Free Reply to Response to Motion - District Court of Colorado - Colorado

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Exhibit Q
Cadorna v. City and County of Denver Case No.: 04-CV-1067-REB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT DF COLORADO Civil Action No. 04-CV-1067---REB-CBS WILLIAM R. CADORNA, Plaintiff,
V.

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THE CITY & COUNTY OF DENVER, COLORADO, a municipal corporation,

Defendant.

REPORTER S TRANSCRIPT TRIAL TO A JURY OF 8 VOLUME I

Proceedings before the HONORABLE ROBERT E. BLACKBURN, Judge, United States District Court for the District of Colorado, commencing at 8:15 a.m., on the 19th day of June, 2006, in Courtroom A701, Alfred A. Arra United States Courthouse, 901 19th Street, Denver, Colorado. APPEARANCES MARK E. BRENNAN, 7394 South Downing Circle West, Centennial, Colorado, appearing for Plaintiff. Suzanne N. Claar, Official Reporter 901 19th Street Denver, Colorado 80294-3589 (303)825-8874 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

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Craig Hopp Direct A Well, when I was first on the shift at the firehouse, I thought there was some normal firehouse jobbing and joking around and stuff, but after a while, I figured out that I didn't think tensions were high and they didn't like each other. Q What did you observe that caused you to figure that out? Do

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you recall any details? A Well, just the tone and the way they were actually talking and things that happened. It wasn't, um, it wasn't fun or joking after a while. You could tell. Q Are you able to recall any specific actions or statements that were made that caused you to realize it wasn't fun anymore? A Well, the one statement we are probably talking about -MR. LUJAN: Objection, your Honor. Hearsay. THE COURT: Well, it may or may not be. Your response. BY MR. BRENNAN: Q Well, do I understand, Firefighter Hoff, that you are going to testify about a statement that you heard made by another firefighter? A Well THE COURT: Mr. Brennan, you need to direct your response directly to me. MR. BRENNAN: I am very sorry, your Honor. I believe
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may I make an offer of proof?

THE COURT: Well, if you will simply respond to the

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Redirect Craig Hopp like that that day while other members didnt have to
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participate. Q So Hoffman treated Billy as a sort of housekeeper for the station? MR. LUJAN: Objection, your Honor. Leading. THE COURT: It is, and offends Rule 611(c), and the objection is sustained. BY MR. BRENNAN: Q You used the term that is quite interesting to me, and that is Billy was the senior mucker on the pumper. I think if the jury havenTt been firemen before, they may wonder what a mucker is. Could you please tell us. A Not a promotive position. Myself as an engineer and the officer and the two firefighters on the back. And junior would have been the senior guy normally on the pumper year-wise in the firefighter position most of the time. Q Now the pumper I assume is the truck that is used to hook into the fire hydrant, so to speak, and boost the pressure into the hoses that are used to fight the fire? A Yes. Q And what would be the role of the mucker on that truck? What does a mucker do? A The junior guy usually catches the fire plug and charges the line for the engineer, and the senior guy usually would go into the fire and preconnect and go into the fire with the officer.

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Redirect Craig Hopp Q Okay. Did you from time to time fight fires with Billy?
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A Yeah. In the years I was there we had fires and different things, yeah. Q What is your view of his competence as a firefighter? MR. LUJAN: Objection, your Honor. This is outside the scope of cross. MR. BRENNAN: I am sorry. THE COURT: Response. MR. BRENNAN: I believe he did ask if he worked with Mr. Cadorna. This is simply a follow-up to that. THE COURT: This appears to me to exceed the scope or is otherwise irrelevant or offensive under 403 or 611(a) (2). The objection is sustained. MR. BRENNAN: I have no further questions, your Honor. THE COURT: Very well. Thank you, counsel. Recross examination, if any, on the limited topic of the observation by this witness of the administration of informal discipline. MR. LUJAN: Briefly. THE COURT: Thank you. RECROSS-EXAMINATION BY MR. LUJAN: Q Firefighter Hopp, did Lt. Hoffman have the authority to give the plaintiff those duties to clean the firehouse? A I am assuming
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as the officer on the rig?

