Full Trial Transcript
Trial Transcript
Trial Day One
Trial Transcript
(Annotations are in brackets and indicated with asterisks.)
[Typographical/Syntax errors have been left uncorrected.]
Day One (May 17, 2001)
[3] (CLERK) County Court is now in session, Paul Czajka presiding.
( CZAJKA) Good morning. Note your appearances, please?
(TORNCELLO [prosecutor]) For the People Peter Torncello.
(DEFENSE COUNSEL ['DC'*]), appearing for the defendant, Jeffrey R. Nickel.
[*We have elected not to refer to defense counsel by name herein.]
(CZAJKA) Who is personally present. People ready?
(TORNCELLO) Yes, we are.
(DC) Yes, Your Honor, with one preliminary.
(CZAJKA) Detective, would you get that door?
(DC) I'd ask the Court if I may be heard? Your Honor, if it please the Court, Jeffrey Nickel was arrested on the 7th of August, year 2000, and charged at that [4] time with a felony in violation of Section 130.80 of the Penal Law, a felony of Course of Sexual Conduct Against a Child.* Thereafter, it was almost a year after he was arraigned on that charge, preliminary hearings were set on that charge, bail applications made on that charge, and then on the 18th of August, I believe, he was indicted. Now, that 18th of August indictment is the one before the Court now and contains 7 counts, I believe five of those counts, Your Honor, involve a complainant by the name of [ 'Arthur']. Your Honor, as I would read Section 130.80 of the Penal Law, and more particularly, with respect to subdivision (b) of that statute, it says a person may not be subsequently prosecuted for any other sexual offense involving the same victim, unless the other charges or offense occurred outside the time period, charged under this section.
[*A superseding grand jury indictment dropped this 'Course' charge.]
(CZAJKA) You're reading from the Course of Conduct section?
(DC) Yes. [5]
(CZAJKA) That statute.
(DC) Yes, sir. I would therefore, respectfully suggest to this Court that the prosecution cannot proceed on any of the counts of this indictment, involving ['Arthur'] against Mr. Nickel at this time because they are prohibited by law from doing so.
(CZAJKA) Mr. Torncello, so you wish to respond?
(TORNCELLO) I think that the indictment supersedes any charge that the police may have filed in the local court. He's not been or being charged with that in this indictment so --
(CZAJKA) I don't know that -- strike that. That section of that statute is not applicable to the circumstances; your motion is denied.
(DC) Respectfully, I'll take exception, Your Honor.
(CZAJKA) Absolutely.
(DC) One other preliminary statement, Your Honor, before commencing. If I may, I noticed when you deal with the Penal [6] Law, with the section of sex offenses, when you take this 130.80, which is a class D felony, and it involves repeated acts of sexual contact, and then you look at Section 130.65, Sexual Abuse and you find that it apparently requires only one act, and also --
(CZAJKA) Well, he's not indicted at least in this indictment for a Course of Sexual Conduct.
(DC) That's correct, Your Honor, I guess the point I was trying to make --
(CZAJKA) There's another indictment charging him with that?
(DC) No, sir. There isn't. The Legislature, Your Honor, has I think there might be an equal protection issue in that. The charge with which the defendant is standing trial today is 130.65, requires apparently a single sexual contact. In the same statute this 130.80, which is (d) required several so that the Legislature in its wisdom or whatever, has equated the same penalty, for a singular act, as opposed to multiple, so as I think it might be an equal [7] protection issue that I would like to raise at this time in that regard. That was it.
(TORNCELLO) Nothing, Your Honor.
(CZAJKA) That motion too is denied.
(DC) Respectfully, I'll take exception.
(CZAJKA) Is defendant otherwise ready?
(DC) Yes, sir. Your Honor, except that I would like to move that any and all witnesses that are going to be called in the case I would like to respectfully ask that they remain outside during the testimony of any of the other witnesses. And --
(CZAJKA) So ordered.
(DC) And I have the mother of the defendant here, with family members, and she might be a witness so with the Court's permission, I'll ask that she step out. I don't see any other witnesses on behalf of the defense here, Your Honor.
(CZAJKA) You're both responsible for your own witnesses; make sure [8] they're out.
(TORNCELLO) Your Honor, I don't think that notice is applicable in a case involving an indictment that alleges a sexual crime, that's incumbent upon my making a -- 60.43 of the Rules of Evidence CPL, talks about the admissibility of the victim's prior sexual conduct and we'd make the appropriate motion that this be included.
(CZAJKA) I don't know that that's necessary, but I can't imagine that that would be an issue for (DC), but obviously I'll rule on the motions and objections as they're made. On my own motion, I'm directing the People before they file this indictment, in the Clerk's office, to file the indictment without an indication of the identity of the alleged victim.
(TORNCELLO) Okay.
(CZAJKA) Come up for a minute please.
[The transcript then says: "(Bench conference)." It's not clear if both the prosecutor and defense counsel came up, or only the prosecutor (who had just spoken). If the latter, it would seem rather questionable for the judge to summon only the prosecutor, and thus leave defense counsel with no idea what was discussed. Later on, at a critical juncture in the trial, there is no question that Czajka does precisely that. (Moreover, the main, legitimate reason for having a bench conference is to have a brief colloquy outside the hearing of the jury. But there was no jury here.)]
(DC) Your Honor, if I can [9] address one more thing. Forgive me.
(CZAJKA) Certainly.
(DC) Count two of the indictment, Your Honor, which alleged a Class C felony, of Aggravated Sexual Abuse, second degree, I see a violation of Section 130.61, and then no further subdivisions. I have nothing but a blank, I would like to move --
(CZAJKA) 130.67 subdivision (1).
(DC) Yesl brackets and a blank without any further indication beyond that.
(CZAJKA) Those second set of brackets shouldn't be there, should they? Isn't it simply --
(TORNCELLO) No, it should be sub (C).
(CZAJKA) C?
(TORNCELLO) That's correct.
(CZAJKA) Can I see someone's Penal Law. When the other person is less than eleven-years-old.
(TORNCELLO) That's correct.
(CZAJKA) You're moving to [10] dismiss because, [DC], the (C) is left out?
(DC) That's correct, Your Honor, I would.
(CZAJKA) What do you say Mr. Torncello?
(TORNCELLO) I think that the body of the count is appropriate. I think that for instance right after that to wit clause adequately explains the charges. I would move to amend that typographical error. I think that the gist or the body of the indictment is appropriate. It does discuss the appropriate charge.
(CZAJKA) [DC] wish to respond?
(DC) Yes, Your Honor. As we stand here now we have no idea what the Grand Jury intended when they returned that second count of the indictment. There's no way for me to second guess what they had determined, and so, we would urge that you dismiss that count.
