 believe it's Section 4. I can give you the --
3 let's just put the actual statutory cite in.
4 2A:18-17.2a4, which is entitled, "Removal
5 proceedings." Pursuant to that statute who is
6 authorized to bring removal proceedings of a
7 public employee?
8 A By the Attorney General or the County
9 Prosecutor. The only people who could give that
10 employee the immunity to force them to
11 prosecute.
12 Q And according to the statute, who
13 has the power to bring an action in Superior
14 Court to remove an employee?
15 A Again, the Attorney General or the County
16 Prosecutor.
17 Q Why was there no request to grant
18 use -- well, number one, you couldn't -- you
19 don't have any knowledge of what went on before
20 the Grand Jury, do you?
21 MR. MULLIN: Objection, leading.
22 JUDGE CURRAN: Sustained. But I'm
23 going to overrule that question and going to
24 strike it.
25 BY MR. PARIS:
141
1 Q Why wasn't there a request to the
2 Attorney General or the Hudson County Prosecutor
3 to grant use immunity to one of the firemen?
4 A It was their investigation, and at that
5 time we already received instructions from the
6 Attorney General to put a hold on anything
7 administrative.
8 Q Mr. Leanza, when you were making a
9 decision regarding prosecuting a -- an
10 administrative action after the Attorney
11 General's investigation was done, did you think
12 it was approach -- well, did you think it was
13 appropriate to bring charges against someone, if
14 you didn't think you could prove them?
15 A Of course not.
16 MR. PARIS: No further questions.
17 RECROSS EXAMINATION BY MR. MULLIN:
18 Q Requesting use -- requesting a
19 Prosecutor to invoke that statute to force
20 Mutschler or the two Snyders to testify, that's
21 not administrative proceeding? That's a letter
22 from you to the Attorney General's Office
23 saying, "Prosecutor, Attorney General, please
24 take the Garrity steps. I hereby threaten this
25 employee with firing, if he doesn't testify.
142
1 Please, I encourage you to take the steps,"
2 right? That's not an administrative proceeding;
3 it's a letter, right?
4 A It's an administrative proceeding as
5 opposed to criminal.
6 Q To ask in a criminal proceeding,
7 criminal proceeding, not administrative
8 proceeding, to ask use immunity be granted,
9 that's an administrative matter?
10 A What is the ultimate consequence going to
11 be? Is that an administrative matter, as
12 opposed to criminal matter? You went to great
13 lengths to describe the distinction between the
14 burden of proof between criminal and
15 administrative. That is an administrative
16 matter.
17 Q You still claimed that you made
18 two phone calls not to Tim Carter; is that
19 correct?
20 A In your words, I swore under oath on my
21 time sheets that I made those two calls.
22 Q You say now you made the two calls
23 on April, then you made another call right after
24 Mayor Elwell got the voice mail message from Tim
25 Carter on May 1, true?
143
1 A No, that's wrong. I said in June of
2 2004, as my time sheets indicate and I'm saying
3 it now.
4 Q It's not -- you are swearing under
5 oath, to use your words, which you say are my
6 words, swore you in here, put your hand on the
7 Bible saying I made two phone calls to Tim
8 Carter, one was on April 28, 2004 and the second
9 one was on May 1st, 2004 after Mayor Elwell got
10 a voice mail from Tim Carter? That's what you
11 are telling the jury, right?
12 A Right and --
13 Q Is that yes or no?
14 A It's no because, as I said before, I
15 wasn't sure with whom I was speaking, whether it
16 was Mr. Carter or Mr. deVries.
17 Q Or Mr. deVries?
18 A I don't have a recollection of that, and
19 it's not indicated on my time sheet whether it
20 was Mr. Carter or Mr. deVries. The only
21 indication is that I spoke to the two alleged --
22 to an alleged victim twice.
23 Q And you testified about that
24 matter, that May 1 phone call you say you made
25 at your deposition, right, sir?
144
1 A No, you asked me that question; and I
2 said I didn't remember it. And then, when I saw
3 the time sheet, it indicated that I spoke with
4 the alleged bias victim on May 1st, it refreshed
5 my recollection.
6 Q But at your deposition you did
7 claim that you had a conversation with my client
8 after my client placed a call to the Mayor,
9 right? You did testify about that in your
10 deposition, right?
11 A That's right.
12 Q In fact, at page 89 on line 3 of
13 your deposition -- you can look on with me --
14 the question to you -- Miss Smith took that
15 deposition, right?
16 A Yes.
17 Q And the question to you was, "So
18 it's your testimony that the conversation you
19 had with my client took place after he -- after
20 he, my client, placed a call to the Mayor,
21 right?"
22 And your answer was, "Yeah" --
23 A Yes.
24 Q -- "because I got your client's
25 number. I think I was the one who called him
145
1 was my recollection;" is that right? That's
2 what you testified right?
3 A That's right.
4 Q And that was under oath, right?
5 A Yes.
6 Q And next question is, "It was a
7 telephone call, right?"
8 And your answer, you said, "I believe
9 so, yes."
10 That's the way the testimony went,
11 right? I'm reading it accurately, right?
12 That's right? Follow along with me.
13 A Yes.
14 Q I read that accurately, right?
15 A Yes.
16 Q And the next question Miss Smith
17 asked you was, "Tell me about it," right?
18 And you said to Miss Smith, my partner
19 over there, "I called your office, said who I
20 was. I don't even recall which one of your
21 clients it was, whether it was Mr. deVries or
22 Mr. Carter. And he expressed his concern for
23 his and his partner's safety. I tried to assure
24 him that we were taking this as seriously as
25 possible. I told him, 'I'm not the Town
146
1 attorney, that perhaps you should get your own
2 legal counsel.'" Didn't you go on about how you
3 suggested the Lambda Legal Defense Fund? "You
4 should get a lawyer," right? You see? That's
5 what you said, right? Let me keep reading.
6 A No, no, wait. Wait. Wait. Wait.
7 Q You wait. I ask the questions.
8 A That's not what you said. You asked me a
9 question.
10 Q I am going to have you read --
11 MR. PARIS: Excuse me.
12 A I didn't say, "I'm not the Town
13 attorney."
14 JUDGE CURRAN: Mr. Leanza, with
15 all due respect.
16 Mr. Paris.
17 MR. PARIS: Thank you. Your
18 Honor, my understanding is the deposition can be
19 used to impeach a witness if it differs from
20 their testimony in court. This --
21 MR. MULLIN: It does.
22 MR. PARIS: -- is not different
23 than his testimony in court, number one.
24 And number two, the way -- the
25 way it would be used would be to read a question
147
1 and read an answer, not to have this
2 argumentative thing going.
3 JUDGE CURRAN: Certainly, I am
4 going to sustain the objection in both issues;
5 however, you may address the first issue. But I
6 would appreciate it if you would use the
7 question and answer format as Mr. Paris had
8 pointed out, which is the normal way to impeach.
9 BY MR. MULLIN:
10 Q You told this jury that you called
11 one of my clients, Mr. deVries or Mr. Carter, at
12 home on May 1st, true, after the -- after the
13 voice mail came in, right?
14 A Yes.
15 Q In your deposition you testified
16 that you called my office and spoke to
17 Mr. Carter at my office, true?
18 A I don't know if that's true because I see
19 some other errors in there, as well, too.
20 Q But that's what you said, right,
21 under oath, right?
22 A No, I'm --
23 Q Okay. Now I will show you your
24 deposition, and see if it doesn't refresh your
25 recollection?
148
1 A Okay.
2 Q And again, I will go to page 89.
3 Didn't you say, when Miss Smith said, "Tell me
4 about it," meaning the phone call -- after my
5 client placed a call to the Mayor, didn't you
6 say, "I called your office"? Didn't you say
7 that under oath at your deposition? True?
8 A No, I think that might be an error
9 because I also see it says I told them, "I am
10 not the Town attorney."
11 Q You now say that you didn't say
12 what's in this official certified court
13 transcript?
14 A I'm sure I did not say, "I am not the
15 Town attorney."
16 Q No, that's what you told --
17 A I tried to assure them we were taking
18 this as seriously as possible. I told him, "I
19 am not the Town attorney"?
20 Q You probably told them you were
21 the Town attorney, right?
22 A Well, it appears that there is an error
23 in the transcript.
24 Q Are you saying there is an error
25 here, when you said, "I called your office"?
149
1 A Yes, because I didn't call your office.
2 Q Why didn't you call my office?
3 Why could that not possibly be the case?
4 A Because why -- first of all, I would have
5 remembered it. Who knows if I would have got
6 your client at the office?
7 Q On May 1, 2004 did the Town have
8 any knowledge that I was even involved in this
9 case?
10 A I didn't.
11 Q So if you said under oath that to
12 reach Tim Carter you called my office on May
13 1st, that would have been a false and inaccurate
14 statement, right, if you said it?
15 A That's right. And that --
16 Q Hang on. I'm waiting to formulate
17 my next question. In fact, the first time the
18 Town has notice that I represent Mr. Carter and
19 Mr. deVries is in a police report that this jury
20 has seen and heard dated May 20th, 2004, isn't
21 that true, where Mr. Carter calls up the police
22 and says, "I don't want to hurt anybody's
23 feeling, but Neil Mullins" -- he made me plural;
24 he put an "S" on my name -- "Neil Mullins," he
25 says, "is representing me." That's the first
150
1 official notice to the Town that I represent
2 him, on May 20th, right?
3 A I don't recall the date, but I realize --
4 I recall the police report.
5 JUDGE CURRAN: If I might see
6 counsel at sidebar, please.
7 (Whereupon, the following sidebar
8 discussion is held.)
9 JUDGE CURRAN: As far as
10 scheduling -- I'm not trying to rush anybody,
11 but are you going to have any other witnesses?
12 MR. BEVERE: Well, only in terms I
13 have to move evidence in. If there is objection
14 to some evidence, I may have to call a witness.
15 MR. PARIS: In other words, what I
16 would -- if I may interpret what I thought you
17 were asking is I think, if we push on, we will
18 be done with him today, we could probably send
19 jury home.
20 JUDGE CURRAN: That's my question.
21 MR. MULLIN: Take a couple
22 minutes.
23 MS. SMITH: Minutes.
24 JUDGE CURRAN: Okay.
25 MR. MULLIN: We're minutes away.
151
1 MR. PARIS: I only have about a
2 half hour after that.
3 JUDGE CURRAN: Miss Smith.
4 MS. SMITH: I'm sorry, Your Honor,
5 I don't want to make it obvious that the witness
6 is not coming back quickly.
7 MR. BEVERE: We're going to have
8 coffee.
9 MS. SMITH: Can I run to the
10 ladies room?
11 JUDGE CURRAN: Sure.
12 MS. SMITH: Then it will look like
13 it's me.
14 JUDGE CURRAN: Mr. Bevere.
15 (Whereupon, a discussion is held
16 off the record.)
17 JUDGE CURRAN: You can put it on
18 the record at length, but have you decided
19 you're not -- other than the evidence questions,
20 have you decided you're not going to call any
21 other witnesses?
22 MR. BEVERE: The only other
23 witness --
24 JUDGE CURRAN: In regard to the
25 LAD questions?
152
1 MR. BEVERE: The only other
2 witness I would call in response to the LAD
3 claim would be Administrator Iacono. But if
4 Mr. Mullin has no objection to my -- for
5 employee sexual harassment policy going into
6 Evidence --
7 MR. MULLIN: I think that goes in.
8 MR. BEVERE: -- I don't see any
9 reason to bring him in.
10 MR. MULLIN: That goes into
11 Evidence, no problem.
12 JUDGE CURRAN: Okay. So then
13 we're safe.
14 MR. BEVERE: Obviously, I'm not
15 waiving any prior objections --
16 JUDGE CURRAN: No, no, the
17 objections stand.
18 MR. BEVERE: -- to mistrial but --
19 JUDGE CURRAN: I, just in
20 fairness, wanted the offer to be there.
21 Decision is certainly the Defense decision to be
22 made.
23 MR. BEVERE: Thank you.
24 He is here, Judge.
25 JUDGE CURRAN: Okay. Fine. Thank
153
1 you.
2 (Whereupon, sidebar discussion is
3 concluded.)
4 JUDGE CURRAN: Mr. Mullin.
5 MR. MULLIN: Thank you.
6 BY MR. MULLIN:
7 Q Sir, your lawyer for the Town just
8 asked some questions about any written records
9 concerning your dealings with the Police
10 Department. Do you recall him generally asking
11 you some questions about that?
12 A If I had notes of my meetings with
13 Captain Buckley and Chief Corcoran?
14 Q Or police reports. Do you
15 remember that Mr. Paris raised that topic with
16 you just a few minutes ago?
17 A Police reports, I had reviewed them all;
18 and I testified that I don't -- generally don't
19 keep police reports.
20 Q And your testimony is that you
21 have no notes whatsoever for your dealings with
22 the Police Department concerning the de -- this
23 case for the last four years, all -- no notes?
24 A Right.
25 Q Now, let's go to your August bill.
154
1 And we probably should put an exhibit marker on
2 that.
3
4 (Whereupon, Mr. Leanza's bill,
5 dated August 2004 is received and marked
6 as Plaintiff's Exhibit P-407 for
7 Identification.)
8 MR. MULLIN: We will call it
9 Plaintiff's Exhibit 408?
10 JUDGE CURRAN: Thank you. 408 is
11 the August bill.