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Direct Rob Brady not spend undue time at this part of the foundational predicate.
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But for now, the objection is again overruled.
Sir, you may answer on two conditions. That after this exchange, you recall the question, and if you do, that you can answer it. Do you recall the question? THE WITNESS: No, I dontt. THE COURT: Counsel, please. BY MR. BRENNAN: Q Was the investigator hired by the department for the purpose of investigating the sexual harassment complaint from outside the department? A Yes, sir. O I see. Why was someone hired from outside the department when you had investigators inside the department? A Because sexual harassment is taken very seriously in the department, and, um, we -- the decision was made above me. Q Isn't it true that the allegation of sexual harassment was made against an officer in the Human Resources Bureau? MR. WESOKY: Objection. Leading. THE COURT: Response? BY MR. BRENNAN: Q Against whom was the allegation of sexual harassment made? THE COURT: You will have to deal with me first. MR. BRENNAN: I am very sorry. I was just thinking to

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Direct Rob Brady an outside investigator considered to be far more serious than
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the allegation of theft against my client Mr. Cadorna? MR. WESOKY: Objection. Form. States facts not in evidence, your Honor. MR. BRENNAN: I will rephrase the question, your Honor. THE COURT: The objection is sustained. Your rephrased question, please. BY MR. BRENNAN: Q Mr. Brady, is it your understanding of the departmental policy that an allegation of sexual harassment by a member of the force is more serious than an allegation of theft? A Yes, I would have. Q Would you please explain why in the policies of the Denver Fire Department theft is deemed less serious than sexual harassment? MR. WESOKY: Again, your Honor, he is asking a question assuming facts not in evidence. He used the word "polIcies", There has been no evidence as to that, your Honor. I object to the form. MR. BRENNAN: The last question was what -- if I may. THE COURT: You may. Thank you. MR. BRENNAN: My last question, I believe, did in fact ask him what his understanding of policies were, or whether the policies of the Denver Fire Department treated sexual harassment more seriously than theft.

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Direct Rob Brady MR. WESOKY: Your Honor, I am going to object on
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hearsay grounds, and secondly, I believe from the prior admonition, your Honor, we are getting into a case thats far afield from the case at hand. Object on the relevancy grounds. THE COURT: The objection is hearsay and relevance. Response. MR. BRENNAN: Again, I believe it goes to the question of understanding of the use of particular methods and the rationale under their policies for investigating certain matters in one fashion, other matters in others. THE COURT: Well, again I have previously allowed this examination, but not without end, and we are now at its end. To the extent that there is relevance here, and I discern little, it is now substantially outweighed by the dangers and considerations expressed in Rule 403, and the needless consumption of time made the subject of Rule 611 (a) (2) The objection on that basis is sustained. BY MR. BRENNAN: Q Rob, it's true, is it not, that prior to December 7th, 2002, you and Mr. DeFeo were asked to follow up on certain matters related to Mr. Cadorna? A Yes. Q But after December 7th, 2002, if I understand you correctly, you were not asked to conduct any investigative work with respect to the allegations against Mr. Cadorna?

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Direct Rob Brady with it. And Frank Hoffman was upset. He said I don't know
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enough of the history, I am brand new at the station, that I didn't know enough to deal with it. We argued about that. And the resolution was, if you have a problem with somebody on my crew, you bring it to me and

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I will deal with it, and we will deal with it together at the chiefs meeting, and that's how we resolved it. Q What did he tell you about the history and explain to you why he had done what he had done? A The information again is from several sources. I can't remember if it was just Frank or others, but it was my understanding that Mr. Cadorna had left the grill on, the station grill out on the patio on several times overnight, and left pots and pans out there overnight, and sometimes on the grill, and ruining the pots and pans, and he had been ordered

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not to do that anymore, and Frank Hoffman was frustrated that it was happening again. Q Was it your understanding of departmental policy at that time that an appropriate way for a senior officer to deal with what he regarded as improper conduct by subordinate was to throw away property belonging to that subordinate? MR. WESOKY: Objection, your Honor. Relevancy. THE COURT: Response. MR. BRENNAN: I will rephrase it, your Honor. THE COURT: The objection is sustained.

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Rob Brady - Direct THE COURT: Counsel, please. BY MR. BRENNAN:

Q I believe you testified earlier you told Frank Hoffman in he had a problem with one of your people, he should talk to you. He said, you don't understand the history.
If you had a problem with Mr. Cadorna about the pots being left on the grill, what would you have done? Was it appropriate to counsel the employee, reprimand him? What were the steps available to you as a supervisor? MR. WESOKY: Again we object on relevancy and speculation. THE COURT: Response.