(CZAJKA) Judge Breslin reviewed the transcript of the Grand Jury, [11] dismissed or denied a motion to dismiss all of the counts, including Count two, and at this time, I grant the People's motion to amend to include the letter (C), and deny defendant's motion to dismiss.
(DC) Respectfully take exception.*
[*Both this, as well as DC's earlier 'digression' regarding a charge that had been superseded, seem quite pedantic; even pointless. DC was simply wasting everyone's time here, as well as suggesting that all the defense had to offer was sophistry. Moreover, DC knew (and told Nickel) that Czajka was a judge "who liked to move things along." It's a bit like the boy who cried wolf.]
(CZAJKA) Yes. Anything else [DC]?
(DC) No, sir. Your Honor, thank you.
(TORNCELLO) Yes, Your Honor. May I?
(CZAJKA) Go ahead.
(TORNCELLO) Judge where would you like me?
(CZAJKA) Actually, maybe during the break we can get someone to move the tables up. I'm having trouble hearing both attorneys.
(DC) Maybe we can move them, Your Honor. It's difficult to hear in here.*
[*One might have thought that, given that this was a courtroom, care would have been taken long ago to make sure that everyone could actually hear what was going on. Moreover, it is not clear that the tables ever were moved closer.] [12]
(CZAJKA) Go ahead Mr. Torncello.
(TORNCELLO) Thank you, Your Honor. May it please the Court.
(CZAJKA) Do you want your book back?
(TORNCELLO) Yes. Judge, by his own admission, and in his own words, Jeffrey Nickel is a boy lover. And over the next few hours, over the next day or so, we are going to learn to what extent a boy lover goes to satisfy --*
[*Note that, rather than starting his case with the classic 'the facts will show that the defendant clearly committed such-and-such,' the prosecutor begins with this ill-defined term, which is meant to urge conviction based on who Nickel (supposedly) is, rather than what he is alleged to have actually done. Torncello would continue this line of fact-free (and inadmissible) salaciousness throughout this brief trial.]
(DC) I hate to interrupt you, but I have to object, Your Honor to that term right from the outset here, as having, no legal significance.
(CZAJKA) It implies a course of conduct outside of that charge, so, refrain from use of that term.*
[*In other words, don't use that term. But because he lacks actual proof of criminal acts -- particularly vis-a-vis the two most serious ones charged -- Torncello will keep using this term -- 12 more times -- with no sanction or reproach whatsoever from the 'judge' who just told him to stop using it.]
(TORNCELLO) Over the course of the next few hours, we're going to learn to what extent Jeffrey Nickel went to satisfy --
(CZAJKA) I forgot to tell you something. Come up a minute please. [13]
[The transcript then indicates: "(Side bar)." So, this is apparently the second time -- just a few minutes into the trial -- that Czajka has called Torncello up for a sidebar, from which defense counsel was excluded. Why? What did Czajka say to the prosecutor?]
(CZAJKA) So we will take witnesses out of order, if need be; there's no jury.
(TORNCELLO) Sure.
(CZAJKA) Excuse the interruption, why don't you go ahead Mr. Torncello?
(TORNCELLO) Over the next few hours, over the next day, Your Honor, we will learn to what extent Jeff Nickel went to, to satisfy and gratify his sexual desire for young boys. Judge, on August 3, 2000, Claudette Scostak was working at the Albany County Jail in her capacity as a receptionist and a clerk and as part of her responsibilities and her duties, are to open mail and check for contraband in letters that come in to the inmates at the Albany County Jail. On August 3, 2000 she opened four letters addressed to an inmate at the jail [14] whose name was Matthew Peters and those letters were from, Jeffrey Nickel. They contained a return address that indicated J. Nickel, 36 Lansing Drive, Delmar, New York, 12054. They contained a signature of Jeffrey Nickel at the conclusion of it and they contained information, that is particular to Jeffrey Nickel and to only Jeff Nickel, about the children involved, who are the subject of this indictment, and about his love for the young boys, his romantic involvement with young boys. Judge, it also contained photographs, a number of photographs, of young boys, that Jeff Nickel sent to Matthew Peters in the Albany County Correctional Facility. A light bulb went off in Claudette Scostak's head and said something is not right here. Something's fishy. She called her superior and told him that the envelopes may contain contraband and through the proper channels, the Albany County Sheriff's Department contacted Investigator Ronald Bates. Ronald Bates arrived, he examined the four letters, he noticed that the contents of [15] the letters were sexual in nature, they they identified at least three individuals, a young boy by the name of ['Brendan'], a young boy by the name of ['Chris'] and a young boy by the name of [ 'Arthur' ].* He also recognized that Matthew Peters was an inmate in the Albany County Correctional Facility who had been convicted of sodomy in the second degree, for sexually abusing young boys. Judge, Investigator Bates examined the letters, he examined the photographs, he noticed the writing on the back of the photographs which were sexual in nature,** and he began his investigation. What he did was he contacted first of all of the three young boys and he interviewed [Arthur], the Sheriff's Department interviewed [Chris], and they interviewed [Brendan] and they found out that they all had contact with Jeffrey Nickel. Jeff Nickel at one time or another was a teacher's aid at [16] [ ], he was also a teacher's aid at [ ]. Also a "mentor," for lack of a better term, or a big brother, for a boy named ['Arthur'], at [ ], first in Rensselaer County and then at [ ] here in Albany County. He found out that [Arthur] had developed a relationship with this defendant, Jeff Nickel. Judge, all three children at that time of their contact with Jeff Nickel, were under the age of eleven. The contents of those letters, and the interviews with the young boys lead the Albany County Sheriff's Department to seek an interview with Jeff Nickel. In August, about three or four days later, they interviewed Jeff Nickel. Judge, they invited him to come down into this building at their office, they sat down, he sat down with an inspector named Mark DeFrancesco and over the course of several hours he gave a thoughtful, eloquent, six page statement, outlining his contact with the three young boys in question, and his life beginning at age twelve through the present as a boy lover. The term boy lover is a term Judge, that Jeffrey Nickel uses, not a term that the People use.
[*Torncello uses the full names of all three here; by contrast, the letters used only first names.]
[**No, the writing on the back of these photos was not sexual in nature; see below.]
(CZAJKA) Okay.*
[* "Okay?" What do you mean, 'okay'? Just minutes earlier, you (the 'judge') instructed the prosecutor not to use that word. But he keeps using it anyway, and that's just fine with you? This is the beginning of Czajka truly starting to act as a de facto second prosecutor. (See Judge Paul Czajka section for similar behavior in other cases.) He's just signaled that the prosecutor can say whatever he wants, with no fear of repercussion.]
