Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case1:04-cv-00956-GIVIS Document 230-3 Filed 08/O4/2006 Page1 0f4

Case 1 :04-cv—00956-GIVIS Document 230-3 Filed 08/04/2006 Page 2 of 4
2403
1 IN THE UNITED STATES DISTRICT COURT
2 IN AND FOR THE DISTRICT OF DELAWARE
. 3 ‘ ‘ ‘
4 B. KURT PRICE, WAYNE WARREN, : Civil Action
and CHRISTOPHER D. FORAKER, :
5 :
Plaintiffs, :
6 :
v. :
7 :
L. AARON CHAFFINCH, :
8 THOMAS F. MACLEISH, :
DAVID B. MITCHELL, and :
9 DIVISION OF STATE POLICE, :
10 Defendants. : No. 04-956-GMS
11 - - -
12 CHRISTOPHER D. FORAKER, : Civil Action
13 Plaintiff, :
14 v. :
15 L. AARON CHAFFINCH, :
THOMAS F. MACLEISH, :
16 DAVID B. MITCHELL, and :
DIVISION OF STATE POLICE, :
17 :
L Defendants. : No. 04-1207-GMS
18
fl 19
Wilmington, Delaware
20 Tuesday, May 30, 2006
9:00 a.m.
21 ELEVENTH DAY OF TRIAL
22 - - -
23 BEFORE: HONORABLE GREGORY M. SLEET, U.S.D.C.J., and a Jury
24
25
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Qlpée 1 :04-cv—OO956-GIVIS D0cEi1‘Hent 2 O-3 Filed 08/O4/2006 Page 3 0f 4 2406
1 APPEAR :
2 THOMAS S. NEUBERGERI ESQ., and 1 there is agreement on the collateral source instruction.
STEPHEN J- NEUEERG_ER· ESQ- 2 Mn. Ei.i.rs: 1 think that's right, Your Honor.
3 The Neuberger Law Firm
·¤¤d' 3 MR. S. NEUBERGER: Yes, Your Honor.
4 MARTIN D. HAVERLY, ESQ.
Law Offices of Martin D. Haverly 4 THE COURT: Understanding the pIaintiffs'
. 5
Counsel for Plaintiffs 5 ¢X¤€Ptl¤¤·
6
R- MONTGOMERY DONALDSONI EsQ_ 6 MR. T. NEUBERGERI Yes, Your HOIIOT.
7 M°nt?;:fry' Mccrackem walker & Rh°ads’ LLP 7 THE COURT: Then that leaves the research that
8 Eb:‘;$’E$?g;;."d 8 is ongoing with regard to this question of how the jury
9 M¤¤ts¤·¤¤rv. MCCEECKE"': walker & Rh°adS 9 should be instructed on the issue of joint tenancy
(Philadelphia, PA)
10 10 properties and how that is going to be addressed by the
Counsel for Defendants
11 11 Court.
` 12 -n]|;EX 12 I understand you have one more live witness?
13 Preliminary Discussions _________ Page 2404 13 MR. ELLIS: Yes, Your Honor. One more live
14 GENE ROTHENBURGER 14 witness. Then I would like to read about 13 lines of a
_ _ _ 15 deposition before the jury. I think we will have an issue
15 Direct examination -------------- Page 2409
Cross-examination ----------——--- Page 2430 16 over that
16 Redirect examination ------------ Page 2453
17 THE COURT: Let's talk about it for a minute.
17 Stipulation read -------—-------- Page 2454
18 Go ahead.
18 Motions renewed at sidebar ------ Page 2456
19 MR. ELLIS: Your Honor, Mr. Neuberger has agreed
19 °°"f°"°"°° "' Ch°'"°°'s ```''`'``' P°g° 246° 20 to stipulate that Exhibit Ne. 11, which is in the defense
20 c°"rt`s Charge t° Jury `````````` Page 2477 21 book, is a copy of the checklist that we have heard
21 Clcsinsi M'- T- NEUPEEQE" ''''''' PEQE 2506 22 testimony about that Sergeant Foraker appeared with on
22 Closing, Mr. Ellis -----—--—----- Page 2565 23 December 1st when he had his transition meeting with Captain
23 Rebuttal, Mr. T. Neuberger ------ Page 2626 24 Warren, Lieutenant Davis and Rich Ashley. And what I would
24
25 25 like to read is these few lines of testimony in which I
2405 2407
1 THE COURT: Good morning. Please be seated. 1 asked Sergeant Foraker whether the handwriting on those
2 As I understand it, we have two remaining, 2 three pages was his. And he said, yes. And then I said in
3 dangling jury issues. One, the contention by the defense 3 the upper right-hand corner --
4 that the jury should be instructed that Colonel Chaffinch 4 THE COURT: Who is the witness?
5 had a First Amendment right to comment -- well, the 5 MR. ELLIS: Foraker, Your Honor.
6 instruction reads, "Colonel Chaffinch also has a right to 6 "In the upper right-hand corner of the first
7 speak out on matters of public concerns. He is not liable 7 page there is some characters that I can't entirely make
8 to the plaintiffs under the First Amendment for any 8 out.
9 non-threatening statement he made about them while 9 "Is that your handwriting, also?
‘ 10 discussing a matter of public concern." 10 "No, that isn't."
11 That is submitted by the defense. Is that 11 Then Mr. Tom Neuberger, says, "That looks like
12 correct? 12 SJN, co-counsel."
13 MR. ELLIS: Yes, Your Honor. 13 And I said, "That would be Stephen J.
14 THE COURT: Messrs. Neuberger, you resist the 14 Neuberger." And Mr. Neuberger said, "Yes, I think so. That
15 rendering of that instruction. 15 looks like his handwriting."