MR. BRENNAN: Again, it is for the purpose of -- I am about to be told not to speechify, but forgive me. The relevance is that it goes to methods available for handling of complaints against my client. THE COURT: It is relevant, but the problem now is, is it relies on the personal knowledge of this witness that has not been established.
More troubling to me, and I exercise my discretion under 611(a) (1), this is a hypothetical question to a lay witness, which is almost always fatal, so if it's an !ifT -- if

"if" comes out of your mouth to a lay witness, you can expect an objection as to the form of the question, which is now sustained.

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Direct Rob Brady A We talked about the court case. There was civil court.
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Q The Civil Service Commission hearing?
A Well, that one. The commission hearing about the court hearing about the Safeway book. I had interaction with him about those, and he shared a story about how he met Cadorna, so -- or how -- their previous relationship.

Q When did you speak with Lt. Hoffman about the Civil Service Commission hearing? A It would have been around the time of the Civil Service Commission hearing. Q Did you discuss his testimony in the hearing? MR. WESOKY: Objection, your Honor. Relevancy. 403. THE COURT: Response. MR. BRENNAN: Well, I am eliciting testimony from the person who made the allegation against my client concerning those allegations. It may well elicit a statement against interest by that non-hearsay statement against interest by that person. THE COURT: Well, that won't come in under Rule 804 because this witness is available to you. So you can't possibly satisfy that foundational predicate. That being the response, the objection is sustained. MR. BRENNAN: Very well. I have no further questions, your Honor. THE COURT: Very well, counsel.

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V.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff,

THE CITY & COUNTY OF DENVER, COLORADO, a municipal corporation,

REPORTER' S TRANSCRIPT TRIAL TO A JURY OF 8 - VOLUME II

Proceedings before the HONORABLE ROBERT E. BLACKBURN, Judge, United States District Court for the District of Colorado, commencing at 8:20 a.m., on the 20th day of June, 2006, in Courtroom A701, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. APPEARANCES MARK E. BRENNAN, 7394 South Downing Circle West, Centennial, Colorado, appearing for Plaintiff. Suzanne N. Claar, Official Reporter 901 19th Street Denver, Colorado 80294-3589 (303)825-8874 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

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Redirect Rob Brady Q I see. Did you give him a copy of Joe Hart's December 8th,
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2002, memo about which you testified? A I don't remember. Q Now, there were no transcribed witness interviews in that package of information given to the chief, were there? A Transcribed from tapes? Q Yes.

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A No. Q That's because no tape-recorded interviews were taken prior to December 31, 2002, correct? MR. WESOKY: Cumulative, your Honor. We have been over this ground. 403. THE COURT: Mr. Brennan. MR. BRENNAN: I don't see how it's cumulative of the direct by the city. THE COURT: It's uncontroverted. You established it on your examination, it was established again indirectly on the defendant's examination. It does offend Rule 403 and 611(a) (2), and for those reasons the objection is sustained. BY MR. BRENNAN: Q You testified earlier that on or about December 13th, 2002, technician Fred DeFeo who reported to you delivered to my client a written Contemplation of Disciplinary Action? MR. WESOKY: Your Honor, I do not believe that was his testimony, so I object to the form.

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Redirect Rob Brady Mr. McKee were my client arid Mr. McKee, correct?
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A Yeah. And I had their written statements from the fire department. Q You had the statements that Chief Hart collected on December 7th? A Yes. I believe that was the date. Q Now, itTs true, is it not, that there was actually nothing to prevent you, as the head of the Human Resources Bureau Investigation Unit, as of December 13th, 2002, from saying, I think we should conduct some tape-recorded transcribed interviews of Kevin McKee and Bill Cadorna? A There was nothing stated that would prohibit me from doing that. Q Now, this Contemplation of Disciplinary Action indicated to my client he was subject to very serious discipline if the allegations against him proved to be true, correct? A Yes. Q And its true, is it not, pursuant to this document, Exhibit 26, he was terminated? A Yes. MR. WESOKY: Your Honor, this is cumulative. We are going over ground that's been agreed to and stipulated to and over which there is no question. THE COURT: I agree. At this point, Rule 403 and 611(a) (2) are offended, as well as 611(b).