(TORNCELLO) He uses and he describes and he defines what a boy lover is, in that letter. Judge, at the conclusion of that statement, he was asked to sign a consent to search for his home at 36 Lansing Drive, Delmar, New York, which he did, voluntarily. *He also signed his statement after being duly warned of all his Miranda warnings** and voluntarily signed that statement. At the conclusion of the statement, together with the Albany County Sheriff's Department, Mr. Nickel went to his home at 36 Lansing Drive in Delmar and a search was conducted. Judge, what was found in that search, was like the Fort Knox of deviate sexual material judge. I mean there are pages and pages of erotica, there were hundreds and hundreds and stacks and stacks of photographs of young boys. They are --***
[*No, he did not sign that consent form 'voluntarily.' He was extremely reluctant to do so. It was only when he was shown a search warrant (signed by a judge), and realized that they were going to do the search anyway, that he went ahead and signed. (Detective Mark DeFrancesco had previously stated that if Nickel did not sign, the search would be far more invasive and destructive. Moreover, courts have consistently ruled that when a defendant is shown a search warrant , any 'consent' form he may (subsequently) sign is most certainly not 'voluntary.')]
[**Nickel was never given any Miranda warnings. Regarding DeFrancesco engaging in this same practice in another case (Rarick), see Detectives Mark DeFrancesco and Ronald Bates section.]
[***Beside the fact that none of these -- with the sole exception of a single sexual photograph -- which will be discussed at length below -- have anything to do with the actual acts Nickel was on trial for, Torncello is grossly conflating several very different kinds of materials, as well as painting an extremely misleading picture of their contents. The vast majority of what was 'found' were academic articles and books on the topic of child sexual abuse.]
(DC) Objection, Your Honor, that's not part --
(CZAJKA) You're not [18] introducing that, right? You're not -- you're just talking about that which you seek to introduce?*
[*Whether or not Torncello intends to introduce some or all of this material into evidence isn't the point (and also is not why defense Counsel objected). What Czajka fails to realize -- or is tacitly encouraging -- is Torncello's unquestionably unethical attempt to convict based not on action-related facts, but rather, on pure propensity evidence.]
(TORNCELLO) Photographs and photocopies which are the subject of this indictment.
(CZAJKA) We talked about it, you said there are some six to eight cartons. You're not bringing them all in?
(TORNCELLO) I was going to, or I intended to.
(CZAJKA) How many weeks are we going to be here? There's -- he's only charged with six or seven counts.*
[*Unfairness to the defendant is the least of Czajka's concerns here; he's just worried about how long the trial will take.]
(TORNCELLO) That's right, that's right.
(CZAJKA) So just refer to that which you hope to introduce.* [* In a non-jury trial like this, given that the judge is both the person who decides what evidence is admissible and what weight is to be given to it, whether any given thing is 'officially' admitted into evidence is -- essentially -- meaningless.]
(TORNCELLO) Okay, Well, there are photographs which were taken on a 35 millimeter camera that depict young boys.* Also magazines, that depict erotica and young boys. ** There's cartons and --***
[*All of these are fully clothed.]
[**None of these depict sexual activity.
[***What Torncello lacks in the way of actual proof of unlawful acts, he is clearly seeking to make up for by way of a large volume of clearly lawful materials. (And again, Czajka's concern is clearly not potential prejudice to the defendant, but rather, the Court potentially being inundated by tone of material it might have to sift through.)]
(CZAJKA) Give me -- excuse me for a minute. Count, count three, refers to [19] one discrete photograph, correct?
(TORNCELLO) That's correct.
(CZAJKA) All right. It's not all of these others?
(TORNCELLO) Correct.
(CZAJKA) Go ahead.
(TORNCELLO) I lost my train of thought. There are stacks of material which are -- which are described and annotated as research material judge, that discuss all sorts of sexual conduct and contact between adult males, sexual contact between adult males and young boys. That is among many, many other things that were recovered as evidence. The Albany County Sheriff's Office also recovered a computer, in fact, two computers were recovered, a lap top computer and a regular personal computer. Those computers were turned over to the Colonies Town Police, their computer force department, and the contents of the computer, and the disks and the zip drives, were examined. We're going to hear from Officer or Investigator Steve Tanski from the Colonie Police who examined the [20] contents of the computer, and the contents of the disks. One of the things that he found in the disks is the subject of count three. There's also further proof, of counts one and two, Your Honor, it's a photograph of this defendant engaged in an act of oral sodomy with ['Arthur,],* a young boy who was under eleven at the time. Judge, the indictment alleges acts that occurred for the most part, between June and July, of 2000. In addition, the indictment contains an allegation of sexual conduct from the Summer before, of 1999 with a young boy name ['Chris'], that talks about sexual touching, and sexual conduct, for the defendant's sexual gratification. You're going to hear from three young boys as well Judge from ['Arthur'], who is going to describe the touching that took place and the time that he was touched over the Summer of 2000, by Jeffrey Nickel. He's going to describe an act of oral sodomy, that he engaged in with this defendant, Jeff Nickel and himself. You're also going to hear from ['Brendan'] to describe sexual [21] touching and ['Chris'] to talk about his sexual touching. Judge at the conclusion of the proof, we believe it will show overwhelmingly that the defendant is guilty behind a reasonable doubt, of each and every count of this indictment. Thank you very much.
[* No, it is not. The photography expert retained by the defense, whom Czajka would not allow to testify as an expert, established conclusively that the older person depicted in that photo was not Nickel. Moreover, it also does not depict 'Arthur,' given, among other things, that whereas the boy in the photo has brown eyes, 'Arthur's' eyes are blue.]