12 BY MR. MULLIN:
13 Q And this is yet another one of
14 your bills for your legal professional services
15 rendered to the Town for the month of
16 August 2004, correct?
17 A Correct.
18 Q And for that month the Town paid
19 your firm $13,820, right?
20 A I assume they paid, yes. I don't think
21 there is anything that's due and owing me.
22 Q Okay. Now, your entry of
23 August 17, 2004 states -- starts off, "Review of
24 additional correspondence and drafts of
25 opinions." And then you refer to certain
155
1 people, certain lawyers; and that has nothing to
2 do with this case, right?
3 A No.
4 Q Is that a no, meaning yes --
5 A It has nothing to do with the case;
6 that's correct.
7 Q Then you have a comma, and it goes
8 on to, "Correspondence from Police Department,
9 correspondence from Police regarding deVries
10 suit"?
11 A Right.
12 Q "Correspondence from Police
13 Department regarding deVries suit"?
14 A Right.
15 Q And in your deposition at page
16 145 -- well, let's put it this way. You
17 testified under oath that you have no idea where
18 that correspondence is, right?
19 A If it's not in my file, I don't know
20 where it is.
21 Q Okay. Is it in your file?
22 A Quite truthfully, I didn't look for it.
23 You have copies of it, and the Town's attorneys
24 have copies of it.
25 Q Copies of what?
156
1 A Of my file.
2 Q Do we have copies of this
3 correspondence?
4 A If it's in the file, you have a copy of
5 it.
6 Q Did Miss Smith ask you at page
7 145, line 22 where that August 1st
8 correspondence is? Did she ask you that
9 question?
10 A Let me take a look, and I'll tell you.
11 Q And did you say, "I don't know
12 where the correspondence is. If there is
13 nothing in my file for that date, I don't know
14 what happened to it"? That was your testimony?
15 A That's correct; same thing I'm saying
16 now.
17 Q You know -- you're an attorney
18 for, again, was it 30 years?
19 A Almost 30, yes.
20 Q Do you know that attorneys have an
21 obligation under the law to retain their files
22 for no less than seven years?
23 MR. PARIS: Objection, Your Honor.
24 Objection.
25 JUDGE CURRAN: Basis?
157
1 MR. PARIS: Well, does this
2 include police -- I mean, I think we need to be
3 heard at sidebar.
4 MR. MULLIN: I am asking him about
5 his files.
6 JUDGE CURRAN: I'm sorry?
7 MR. MULLIN: I was asking about
8 his files.
9 MR. PARIS: About his files?
10 JUDGE CURRAN: That was the
11 question.
12 MR. PARIS: Fine.
13 BY MR. MULLIN:
14 Q Did you know that an attorney has
15 an obligation to retain his files for a period
16 no less than seven years? You know that, right?
17 A Sure, I keep them ten years.
18 Q But not that correspondence,
19 right?
20 A I have my file on this deVries case, and
21 it was turned over to you.
22 Q And no notes?
23 A If there is a letter -- I took no notes.
24 Q For four years?
25 A Excuse me?
158
1 Q Nothing further.
2 A Thank you.
3 JUDGE CURRAN: Mr. Paris.
4 FURTHER REDIRECT EXAMINATION BY MR. PARIS:
5 Q Mr. Leanza, do you know whether or
6 not the Attorney General's Office offered use
7 immunity to Snyder, Sr., Snyder, Jr. or
8 Mutschler?
9 MR. MULLIN: Objection.
10 Objection, Your Honor.
11 JUDGE CURRAN: Basis?
12 MR. MULLIN: Goes to the in limine
13 area.
14 MR. PARIS: I don't think that has
15 anything to do --
16 MR. MULLIN: He can't know that.
17 MR. PARIS: The question was --
18 MR. MULLIN: He can't know that
19 because we don't have those records.
20 MR. PARIS: Then that's the
21 answer.
22 JUDGE CURRAN: I'm going to
23 sustain the objection. We have gone through
24 that. The record will speak for itself.
25 MR. PARIS: I have no further
159
1 questions, thank you.
2 JUDGE CURRAN: Any other
3 questions?
4 Is there anyone on the jury who
5 has any questions for this witness? If so,
6 please raise your hand or take one of the
7 question cards. Anyone on the jury who has a
8 question for this witness? No?
9 Thank you.
10 THE WITNESS: Thank you very much.
11 JUDGE CURRAN: Thank you. If I
12 might see counsel at sidebar for just a moment.
13 It doesn't have to be on the
14 record, Tracey.
15 (Whereupon, a discussion is held
16 off the record.)
17 JUDGE CURRAN: Ladies and
18 Gentlemen, we can go back on the record. I
19 think I have good news for you. We are going to
20 excuse you for today. As you -- oh, look at
21 those smiles. Oh, that's so sad. Juror Number
22 5, we just --
23 JUROR NUMBER 5: I was just making
24 a joke about it.
25 JUDGE CURRAN: And I even have a
160
1 document for you, which I will go over with
2 counsel when the other jurors leave.
3 But those -- those smiles make me
4 feel sad.
5 All right. Please understand the
6 attorneys are going to be working all afternoon.
7 We were just discussing how long they would take
8 for lunch. And they will be back tomorrow. So
9 it's not as if we will not be working.
10 Hopefully we will resolve the legal issues so
11 that we can move ahead very expeditiously on
12 Monday morning.
13 We will ask that you report back
14 Monday at 9:30.
15 Again, please do not discuss the
16 case among yourselves. Please do not discuss it
17 with anyone else.
18 Are there any other questions?
19 JUROR: Do we have to go to work
20 tomorrow?
21 JUDGE CURRAN: As I have said
22 before -- well, first of all, I am going to ask
23 Tracey to strike that, just in case there is
24 ever a copy of this because we do realize that
25 you work for the government; but --
161
1 JUROR: Yes.
2 JUDGE CURRAN: -- that's between
3 you and your conscience and your office. Okay.
4 All right. In fairness, if they
5 call here, my secretary will say I am in the
6 courtroom working on the case. So whatever
7 inference they draw is whatever inference they
8 draw.
9 Anything else? Thank you very
10 much. We appreciate your patience for the long
11 session. Thank you. Off the record.
12 (Whereupon, the jury is excused.)
13 (Whereupon, a luncheon recess is
14 taken.)
15 A F T E R N O O N S E S S I O N
16 JUDGE CURRAN: I will note that
17 counsel are all here, the jury is not. I have a
18 suggestion, which I'm happy to hear objections
19 to or -- or whatever. What I often try to do is
20 to go through starting with one set of jury
21 charges.
22 MR. MULLIN: Yes.
23 JUDGE CURRAN: For instance, the
24 plaintiffs, because usually the plaintiffs have
25 more proposals than the defense do. It seems to
162
1 me that it's easier to go page by page that way.
2 I'm not in any way saying that we
3 won't include a discussion on the record of
4 everything that the defense wants. I'm not
5 asking you just to react, for example, to the
6 plaintiffs. But I think sometimes it makes it
7 easier to go through this way.
8 And we may come to a certain
9 point -- obviously, use the last page, adverse
10 inference, I know that the defense in the past
11 has objected to that. So you'll get total
12 opportunity to object, and you'll get total
13 opportunity to add anything you want.
14 There will be some issues where
15 you'll want to bring up what you want, instead
16 of what the defense -- the plaintiff is asking
17 for because it makes no sense to consider the
18 issue in a vacuum; but I think it's easier to do
19 it that way. If there is no objection, that's
20 how we are going to start.
21 MR. MULLIN: No objection. I am
22 just waiting for my copy to come back.
23 JUDGE CURRAN: Thank you. You
24 will get your copy. We will go off the record
25 until we get the copy.
163
1 Go back on the record for a
2 moment.
3 Go ahead. Did you want to leave?
4 MR. BEVERE: While Mr. Mullin was
5 waiting for his copy, I will use the men's room
6 in the jury room.
7 JUDGE CURRAN: Sure.
8 MR. BEVERE: Not too far.
9 JUDGE CURRAN: Just in general, if
10 there is no objection, I will just start at
11 1.12. These are all standard. I always --
12 MR. MULLIN: Sure.
13 JUDGE CURRAN: -- use standard.
14 There is no need for you all to have copied
15 them; I've got them. But I would propose to
16 read the proposed, the purpose of the charge,
17 the role of the court, the role of the
18 attorneys, the role of the jury and then,
19 obviously, the evidence, which in this case
20 would include the evidence from the witnesses,
21 the exhibits, the deposition testimony. Were
22 there Answers to Interrogatories read before the
23 jury?
24 MR. MULLIN: Yes.
25 MR. BEVERE: Yes.
164
1 JUDGE CURRAN: Okay. And the
2 stipulations. What I would suggest in regard to
3 the stipulation is that if you give me a copy of
4 the stipulation, which I don't have right now, I
5 will read it to the jury, unless you all agree
6 that one of you wants to read it. It's up to
7 you. Okay?
8 MR. MULLIN: I don't have any
9 objection to the Court reading it.
10 MR. BEVERE: No.
11 JUDGE CURRAN: Okay. So I need
12 the copy. And then any testimony to that
13 stricken.
14 Now, in regard to limiting
15 instructions, I would -- I'm sorry.
16 MR. MULLIN: Judge, I need a copy
17 of stip.
18 MR. BEVERE: I don't have a copy
19 of the stip with me. I will print it out and
20 bring it tomorrow.
21 JUDGE CURRAN: Sure. And in
22 regard to limiting, I would appreciate it if
23 counsel would go through -- I'm sure you have
24 already done this. Just to make sure that every
25 place that I indicated, yeah, I'll give a
165
1 curative or yes, I will give a limiting, that I
2 have either done it or you want it done.
3 The only example that I can think
4 of is I believe yesterday at page 244 we had the
5 discussion on this -- at sidebar in regard to
6 the objection in regard to the reference in the
7 doctor's tape to the truck. And I thought it
8 was the truck in Jersey City, but it was not
9 just the earlier -- no curative really was given
10 or limiting in that regard. So just go through,
11 if you would, the transcripts to see if there is
12 anything else that you feel that should be a
13 curative instruction or limiting instruction,
14 please.
15 And then we've gotten to the
16 burden of proof. We will go through all of
17 that. At the end, the standard charges at the
18 end are 1.12P, which is no passion, prejudice,
19 bias or sympathy. The deliberations, they're
20 not advocates for either side.
21 And then we get to the jury. Has
22 the plaintiff made a decision as to how many
23 jurors you are asking to deliberate?
24 MR. MULLIN: We haven't made a
25 decision yet, Your Honor.
166
1 JUDGE CURRAN: Okay.
2 MR. MULLIN: Can we hold off on
3 that yet?
4 JUDGE CURRAN: Sure, no problem.
5 And then we'll get to the verdict
6 sheet. We'll talk about the standard
7 communications with the Court. And then I'll go
8 through, you know, asking counsel to check the
9 exhibits.
10 All the standard ending charges
11 I -- you know, I don't think there is any
12 problem about those; but I just want to be sure.
13 So those are the standard charges that we will
14 use.
15 Now we'll go back, starting with
16 the submission by Plaintiffs' counsel for the
17 jury charges. Again, I'm using the 37-page
18 document to which Mr. Mullin referred earlier.
19 Any objection to -- on page one?
20 MR. PARIS: Your Honor, may we
21 stay seated?
22 JUDGE CURRAN: Of course.
23 MR. PARIS: Your Honor, the only
24 objection I note from the model charge with
25 regard to the burden of proof charge is the fact
167
1 that it sets out the defendant's issues. It
2 does not set forth any of the defenses of the
3 Town of Secaucus, which indicates that they'll
4 be discussed later. Under the model charge that
5 would be explained at that point in time.
6 MR. MULLIN: Well, I think we do
7 have to make a change.
8 JUDGE CURRAN: We do.
9 MR. MULLIN: I think now we
10 have -- now that we know all the causes of
11 action, it has to be not only the
12 Constitution -- it has to be -- the LAD would be
13 first. So number -- number one under -- should
14 be, "The defendant, the Town of Secaucus,
15 violated their rights under the New Jersey Law
16 Against Discrimination." The second would be
17 that they violated their rights under the
18 Constitution of the state of New Jersey. And
19 the third would have to be that they violated
20 their rights under NJSA 10:6-2, the Civil Rights
21 Act of the State of New Jersey.
22 MR. PARIS: Your Honor, we would
23 certainly -- and Mr. Bevere and I will both be
24 arguing but --
25 MR. BEVERE: Well, Judge, let me
168
1 tell you my position on that. Certainly, based
2 upon Your Honor's ruling, which I know is -- my
3 objection is preserved, I think Your Honor has
4 to say, "Law Against Discrimination."
5 As for New Jersey Constitution
6 and 10:6-2, my objection would be that they are
7 the same claim. 10:6-2 is the vehicle pursuant
8 to which our legislature has determined that
9 Constitutional rights would be vindicated. So
10 you know -- and quite frankly, Judge, it's
11 because it's the same claim there is not -- I
12 don't want there to be a misunderstanding that
13 there is somehow an LAD, then there is a 10:6-2,
14 then there is a -- then there is a direct -- I
15 think Mr. Mullin was referring to as a Peper
16 claim.