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Redirect Rob Brady The court finding, Mr. Brennan, that the plaintiff had
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a full and fair opportunity to have addressed all of these issues during its extensive initial examination of this witness. The objections are sustained. MR. BRENNAN: I will be happy to move on, your Honor. BY MR. BRENNAN: Q As of December 13, 2006, the Human Resources Bureau concluded its investigation of the allegations against my client, did it not? A Yes. MR. WESOKY: Again, your Honor, this is plowed ground. It's cumulative. 403. THE COURT: The objection is sustained. BY MR. BRENNAN: Q Did you ever see any witness statements from Michael Brown prior to my client's termination? A Not that I can recall. Q Turn, sir, if you would to Exhibit 16. A I have 16. Q This is, is it not, department directive 106.01, effective date November 22nd, 1999? A I believe my book is out of order, sir. This is the internal correspondence from Chief Hart to Chief Caldwell. Q The document to which I referred immediately follows that document, sir.

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Rob Brady - Redirect A No. I didnTt mean to say that. Q If Chief Juniel had ordered you to conduct a further investigation by going out to the Safeway store and interviewing Kevin McKee and getting a transcribed statement, you would have done that, right? Yes or no. MR. WESOKY: Your Honor, again, this is cumulative and offends Rule 403. THE COURT: The court agrees. This is ground that has been plowed, planted and harvested. We are only going to do it once. The objection is sustained. BY MR. BRENNAN: Q Turn, if you would, sir, to page 6 of topic No. 106.01 department directive. Thats also Exhibit 16. A I believe I have page 6 that begins with box 3? Q Yes. A Okay. Q There it says, next level of supervision review the case and the recommended discipline. Investigates the incident. Puts findings in writing. Counsel employee. Contact first-line supervisor to inform of findings and decisions. Signs confidentiality stipulation. Do you recall this document being in effect when you entered the Human Resources Bureau Investigations Department in the fall of 2002?

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Rob Brady 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q 105.04? A Yes, sir.

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Q That is a department directive that was in effect when you became employed by the Human Resources Bureau for the Denver Fire Department, is it not? A When I transferred there, yes. Q This is hazing, harassment or retribution? MR. WESOKY: Your Honor, this goes beyond the scope of the cross-examination. THE COURT: Sustained. Mr. Brennan, this is a matter that could and should have been explored during plaintiff's extensive initial examination of this witness. MR. BRENNAN: Very well. THE COURT: This was a subject that was not touched upon during the defendant's examination, and it is now offensive to Rule 611(b), 403 and 611(a) (2). The objection is sustained. BY MR. BRENNAN: Q And finally, your Honor. You testified earlier that it was not unusual for written statements to be taken by the supervising official conducting the initial investigation? A It's not unusual, no. Q And why was it important that they take written statements? A As I stated before, it was to get the best quality

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Rob Brady - Redirect information as soon after an event as possible. Q So a written statement or a tape-recorded statement could both be very useful in making sure you have the best version of the evidence, correct? A Yes. I prefer written. Q You prefer handwritten?
A Either that or typed. I wasn't particular. Q Going back to Exhibit 26 --

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THE COURT: What happened to the finally, Mr. Brennan, five questions ago? MR. BRENNAN: Okay. Forgive me. I have two more. THE COURT: You may. Just don't tease us. MR. BRENNAN: I wouldn't dream of teasing you, your Honor. BY MR. BRENNAN: Q Going back to Exhibit 26, sir, please tell me all the evidence you had available to you when you drafted this document? MR. WESOKY: Your Honor, again, I think that's been gone over several times. THE COURT: 611(b), 403, 611 (a) (2), now 611 (a) (1) The objection is sustained. BY MR. BRENNAN: Q When you took this document to Roger Neil and asked him to sign it, did you give him only this document?

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Fred DeFeo - Direct be going. I meant 58. BY MR. BRENNAN: Q Mr. DeFeo, have you had an opportunity to look at that document? A Briefly, yes. Q Is this a fair sample of the kind of transcript that Angelica Renteria would produce when you asked her to transcribe a statement? A Yes, this is. MR. BRENNAN: Your Honor, I would move for introduction into evidence of Exhibit 58 for illustrative purposes only, not for the truth of any of the matters asserted therein, but simply as an example of the kind of thing that would be produced by the transcript ionist. THE COURT: Response.

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MR. LUJAN: Objection, your Honor. Relevance under

THE COURT: Sustained. BY MR. BRENNAN: Q Mr. DeFeo, did you at any time during December of 2002 discuss an allegation of shoplifting against Mr. Cadorna with Joe Hart? A Yes, I did. Q Please tell us about that conversation with Joe Hart. Where it occurred, when it occurred.

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Fred DeFeo Direct THE COURT: That being the response, the objection is
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for now sustained. BY MR. BRENNAN: Q Would you describe the conversation you had with Joe Hart?