(DC) If it please the Court, Mr. Torncello. Your Honor, if I may be permitted a few moments to open and respectfully point out to the Court, that obviously the Court is aware that anything that I say now is not evidence in the case. My opening cannot be regarded as evidence as cannot that of my learned opponent in this case. If I can be permitted, I would respectfully point out to the Court, what I believe the proof will show in the case when the trial commences with the calling of witnesses. I believe the proof will be that this case originated and had its birth on August the 3rd at about 1:30 in the afternoon on that date, out at the Albany County Jail [22] and there was a lady by the name of Claudette Scostak who I believe will testify that she is employed as a switchboard operator, and as a receptionist in addition to those primary duties, she does open mail that's coming into the jail. And that on that date about that time, she would say she opened letters that contained photographs. The letters were addressed to an inmate in the jail by the name of Peeters. I think the proof will be, Your Honor, that in all of those photographs, that depicted boys, they were all clothed, there were not what we would call obvious scenes, photographs as we all know of them, disrobed or anything like that. There was nothing of any sexual nature written on the back of any photographs. I believe on one the word side or something like that, whatever that means, was a character in a movie I think one of the kids movies, but it was nothing of a sexual nature reported there. There was no contraband obtained. I think she will testify that she turned the photographs over to see if there might by anything attached to them and she [23] found no contraband. There was absolutely nothing illegal about what was before her. She then took those photographs, and letters, and went to her superior, with instructions as to what to do. I think the proof will probably be that, an investigator by the name of DeFrancesco was called, he talked to this Miss Scostak and obtained a statement from her which sets forth exactly when I just said, and armed with that statement, he went before a judge here in Albany, and secured a search warrant. A search warrant was secured and after the search had been conducted, and there was no -- no showing to that Court, that anything illegal had taken place or should not even be an issuing of a search warrant. Your Honor, as a result of Mr. DeFrancesco's investigation, I believe the proof will show that he approached one or more of the boys mentioned in this indictment, and unfortunately, the interviews that took place of these three boys that are mentioned in this indictment, were respectfully conducted very poorly. The [24] young children were subject to all sorts of intimidation and things of that nature, were not interviewed with any social worker present, or any medical people there, or anyone that really had an understanding about children, and what they're prone to say, and their ability to deal with their imagination, but rather, interviewed by this investigator from the Sheriff's Department and maybe one of the other Sheriff's Department employees. Judge, the proof is going to show we don't know what questions they asked the boys. We don't know how they even began it. There will be sought to be introduced into the record of this Court of various notations that describe answers, but unfortunately we are never given the questions that were asked of the boys before these alleged answers were given. And this was done in each and every circumstance with the three here involved. As a matter of fact, at one point, this photograph which is the issue, I believe, of the third count of this indictment, was shown by the officer to this boy and presumably, said is that he, is that the defendant in it? [25] And that is the kind of interview, Your Honor, that was run. And we can -- I think the proof will be its highly suspect. There will be proof, Your Honor, that some computers were taken from the residence as a result of another search warrant. And that on one of those computers, they pulled this photograph that we're talking about which, Your Honor, the proof is going to show, show it depicts a sexual act. It is a sexual act that is not with my client, it is not his photograph, in that picture, and we hope to bring in expert testimony, Your Honor, and in that regard to show it is not and cannot be he. Your Honor, I respectfully think that at the end of the case when all the actual witnesses have testified, and the Court is able to examine and look into just how the birth of this case occurred, and just how this whole matter was conducted, that the Court will find that certainly one, if not all of these counts should be dismissed. Thank you, Your Honor.
(CZAJKA) Go ahead. [26]
(TORNCELLO) The People call Claudette Scostak. Good morning. Can you state your name for the record, please?
(SCOSTAK) Good morning. My name is Claudette Scostak.
(TORNCELLO) Okay. What is your occupation?
(SCOSTAK) I am a switchboard operator at the Albany County Correctional Facility.
(TORNCELLO) Okay. And Mrs. Scostak, how long have you worked with the Albany Correctional Facility?
(SCOSTAK) Since August 7, 1998.
(TORNCELLO) Okay. Can you give us an idea of some of your duties and responsibilities, at the correctional facility?
(SCOSTAK) Uh-huh. I am also a mail clerk at the facility, I'm responsible for tearing the [27] mail and searching inmate mail.
(TORNCELLO) Okay. That's the incoming mail to the inmates?
(SCOSTAK) Yes.
(TORNCELLO) All right. And do you have any training in that or?
(SCOSTAK) Yes.
(TORNCELLO) Did someone teach you to do that?
(SCOSTAK) Yes.
(TORNCELLO) Who? Who taught you to do that? Do you recall?
(SCOSTAK) A person by the name of Margaret, I don't recall her last name. She is no longer employed there.
(TORNCELLO) Why do you look at incoming mail?
(SCOSTAK) For contraband.
(TORNCELLO) When you say contraband, what do you mean by contraband?
(CZAJKA) I think I know what contraband is. Go ahead.*
[*As will soon become clear, Scostak did not, in fact, find any actual contraband in any of these letters. But, here, Czajka interjects, cutting Scostak off before she could define the kind(s) of contraband she was supposed to be looking for in the incoming mail. Whether intentional or not, this action by Czajka was helpful to the prosecution, because it -- for the moment at least -- was spared being placed in the rather uncomfortable position of having to (tacitly) acknowledge that these letters contained no contraband; and thus, this 'investigation' should never have begun. (Also note that Czajka was successful in 'directing' Torncello on this issue, as evidenced by the fact that he does immediately drop the matter.)]
(TORNCELLO) Okay. Let me direct your attention now to August 3, 2000, were you working that day?
(SCOSTAK) Yes, I was. [28]
(TORNCELLO) Did you open mail that day?
(SCOSTAK) Yes, I did.
(TORNCELLO) Okay. Did you have a chance to open mail for an inmate by the name of Matthew Peeters?
(SCOSTAK) Yes, I did.
(TORNCELLO) Okay. I want to show you something that has been marked as People's Exhibits "1" through "4," marked for identification. Okay. I'll hand you what's been marked as People's one for identification; can you tell us what that is?
(CZAJKA) Show her all four.
(TORNCELLO) Here's one through four, and I'll ask you to look inside of them?
(SCOSTAK) Okay.
(TORNCELLO) Can you tell me what they are?
(CZAJKA) Keep them separate.
(SCOSTAK) These are incoming mail, envelopes addressed to Matthew Peeters, at the Albany County Correctional Facility. [29]
(TORNCELLO) Okay. Do they look familiar to you?
(SCOSTAK) Yes.
(TORNCELLO) Have you seen them before?
(SCOSTAK) Yes.
(TORNCELLO) Right. Did you see them on August 3, 2000?
(SCOSTAK) Uh-huh.
(TORNCELLO) Are those --
(CZAJKA) Say yes or no in words.
(SCOSTAK) Yes, I have, seen these before.
(TORNCELLO) And are those the letters that you opened?
(SCOSTAK) Yes, they are.
(TORNCELLO) Okay. Do they appear in the same condition or a similar condition, as to when you opened them on August 3, 2000?
(SCOSTAK) Yes, they do.
(DC) Object, unless there's a foundation that can be laid that they have been continually in her possession, for the purpose of answering that.
(CZAJKA) Overruled. Give the witness a minute to look through all four. Those are the originals, [30], they aren't photocopies of anything?
(SCOSTAK) No, they are not.
(TORNCELLO) At this time I would offer People's Exhibits one through four and show them to [DC].
(CZAJKA) While [DC] is looking at those, do you have other exhibits to mark Mr. Torncello?
(TORNCELLO) Yes, one.
(DC) Your Honor, if it please the Court, I am going to object to the introduction of these letters. On the basis that there is no proper foundation laid for the receipt of these letters in this case, involving this defendant at this time. Foundation to the extent --
(CZAJKA) That it connect up with the defendant you mean?