17 We now have the LAD based upon
18 Your Honor's ruling. That's in the case. But
19 with regard to the Constitutional claim, 10:6-2
20 sets forth the standard as to how -- how a
21 violation of a Civil Right will be vindicated
22 when that Civil Right is not covered by the LAD.
23 MR. MULLIN: Well, obviously, this
24 is a difference we have. And what I have done
25 in my charge is I -- I have argued that -- I
169
1 have always argued that the LAD and State
2 Constitution are the same -- same standard. So
3 that in my view we can word, number one, as
4 being that Defendant, the Town of Secaucus,
5 violated their rights under the LAD and the
6 Constitution of the State of New Jersey. That
7 would be one charge because same exact standard.
8 I don't get additional remedies, and I'm not
9 trying to.
10 Then I would say number two would
11 be that the defendant, the Town of Secaucus,
12 violated their rights under the New Jersey Civil
13 Rights Act, 10:6-2.
14 And then three would be that
15 Plaintiffs' economic and emotional damages as a
16 result of Defendant's conduct. And I understand
17 defendants take a different position and say
18 Constitutional claims should be blended into the
19 10:6-2 claim. And we've argued ad nauseam on
20 this; and I guess it's just a matter of the
21 Court ruling on it, making a decision.
22 JUDGE CURRAN: Mr. Paris.
23 MR. PARIS: No, no, I'm sorry, I
24 was just getting the book. But again, I don't
25 think that counsel can have it both ways.
170
1 Earlier they were arguing the LAD was the --
2 when LAD was not in the case, they were arguing
3 the LAD was the vehicle. Now they have got the
4 LAD case, and now they are arguing that there
5 should be two other remedies.
6 And under the Monell standard,
7 which Your Honor had applied to this case, the
8 Monell standard, which is the 1983 standard, is
9 the way that the rights are vindicated. We have
10 gone through the language of 10:6-2. I mean,
11 it's just, you know, clear that that's the
12 statute that was enacted by the legislature to
13 pick up any claims that weren't covered under
14 the LAD. Now you have the LAD. Then it's only
15 got -- it can only be the one.
16 MR. MULLIN: Again, long before
17 10:6-2 existed there were claims directly under
18 the State Constitution. See Peper v. Princeton.
19 So it can't be the only way to bring a claim
20 under the State Constitution is through 10:6-2.
21 I know I lost the battle about
22 what standard should be used under 10:6-2. I am
23 not going to argue that anymore. But an
24 unresolved issue is whether the LAD and the
25 State Constitution are the same standard.
171
1 Peeler V. Princeton makes it really clear that
2 they are. It's just a discrimination case under
3 the LAD, discrimination case under the State
4 Constitution. The LAD is the way the State
5 legislature enacted and implemented the State
6 Constitution.
7 So I have written a charge that
8 combines both because I -- I certainly don't
9 think I'm entitled to a double recovery under
10 both the LAD and the State Constitution. It's
11 not what I'm trying to accomplish. It's just an
12 identical charge. I have merged them together
13 carefully in my charge.
14 JUDGE CURRAN: What are you -- why
15 don't we go to the charge and look at it; that
16 way -- because I think I understand exactly what
17 the arguments are, but I want to make sure that
18 I do. Otherwise, I'll ask it this way.
19 What prejudice do you see with
20 Mr. Mullin's proposal?
21 And what do you see with
22 Mr. Paris' proposal?
23 Because when you read the charge,
24 the charge is, I think, fairly all-encompassing.
25 And I don't think it's duplicative but -- Mr. --
172
1 MR. PARIS: Your Honor, the
2 statute -- the statute doesn't create additional
3 rights. The statute refers back to the
4 Constitution and State law. So you can't say
5 that there are three causes of action because
6 the statutory issue is how the rights under the
7 prior are vindicated. So it's either violated
8 Constitutional right or the statute, but it's
9 not both. And that's the clear language in the
10 statute. That's all I'm saying.
11 JUDGE CURRAN: So are you saying,
12 for instance, in what is now number one that you
13 would not object if it said, "violated their
14 rights under the Constitution of the State of
15 New Jersey as implemented by the LAD"?
16 MR. PARIS: No.
17 MR. BEVERE: Judge.
18 MR. PARIS: I think it's the other
19 way. I think it's violate their right under the
20 LAD. Number two, violated their rights under
21 the Constitution as implemented by --
22 JUDGE CURRAN: Okay. So I do
23 understand it.
24 MR. MULLIN: And on page six, if I
25 had it my way, I would actually title it on page
173
1 six -- the heading should be, "LAD and New
2 Jersey Constitution" because it's all in one.
3 So that's the way I would like it done. I would
4 change my heading because I am capturing both at
5 once. I think it's one in the same standard.
6 MR. PARIS: You know, we'll
7 address that later; but we understand what he is
8 seeking.
9 JUDGE CURRAN: I just -- my
10 concern is I've read these charges as they are
11 written, not that they're written in stone in
12 any way. But it seems to me that the way
13 they're spelled out, to use as the example,
14 starting on page six, is a proper understanding
15 of the law.
16 Can you show me, when you go back
17 to the charge, where you feel that there is a
18 problem?
19 MR. BEVERE: I'm sorry, Judge?
20 JUDGE CURRAN: And I said it
21 backwards before. I said the LAD as implemented
22 by the Constitution. Obviously, it would be the
23 other way around, but --
24 MR. MULLIN: All you would have to
25 do is change the title. "The LAD and New Jersey
174
1 State Constitution" on page six, the same exact
2 charge.
3 MR. BEVERE: And Judge, you know,
4 for the record, we don't think it is. We think
5 the LAD is one charge and Constitution charge is
6 10:6-2.
7 MR. PARIS: Essentially, it's a
8 combination.
9 JUDGE CURRAN: Well, yeah, that's
10 the problem.
11 MR. PARIS: When I say,
12 "combination," in other words, there is an LAD
13 charge and then there is a Monell charge. And I
14 don't think Your Honor had said that Monell does
15 not apply in this case anymore. I didn't think
16 that that was your ruling. I think -- I thought
17 what you were doing is you were adding an LAD
18 count.
19 JUDGE CURRAN: Putting it back in.
20 MR. BEVERE: Right.
21 MR. PARIS: But that the Monell --
22 I think even at that point you said the Monell
23 standard still applies with regard to the
24 Constitutional claim as implemented by 10:6-2.
25 So there really should be two separate charges
175
1 for them to prove the Constitutional claim.
2 It's not the same standard as the LAD claim.
3 MR. MULLIN: Your Honor, I think
4 you asked counsel to point out specific language
5 they object to in my charge. I think that would
6 be a more constructive way to proceed. My
7 charge -- my substantive charge, which, again, I
8 think should be titled, "The LAD and the New
9 Jersey State Constitution." And then what
10 language are they objecting to in that charge?
11 MR. PARIS: See, Your Honor --
12 MR. BEVERE: Judge -- Judge, this
13 is what I -- what I would say. Because I think
14 when we go to the LAD charge, this whole thing
15 about the New Jersey State Constitution, Article
16 I, paragraph one, that belongs, Judge -- that
17 belongs in the Constitutional claim, not the LAD
18 claim. So that should be charged along with the
19 Monell standard.
20 The LAD has its own charge for
21 the vindication of that statutory right. And I
22 guess our position is that it can't be both. In
23 other words, the legislative history of 10:6-2
24 makes it clear. This statute is here to cover
25 gaps. You know, where the LAD doesn't cover,
176
1 this statute governs. So you don't have a
2 direct claim under the Constitution plus 10:6-2.
3 MR. MULLIN: Can we have authority
4 for that?
5 MR. BEVERE: I'm going to the
6 legislative history of the statute. It says,
7 "Vindication of a Constitutional right where" --
8 "in situations where it's not covered by the
9 LAD."
10 MR. MULLIN: Now, I can be really
11 specific, now that counsel said that. Can we
12 have a cite to the provision in 10:6-2 that
13 10:6-2 is the exclusive remedy for vindicating
14 rights under the State Constitution? Because
15 that now is the argument that's being made. Can
16 you point us to the language? Because there are
17 statutes that say, "This is the exclusive
18 vehicle for vindicating rights."
19 MR. BEVERE: Judge.
20 MR. MULLIN: So let's look at the
21 statute and see where --
22 MR. BEVERE: Judge, first, I'm not
23 going to engage in a shouting match.
24 MR. MULLIN: I'm not shouting. I
25 want the record to be clear I'm not shouting. I
177
1 want to focus in on what the statute language
2 is.
3 MR. BEVERE: "This bill
4 establishes the New Jersey Civil Rights Act."
5 This is from the legislative history. "In order
6 to protect and assure against deprivation and
7 the free exercise of Civil Rights, which are
8 guaranteed and secured under the New Jersey
9 Constitution and Federal Constitution, this bill
10 provides a remedy when one person interferes
11 with the Civil Rights of another. This bill
12 attempts to provide citizens of New Jersey with
13 a State remedy for deprivation of or
14 interference with the Civil Rights of an
15 individual. By providing this remedy this bill
16 is intended to address potential gaps which may
17 exist under remedies currently provided by New
18 Jersey's Law Against Discrimination 10:5-1, et
19 seq. and the law authorizing a civil cause of
20 action for bias crime victims, N.J.S.A.
21 2A:53A-21." So you know --
22 MR. MULLIN: Let me repeat my
23 argument. I have 10:6-2. I am not going to go
24 to the legislative history until I need to
25 because that's the way statutory construction
178
1 law works.
2 I have 10:6-2. I have sections A
3 through F. Nowhere in the statute does it say,
4 "This is the exclusive vehicle for asserting
5 rights under the State Constitution." So we
6 don't have to look at legislative history. And
7 nothing counsel just read said that this was the
8 exclusive remedy for asserting rights under the
9 State Constitution. It is a way to assert
10 rights under the State Constitution. That I
11 have to concede. We disagree on what the legal
12 standard is, but it certainly is a way one can
13 go. And one uses this when, for example, one
14 wants to recover statutory legal fees.
15 JUDGE CURRAN: Which is the reason
16 it's in here to begin with from the history of
17 this case, correct?
18 MS. SMITH: Right.
19 MR. MULLIN: That's --
20 JUDGE CURRAN: I'm sorry.
21 MR. MULLIN: That's correct.
22 So -- so, you know, sometimes you have -- I'm
23 trying to remember a statute that has it, but
24 sometimes you have a CEPA, for example. The
25 Conscientious Employer Protection Act pretty
179
1 much says if you plead something under CEPA, you
2 give up on statutory -- on common law remedies
3 in connection with your whistle-blower claim,
4 CEPA, that's it.
5 JUDGE CURRAN: Or the worker's
6 comp, unless it's intentional.
7 MR. MULLIN: Worker's comp.
8 Another one that comes to mind is RISA statute
9 governing retirement rights. It says it's the
10 collective vehicle, exclusive remedy for
11 violation of rights under a benefits plan and
12 you can't plead anything else and there is no
13 other way to go.
14 So there is no language in here
15 this is the exclusive way to go. So then the
16 question becomes, if this is not the exclusive
17 way to go, well, what -- what -- what's wrong
18 with asserting a claim, as I have all
19 throughout, directly under the State
20 Constitution? The answer is there is nothing
21 wrong with doing that. I can assert a claim
22 under 10:6-2, which I have. And I can assert a
23 claim under State Constitution, which I have.
24 And under the LAD, which I have.
25 It so happens that the LAD and
180
1 the State Constitutional claim have the same
2 exact legal standard. I don't get a double
3 recovery. And that -- so I put the two
4 standards together. So -- so I don't think
5 there is a sound argument to say 10:6-2 is the
6 exclusive vehicle for asserting a claim under
7 the State Constitution because Constitution
8 language isn't there.
9 JUDGE CURRAN: Mr. Bevere.
10 MR. BEVERE: Judge, I don't
11 disagree that there -- that 10:6-2 is the
12 exclusive statute to vindicate a Constitutional
13 right.
14 JUDGE CURRAN: He is saying it's
15 not the --
16 MR. BEVERE: No, no, I don't
17 disagree that it's not. Certainly, the
18 Constitutional rights that you can vindicate
19 under the LAD are Constitutional rights being
20 vindicated under the LAD. But the legislative
21 history seems pretty clear that if you don't
22 meet the standards of the LAD, then you go to
23 10:6-2. In other words, legislative history
24 says we're going to address gaps that may exist
25 with potential remedies under the LAD and under
181
1 the statute giving a victim of a bias crime a
2 civil cause of action. And if you don't fall
3 within those ends of the spectrum and you fall
4 in the middle, then you go to 10:6-2. And
5 that's what the legislative history says.
6 Otherwise, you know, what --
7 whenever one didn't have a -- a -- a claim under
8 the LAD, we would just apply the LAD, anyway.
9 And that -- that can't be the law. It just
10 can't be the law.
11 The legislature recognized that
12 there was a problem. And, you know, what do we
13 do when someone wants to vindicate a
14 Constitutional right that you can't do because
15 you don't fall within the parameters of the LAD?