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MR. LUJAN: Again, objection, your Honor. That answer calls for hearsay under 801. THE COURT: Response. MR. BRENNAN: I am simply asking him to describe the actions and statements that he himself observed. THE COURT: If that was the question, then I would overrule the objection, but that's not the question because it wasn't that limited. The last question that you asked to describe the conversation, which implies a description of both sides, is, based on the response, objectionable, and the objection is sustained. MR. BRENNAN: Very well. THE COURT: You may ask the other question, however. MR. BRENNAN: Okay. BY MR. BRENNAN: Q Please tell me what you said in the meeting to Joe Hart. A I don't recall everything that was said. I am sure -- Joe and I have been friends for quite a while, and we probably just talked about that for quite a while, and he gave me the -probably showed me -- anyway I saw the documents, the letters

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Direct Fred DeFeo that he had written to the chief in his office. I don't recall
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if he gave them to me to bring back. I doubt it because we probably had copies in my office. Q It is true, is it not, in that conversation Joe Hart told you that Mr. Cadorna claimed that Kevin McKee, a clerk at the Safeway store, had given him permission to take the cookbook without paying for it? MR. LUJAN: Objection, your Honor. Hearsay. THE COURT: Response. MR. BRENNAN: It's not for the purpose of establishing the truth of the matter asserted, but simply to explain what Joe Hart indicated to him was the information available to him at the time. THE COURT: Reply. MR. LUJAN: Your Honor, Kevin McKee's alleged statements to Joe Hart are essentially the truth of the matter asserted, which is what it's being offered for. That falls under 801. THE COURT: There are other ways to develop this information, but for this examination, which inherently involves hearsay, as defined by Rule 801(c), notwithstanding the description of some other evidential hypothesis. The court cannot cure the problem here with a limiting instruction under Rule 105, and thus the objection is sustained. BY MR. BRENNAN:

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Charles W. Jones - Direct Q Did you interview anyone else? A I can't recall if I did. Q You spoke with an Assistant Chief of the Denver Fire Department when you went out to the store, didn't you? MR. LUJAN: Objection, your Honor. Leading. THE COURT: Sustained. BY MR. BRENNAN: Q Did you speak with anyone other than Michael Brown that morning? A Not that I can recall. Q From whom did you obtain the information that you wrote in the section called, the probable cause for the arrest of the above-named individual is as follows. A I received paperwork from my sergeant, urn, going into the details of the shoplifting, and that's when I went up to the Safeway to talk to Mr. Brown. Q What paperwork do you recall receiving from your supervisor? A I want to say statements from witnesses. Q Do you recall that these were statements prepared by someone outside the police department? A I can't recall. Without looking at the statements, I canTt truly say what they was. Q Very well. Sir, turn, if you would, to Exhibit 11 in the same book. A You said 11?

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Charles N. Jones - Direct my client leave the store with a book? A I am pretty sure he did. Q The next sentence -- or I should say the last sentence of that part, both parties returned to the store and defendant never paid for the book. Defendant was ordered in for shoplifting. From whom did you obtain the information reflected in those sentences? A It would have to be from the paperwork that I received. Q So you did not rely upon any actual witness interviews

before you issued the summons and complaint against my client. A I would have to look at the whole packet that I received. Q Let me put it a different way. You did not interview any

witnesses before issuing the summons and complaint other than Mr. Brown, did you? MR. LUJAN: Objection, your Honor. Leading. MR. BRENNAN: I believe that he would qualify as an adverse witness by virtue of his being a charging police officer in a criminal case against my client. THE COURT: That's not the test. It has to be a hostile witness, which has not been established. It has to be an adverse party, which he is not, or he has to be identified with an adverse party, which he has not been. The objection is sustained. BY MR. BRENNAN:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes.

Charles W. Jones - Direct Again, this was the manager of the Safeway store?

Q Down below we have witness names. Gil Lettig, Frank Hoffman. When you completed the summons and complaint, from whom did you obtain the names of these witnesses? A They had to be in the packet that I received. Q You did not personally interview either of these witnesses? A Unless I collected a police department statement from them, no, I didn't. Q Do you see anywhere on this document the name of Kevin McKee?