(DC) That's correct.
(CZAJKA) Okay. Sustained.
(TORNCELLO) Okay. Now, when you opened the four letters, [31], right, was there anything of note or anything remarkable, that you noticed?
(DC) I am going to object.
(CZAJKA) Sustained, they speak for themselves and they're not in evidence. Sustained.
(TORNCELLO) What did you do after you opened the mail?
(DC) Objection, irrelevant, and immaterial because we're not speaking about something -- it's not in evidence and it's conduct performed which has nothing to do with the evidence in this case.
(CZAJKA) Overruled.
(TORNCELLO) What did you do?
(SCOSTAK) After those envelopes were opened I then had to search them, as I do, all of the other incoming inmate mail, and as I was going through them, I felt very uncomfortable.
(CZAJKA) You've answered the question. Go ahead Mr. Torncello.*
[*It's unclear why Czajka chose to interject at this point. Perhaps he made some non-verbal gesture which caused Scostak to stop talking. In any event, Scostak feeling 'uncomfortable' is neither here nor there; either she found 'contraband,' or she did not.]
(TORNCELLO) Yes. Now, after you opened them, did you look at them?
(SCOSTAK) Yes. [32]
(TORNCELLO) Okay. After you looked at them what did you do?
(SCOSTAK) I just -- went through the envelopes searching them, and as I stated earlier I felt uncomfortable.
(DC) Objection as to the sense.
(CZAJKA) It's not responsive.
(TORNCELLO) Did you notify anybody?
(SCOSTAK) Yes, I contacted the Lieutenant and the Captain at the facility.
(TORNCELLO) Okay. And you told them that -- did you show them these letters?
(SCOSTAK) Yes, I did.
(TORNCELLO) Okay. And at some point later on, did you meet Investigator Ron Bates?
(SCOSTAK) Yes, I did.
(TORNCELLO) And did you give a statement to Ron Bates?
(CZAJKA) Mr. Torncello, I don't mean to try your case for you,* but what does any of this have to do with anything?
[* Actually, when one scrutinizes Czajka's subsequent behavior in this case, as well as many of his actions in other cases (see the Judge Paul Czajka section of this site, Czajka quite often ends up functioning as a due facto second prosecutor -- a position which he officially held previously, and would later return to once again.]
(TORNCELLO) Did you meet?
(CZAJKA) Why are you even calling this witness? [33]
(TORNCELLO) I want her to put the letter in; I also want her to tell the story how the case started, judge.
(CZAJKA) But there's not, those letters are not the subject of any count of the indictment.
(TORNCELLO) Well judge, they're proof of crimes that are committed that are the subject of the indictment.* The contents of the letter -- I have a motion to make as soon as this witness leaves the stand on why they should be allowed into evidence but that's --
[*No they're not. They may be 'proof' of how Nickel thinks and feels, but they are not proof of any unlawful actions.]
[In the very next line in the transcript, the stenographer has: "Q. Okay. Anyway, you did turn..." That would seem to denote (as is the case elsewhere) that Torncello was asking the question. However, that makes no sense, given that Torncello was clearly being cut off by someone -- clearly, by Czajka himself. Therefore, we denote him as being the one asking the following question:]
(CZAJKA) Okay. Anyway, you did turn them over to a superior?
(SCOSTAK) Yes, I had.
(TORNCELLO) Thank you. No further questions, Your Honor.
(CZAJKA) Mr. __________ [DC]?
(DC) I just have a few questions. Good morning, ma'am. [34]
(SCOSTAK) Good morning.
(DC) You described some pictures that were contained in these letters?
(SCOSTAK) That's correct.
(DC) And all of those pictures, is it not a fact that everyone was fully clothed?
(SCOSTAK) That's correct.
(DC) There was no depiction of any sexual content in any of the pictures?
(SCOSTAK) No, there was not.
(DC) I have no further questions.
(TORNCELLO) [DC] just asked you about the photographs contained in the letter, that is remarkable* to you, so that you called your superior?
[*At the top of trans. pg. 31, Torncello asked a virtually identical question re: what was 'remarkable.' DC's objection to that was sustained; but Torncello persists in this anyway.]
(DC) Objection as to --
(CZAJKA) Sustained.
(TORNCELLO) Did you notice anything about the pictures that [DC] was talking about?
(SCOSTAK) Yes, what I found unusual, was that [35] all of the photos --
(DC) Objection.
(CZAJKA) Sustained..
(TORNCELLO) Not unusual, what did you see, in the pictures?
(SCOSTAK) I saw pictures of little boys, they were all of young boys.
(TORNCELLO) Okay. [DC] also asked you about anything sexual of nature, in the pictures on the back of the pictures, was there anything of note, that was sexual?
(SCOSTAK) In my opinion, yes.
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Well, without your opinion, what do you think?*
[*Yet again, Torncello is persisting with a question, an objection regarding which was sustained.]
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) You know what judge, no further questions.
(CZAJKA) Okay. Step down. [36]
(TORNCELLO) Can I make my motion now? I have something that normally if there was a jury I would have done in limine, but I want to talk about the admissibility and the authenticity.
(CZAJKA) Within the document is there anything, is there anything within the document that deals with [DC's] objection?
(TORNCELLO) Yes.
(CZAJKA) Then I'll reserve and I'll look at them later. Call another witness.
(TORNCELLO) Okay. That's my point, thank you very much.
(CZAJKA) I'll give you both an opportunity to argue in support of your respective positions after I look at the evidence.
(TORNCELLO) Just so I am sure, I want -- I was going to put them in through Ron Bates. Do you want me to hold off on that until we have a break and argue about it?
(CZAJKA) Do whatever you want. [37]
(TORNCELLO) Okay.
(CZAJKA) It's your case.
(DC) Could I respectfully request that that witness be available in case -- for further questions of her.
(CZAJKA) The witness that was just here?
(TORNCELLO) Do you want her to stay around for the day?
(CZAJKA) She's at the jail.
(TORNCELLO) Yes.
(CZAJKA) Okay.
(TORNCELLO) Good morning. Can you state your name for the Court, please?
(BATES) Ronald J. Bates.
(TORNCELLO) What's your occupation?
(BATES) Law enforcement. [38]
(TORNCELLO) Who do you work for?
(BATES) Albany County Sheriff's Department.
(TORNCELLO) How long have you worked for the Albany County Sheriff's Department?
(BATES) 11 years.
(TORNCELLO) Can you give us an idea of some of your duties and responsibilities, as an investigator with the Sheriff's Department?
(BATES) I am currently assigned to the Criminal Investigations Unit as an investigator which we oversee and handle most felony cases that we respond to.
(TORNCELLO) Okay. Okay. And I take it you have some training in that field?
(BATES) Yes.