16 We need a remedy for these people. So we create
17 10:6-2. But -- but 10:6-2 would be superfluous,
18 if we can just go right under the Constitution
19 and bring the claim.
20 10:6-2 sets forth the parameters
21 for vindicating a Constitutional right when you
22 don't fall within the LAD.
23 So they were never different
24 claims, Judge. They were never different
25 claims. If they were different claims, yeah, I
182
1 mean, there would be no need to amend the
2 complaint.
3 JUDGE CURRAN: Well, that was --
4 that's a separate issue in regard to amending
5 the complaint because the LAD was out at that
6 time.
7 MR. BEVERE: I understand. I
8 understand that, Judge. But it -- but
9 understand, when -- when I -- certainly, 10:6-2
10 isn't going to say this is the exclusive remedy
11 for vindicating a Civil Right because the LAD
12 does vindicate Civil Rights.
13 But what the legislative history
14 says is if you don't meet the LAD, you go here.
15 And that's what it says. And -- and Peper was a
16 different -- Peper did not apply the LAD. Peper
17 applied Title 7 standards. They didn't apply
18 the LAD. They said you don't meet the LAD, you
19 don't get the benefit of the LAD, we will give
20 you Title 7. Well, now New Jersey has a statute
21 that says if you don't meet the LAD, this is
22 what you prove. That's our position, Judge.
23 JUDGE CURRAN: Mr. Mullin.
24 MR. MULLIN: Peper looked to Title
25 7 as a model for how to try a discrimination
183
1 case, which is what all the early LAD cases did.
2 That's all Peper did. It says how do we try a
3 discrimination case? They didn't apply Title 7
4 to Federal law. They looked to it as a model,
5 the way all the early LAD cases did.
6 And we have always had two causes
7 of action in this case. And now we have three.
8 LAD, State Constitution and 10:6-2. And it's
9 just really simple what I'm saying. The LAD
10 standard is the standard that's used for the
11 State Constitution. It sounds as if counsel is
12 almost arguing the only -- you only have two
13 places to go if you are the victim of
14 discrimination; you can sue under 10:6-2 or you
15 can sue under the LAD.
16 But what he seems to be saying is
17 you can never sue directly under the State
18 Constitution. That's what counsel is saying.
19 That proposition is demonstratively wrong
20 because, otherwise, you couldn't have Peper V.
21 Princeton. It wouldn't exist. It wouldn't be
22 on the books. Of course, you can still to this
23 day sue directly under the State Constitution.
24 And you can use the 10:6-2 vehicle, if you want
25 to pick up some additional remedies.
184
1 JUDGE CURRAN: See, that's my
2 concern, Mr. Bevere, that to accept your
3 argument says you can't have a direct suit under
4 the Constitution.
5 MR. BEVERE: I -- I think that
6 after 10:6-2 there is direct suit for damages.
7 JUDGE CURRAN: Is there a case
8 that says that?
9 MR. BEVERE: If you want to think
10 that your -- that your school district isn't
11 properly integrated and you want to bring an
12 action for equitable relief directly under the
13 Constitution, I don't think Robinson and those
14 cases go out the window. But I think after
15 10:6-2, if you want damages for violation of a
16 Constitutional right, you either go to the LAD
17 or you go here.
18 I don't think that there's -- you
19 know, and -- and who's to say if you go directly
20 under the Constitution, you're getting a Lehmann
21 charge? That's an LAD cause of action. So I
22 mean, I don't want to get there yet; but what
23 I'm saying is -- is this statute and the
24 legislative history of this statute make it
25 clear. I'm not saying that --
185
1 MR. MULLIN: Makes what -- can we
2 say makes what clear?
3 JUDGE CURRAN: That there is no
4 direct cause of action under the --
5 MR. BEVERE: No direct cause of
6 action for damages.
7 MR. MULLIN: Under the State
8 Constitution.
9 MR. BEVERE: Under the State
10 Constitution and 10:6-2. This says --
11 otherwise -- otherwise, you know, Judge, why
12 have the statute? I mean, really, the statute
13 is there because they wanted to create a cause
14 of action for damages for rights under the
15 Constitution when you don't fall within the LAD.
16 And when you want to vindicate a Constitutional
17 right that doesn't fall within the LAD, then
18 this is the statute.
19 JUDGE CURRAN: Why wouldn't they
20 have said that in plain English, considering
21 this county's legislator, Assemblyman Jackman,
22 was the one who wrote the plain English
23 requirements? Why wouldn't they just have said
24 that?
25 MR. BEVERE: I -- Judge, I think
186
1 they said it in the legislative history. It's
2 what they said.
3 JUDGE CURRAN: Said plain and
4 simple, okay, if you think your Constitutional
5 rights have been violated, you have two ways to
6 go; we already have the LAD, and then the
7 language that fills in there that says basically
8 the fill-in, anything else comes here? I -- I
9 just don't --
10 MR. BEVERE: Judge.
11 JUDGE CURRAN: -- read it that
12 way.
13 MR. BEVERE: Well, Judge, I can't
14 help the way Your Honor -- I mean, Your Honor
15 has the opinion. And I'm just going to put on
16 the record my position that it says, "This bill
17 attempts to provide the citizens of New Jersey
18 with a State remedy for deprivation of or
19 interference with the Civil Rights of another.
20 By providing this remedy the bill is intended to
21 address potential gaps which may exist under
22 remedies currently provided by New Jersey's Law
23 Against Discrimination and the law authorizing a
24 civil cause of action for bias crimes." And
25 I -- I'll stand on that.
187
1 JUDGE CURRAN: All right. I'm
2 going to deny your request, Mr. Bevere. Again,
3 it's too new for -- for any precedents to be of
4 any interest to me other than the arguments
5 Mr. Mullin gives in regard to Peper, which is
6 really not all inclusive. But I find here that
7 I do not believe that the legislature intended,
8 nor do I think that the statute -- statutory
9 wording make clear that there is no direct cause
10 of action under the State Constitution any
11 longer. Therefore, I am going to deny your
12 request.
13 As I said before in this -- this
14 case, the Appellate Division and maybe the
15 Supreme Court will work out whose interpretation
16 is actually accurate; but I just don't see that
17 statute as precluding, which I have to do. I
18 have to indicate the statute precluded you any
19 direct cause of action under the Constitution,
20 and I just find that it does not in my
21 understanding.
22 MR. MULLIN: So again, Your Honor,
23 page six, I would title it, "The LAD" or, "The
24 New Jersey Law Against Discrimination and the
25 New Jersey's Constitution." That would be --
188
1 JUDGE CURRAN: Mr. Mullin, you
2 have said that a few times. I don't know any
3 objection to that, but is there a thought that
4 the jury is going to get a copy of this charge?
5 Is that the --
6 MR. MULLIN: I am considering
7 that. I know the very new rules allow us, if --
8 I don't remember whether it says both parties
9 have to agree. I just haven't checked it. I
10 really haven't made my mind up whether I want to
11 send it in or not.
12 JUDGE CURRAN: My concern is
13 always -- there are some judges, frankly, who
14 give the charge --
15 MR. MULLIN: I know. We have had
16 that.
17 JUDGE CURRAN: -- in the
18 beginning. Personally, I think that is not a
19 good thing to do because they just plain don't
20 listen to what you are saying. Not that we are
21 the most interesting act in Town, but I do try
22 to look at them and I do try to -- sometimes I
23 will say on my own, "I am going to repeat that,"
24 if I think that my inflection was wrong.
25 MR. MULLIN: I think that's a very
189
1 good point, and I --
2 JUDGE CURRAN: But my concern is
3 this is a complicated case. So we will get to
4 that tomorrow.
5 MR. MULLIN: Yeah.
6 JUDGE CURRAN: I just want to make
7 that clear.
8 MR. MULLIN: I think that point is
9 very well taken.
10 JUDGE CURRAN: Okay. So let's get
11 back, then, to page one, so that, you know,
12 whoever is going to be making the changes can
13 make them and there is an understanding.
14 Is there an understanding as to
15 how the burden of proof section just for the
16 plaintiff is going to be changed?
17 MR. MULLIN: Yes. Well, it should
18 now say -- point number one under "A" on page
19 one should read, "That defendant the Town of
20 Secaucus violated their rights under the" -- we
21 probably should spell it out -- "the New Jersey
22 Law Against Discrimination" --
23 JUDGE CURRAN: Right.
24 MR. MULLIN: -- "and the
25 Constitution of the State of New Jersey." And
190
1 point number two should be I have to prove the
2 10:6-2, that -- "That the defendant, Town of
3 Secaucus, violated their rights under the New
4 Jersey" -- what is it called -- "the New Jersey
5 Civil Rights Act" --
6 MR. BEVERE: Civil Rights Act.
7 JUDGE CURRAN: Yes.
8 MR. MULLIN: -- "10:6-2, et seq."
9 or -- it's just 10:6-2.
10 MR. BEVERE: It's 10:6-2.
11 MR. MULLIN: Number two that's
12 there about damages would become number three.
13 JUDGE CURRAN: Right. Then we
14 need to go to the Town of Secaucus.
15 MR. MULLIN: Right.
16 JUDGE CURRAN: I don't have any
17 specific wording from the Town of Secaucus.
18 What is it that you wish to say? Because you
19 make the exact correct point, Mr. Paris, what we
20 do here is we say this is what the plaintiffs
21 say, then we say this is what the defendants
22 say.
23 MR. PARIS: Well, jumping ahead to
24 page six, as Mr. Mullin has suggested that the
25 charge -- you know, and I have read the charge
191
1 from page six on. It appears that Monell is not
2 mentioned anywhere within the charge.
3 JUDGE CURRAN: No, I did note that
4 myself.
5 MR. PARIS: The issue of color of
6 law is nowhere in the charge.
7 JUDGE CURRAN: Right, I know that.
8 MR. PARIS: I think the Court has
9 to make a determination as to how a LAD -- an
10 LAD charge, which is only, as far as we're
11 aware, has ever been charged in the State of New
12 Jersey in employment settings is going to be
13 changed to the setting that Your Honor has --
14 has established and whether or not there is now
15 going to be a 1983 charge on top of it.
16 We have given you a 1983 charge.
17 I don't think the Court had changed its ruling
18 with regard to the applicability of Monell. And
19 you know, I would presume that what we're going
20 to have to add, once we get that clarified, are
21 defenses that are raised both under Monell and
22 both under the LAD, that it has adequately
23 trained, that the people who were acting --
24 pardon me?
25 MR. BEVERE: Those aren't -- those
192
1 aren't defenses; those have to be proven by the
2 plaintiff.
3 MR. PARIS: Okay. Well --
4 MR. MULLIN: Well, Your Honor,
5 we're looking at the LAD charge right now. I
6 understand that I lost the battle on 10:6-2 and
7 there is going to be a Monell charge.
8 JUDGE CURRAN: But I don't have a
9 Monell charge. What I need is the Monell
10 charge, which I thought we were going to get
11 today. We need the Monell charge that the
12 defendants are proposing.
13 MR. BEVERE: I gave that, Judge.
14 JUDGE CURRAN: Where?
15 MR. BEVERE: I handed that in.
16 MR. MULLIN: That's here.
17 JUDGE CURRAN: Where is it?
18 MR. MULLIN: That's the
19 unmentioned -- has a date on it. Defendants
20 gave it to you May 3rd.
21 MR. BEVERE: That's our Monell
22 charge.
23 MR. MULLIN: Their Monell charge
24 is in there.
25 JUDGE CURRAN: Which page?
193
1 MR. MULLIN: That's --
2 JUDGE CURRAN: Oh, okay. Okay.
3 Just -- that's all you're looking for, then?
4 MR. MULLIN: The pages were not
5 numbered, but it's page six of their charge.
6 That is a separate topic. I understand they are
7 going to have a whole color of State law and
8 Monell charge in connection with 10:6-2. Right
9 now I thought, Your Honor, we are just going
10 through my charge, which is an LAD/State
11 constitutional charge. Your Honor has ruled --
12 JUDGE CURRAN: Right, but all we
13 need is -- when we do burden of proof, we just
14 need that -- we're not -- I'm not talking about
15 their charge. I am talking about the defendant,
16 the Town of Secaucus has the burden of
17 establishing any affirmative defenses.
18 MR. MULLIN: Affirmative defenses.
19 JUDGE CURRAN: Right. But they
20 may want to -- you know, in easy cases sometimes
21 all the defense wants is, "The defense denies
22 all allegations by the plaintiff." Sometimes
23 they want something more specific. We're
24 talking a sentence or two; I'm not talking about
25 their charge.
194
1 MR. BEVERE: Yeah, I would say
2 that we would take a sentence that says, "The
3 defendant Town of Secaucus denies that the" --
4 "that it violated the Plaintiffs' Constitutional
5 rights."
6 MR. MULLIN: Rights under the LAD
7 and rights under 10:6-2.
8 MR. BEVERE: Yeah, just kind of
9 mirror it and say, "The defendant denies that it
10 is liable for any damages."
11 JUDGE CURRAN: Any damages?
12 MR. BEVERE: Any damages.
13 JUDGE CURRAN: Okay. Mr. Mullin,
14 are you going to make those changes, just so
15 that I -- with all due respect, I don't have the
16 physical ability to do it tonight, only because
17 with my law clerk out and whatever. But --
18 MR. MULLIN: Sure.
19 JUDGE CURRAN: -- I have it all
20 written down.