A No, sir.
Q Do you have any idea who Kevin McKee is? A No, sir. Q In the packet of documents you were given, had Kevin McKee's name appeared as a witness, you would have included his name in this document, wouldn't you? MR. LUJAN: Objection, your Honor. Leading. THE COURT: Sustained. BY MR. BRENNAN: Q When you filled out this document, you did so conscientiously and in order to ensure that all of the witnesses to the crime had been identified. Is that true? A Yes, sir. Q If you were aware at that time of any witnesses other than

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Charles N. Jones - Direct BY MR. BRENNAN: Q Officer Brown, after this document -A No, that's Officer Jones. Q Did I say Brown? I am terribly sorry. Officer Jones, after this document was prepared by you, did you have any further involvement in an investigation of this matter by the Denver Police Department? A No. Q Do you know whether other officers of the Denver Police Department did conduct an investigation without your involvement of the allegations against my client? A I don't know if any was done. Q If you had been the initial investigating officer under the department procedures, would you have been the officer assigned the duty of follow-up investigation? MR. LUJAN: Objection, your Honor. Speculative. Lack of personal knowledge. MR. BRENNAN: Simply based upon his understanding of departmental policies, your Honor. THE COURT: In this court when you ask a hypothetical question of a lay witness, as I discussed with counsel yesterday, the objection as to the form and 602 will be sustained. True to my promise, the objection is sustained. BY MR. BRENNAN:

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Q

Charles N. Jones - Direct Mr. Brown, were you as a police officer --

A Mr. Jones. Q Mr. Jones. I don't know why I keep doing that. Forgive me. Officer Jones, as a police officer, what were the protocols or policies while you were a patrolman with respect to the assignment of investigations of summons and complaints that you yourself completed? A Once I complete the summons, I put it in the bag, and it gets forwarded down to the City Attorney's Office as far as the general sessions, and that's the last I see of it. Q Okay. Under policies and procedures of the fire department,

in effect at the time they served the summons and complaint, if further investigation were requested, would you normally have been the officer called upon to conduct it, or would it be done by someone else? MR. LUJAN: Objection, your Honor. Speculative. He is referring to a fire department policy. MR. BRENNAN: I meant police department. Forgive me. THE COURT: The objection to that precise question is sustained. Your next question, please. MR. BRENNAN: No further questions. Thank you. THE COURT: Very well. Examination of this witness by the defendant, Mr. Lujan.

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Charles W. Jones - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrote down? A I would think that that was his serial number. Q As a firefighter? A Yeah. Q Why would you think that? A Well
--

Q You never met him at the time you filled this out, had you? A I don't know if I talked to him or not. I think I just went over the paperwork that I received from my sergeant. Q It's true, is it not, that you were given that information by an Assistant Chief named Joe Hart who was at the Safeway store when you went out to investigate the charge? MR. LUJAN: Objection, your Honor. Leading. THE COURT: Sustained. BY MR. BRENNAN: Q Is it your testimony here today that the only possible source for that number was documentation you were given? A Yeah. Q Officer Jones, would you have served this criminal complaint upon my client if you had interviewed a witness named Kevin McKee who was a Safeway store clerk and he had told you that he had allowed Mr. Cadorna to leave the store with the cookbook without paying for it? MR. LUJAN: Objection, your Honor. Form. Speculative. THE COURT: Sustained.

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Ronald Martinez - Direct A No. I don't remember a name. I do remember getting a call in the morning. He asked me a few questions about a transaction. I told him I had given the information that was needed, and that was the end of it. Q Tell me what you can recall he had asked you.

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A I can recall one morning MR. LUJAN: Your Honor, I am sorry. Objection, your Honor. Hearsay. THE COURT: Response. MR. BRENNAN: I am asking him simply to describe the person's request to him. I am not asking him to describe a statement by a third person. It's not hearsay. THE COURT: That being the response, that is classic hearsay under Rule 801(c), excludable under Rule 802. For now, the objection is sustained. BY MR. BRENNAN: Q I believe you just testified that someone from the fire department called and asked you if you could give certain information? A Yes. Q Did he identify the information he wanted? A UmMR. LUJAN: Objection, your Honor, hearsay. THE COURT: Well, that is not the reiteration of an out-of-court statement offered for the truth of the assertion,

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Ronald Martinez - Direct A No, I didn't. At that point -- at that point I told him anyone in a management position would be able to give him the information. Q But you yourself did not? A No, I did not. Q Who is Michael Brown? A He was my boss at Montbello at the Safeway store. Q And then you and he later worked at another store. Together? A Yes. He was transferred and so was I at one point. Q And you and he were working together at another store as of June of 2003, weren't you? A Yeah, I believe so. Q It's true, is it not, that you and Michael Brown had a conversation, didn't you, about Michael Brown's actions in destroying some evidence and lying in a criminal trial? MR. LUJAN: Objection, your Honor. Leading. THE COURT: Sustained. BY MR. BRENNAN: Q Do you recall in June 12, 2003, at an interview by James Stein, telling him that José found a cookbook and put it back on the shelf? MR. LUJAN: Objection, your Honor. Leading. THE COURT: This is now for purposes of possible impeachment, and in that case leading questions are appropriate.