(TORNCELLO) Now, I want to bring your attention back to August 3, 2000, did you become involved in an investigation, of Jeffrey Nickel?
(BATES) Yes.
(TORNCELLO) How did you become involved in that investigation?
(BATES) I was notified through the chain of command, that there was approximately four letters received. [39]
(DC) I'm going to object to this, there has been no identification.
(CZAJKA) What was the question? You were assigned?*
[* Note that Czajka issues no ruling -- 'effective' or otherwise -- on this DC objection.]
(BATES) Yes.
(TORNCELLO) Okay. What did you do, when you became involved in the investigation?
(BATES) I conducted an interview, of Claudette Scostak at the Albany County Correctional Facility.
(TORNCELLO) Did she turn over to you any items of evidence?
(BATES) Not at that time, no.
(TORNCELLO) Okay. Did you see any items of evidence at that time?
(BATES) Yes.
(TORNCELLO) What did you see?
(BATES) I saw four letters.
(TORNCELLO) Okay. Did you look in the envelopes? Did you see them?
(BATES) No.
(TORNCELLO) Okay. Did you look at any of the photographs?
(BATES) No. [40]
(TORNCELLO) Okay. At any time, did you look at envelopes or see any photographs?
(BATES) Yes.
(TORNCELLO) All right. Now, when you read them, did you identify some children, that were mentioned in the letters?
(BATES) Yes.
(DC) Objection.
(CZAJKA) I don't know what you mean by that. I don't know -- did you identify?
(TORNCELLO) Did you learn the names or identity of the People, that were talked about or written about in the letters?
(DC) Your Honor, he just said that he didn't read the letters at that time.
(CZAJKA) Sustained.
(TORNCELLO) I am asking him, I don't know.*
[*The objection was just sustained; but Torncello persists in this anyway, with little or no rebuke from Czajka.]
(TORNCELLO) Okay. At some point in time did you identify, or did you locate, some young boys? [41]
(BATES) Yes.
(TORNCELLO) How did you do that?
(BATES) Through an investigation based on those letters.
(DC) Objection.
(CZAJKA) Sustained.
(BATES) Names in the letters.
(CZAJKA) Sustained.
(TORNCELLO) You located some young boys, right?
(BATES) Yes.
(TORNCELLO) Did you interview the young boys?
(BATES) Yes.
(TORNCELLO) Who did you interview?
(BATES) The first young boy I interviewed was a boy by the name of [ 'Arthur' ].
(TORNCELLO) If you recall, where did you meet ['Arthur']?
(BATES) At [names group home].
(TORNCELLO) What's [ ]?
(BATES) It's a group home for children, I believe.
(TORNCELLO) And do you recall the day you met ['Arthur']?
(BATES) August 7th.
(TORNCELLO) How did you learn, ['Arthur's'] name? [42]
(DC) Objection.
(CZAJKA) Sustained, hearsay. It would require reference to hearsay. Objection sustained.
(TORNCELLO) Without regard to how, you learned ['Arthur's'] name, right?
(BATES) Yes.
(TORNCELLO) You found out where he lives?
(BATES) Yes.
(TORNCELLO) And you went to interview him?
(BATES) Yes.
(TORNCELLO) Okay. Did you get some informtation from ['Arthur']?
(BATES) Yes.
(TORNCELLO) Now, what information did you get from ['Arthur']?
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Was there any other individuals, any other boys, that you interviewed?
(BATES) I was present during one other interview of a boy.
(TORNCELLO) Who was that?
(BATES ) ['Chris'].
(TORNCELLO) ['Chris']? And where and when did [43] you meet ['Chris']?
(BATES) It was after August 7th; I don't recall the contact date. It was at the patrol station in Voorheesville.
(TORNCELLO) You were present for that interview?
(BATES) Yes, I was present.
(TORNCELLO) Do you know how old ['Chris'] is?
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Do you know how old ['Arthur'] is?*
[*This too flouts Czajka's above ruling: If Torncello can't ask if Bates knows how old 'Chris' is, he obviously cannot ask the exact same question re: 'Arthur.']
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Do you know how old Jeffrey Nickel is?
(BATES) Not exactly.
(DC) Objection.
(TORNCELLO) Okay. At some point in time -- I've got to show he's over eighteen judge.
(CZAJKA) All right. Is there a stipulation to that effect?
(DC) No, sir.
(CZAJKA) In any event, your witness already answered the question. He didn't know any way. Go ahead.
(TORNCELLO) All right. Did you ever know how old [44] Mr. Nickel was?
(BATES) Yes.
(TORNCELLO) Will looking at some notes refresh your memory about the age of Jeff Nickel?
(BATES) An arrest report, would.
(TORNCELLO) Okay. Okay. I will hand you what's been marked as People's "6" for identification. Does looking at that document help refresh your memory, about the age of Jeff Nickel?
(BATES) Thirty-two.
(TORNCELLO) Now?
(CZAJKA) What was the source of your information, Investigator?
(BATES) The arrest report.
(CZAJKA) Well, the arrest report helped you remember what it is, what's the source of your information as to how old defendant is? [45]
(BATES) Based upon independent information.
(CZAJKA) Who told you?
(BATES) I don't recall.
(TORNCELLO) Did the defendant tell you?
(DC) Move to strike, leading.
(CZAJKA) It is stricken.
(TORNCELLO) You don't remember?
(BATES) No.
(TORNCELLO) Okay. Now, did you ever meet, excuse me, when did you meet Jeff Nickel?
(BATES) August 7th.
(TORNCELLO) All right. 2000?
(BATES) Yes.
(TORNCELLO) And where did you first see Jeffrey Nickel?
(BATES) At his residence in the Town of Bethlehem.
(TORNCELLO) What's the address, do you recall?
(BATES) I believe 26 Lansing Drive.
(TORNCELLO) Okay. And that's in the Town of Bethlehem, correct?
(BATES) Yes.
(TORNCELLO) Is that also Delmar?
(BATES) Yes. [46]
(TORNCELLO) That's in Albany County, New York State?
(BATES) Yes.
(TORNCELLO) Now, about when did you see him? What time of day?
(BATES) Late afternoon.
(TORNCELLO) And what was the purpose of going there to see him?
(BATES) I wanted to speak with him about the investigation, of possible abuse of children.
(TORNCELLO) Okay. What happened? Did you talk to him there?
(BATES) Yes.
(TORNCELLO) What if anything did he say?
(BATES) I asked him if he could accompany us and meet us at one of our stations, and talk about a complaint that had been made against him concerning children.
(TORNCELLO) Okay. Did he agree to that?
(BATES) Yes.
(TORNCELLO) And?
(DC) Objection.
(CZAJKA) Leading, leading.