16 MR. S. NEUBERGER: Yes, Your Honor. 16 THE COURT: Do you want to read that in?
17 THE COURT: I am looking into it or having it 17 MR. ELLIS: Yes.
18 looked into as we speak. I wanted to get started with the 18 MR. S. NEUBERGER: Your Honor, this is basically
19 jury. 19 a relevance and a 403 issue. The initials written in the
20 MR. S. NEUBERGER: Your Honor, I filed a Bench 20 top right-hand corner of the document are not in my
21 memo this morning on this topic addressing some law. I 21 handwriting. This opens up the whole separate rabbit trail
22 could hand up a copy if it would help the Court. 22 of whose handwriting is it, things like that. We can
23 THE COURT: Okay. 23 present witnesses on that, Your Honor.
24 In light of the Court's ruling and request to 24 THE COURT: No, we are not. You are not going
25 the defense and plaintiffs to get together, I understand 25 to be permitted to read that today, Mr. Ellis. I don't
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Case 1:04-cv—OO956-G|\/IS Document 2 0-3 Filed 08/O4/2006 Page 4 of 4 2522
1 So what happens is -- and this was Exhibit 25, 1 the Delaware State News. And then there is that news story
2 you have that in the book in front of you -- that on April 2 that we will talk about a little bit later that ran on WBOC
3 6, there is this media tour, and we have testimony that 3 TV on the Eastern Shore that has a viewing audience of
· 4 before the tour Colonel Chaffinch goes down and speaks with 4 approximately 500,000 people.
5 Captain Dixon, and indicates that today he is going to put 5 Then Colonel Chaffinch comes back from giving
6 it on F'g Foraker, that if you f-u-c-k with Aaron Chaffinch, 6 the story that runs the next day. You heard him say, then I
7 I f-u-c-k back. That is a window into his mind at the same 7 got Tom Eldred on the phone and I followed up with some
8 time as to what were his purposes on April 6th. 8 things. And then Major Baylor, we already talked about it,
9 Then we know he did give the tour and the news 9 but he talked about what Colonel Chaffinch was saying when
10 story ran. 10 he got back, that I got my digs in, that people who live in
11 On the next exhibit here, I tried to excerpt the 11 glass houses shouIdn't throw stones, and that in no way was
12 kinds of things that were said in the news article. You 12 he going to retract the accusations that were made that day.
13 need to look at PIaintiffs' Exhibit 25 yourself, and don't 13 I think Major Baylor said that he didn't want to
14 forget 26, because 26 is the same story. But it is the one 14 hear it, this whole idea about retracting.
15 that went into the Police Beat Magazine, that periodical 15 So that is April 6. They are gagged. All kinds
16 that goes to 55,000 police officers throughout the country. 16 of accusations are running against them.
17 The Delaware State News, this story goes to 17 We fast-forward to May 12. That is when the
18 about 25,000 people every day. 18 auditors first meet with my clients. They hold two
19 The first statement, The previous Sergeant in 19 interviews. It's July 20th, I think the evidence was, July
20 charge did a good job. 20 20th. May 12 is when they speak to the auditors, May 13th
21 Well, that means that -- you can interpret that 21 they were to undergo fitness-for—duty exams. June 18, they
22 to mean that the prior Sergeant wasn't doing a good job, and 22 are declared unfit for duty. June 25th, their police powers
23 the prior Sergeant -- the current Sergeant Foraker, who is 23 are suspended.
24 mentioned throughout. 24 The closeness in time here is remarkable. It is
25 Things changed in December when another Sergeant 25 the next day. That is insight into their mind, also.
2521 2523
1 came in. That's a portion of where the ball was dropped. 1 They spoke to the auditors on the 12th -- you
2 Once again, he is saying here Chris Foraker 2 have their written statements in the book. They are
3 dropped the ball on maintenance and the functionality of the 3 Exhibits 22, 23 and 24 -- addressing the health and safety
4 range. 4 concerns of themselves, the health and safety concerns of
5 Here is another example. And you can read 5 other troopers and the other people using the facility.
6 through the article yourself: I don't want to go over them 6 They gave oral statements. They delivered documents. You
7 all. But I think people in glass houses shouldn't throw 7 heard about that this morning. And then you know that a
8 stones. It is a lot dirtier now. Meaning that the people B news story ran after that, after May 12. That is in the
9 who are running it now are getting it dirtier than it used 9 record, also. And we know that the fact, their hands had
10 to be. Once again, that would be a false statement. 10 been tied behind their back. But the truth got out because
11 And just one more: When I was there in the 11 I as their lawyer answered questions -- you can read the
12 fall, everything was going as well as previous times. 12 story -- answered questions after the interviews. And this
13 That's saying everything was okay in the fall. 13 angered the defendants.
14 Even down here he is talking about one or more troopers 14 You have heard testimony. Defendant Chaffinch,
15 under his command. 15 I believe, said he was unhappy with the fact that these news
16 The kind of people he was talking about were 16 stories ran after May 12. MacLeish I think testified that
17 Kurt and Wayne and Chris. 17 he was dismayed by the fact that they had spoken to the
18 That articles gets published. That is enough 18 auditor and the media had reported on it.
19 for that. That article gets published. Then they are 19 You saw from the stand, when Kurt testified, he
_ 20 gagged. The press ace reporter, Tom Eldred, comes and wants 20 explained, our hands were tied behind our backs, and being
21 to get some response to these charges that have been made. 21 able to testify in trial and trying to redeem our honor is
22 What happens? They are gagged and they are not allowed to 22 liberating. And the fact that some of the story got out
23 give interviews. 23 while their hands were tied behind their back and they were
24 And then what happens with these accusations? 24 gagged was liberating for them, also.
25 These accusations run in Police Beat Magazine. They run in 25 We even get more retaliation. And we will talk
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