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Ronald Martinez - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And these are written down and given to you as a manager? A No. I don't remember receiving them. Q You do have an understanding of what the policies of Safeway are concerning shoplifting? A Yes. Q Would you please describe your understanding of those policies. MR. LUJAN: Objection. I am sorry. Objection, your Honor. Relevance under 401 as to what Safeway's policies are in connection with plaintiff's legal claims. THE COURT: Response. MR. BRENNAN: Safeway was the complaining witness in this case. The circumstances under which their own policies allow them to make a complaint of shoplifting are highly relevant. THE COURT: Not Safeway. They are not a party to this litigation, and they are not tethered to a party in this litigation. For now, the objection is well taken and sustained. BY MR. BRENNAN: Q Do you know what happened to Mike Brown in the summer of 2003? A I hear he was dismissed, but you hear the rumors all the time on different reasons.

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Ronald Martinez - Direct the acting manager on duty, would you have been responsible for taking action with respect to it? A Yes. MR. LUJAN: Objection, your Honor. Itvs speculative. THE COURT: Again, the objection is sustained. BY MR. BRENNAN: Q It is true -- now, is there a security surveillance system

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in the store at 4884? MR. LUJAN: Objection, your Honor. Relevance under 401. THE COURT: Well, I am going to allow this question preliminarily. It may be foundational in nature. The objection for now is overruled. THE WITNESS: Yes. BY MR. BRENNAN: Q Does this security system in the store at 4884 Chambers include surveillance cameras? A Yes. Q These are located throughout the store, are they not? A Yes. Q These surveillance cameras can be focused on any part of the store? A No. I dont think they are remote. They are set. Q Yes. But they can be changed to look at a particular part of the store, and continuous tapes are made throughout the day?

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Steven Garrod - Direct what this witness would know what a police officer would do. MR. BRENNAN: He has stated that he relied upon the Denver Police Department to follow up on the investigation, and therefore felt there was no further responsibility of his office to do so. THE COURT: The objection is sustained. BY MR. BRENNAN: Q Do you know whether any tape-recorded statements were taken by the Denver Police Department of anybody who might have been a witness in this case? A No, sir, I don't. Q To this day, has anyone from Human Resources or Internal Affairs to your knowledge taken a tape-recorded statement from Kevin McKee? A Not to my knowledge. Q Now, it's true, is it not, that if Kevin McKee had said, yeah, I talked to Bill about the cookbook, I don't remember exactly what it was about, but it was okay with me that he took it, that would seem to corroborate for the most part Mr. Cadorna's version of what happened? MR. LUJAN: Objection, your Honor. Speculative, lack of personal knowledge. THE COURT: Sustained. I am only going to say this one more time. You ask a hypothetical question to a lay witness, it's going to draw an objection, which this court is going to

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Steven Garrod - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
December 13th, 2003, being given to Tracy Howard? A Is there --

Q In other words, to your knowledge, did the fire department give the Manager of Public Safety Tracy Howard any information other than Exhibit 26 in asking him to consider whether my client should be terminated? A That I don't know. Q Okay. Fair enough. If you donTt know, you don't know. Who was responsible for conveying the Contemplation of Disciplinary Action to Acting Manager of Public Safety Tracy Howard? Was it your office or Chief Juniel's office? A It would be a combination of both. Q Rob Brady testified earlier that he took Exhibit 26, the Contemplation of Disciplinary Action to Rod Juniel and asked him to sign it. Is that consistent with your understanding of what happened? MR. LUJAN: Object to form, your Honor, and asking this witness to comment on Lt.Brady's testimony. THE COURT: Response. MR. BRENNAN: I asked him if that was consistent with his understanding or recollection of what happened. THE COURT: Well, you are indirectly asking this witness to comment on the testimony and implicitly the credibility of another witness. That's inappropriate. The objection is sustained.