(TORNCELLO) Leading? What happened next?
(BATES) He agreed to follow us down to the [47] Albany County Courthouse,* here, where we have a station, where we can discuss the complaint.
[*This implies Nickel knew where he was following them to -- he did not.]
(TORNCELLO) Was he under arrest at that time?
(BATES) No.
(DC) Objection.
(CZAJKA) Are you withdrawing the question? Well, [DC] made an objection, you started asking a new question so I don't know if you want me to rule or --
(TORNCELLO) You can rule.
(CZAJKA) Sustained.
(TORNCELLO) How did he get from his home to your office here in this building?
(BATES) He drove himself.
(TORNCELLO) In whose car?
(BATES) I believe it was his own car?
(TORNCELLO) How did you get from his house to your office here?
(BATES) In my car.
(TORNCELLO) Did anyone accompany Mr. Nickel?
(BATES) No.
(TORNCELLO) Okay. Now, when you arrived here, what happened?
(BATES) We arrived here, met with at that time [48] the Senior Investigator, Mark DeFrancesco.
(TORNCELLO) Who is he?
(BATES) He's an inspector currently with our department. At that time, he was a Senior Investigator with the Criminal Investigations Unit and the supervisor, who I work for.
(TORNCELLO) Okay. Where did you meet?
(BATES) Downstairs in the basement level, chief's office.
(TORNCELLO) Did Mr. Nickel, did he show up that day?
(BATES) Yes.
(TORNCELLO) Okay. And was he introduced* to Investigator DeFrancesco?
[*The use of this word is extremely misleading. Nickel was never told any of these peoples' names -- or even that they were from the Sheriff's office -- until much later.]
(BATES) Yes.
(TORNCELLO) Inspector. And did they -- where did they go?
(BATES) The chief's office.
(TORNCELLO) Okay. And can you describe the chief's office, what is that?
(BATES) It's on the basement level, you walk in and there's currently three secretary’s desks, as you walk in the main door of the chief's office within that, through two doors to the chief's office outside and then [49] there's the three secretary's desks.
(TORNCELLO) And did he sit down? Do you know what happened between the defendant, and Inspector DeFrancesco?
(BATES) Yes.
(TORNCELLO) What happened?
(BATES) (No response).
(TORNCELLO) What happened, if you know?
(BATES) They introduced themselves, * sat down, next to one of the desks, Senior Investigator DeFrancesco and himself, Mr. Nickel, they began a conversation, and at that time, I believe I may have stepped out.
[*At no point did DeFrancesco either say his name, or that he was with the Sheriff's office.]
(TORNCELLO) Were you present, the entire time that they were together?
(BATES) No.
(TORNCELLO) Were you present some of the time that they were together?
(BATES) Yes.
(TORNCELLO) And what role did you play, if any, in that I guess interview?
(BATES) I wasn't asking any questions. I was basically coming in and out. If the Senior Investigator had a question about one of the children, he could come and ask me for things [50] of that nature.
(TORNCELLO) Do you recall what day this was?
(BATES) August 7th.
(TORNCELLO) Okay. Now, let me mark something else judge. Investigator Bates, I am handing you People's number "7," can you tell us, tell the Court what that is?
(BATES) It's a standardized form that we use, it's a search and seizure waiver.
(TORNCELLO) Is that an original or is this a photocopy?
(BATES) It appears to be the original.
(TORNCELLO) Okay. And tell me what that -- what did that contain?
(BATES) It contains the name Jeff Nickel, consenting to the search of his residence.*
[*'Consenting' is not nearly as accurate as 'capitulating'. DeFrancesco had told Nickel that if he did not sign, they would 'tear the house apart,' which might cause his mother 'to have a heart attack.' Moreover, DeFrancesco showed Nickel the search warrant they had anyway. (The reason law enforcement would still prefer a signed consent to search is just in case they don't abide by the letter of the warrant restrictions -- such as when the search is to be conducted, and what items may be taken. In fact, the warrant said the search must be completed by 9pm; as it turned out, it went a bit beyond that.)]
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Okay. Was that document signed by Jeff Nickel? [51]
(BATES) Yes.
(TORNCELLO) All right. And do you recognize any other signatures signed by your or another member of the Albany County Sheriff's Department?
(BATES) It is signed by two other members of our department, Mark J. DeFrancesco and William Riley.
(TORNCELLO) And pursuant to that document, did you search his house?
(BATES) Yes.
(TORNCELLO) When did you do that?
(BATES) August 7th.
(TORNCELLO) Let me interrupt and just say that's the original, right?
(BATES) Yes.
(TORNCELLO) Does it appear to be in similar condition as when it was completed in August of 2000?
(BATES) Yes.
(TORNCELLO) I'd offer it, judge.
(DC) Objection, no proper foundation laid.
(CZAJKA) What's the relevance [52] of it?
(TORNCELLO) Judge, I just want to make a record, that there was a consent to search, and that, there was --
(CZAJKA) That's for the trier of fact as well.
(TORNCELLO) I want to do it just for the record so that -- that shows that the People didn't barge into his house and start taking things all --
(CZAJKA) Okay. Sustained.
(TORNCELLO) Now, at some point in time did you leave this building, and go to Mr. Nickel's house?
(BATES) Yes.
(TORNCELLO) You said that was 36 Lansing Drive?
(BATES) Yes.
(TORNCELLO) When you got there, what did you do and what did other members of the department do?
(BATES) We conducted a search of the residence.
(TORNCELLO) Okay. Did you find anything?
(BATES) Yes.
(TORNCELLO) All right. Let [53] me judge if I can have a second? There's some evidence out in the hallway and of the investigator can step down for a minute, please?
(CZAJKA) Attorneys come see me up in 201 and we'll take a break for a few minutes.
---
(TORNCELLO) Inspector were you present, when the search was executed at Jeffrey Nickel's home?
(BATES) Yes.
(TORNCELLO) Okay. And were some items recovered at that place?
(BATES) Yes.
(TORNCELLO) And were they well where were they kept? What did you do with the evidence that you recovered?
(DC) Objection to the term recovered.
(CZAJKA) Overruled. [54]
(BATES) We secured it and we have a large area patrol station which is designated for evidence, a majority of that -- they have a small safe which we keep in the CIU office that was kept locked.
(TORNCELLO) Were you in contact with the Colonie Police Department?
(BATES) Yes.
(TORNCELLO) And with whom were you in contact at the Colonie Police Department?
(BATES) Detective Steve Tanski.
(TORNCELLO) Why were you in contact with Steve Tanski?
(BATES) For an examination to be conducted on a -- for examination of a personal computer.
(TORNCELLO) Was a computer one of the items that was seized as evidence?
(BATES) Yes.
(TORNCELLO) Okay. Was that turned over to Detective Tanski?