21 MR. MULLIN: It's not a problem.
22 Tracey will send me this e-mail tonight, and
23 I'll have it all prepared tomorrow.
24 JUDGE CURRAN: We can make
25 whatever copies you need tomorrow -- that is not
195
1 a problem -- if that gets to be an issue. Okay.
2 So now we have page one. Any problem with the
3 rest of page one?
4 MR. BEVERE: Judge, I don't
5 think -- I don't think we need a distinction
6 between civil and criminal. I think just a
7 civil burden of proof should be charged.
8 MR. MULLIN: I beg to differ, Your
9 Honor, because in this trial there has been a
10 bit of blur of the civil standard and the
11 criminal standard. I don't fault anybody for
12 that. It had to come into this case.
13 There was a pending criminal
14 investigation. You have heard on my
15 cross-examination, the attempt to make a
16 distinction for the jury between a civil
17 standard and a criminal standard. So it's only
18 because this is a unique case where we have
19 criminal investigation that I just wanted to
20 make that point again for the jury to avoid
21 juror confusion. That's -- normally I won't ask
22 for it, but that's why I did it.
23 JUDGE CURRAN: Frankly, Mr.
24 Bevere, when I read this, I thought that it was
25 being overly fair to the defense, that it was
196
1 not something, frankly, that the plaintiff had
2 to do. It seems to me it makes it clearer as
3 to -- I -- I understand, you know, your view of,
4 no, it basically says the plaintiffs have a
5 lower standard of proof and -- burden of proof.
6 And that's true; but it just seemed to me that
7 it made it clear there are no criminal charges
8 in this case, basically. You know, because
9 juries still tend to use words like -- in civil
10 cases, use words like "guilty or not." Well, in
11 this case that's not what they should consider.
12 MR. BEVERE: Well, Judge --
13 JUDGE CURRAN: If you -- if you
14 feel that it should go out, I will listen, you
15 know, to the argument.
16 MR. BEVERE: Yeah, Judge, I think
17 that if you just tell the jury what the standard
18 of proof is, that's -- they'll follow it, and
19 that should be sufficient.
20 JUDGE CURRAN: All right. I'm
21 going to then strike the last paragraph and just
22 go directly to, "The plaintiffs must prove."
23 MR. MULLIN: Okay. My objections
24 are noted for the record.
25 JUDGE CURRAN: Yes, it is noted
197
1 for the record.
2 MR. MULLIN: So now we are on page
3 two.
4 JUDGE CURRAN: Now we are on page
5 two. Any objections to page two?
6 MR. BEVERE: I'm assuming that the
7 first sentence is out with the previous
8 paragraph.
9 JUDGE CURRAN: Yes, yes.
10 MR. BEVERE: Otherwise, I have no
11 objections.
12 JUDGE CURRAN: I go down to where,
13 "The plaintiffs must prove."
14 MR. BEVERE: I have no objections
15 to the rest of, "at that" --
16 JUDGE CURRAN: How about three?
17 MR. BEVERE: No objection to
18 three.
19 JUDGE CURRAN: Four?
20 MR. BEVERE: No objection to four.
21 JUDGE CURRAN: Five?
22 MR. BEVERE: No objection to five.
23 JUDGE CURRAN: Six?
24 MR. BEVERE: Yeah, what I want --
25 what I put down, Judge, was going down to the --
198
1 it says, "Plaintiffs, Pete deVries and Tim
2 Carter, assert a claim during the time they
3 lived in the Town of Secaucus they were subject
4 to a hostile environment."
5 MR. MULLIN: Typo there. The word
6 "harassment" shouldn't appear at the end of that
7 sentence. Should end at "sexual orientation."
8 MR. BEVERE: Yeah, because of
9 their sexual orientation.
10 JUDGE CURRAN: I had already
11 crossed that out, thank you.
12 MR. BEVERE: Then says,
13 "Plaintiffs claim that members of the Secaucus
14 Fire Department subjected Plaintiffs to this
15 discriminatory harassment in or near their
16 secaucus residence and that this harassment
17 prevented the enjoyment and use of their
18 residence in Secaucus."
19 I think it should end there,
20 Judge, because, based upon Your Honor's ruling,
21 what you said was it was a hostile environment
22 in the neighborhood. And therefore, I don't
23 think we should -- we should say, "and drove
24 them from all the Town of Secaucus and all of
25 its public accommodation." I think that goes
199
1 beyond Your Honor's ruling.
2 MR. MULLIN: I don't think it
3 does. I think --
4 JUDGE CURRAN: Well, part of my
5 ruling -- I'm sorry, Mr. Mullin.
6 MR. MULLIN: That's all right.
7 JUDGE CURRAN: Part of my ruling
8 was if a police station under the case none of
9 us can pronounce is a place of public
10 accommodation, surely, a Fire Department, even
11 though it's volunteer and the Fire Department
12 parking lot, arguably is a public
13 accommodation --
14 MR. MULLIN: Your Honor, my
15 argument that I -- I thought Your Honor accepted
16 was that --
17 JUDGE CURRAN: Was in part right.
18 MR. MULLIN: -- created hostile
19 environmental at or near the residence.
20 JUDGE CURRAN: Living, right.
21 MR. MULLIN: And the effect of
22 that was to drive them from the Town. Now, I
23 don't think I need to say all of its public
24 accommodations. I can take out all of, "drove
25 them from its public accommodations." It's not
200
1 that they made the whole Town everywhere on
2 every street and sidewalk hogs. Still, it's
3 that the effect of it was to drive them out of
4 the Town and the use of its accommodations. And
5 I thought Your Honor accepted that argument.
6 JUDGE CURRAN: I did in part
7 because that was -- that was the first argument
8 when we went -- that was the stronger argument
9 as I remembered it that was made the day of the
10 summary judgment motion back in November. I
11 think the wording --
12 MR. BEVERE: Judge, Judge, I --
13 JUDGE CURRAN: We could make it,
14 "The use of their residence in Secaucus and the
15 Town's public accommodations." I think "drove"
16 is -- is part of the problem.
17 MR. MULLIN: Okay. I -- I don't
18 have a problem with that formulation. I don't
19 want to be precluded from arguing this in a
20 closing argument. I think argument is one
21 thing, but I understand -- I don't have a
22 problem with that modification of instruction.
23 JUDGE CURRAN: All right. So it
24 will read, then, "use of their residence in
25 Secaucus and" --
201
1 MR. MULLIN: And Secaucus' --
2 JUDGE CURRAN: -- "public
3 accommodations."
4 MR. MULLIN: -- public
5 accommodations.
6 JUDGE CURRAN: Mr. Bevere, does
7 that address your objection?
8 MR. BEVERE: Well, you'll note my
9 objection for the record.
10 JUDGE CURRAN: I will. To the
11 underlying decision, no question about it.
12 Anything else on that page?
13 MR. BEVERE: No, Your Honor -- oh,
14 yeah, I -- I don't -- I don't think that we
15 should use the word "polluted." "Defendant
16 denies these claims contended to the environment
17 was not a hostile environment."
18 There was -- let me just see
19 something else, Judge. There was the word
20 "polluted" someplace else, which I -- I wanted
21 to not -- Defendant denies these -- the
22 environmental -- well, I -- I think if you say
23 that in light of Your Honor's previous ruling
24 was with regard to the previous sentence,
25 Defendant denies that --
202
1 JUDGE CURRAN: I think if you take
2 out -- after "environment," if you take out
3 everything down to, "and that Town," it makes it
4 cleaner.
5 MR. MULLIN: I have no objection
6 to that.
7 JUDGE CURRAN: Okay.
8 MR. BEVERE: Denies these claims
9 and contends that the Town --
10 JUDGE CURRAN: Took appropriate
11 steps to prevented and/or stop and/or remediate
12 such harassment and discrimination. That seems
13 to me a fair outline of what the Town's position
14 is. Any objection to that?
15 MR. BEVERE: And -- and instead
16 of -- Defendant denies these claims and contends
17 that the Town took appropriate steps to prevent
18 and/or stop and/or remediate any harassment and
19 discrimination.
20 JUDGE CURRAN: Thank you.
21 MR. BEVERE: Because I think if
22 you put "such," I'm admitting that there was.
23 JUDGE CURRAN: Exactly.
24 MR. MULLIN: No objection.
25 JUDGE CURRAN: I think that's
203
1 fair. Okay. Page seven.
2 MR. BEVERE: Okay. Page seven --
3 oh, Judge, with regard to just at the bottom of
4 page six, the -- I -- I understand why this is
5 here. When Mr. Mullin prepared the charge there
6 was Count 4 and there was Count 9. I mean --
7 MR. MULLIN: What are you looking
8 at?
9 MR. BEVERE: Well, I'm looking at
10 page six, the New Jersey Constitutional
11 provision. Your Honor, I'm assuming that my --
12 my objection, obviously, having been noted to
13 the charge in Article I, paragraph one through
14 this -- this charge on the LAD, as opposed to
15 Monell. And if that's -- I mean, as long as
16 that's preserved for the record, in light of
17 Your Honor's ruling that this count will include
18 the LAD and, I guess, what we'll term the
19 "direct claim under the Constitution" --
20 JUDGE CURRAN: Oh, your objections
21 to which are totally preserved for the record.
22 MR. PARIS: You see, I think
23 what's happening is by combining the two,
24 it's -- in other words, the moment -- there was
25 going to come a point when we started looking at
204
1 number six standing on its own. I don't think
2 it can stand on its own now without also looking
3 at the proposed 1983 charge. So should it go
4 from stopping to remediate any harassment and
5 discrimination right to the New Jersey Supreme
6 Court has interpreted the State Constitution
7 and -- and basically, then, you're charging LAD
8 and hold the State Constitution portion to the
9 183 charge.
10 MR. MULLIN: Well, I think that it
11 shows --
12 MR. PARIS: The question is are we
13 going -- if we're going to get a 1983 charge,
14 then the Constitutional language should go into
15 that and the LAD language should go here.
16 MR. MULLIN: I think Your Honor
17 has already ruled on this in my favor. You have
18 just ruled on this.
19 MR. PARIS: But I didn't think --
20 I didn't think so.
21 MR. MULLIN: We are going to have
22 to visit the issue again and again and again.
23 The Court has ruled against your position and in
24 favor of mine that you can have combined LAD,
25 State Constitutional claim. And that's what
205
1 this does. I understand you preserved your
2 issue in that regard, but we don't have to keep
3 rehashing this same issue over and over.
4 Counsel will have their Monell charge, and they
5 can cite -- there is a section where they will
6 have to refer also --
7 JUDGE CURRAN: Right.
8 MR. MULLIN: -- to the State
9 Constitution. We discussed that once before.
10 And there is no reason why it can't be in both
11 places. But we don't have to suddenly jump.
12 JUDGE CURRAN: I just don't find
13 that it has to be mutually exclusive, unless --
14 MR. PARIS: We have been heard.
15 JUDGE CURRAN: I'll note it on the
16 record at this point.
17 Page seven.
18 MR. BEVERE: With regard to page
19 seven, I would say the third paragraph, Judge --
20 JUDGE CURRAN: Uh-huh.
21 MR. BEVERE: -- "Sexual
22 orientation, it creates a hostile environment,"
23 I think we should take out, "or polluted."
24 MR. MULLIN: I don't mind taking
25 it out. I just want to note for the
206
1 jurisprudence is filled with that word.
2 "Polluted" is used repeatedly throughout
3 reported cases. So I -- I don't mind taking it
4 out here, but I don't think it necessarily shows
5 up. I think we should probably have some
6 argument on it. But to move things along, I
7 don't have an objection.
8 JUDGE CURRAN: Okay. Anything
9 else on page seven?
10 MR. BEVERE: Once again, Judge,
11 I'm going to -- just so that my objection is
12 clear for the record, substantially limits a
13 person's peaceful and enjoyment use of their
14 residence or prevents or substantially limits a
15 person's peaceful enjoyment and use of a Town or
16 its public accommodations, including its
17 streets, sidewalks, library, City Hall, and
18 businesses open to the public.
19 JUDGE CURRAN: Okay. I apologize.
20 I had already myself changed it to, "peaceful
21 and enjoyment and use of a Town's public
22 accommodations," period, paragraph. Because we
23 have some cases that say schools are public
24 accommodations, some that say libraries, I think
25 it's just cleaner to say, "of its public
207
1 accommodations."
2 MR. MULLIN: You're not deleting,
3 "use of their residence" because that's -- there
4 are two pieces to the LAD? We got the use of
5 real property --
6 JUDGE CURRAN: No, no, I am just
7 talking about.
8 MR. MULLIN: You are taking out
9 all the examples?
10 JUDGE CURRAN: Yes.
11 MR. MULLIN: I don't object to
12 that.
13 JUDGE CURRAN: Peaceful and
14 enjoyment of a Town's, apostrophe S, public
15 accommodations.
16 MR. MULLIN: No objection.
17 JUDGE CURRAN: Because I think
18 that's a fair interpretation of the case law so
19 far because we don't have any cases that say a
20 prior house is --
21 MR. BEVERE: What is the second
22 sentence you are going to read?