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day of work? A On some of those, yes. Q It's true, is it not, that the vast majority of disability retirements by Denver firefighters are based upon hearing loss? A That's correct. Q It's true, is it not, that the vast majority of Denver firefighters base their application for disability retirement

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based upon hearing loss because the Internal Revenue Service has issued a favorable ruling that allows their disability retirement to then be subject to less tax? MR. LUJAN: Objection, your Honor. Lack of foundation and personal knowledge. THE COURT: Response. MR. BRENNAN: As the manager of the pension office with the responsibility for the pension office, I think the foundation is established. THE COURT: Let's find out and ask him if he has personal knowledge. Until you do, the objection is sustained. MR. BRENNAN: Very well. BY MR. BRENNAN: Q Chief Garrod, are you aware of any difference between the tax treatment of age and service retirements and disability retirements? A Tax treatment, you said? Q Yes.

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Steven Garrod - Direct 1 2 BY MR. BRENNAN: Q This document has some scribbling on it, some changes. Put it on the ELMO, if I may. You will notice up at the top there 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appear to have been some initials and some changes made and some more initials. Are you able to explain why that happened? A No, I am not. Q Do you recall anything about there being an initial submission of an application by Mr. Cadorna in February of 2003 that was not submitted in triplicate, so it was necessary to call him in to submit another one? A I recall some correspondence that stated that. Q There was quite a lot of communication among various officials, including Karen McNeil, yourself, Jim Sestrich, the City Attorney's Office and others concerning the effective date of retirement for Mr. Cadorna? A Correct.

Q It's true, is it not, some people in this community of believers were saying that January 2nd, 2003, should be the start date for his pension, and others were saying, no, he shouldn't get his pension until he submits the application?
MR. LUJAN: Objection, your Honor. Speculative and lack of personal knowledge. THE COURT: Rule 602 is implicated. For now the objection is sustained. If this witness has personal knowledge perhaps he may testify.

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Steven Garrod - Direct communications contemporaneous with my client's Civil Service Commission appeal.
THE COURT: To establish a trail of communications?

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MR. BRENNAN: Discussions -- well, this goes to the question of --

THE COURT: I understand its relevance. MR. BRENNAN: Yes. THE COURT: What I need to know is how it is non-hearsay. And I don't understand how the establishment of a trail of communications responds to the hearsay objection. So I am giving you an opportunity to explain that to me as succinctly as possible. MR. BRENNAN: Well, this would be in the nature of a business record for all practical purposes, a communication in the process of administering a pension application kept in the normal course of business. THE COURT: Okay. Let's stop there. If you establish that foundational predicate for admission of this exhibit as an exception to the hearsay rule as a record of a regularly-conducted activity under Federal Rules of Evidence 803(6), then I will listen to you further, but for now, this being the response, the objection on the basis of hearsay is sustained. BY MR. BRENNAN: Q Chief, was it normal for communications among so many

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearsay.

Steven Garrod - Direct MR. LUJAN: Objection, your Honor. This exhibit is

THE COURT: Well, more importantly to me it hasn't been offered. This exhibit is not in evidence, and it's unacceptable for counsel to essentially read from an exhibit which has not yet been admitted in evidence. MR. BRENNAN: It's for the purpose of refreshing recollection. BY MR. BRENNAN: Q Have you had an opportunity to review this document? A Yes. Q Having seen this, does this refresh your recollection as to whether there were communications in February of 2003 among department personnel and the City Attorney's Office concerning my client's application for retirement? A Yes. Q And the answer is yes, there were such communications? A Yes. Q Do you recall receiving any communications from James Sestrich via e-mail on or about February 25th, 2003, concerning my client's application for retirement? A I believe so. Q Do you recall what those communications were from Mr. Sestrich? A Not right off.

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Steven Garrod - Direct Q Would you review Exhibit 45. A Okay. Q Having reviewed t his document, does it refresh your recollection concerni ng communications you had with James Sestrich at or about this time?

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A Correct. Q Are you now able to testify concerning those communications? A Correct. Q Would you please tell us what those communications were. MR. LUJAN: THE COURT: MR. BRENNAN: Objection, your Honor. Response. He is describing his communications with Hearsay.

James Sestrich on the subject of my client' s retirement. THE COURT: hearsay? He certainly is, and h ow is that not

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MR. BRENNAN: Well, to the extent it's a verbal act by Mr. Sestrich, of which he is the recipient, then he is simply stating what he himself observed. He is not describing what someone else has related to him. I do not intend to introduce this document into evidence. It does contain in some parts hearsay. I have asked him, however, whether his recollection has been refreshed so he may now speak as to what he recalls being told by Mr. Sestrich. THE WITNESS: That's right. And what Mr. Sestrich tells him is ostensibly hearsay.

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