23 JUDGE CURRAN: The second sentence
24 is going to read exactly as it is right now,
25 except line 4 will read, "Peaceful enjoyment and
208
1 use of a Town's public accommodations," period.
2 MR. BEVERE: Okay.
3 JUDGE CURRAN: Page eight.
4 MR. BEVERE: I believe accurately
5 recites the statute, Judge.
6 JUDGE CURRAN: Let me ask you
7 this. I was trying to do this last night, and I
8 will tell you I didn't come up with any answers.
9 Is there any way that we can accurately explain
10 this to them without reading all of the --
11 MR. MULLIN: All the stuff?
12 JUDGE CURRAN: Yeah.
13 MR. MULLIN: I think if you just
14 went to my -- I'm not going to commit to this
15 immediately, but if you just -- just eliminated
16 the LAD definition and went to my paragraph
17 where you charge and instruct the jury on that,
18 "Under the definition and the statute the
19 following are"; and we can avoid the extremely
20 boring, mind-numbing definition of the word
21 "public accommodation." I --
22 MR. BEVERE: Judge, I would
23 actually ask that you take out the definition of
24 public accommodation.
25 JUDGE CURRAN: Oh, thank you, Mr.
209
1 Bevere.
2 MR. BEVERE: Because --
3 JUDGE CURRAN: I owe you one. I
4 think it will totally confuse the jury.
5 MR. BEVERE: No, Judge, because,
6 honestly, I mean, there is -- there is --
7 because you are talking about in here privately
8 owned property --
9 JUDGE CURRAN: Exactly.
10 MR. BEVERE: -- which has nothing
11 to do with this.
12 JUDGE CURRAN: Exactly.
13 MR. MULLIN: So we will --
14 JUDGE CURRAN: We are going to go
15 to, "and declared to be a Civil Right."
16 MR. MULLIN: Right.
17 JUDGE CURRAN: To page nine, "I
18 hereby charge." Now, do you want any changes on
19 page nine?
20 MR. BEVERE: Well, Judge, you
21 know, public streets, sidewalks, facilities open
22 to the public, public restaurants and stores.
23 MR. MULLIN: I think this is
24 important because all these things were
25 mentioned in this case. And I think since
210
1 we're --
2 JUDGE CURRAN: See, I thought that
3 covered it fairly well because they basically
4 were mentioned. I was, you know, thinking about
5 some of the others, but I think this explains
6 enough to them about what are places of public
7 accommodations. I don't think, for example,
8 that we have to start with what they, you know,
9 started with -- well, what they did early on,
10 things like hotels or motels, because it is not
11 an issue here. And there was never even an
12 issue that they tried to move out of their house
13 and tried to check into a hotel or something and
14 had a problem.
15 So this seems to me to be a good
16 explanation of what we need. But if you want to
17 add something or have an argument to take
18 something out.
19 MR. BEVERE: Well, I mean -- I
20 mean, if you look -- as well as public
21 restaurants and stores, I shall -- I think you
22 are giving the jury the impression we can be
23 liable for them not being able to go into a
24 store.
25 JUDGE CURRAN: Oh, I see.
211
1 MR. MULLIN: But that's true if
2 the Town of Secaucus did something that
3 prevented gay people from going into a public --
4 a public store; that would be a violation of the
5 act.
6 JUDGE CURRAN: Yeah, but that's
7 not here. I mean, that is a real, real, real,
8 real stretch of the hostile living environment.
9 Technically, they couldn't shop there; they
10 couldn't go to the doctors.
11 MR. MULLIN: They couldn't do
12 anything there. They were afraid to go into
13 that Town. They weren't able to use anything in
14 that Town after a while, not doctors, not
15 dentists, not stores, not restaurants, not
16 streets and sidewalks. This is what the case is
17 about. The pharmacy, for example, is a store
18 they specifically testified about.
19 JUDGE CURRAN: I got it. But
20 my -- the threshold question I have here is we
21 don't say that a firehouse or firehouse and its
22 area.
23 MR. MULLIN: Yes, that should be
24 here, of course.
25 JUDGE CURRAN: Pardon me?
212
1 MR. MULLIN: That should of course
2 be here. My omission.
3 JUDGE CURRAN: I think it has to
4 be. Right or wrong, that's my finding. And I
5 have to tell that. And I think they have to
6 understand that; otherwise, they would question,
7 A, whether or not they were supposed to decide
8 that, which they're not, and, B, what they
9 should do.
10 MR. MULLIN: Firehouse and its --
11 and its parking lot -- "firehouse and vicinity"
12 would be fine too.
13 MR. BEVERE: But, Judge, is it
14 Your Honor's ruling that the firehouse is a
15 place of public accommodation?
16 JUDGE CURRAN: Yep.
17 MR. BEVERE: Was that Your Honor's
18 ruling?
19 MR. MULLIN: If a police station
20 is, a firehouse is.
21 MR. PARIS: It's a little bit
22 different. In a police station you have a
23 reason to go there, if you were going to report
24 a crime. Why would you go into a firehouse?
25 Why would you go into a firehouse parking lot
213
1 that says parking is for firemen?
2 JUDGE CURRAN: Well, one of the
3 things that they had to do is walk across the
4 firehouse parking lot. Didn't they say --
5 didn't they say they had to walk across on his
6 way home from work.
7 MR. MULLIN: Not only that.
8 MR. PARIS: Sidewalks.
9 JUDGE CURRAN: Sidewalk? Okay.
10 MR. MULLIN: He was in the
11 library --
12 JUDGE CURRAN: And my concern is
13 here is that the firehouse and the activities of
14 the firehouse, including the social activities
15 of the firehouse, were all public
16 accommodations. They were very similar to
17 police stations.
18 And I mean, frankly, to use that
19 example, yeah, you do have to go to a public --
20 to a police station to report a crime; but, in
21 fact, in the case we can't pronounce it wasn't a
22 matter of the people were going to report a
23 crime. They were brought there by the police on
24 official business. So they weren't using it to
25 report a crime; they were there unwillingly.
214
1 And I guess theoretically also an individual
2 could go up to a fire house and -- and ask for
3 things like CPR help. There have been stories
4 like that, that kind of thing.
5 I think the nature of the kinds
6 of service, the tax dollars being used, the
7 holding out of the individuals as
8 representatives of the community, as well as the
9 building, itself, all goes to what is a public
10 accommodation. So I'll note the objection, but
11 I'm going to add --
12 MR. BEVERE: Can we just have the
13 sentence, Judge, so I can mark it properly.
14 JUDGE CURRAN: The municipal
15 building, the firehouses and vicinity.
16 MR. BEVERE: Judge, I'm sorry, I
17 hate to be a pain. If we can start from the
18 beginning of the paragraph, so I have it right.
19 JUDGE CURRAN: Well, I will start
20 with line 2. "Sidewalks and facilities open to
21 the public, like the Town library, the municipal
22 building, firehouses and the vicinities" -- "and
23 vicinity, police stations, as well as" -- and
24 then I didn't make any changes beyond that.
25 MR. BEVERE: Okay.
215
1 JUDGE CURRAN: Okay.
2 MR. BEVERE: You will note our
3 objection?
4 JUDGE CURRAN: Your objection
5 continues to be noted, absolutely.
6 Anything else in the rest of that
7 page?
8 MR. BEVERE: No, Your Honor, not
9 in light of Your Honor's ruling.
10 JUDGE CURRAN: Page ten.
11 MR. BEVERE: Page ten, Your Honor,
12 I just object to, "I hereby charge and instruct
13 you that the house."
14 JUDGE CURRAN: Oh, I have to tell
15 you -- honestly, why do you object to that? I
16 usually don't say things like, "hereby"; but I
17 would tend to use -- that would be the only way
18 I will, you know, change from the charge. But I
19 would say things like, you know, "I'm explaining
20 to you now" or, "It's important that you
21 understand that," that kind of thing. I
22 virtually never say -- I don't think I have ever
23 said, "I hereby instruct you."
24 MS. SMITH: Do you want us to make
25 that change, Your Honor --
216
1 JUDGE CURRAN: No, no.
2 MS. SMITH: -- or you'll just --
3 JUDGE CURRAN: Yeah.
4 MS. SMITH: Okay.
5 JUDGE CURRAN: But you object to
6 the phrase, "I hereby charge and instruct." I
7 mean, technically, the phrase is right.
8 MR. BEVERE: Your Honor.
9 JUDGE CURRAN: You want me just to
10 start with --
11 MR. BEVERE: What would Your Honor
12 propose to say? I guess I want to hear that.
13 JUDGE CURRAN: What I would
14 normally say there is something like, "It's
15 important that you understand" or, "You should
16 understand that the house Peter deVries and
17 Timothy Carter rented"; and I'd use the rest of
18 the whole sentence. I just wouldn't say, "I
19 hereby charge and instruct." I can start with
20 the house, if that makes it easier.
21 MR. BEVERE: The house was real
22 property -- yeah, I think Your Honor I would
23 prefer that, thank you.
24 JUDGE CURRAN: Okay. I'll take
25 out that whole first phrase there, then. And
217
1 we'll start on there. We would make that
2 change, thank you.
3 MR. MULLIN: Okay, Judge.
4 JUDGE CURRAN: Anything else on
5 that page?
6 MR. BEVERE: Judge, on paragraph
7 third, "If you determine the conduct does
8 constitute unlawful sexual orientation
9 harassment, you must then determine whether
10 Defendant" -- should be, "Defendant Town of
11 Secaucus" -- "should be held responsible." I
12 would say, "for the conduct."
13 JUDGE CURRAN: No objection?
14 MR. MULLIN: No objection.
15 JUDGE CURRAN: Thank you. Eleven.
16 MR. BEVERE: Well, obviously,
17 first paragraph, where you state,
18 "Constitution," I'm assuming, in light of Your
19 Honor's ruling from which my objection is
20 preserved for the record, it has to be, "State
21 Constitution" blah, blah, blah, "LAD."
22 MR. MULLIN: It does have to be --
23 wherever I said, "State Constitution," it has to
24 be, "State Constitution and LAD."
25 MR. BEVERE: I assume Mr. Mullin
218
1 will not do, "blah, blah, blah LAD."
2 MR. MULLIN: Wherever we have
3 that, it should be both.
4 MR. BEVERE: Okay.
5 MR. MULLIN: I will have to do a
6 global check on that.
7 MR. BEVERE: Nothing else on page
8 11.
9 JUDGE CURRAN: Page 12.
10 MR. BEVERE: I believe that -- let
11 me just compare it against my model, which I
12 did.
13 MS. SMITH: Excuse me, Your Honor.
14 Just because we're making such headway, if it's
15 okay with Your Honor, I'm going to go home with
16 John; and Neil can meet us later. And we're
17 making a lot of headway; I certainly don't want
18 to interrupt it.
19 MR. BEVERE: No, we want Neil to
20 have to go to the party.
21 MR. MULLIN: I will go there, but
22 just a little later.
23 MR. BEVERE: He wants to be there
24 when it starts.
25 MR. MULLIN: I will go there and
219
1 collect my beer, but --
2 JUDGE CURRAN: And is he going to
3 take the pictures.
4 MS. SMITH: I'm the picture-taker
5 of the family. There are no pictures of me
6 anywhere in our entire family; I am the
7 picture-taker.
8 Is that okay?
9 JUDGE CURRAN: Is he not going to
10 get to see her?
11 MS. SMITH: He is. I am going to
12 meet her at the party.
13 JUDGE CURRAN: There is a whole
14 party.
15 MS. SMITH: I am the wheels to
16 preprom. There is no driving today.
17 MR. PARIS: Mom is at the preprom.
18 JUDGE CURRAN: Okay.
19 MS. SMITH: Thank you very much.
20 JUDGE CURRAN: Have a good time.
21 I'm sorry, will you just tell
22 them it will be a little while?
23 MS. SMITH: Want me to tell them?
24 I have been talking to them.
25 JUDGE CURRAN: Thank you.
220
1 MS. SMITH: Thank you.
2 JUDGE CURRAN: On page 12.
3 MR. BEVERE: Let me go back to
4 where I was, Judge. I marked up a model, as
5 well, Judge, model charge, as well. So I just
6 want to compare it to -- page 12, Judge, I would
7 just say, if you go by the model charge, first
8 paragraph, "Stated differently, Plaintiff must
9 prove the conduct would not have occurred if
10 they had been heterosexual" -- and then there
11 is -- "as opposed to homosexual men." I will
12 just say, "had they been heterosexual men."
13 That more closely follows the model charge.
14 JUDGE CURRAN: So you want on line
15 3 just to end after, "heterosexual"?
16 MR. BEVERE: Yeah.
17 JUDGE CURRAN: Not, "as opposed
18 to"?
19 MR. BEVERE: Yeah.
20 JUDGE CURRAN: Any objection,
21 Mr. --
22 MR. MULLIN: No objection.
23 MS. SMITH: Excuse me. I take the
24 credit or the blame. These counsel want to do
25 it on the papers.
221
1 (Whereupon, a discussion is held
2 off the record.)
3 JUDGE CURRAN: I just want to
4 indicate -- Tracey, go off the record; but we
5 will keep on the Court's record, okay.
6 (Whereupon, a discussion is held
7 off the record.)
8 MR. BEVERE: Judge, with regard to
9 paragraph two, this -- this is what I had --
10 this is what I had marked up for the model
11 charge. And I'll -- I'll read it. "When the
12 harassing conduct is sexual or sexist in nature,
13 that because of sex element is automatically
14 satisfied. Thus, for example, if Plaintiffs
15 prove that they have been subjected to" -- the
16 model charge says, "sexual touchings or
17 comments" -- I think here it would be not
18 "touchings" but "comments" -- "or if they allege
19 that they have been subjected to harassing
20 comments about their sexual orientation, they
21 have established that the harassment occurred
22 because of their sexual orientation," period,
23 end of paragraph.
24 And that -- you know, the model
25 charge stops after "sexual orientation." That
222
1 last sentence about, "All that is required is a
2 showing that it is more likely than not," that's
3 not in the model charge. I would ask that that
4 be excluded.
5 JUDGE CURRAN: Mr. Mullin?
6 MR. MULLIN: Is that the sentence
7 you want to delete?
8 MR. BEVERE: You know, and --
9 well, that and also what -- what I had here -- I
10 guess what you have is, "Plaintiffs claim that
11 they have been subject to crude sexual
12 comments"; and it goes on.
13 I had actually, Judge, proposed a
14 different paragraph, which I had read; but I
15 will read it again. Can I read it again?
16 JUDGE CURRAN: Surely.
17 MR. BEVERE: "When the harassing
18 conduct is sexual or sexist in nature, that
19 because of sex element is automatically
20 satisfied. Thus, for example, if Plaintiffs
21 prove that they have been subjected to sexual
22 touchings or comments or if they allege that
23 they have been subjected to harassing comments
24 about their sexual orientation, they have
25 established that the harassment occurred because
223
1 of their sexual orientation," period, end of
2 paragraph. Although, you know what, Judge, I
3 look now, when I go to the model charge, I see
4 what Mr. Mullin did, which is he put even
5 conduct that is not sexual --
6 JUDGE CURRAN: Right.
7 MR. BEVERE: -- in nature. And
8 that's actually a separate paragraph.
9 JUDGE CURRAN: Right.
10 MR. BEVERE: When I look at what
11 Mr. Mullin did, I don't have an objection to
12 doing that. So I would say instead of saying --
13 let's have the paragraph -- I will take
14 Mr. Mullin's paragraph. "When the harassing
15 paragraph is sexual in nature, the because of
16 sex element is automatically satisfied." Then I
17 would take out, "Thus, for example." I would
18 say, "Plaintiffs claim that they have been
19 subjected to crude sexual comments."
20 MR. MULLIN: No objection to that
21 change.
22 MR. BEVERE: If proven.
23 JUDGE CURRAN: Okay.
24 MR. BEVERE: I -- I wouldn't
25 say -- I would take out the "clearly." What I
224
1 would do is -- is I -- I would say if -- if
2 proven, then I would say, "If proven, they have
3 established that the harassment occurred because
4 of their sexual orientation."
5 MR. MULLIN: No objection.
6 MR. BEVERE: "They have
7 established that the harassment occurred because
8 of their sexual orientation. Even conduct that
9 is not sexual in nature can constitute unlawful
10 sexual orientation harassment. However, when
11 the alleged conduct is not sexual in nature,
12 plaintiffs must prove some additional evidence
13 that the conduct occurred because of their
14 sexual orientation." And I think that models
15 what the model charge has. So I think that
16 that's fine.
17 MR. MULLIN: You want to take off
18 the last sentence of that paragraph?
19 MR. BEVERE: Then last sentence
20 comes out.
21 MR. MULLIN: No objection.
22 JUDGE CURRAN: Thank you.
23 MR. BEVERE: And then the next
24 paragraph is fine. Vulgar is from the model
25 charge. The rest of page 12 is fine.
225
1 Then the second element -- let me
2 look. The second element, severe and pervasive,
3 I don't think -- all right. Judge, I think when
4 we go on after when decided -- so we are going
5 now to section two. Go to the second paragraph.
6 JUDGE CURRAN: Right.
7 MR. BEVERE: "When deciding
8 whether Plaintiffs have proven these elements,
9 you should consider the following guidelines."
10 And what we have is the first paragraph talking
11 about the State Constitution and the LAD
12 that's -- that's not in the model charge. The
13 model charge starts with, "The law does not
14 require the workplace be free of all
15 vulgarities, sexual speech and conduct." So I
16 think that paragraph comes out. And then, in
17 light of Your Honor's ruling, I think we go
18 directly to the second bullet point, that second
19 bullet point becomes a number one bullet point.
20 MR. MULLIN: I think I took all
21 these bullet points in the model charge. I
22 don't have the model charge in front of me but I
23 charged all these bullet points in many cases.
24 The first one came out of the model.
25 MR. BEVERE: The model -- just
226
1 so -- for the record, the model charge that I
2 have, 2.25, page six to 15, which I downloaded
3 from www.NJ. --
4 JUDGE CURRAN: This looks
5 familiar. Is it somewhere else?
6 MR. BEVERE: -- .Judiciary. This
7 is what I downloaded. I'm not -- certainly not
8 saying that that --
9 MR. MULLIN: Because it's -- it's
10 an imbalanced charge, if I take out the first
11 paragraph but leave in the pro-defense second
12 paragraph. One paragraph offsets the other
13 paragraph. On one hand, it's not intent or
14 fault based over trivial, sexually laced speech,
15 is not sexual harassment. So it was always a
16 very balanced charge.
17 MR. BEVERE: But, Judge, we talked
18 about intent in the previous section. In other
19 words, when we say the conduct must have
20 occurred because of sexual orientation, we talk
21 about the -- the -- we will call it the non --
22 the non-necessity of proving intent. And I
23 think that that's covered by that.
24 And when you look at the model
25 charge, you look at two, which, by the way -- I
227
1 mean, the model charge that I have sets it up a
2 little differently. They used A and B. Like
3 number three is, "Does the conduct constitute
4 sexual harassment?" And then A, subsection A,
5 "Did the conduct occur because of plaintiff's
6 sex?" Subsection B, "Was the conduct
7 sufficiently severe and pervasive?" And then
8 you go to -- and then number four becomes,
9 "Should the defendant employer be held
10 responsible?"
11 JUDGE CURRAN: In order to move
12 along, why don't we put a question mark under
13 that paragraph by the word "guidelines" on page
14 13, then we can check?
15 MR. MULLIN: Okay.
16 JUDGE CURRAN: How about 14?
17 MR. BEVERE: Then, Judge, on page
18 14, you know, it's going to -- I know it will
19 sound trivial and nitpicky; but I would take out
20 the alsos and just put "determining" and "in
21 determining."
22 MR. MULLIN: No objection.
23 JUDGE CURRAN: No problem.
24 MR. MULLIN: You want the other
25 also out --
228
1 MR. BEVERE: Yeah --
2 MR. MULLIN: -- on the next bullet
3 point.
4 MR. BEVERE: -- take all the alsos
5 out, yeah.
6 MR. MULLIN: Page 15.
7 JUDGE CURRAN: I have one
8 question.
9 MR. MULLIN: Yes.
10 JUDGE CURRAN: In the second
11 bullet, line 4, "Although it will be a rare an
12 extreme case in which a single incident will be
13 so severe that it would make the living
14 environment hostile" --
15 MR. MULLIN: Single incident,
16 yeah.
17 MR. BEVERE: That's the model
18 charge, Judge.
19 MR. MULLIN: I wonder if it's
20 accurate, though.
21 JUDGE CURRAN: I just --
22 MR. MULLIN: The case on this
23 one -- case on this is called Taylor V. Metzger.
24 That's the Supreme Court NJ decision in which
25 single use of the "N" word against a black
229
1 person was --
2 JUDGE CURRAN: Right?
3 MR. MULLIN: -- held enough to
4 state a claim. So this -- this all --
5 JUDGE CURRAN: My concern is, "it
6 will be a rare" --
7 MR. MULLIN: Yeah, "rare and
8 extreme," that's not -- really not the lawyer
9 after Taylor V. Metzger.
10 JUDGE CURRAN: Right, that's part
11 of my concern.
12 MR. MULLIN: I appreciate the
13 concern.
14 JUDGE CURRAN: Do you see my
15 concern, Mr. Bevere?
16 MR. BEVERE: I do, Judge.
17 JUDGE CURRAN: Again, I am not
18 trying to help one side or the other. It just
19 seems to me it's not proper.
20 MR. MULLIN: That's prior --
21 that's a formulation prior to Taylor V. Metzger.
22 JUDGE CURRAN: Right. And my
23 concern is, given this case, that, you know, if
24 the jury says they didn't -- in their own minds
25 they don't think there were any condoms thrown
230
1 or any comments made, whatever, until -- that
2 they only see the 25th as the incident, I think
3 this gives an unfair --
4 MR. MULLIN: Yeah.
5 JUDGE CURRAN: -- implication that
6 they, therefore, have to find that this is a
7 rare and extreme case.
8 MR. MULLIN: Right.
9 JUDGE CURRAN: I'm not saying they
10 will decide that. I just think that wording
11 also does not properly reflect what the law is.
12 MR. MULLIN: It doesn't. It
13 doesn't reflect the change. Also, because it
14 doesn't define the word "incident," the jury may
15 think an incident is the whole 12-minute attack.
16 JUDGE CURRAN: Right.
17 MR. MULLIN: And that's not
18 sufficient to state a claim.
19 JUDGE CURRAN: Exactly, because
20 it's --
21 MR. BEVERE: Well, Judge, please
22 note my objection because -- because the model
23 charge that I have, which is the current one
24 from the web site, has the following in it.
25 "The conduct can consist of a single severe
231
1 incident or an accumulation of incidents,
2 although it will be a rare and extreme case in
3 which a single incident will be so severe that
4 it would make the working environment hostile
5 or," in this case, "the living environment
6 hostile."
7 Then it has a footnote. In the
8 footnote it cites 132 NJ at 606-607. Quotes,
9 "Although it would be a rare and extreme case in
10 which a single incident will be so severe that
11 it would, from the perspective of a
12 reasonable" -- says, "woman make the working
13 environment hostile, such a case is certainly
14 possible; see also Taylor versus Metzger, 152 NJ
15 490, 500 (1998). Court reiterates it will be a
16 rare and extreme case in which a single incident
17 is sufficient to be actionable, but finds that a
18 single racial remark at issue could be
19 sufficiently severe to be actionable."
20 So it does refer to Taylor versus
21 Metzger. What it's saying is you can find it.
22 It will be a rare case, but you can find it.
23 And that's from the model charge, so I would
24 take any objection to the deletion of that
25 sentence.
232
1 JUDGE CURRAN: But I mean -- I
2 agree with you. Years ago I was on committee; I
3 am not any longer. But frankly, I mean, we are
4 talking about equal protection under the law.
5 How can you say -- and I realize you didn't say
6 it, and I realize that that's what the Taylor
7 says case. And as I realize that's what it
8 says, but how can we say it's worse to use a
9 racial epithet than a sexual orientation
10 epithet? That doesn't make any sense.
11 MR. BEVERE: But, Judge, what
12 Taylor said -- what Taylor said was that it will
13 be the rare case, but it can happen.
14 JUDGE CURRAN: Right.
15 MR. BEVERE: And that's what the
16 charges say. The charge is not saying you can't
17 find that one incident creates a hostile
18 environment regardless of the severity. What
19 the charge is saying is that it will be the rare
20 case when an incident is so severe, but it can
21 happen. And you have to judge the severity of
22 the incident for yourself.
23 So what -- and it cites Taylor
24 versus Metzger because it's saying, listen, it's
25 acknowledging it's a single racial -- I agree;
233
1 whether it's sexist or antigay or whether
2 it's -- it's racial or -- or ethnic based, you
3 know, certainly what -- what the charge, which
4 is our Supreme Court's model charge, is
5 acknowledging, Taylor versus Metzger, and what
6 they're saying is it will be a rare case but it
7 could happen. And that's what the charge says.
8 MR. MULLIN: Judge, I think the
9 way to -- one way to clarify this might be to
10 define what Taylor V. Metzger means by a single
11 incident. By "single incident" what the Court
12 means is a single hostile word. It's -- I don't
13 want the jury to get the misimpression that the
14 whole incident -- we actually use that word to
15 describe the events of April 25th. I don't want
16 them to think the Court thinks that an incident
17 is really -- in -- under Taylor V. Metzger, that
18 was more than a single incident.
19 JUDGE CURRAN: It's a single --
20 it's an incident, but it's also a single word.
21 MR. MULLIN: I would say a single,
22 say, sexist word. The conduct can consist of a
23 single sexist or prejudiced word or an
24 accumulation of such, although it would be a
25 rare case in which a single prejudice word --
234
1 prejudice or biased word or biased remark would
2 be so severe. The problem is the word
3 "incident."
4 MR. BEVERE: But, Judge, I have to
5 say that -- that the model charge refers to
6 "incident."
7 MR. MULLIN: The model charge has
8 been shown wrong many times. There are many
9 reported decisions -- the model charge is
10 basically put together by committee of defense
11 lawyers. Occasionally they invite me in to talk
12 to them, but they never put me on the committee.
13 So it's been light in my life by Cynthia Jacob,
14 who is a wonderful lawyer who represents nothing
15 but defendants.
16 So sometimes the model charge
17 gets criticized by the Supreme Court of New
18 Jersey, as in the Mogull case, M-o-g-u-l-l,
19 where it was completely wrong.
20 So it's a good model. It's a
21 good thing to start with. But we shouldn't feel
22 bound by it. I think it's important for us to
23 use -- for the Court -- and the Court is doing
24 it -- to view it critically and look at the case
25 law. It's -- it doesn't represent a consensus
235
1 of both sides of the Civil Rights Bar by any
2 means.
3 MR. BEVERE: Judge, the model
4 charge references -- references Taylor -- it
5 footnotes and it references --
6 JUDGE CURRAN: I know.
7 MR. BEVERE: -- Taylor versus
8 Metzger. And quite frankly, I think that the
9 intent of it is that can one incident be so
10 severe that it creates an entire hostile
11 environment going forward? And you know, it's
12 in the model charge. It's there for a reason.
13 That's what Taylor versus Metzger says.
14 And I think that, you know, what
15 we're talking about -- Mr. Mullin is going to
16 have an opportunity to give a summation, as will
17 we. He could argue that in his summation. In
18 other words, he could say, "Listen, you are
19 going to hear a charge that's going to say an
20 incident, single incident has to be" -- "you
21 know, has to be" -- normally a single incident
22 won't do it, unless it's so severe. And I
23 respectfully submit to you that this is that
24 incident.
25 MR. MULLIN: It is not a single
236
1 incident.
2 JUDGE CURRAN: See, that's the
3 problem. That's my concern.
4 MR. BEVERE: But, Judge, then you
5 go on and you say.
6 JUDGE CURRAN: You say --
7 MR. BEVERE: Yeah, it's all there.
8 MR. MULLIN: Your Honor, the word
9 "incident" is misleading to the jury because we
10 have used the word "incident," both sides, to
11 describe the entirety of probably the hundreds
12 or hundred of incidents that occurred the night
13 of April 25th. I don't think anyone actually
14 put in a count of the number of times these
15 horrible things were said or -- or different
16 kinds of attacks were made, but it's not even in
17 this case that there is a single homophobic
18 term. That's not in this case.
19 This case involves a great
20 multitude of incidents. And the jury will be
21 misled. I think we've got to figure out a way
22 to define the word "incident." And what Taylor
23 V. Metzger is talking about is the single use of
24 the "N" word by an official in a race
25 discrimination case.
237
1 JUDGE CURRAN: That's exactly what
2 I'm trying to figure, out a word.
3 MR. BEVERE: Yeah, but Judge, then
4 we are not telling them what the law is.
5 JUDGE CURRAN: Pardon me?
6 MR. BEVERE: Then we are not
7 telling them what the law is. Because that's
8 the law.
9 JUDGE CURRAN: But the law doesn't
10 have to have only verbatim what's in the model
11 jury charge. That's our purpose in having a
12 charge conference. Otherwise, you could just
13 give me a set of numbers we have got in the
14 dictionary. We have got occurrence, we have got
15 episodes.
16 MR. MULLIN: Maybe after single
17 incident we can say, "Such as the onetime use of
18 a prejudiced or biased word."
19 MR. BEVERE: But see, Judge, I
20 don't think that's the law. Incident is
21 incident.
22 MR. MULLIN: That's not the law.
23 The law is what Taylor V. Metzger held. It
24 wasn't just a sentence or a phrase not in
25 context. It was -- the issue before the court
238
1 on that case was whether the single use the
2 onetime use of the "N" word instituted
3 actionable sexual harassment. That's -- you
4 can't -- we don't have to ignore the facts of
5 the case. And that's what they were talking
6 about. So I would after the word "incident"
7 say, "such as the onetime use of a single
8 prejudiced or biased phrase or word."
9 JUDGE CURRAN: Or we could try to
10 go the other way and say something like,
11 "Conduct can consist of a single all" -- "of an
12 allegation of a single discriminatory action or
13 harassing action or an accumulation of or an
14 allegation of an accumulation of discriminatory
15 actions." But it's not just actions either;
16 it's words.
17 JUDGE CURRAN: Well, why don't we
18 leave a question mark there, then? Why don't we
19 just see if we can figure out over the night any
20 better wording.
21 MR. MULLIN: Okay.
22 MR. BEVERE: Judge, you will note
23 my objection to anything other than the model
24 charge?
25 JUDGE CURRAN: Other than the
239
1 model charge, absolutely. Anything else on page
2 14?
3 MR. BEVERE: I'm looking, Judge.
4 I don't -- the model charge, Judge, just has an
5 extra sentence, in that the two sentences at the
6 top of page 15. There is another sentence in
7 the model that says, "You must use your own
8 judgment in deciding whether a reasonable person
9 would consider the living environment hostile."
10 MR. MULLIN: I don't object to
11 that.
12 JUDGE CURRAN: Thank you.
13 MR. BEVERE: And then the only
14 thing I would do with the next bullet point,
15 Judge -- again, might be nitpicky -- I would
16 have, "finally," Judge, because the model says,
17 "finally."
18 MR. MULLIN: No objection.
19 JUDGE CURRAN: Thank you.
20 MR. BEVERE: All right. Your
21 Honor, I'm -- I'm anticipating we are going to
22 have a lot of argument on Section 4, in light of
23 some of the applications that I made to the
24 Court. And it's 4:30. So I would ask if we
25 could stop now and we could address this
240
1 tomorrow. I mean, I know what I want to do; but
2 we are certainly going to have argument on it.
3 And I could see it going beyond a half hour.
4 JUDGE CURRAN: Sure, no problem.
5 So --
6 MR. BEVERE: In other words, I'm
7 talking, Your Honor, about standards of
8 liability to be -- to be -- you know, to be
9 charged to the jury as to the Town of Secaucus.
10 And I think I made some comments on the record
11 the other day. I started to argue it.
12 Mr. Mullin started to respond. And --
13 JUDGE CURRAN: Okay.
14 MR. BEVERE: -- I think Your Honor
15 said we will get there when we do the charge
16 conference. And I just think, in light of the
17 hour and the fact that, I anticipate --
18 JUDGE CURRAN: So where are you
19 agreeing to down to?
20 MR. BEVERE: Oh, we're agreeing
21 right up to the end of what I'll call
22 Mr. Mullin's Number 2 and just above number
23 three.
24 JUDGE CURRAN: Okay.
25 MR. BEVERE: In other words, where
241
1 we're going to stop for the day is, "whether
2 Defendant Town of Secaucus can be held
3 responsible for alleged conduct: Compensatory
4 damages."
5 JUDGE CURRAN: Okay.
6 MR. BEVERE: And I think that, you
7 know, that's where we should stop for the day
8 because I think there will be --
9 JUDGE CURRAN: Okay. Any
10 objection?
11 MR. MULLIN: I have no objection.
12 I suppose it makes sense for me to hold off
13 putting these changes in until we have the rest?
14 JUDGE CURRAN: Right.
15 MR. MULLIN: Is that the Court's
16 wish?
17 MR. BEVERE: Judge, doesn't matter
18 to me.
19 JUDGE CURRAN: I am going to ask
20 everybody to bring in your verdict sheets
21 tomorrow.
22 MR. MULLIN: Oh, verdict sheets,
23 right.
24 JUDGE CURRAN: Understand that we
25 didn't -- I understand we haven't had the Monell
242
1 argument. You bring in the -- the verdict sheet
2 the way you want it, and we'll combine it. I
3 think that's so much easier to do, rather than
4 start from scratch.
5 MR. MULLIN: Okay.
6 JUDGE CURRAN: Okay.
7 MR. BEVERE: That's fine, Your
8 Honor.
9 JUDGE CURRAN: Great.
10 MR. BEVERE: And what we can do
11 is -- tomorrow we're coming in at noon?
12 JUDGE CURRAN: Yes.
13 MR. BEVERE: So what I'll do --
14 JUDGE CURRAN: We arranged the
15 same thing we did last Friday.
16 MR. BEVERE: Tomorrow morning
17 is -- what we'll do is we will -- we will
18 e-mail; that way you have it on the computer.
19 JUDGE CURRAN: Okay.
20 MR. PARIS: Does that help the
21 Court?
22 JUDGE CURRAN: I'm sorry?
23 MR. PARIS: Would that help Your
24 Honor to have it on?
25 JUDGE CURRAN: If I could ask you
243
1 a favor, because I am not sure if Amy will be in
2 tomorrow.
3 Excuse me one sec.
4 Eva or Brian, do you know how to
5 get into Amy's computer? Okay. Good. Just --
6 MR. BEVERE: Judge, we'll -- we'll
7 bring a printer. We will have it on a laptop,
8 bring a printer tomorrow.
9 JUDGE CURRAN: Either way, you
10 know. But as long as they, being geniuses -- I
11 know I can't get into her computer, but that
12 would be great. If you will, that would be
13 terrific.
14 MR. PARIS: That's fine, if they
15 can do it.
16 MR. BEVERE: If they can do it,
17 Judge, we won't have to bring the printer.
18 JUDGE CURRAN: No, don't worry
19 about that. They're terrific.
20 And the other thing I would say
21 is we have an argument that we kind of couldn't
22 really change because people wouldn't agree
23 unless they could put it off for two or three
24 weeks. So why don't you say that you'll be here
25 closer to -- why don't you say 12:30, because I
244
1 have got an argument that's supposed to start at
2 12?
3 MR. BEVERE: That's fine because
4 I'm.
5 JUDGE CURRAN: And nobody is going
6 to complain if you are not here. We will all be
7 here. We have plenty to do, so don't worry
8 about that.
9 MR. BEVERE: We'll -- I will put
10 the term on the record, even though if my wife
11 saw the transcript, she'd kill me. But I have
12 to baby sit for an hour or so in the morning.
13 JUDGE CURRAN: Oh, you are not
14 allowed to say that.
15 MR. BEVERE: So 12:30 would be
16 better for me.
17 JUDGE CURRAN: She'd be terrific;
18 bring her in.
19 MR. MULLIN: Judge.
20 MR. BEVERE: She won't have the
21 attention span, trust me.
22 MR. MULLIN: Judge, just a heads
23 up on a couple items.
24 JUDGE CURRAN: Yes.
25 MR. MULLIN: I'm going to ask that
245
1 Your Honor charge a couple of the statutes that
2 had been referred to in the course of this
3 trial. Simply say, "These have been referred
4 to, and here is what they say."
5 And the other thing is, on the
6 emotional distress thing -- on the emotional
7 distress charge, I am going to ask that Your
8 Honor charge -- there is some language in
9 N.J.S.A. 10:5-3, charged, that I think it's
10 appropriate here. So I am going to ask that
11 that be added somewhere, probably to the
12 emotional distress charge.
13 MR. PARIS: Can we also have the
14 statutory cites you're referring to?
15 MR. MULLIN: Yeah. So it will be
16 the statute that was referred to today; you guys
17 actually gave me that.
18 MR. BEVERE: 2a:81-17.2.
19 MR. MULLIN: Right. Then we had
20 the witness testify --
21 JUDGE CURRAN: Small a.
22 MR. BEVERE: 2a2 through 2a4.
23 MR. MULLIN: We have 2C:12-1a123.
24 Then, under B, Section 5a about the assault,
25 attempted assault on a uniformed --
246
1 MR. PARIS: Well, I guess we'll
2 object to that tomorrow.
3 MR. MULLIN: I'm just giving folks
4 a heads up. 2C:16-1, some portion of the bias
5 intimidation statute which we referred to during
6 testimony.
7 MR. PARIS: I'm sorry, can I have
8 that again?
9 MR. MULLIN: You want it again?
10 JUDGE CURRAN: 2C:16-1.
11 MR. MULLIN: 2C:16-1. And again,
12 these are statutes -- these two statutes are
13 cited all over the police reports. And 2C:33-4.
14 And maybe we can find a way not to, you know,
15 use all the language. But I think they been
16 referred to, and I think the jury should be told
17 what their text is.
18 JUDGE CURRAN: Anything else?
19 MR. MULLIN: I would ask counsel
20 to also in their charge, their proposed charge
21 to fill in that section that talks about the
22 rights that have been violated.
23 JUDGE CURRAN: Right.
24 MR. MULLIN: We need that. That
25 wasn't in their proposed charge.
247
1 MR. BEVERE: The other thing is --
2 MR. MULLIN: So the other thing,
3 Your Honor, is counsel has to move in his
4 evidence. And then we may move in some evidence
5 by way of rebuttal, some of the things I
6 referred to probably in cross-examining
7 witnesses. That's what I have in mind.
8 JUDGE CURRAN: Okay.
9 MR. BEVERE: Okay, Judge.
10 JUDGE CURRAN: If you want to
11 bring your daughter in to help us --
12 MR. BEVERE: Judge, she will be
13 good for the first 15 minutes, then she will
14 be --
15 MR. MULLIN: Very bad.
16 MR. BEVERE: I don't want to say,
17 "very bad"; but she will --
18 MR. MULLIN: I was thinking of my
19 daughter.
20 MR. BEVERE: She will be
21 distractible.
22 MR. PARIS: She won't be as good.
23 MR. BEVERE: She won't be as good,
24 let's put it that way.
25 (Whereupon, the witness is
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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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19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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