(BATES) Yes, that as well as several computer disks, and all the components attached to the computer. [55]
(TORNCELLO) Thanks. I'll show you some items that I had previously marked and tell us what they are? This is People's number "8" for identification, can you tell us what that is please?
(BATES) These are several magazines titled, YX magazine.*
[*Actually, they were XY magazines -- 100% legal (and not even pornographic) gay magazines, which had nothing to do with the charges Nickel was on trial for.]
(TORNCELLO) Okay. Where were they found?
(BATES) At the residence of Jeff Nickel.
(TORNCELLO) Okay. Judge, do you want to sort all at once or one at a time?
(DC) I would like to object to this, on the basis the item itself has not even been admitted into evidence yet. The material offered here, item number "8", as I understand it, would not have any bearing, on any of the counts in this indictment.
(CZAJKA) Well, he hasn't moved them into evidence yet, he's just identifying them now. Why don't we show the witness, [56] the group of exhibits, collectively, if he could identify them collectively and then make your motion, and I'll hear from both of you.
(TORNCELLO) Okay. That's People's "8", put it on the floor. This is People's number "9", can you tell me just generally what that?
(BATES) Black and white photographs.
(CZAJKA) As I said, without telling me what they are, 8, 9, whatever.
(TORNCELLO) Ten.
(CZAJKA) Where if anywhere did these exhibits come from?
(BATES) The residence of Jeff Nickel, as well item ten.
(TORNCELLO) Okay? [57]
(CZAJKA) As I said collectively, show them all. Hand them all over to him to identify them by number.
(BATES) Item 11 as well, twelve item twelve, item 13, fourteen, fifteen, 17, eighteen, and sixteen.
(CZAJKA) These all were seized from the home of the defendant?
(BATES) Yes, sir.
(CZAJKA) Go ahead Mr. Torncello.
(TORNCELLO) Thank You. They were secured as evidence?
(BATES) Yes.
(TORNCELLO) And I guess they were kept at your barracks in Voorheesville, is that right?
(BATES) Right.
(TORNCELLO) Judge, I would offer those items, into evidence.
(CZAJKA) You're going to offer them now? [58]
(TORNCELLO) I am going to offer them now.
(CZAJKA) I misunderstood. I thought you were going to put them all in later. Well, for the record, we'll have him identify what exhibit one is and I'll hear your respective arguments.
(TORNCELLO) Go forward and identify what each item of those items is.
(BATES) Item sixteen.
(CZAJKA) Start with 8 for chronological order please, chronological order. Item 8 is the XY magazines.
(DC) Your Honor, I would object to those being offered into evidence.
(CZAJKA) I'll hear your objections all together, or all at once if you have different arguments or different exhibit, you can make the arguments one after another. Go ahead.
(BATES) Item 9 is photographs and pictures depicting young boys, item 10 is photographs pictures and white envelopes, item 11 is a photo collage of young boys on the back of a [59] large map, item twelve is a green camera case, 35 millimeter camera inside, as well as a telephoto lens, 13 are personal letters, several about the topic of a sexual preference.*
[* None of these items are unlawful; nor do they relate to any of the actual charged acts in this case.]
(TORNCELLO) Identify the -- can you identify the letters, or not?
(DC) Object to any testimony being given about the letters; they are not in evidence.
(TORNCELLO) Just so we know what --
(DC) He only identified them as letters.
(CZAJKA) Letters are enough for purposes of the record so we can tell what they are. That -- was that was 13?
(BATES) Yes.
(CZAJKA) What's fourteen investigator?
(BATES) Fourteen is, three male pornographic magazines.*
[*Yeah -- 100% legal gay porn magazines.]
(CZAJKA) Without -- I don't want you to describe the different items just [60] tell me what they are, please?
(BATES) Fifteen is several papers and pamphlets.
(CZAJKA) In a grocery bag?
(BATES) Yes.
(CZAJKA) All right.
(BATES) Item sixteen is a book titled curiosity book, 17 are several photographs and photocopies of young boys of a sexual nature swimming.*
[* What the heck does that mean? If the boys are just swimming, how is that 'of a sexual nature'? In any event, again, these items are 100% legal, and do not relate -- in any way -- to any of the actual acts Nickel was charged with.]
(DC) Objection.
(CZAJKA) Investigator, please do what I asked.*
[*Note that Czajka did not actually rule on defense counsel's objection.]
(BATES) Item eighteen, two NAMBLA magazines and E-mail.*
[*Again, 100% lawful; nothing to do with alleged criminal acts.]
(CZAJKA) Okay.
(BATES) And two written letters.
(CZAJKA) Go ahead Mr. Torncello.
(TORNCELLO) Thank you. Well under several theories, judge, at this time I would offer those, into evidence, for the People if you would like me to make argument on each and every one, I will. If not, just on a whole, I'd offer those as evidence. [61]
(CZAJKA) [DC]?
(DC) Objection, Your Honor, to any one and certainly to all of them. Within the 7 counts of this indictment, none of this would have any relevance to the charges of which the defendant is accused here, There is, by separate indictment in another Court, by separate count, an issue where --
(CZAJKA) None of these exhibits are contraband or the subject of another indictment, are they?
(TORNCELLO) No.
(CZAJKA) I'm going to reserve; you want them in evidence to prove sexual gratification?
(TORNCELLO) Yes.
(CZAJKA) I'm going to reserve.
(TORNCELLO) Okay. Not entirely. There's a camera, that is in there, Your Honor, that's the subject of count one and count three, which is a photograph.*
[* Count one alleges oral sex; count 3 is allegedly a photo of that. And yet, no actual negative or print of this photo was ever found, for the simple reason that Nickel did not take such a photo -- nor did he engage in oral sex with 'Arthur' (or any other boy). Moreover, the adult depicted in the photo is not Nickel (see photography expert); nor is the child depicted in the photo 'Arthur' (see sexual photograph).]
(CZAJKA) That's exhibit number 12? [62]
(TORNCELLO) In addition there are letters from Matthew Peeters to Jeff Nickel, and that is sort of a tie up.
(CZAJKA) Who is Matthew Peeters?
(TORNCELLO) The inmate at the Albany County Jail.
(CZAJKA) All right.
(TORNCELLO) To tie up and authenticate one through four which has been identified, those letters.
(CZAJKA) All right.
(TORNCELLO) Other than that the sexual gratification.
(CZAJKA) Did you wish to be heard further [DC]?
(DC) No, I don't believe so Your Honor.
(CZAJKA) Okay. I'll reserve.
(TORNCELLO) Okay. I have a few more items, are they marked yet or not? I'm showing you [63] what's been marked as People's 19, 20, and 21, can you just identify each of those please?
(BATES) Item 19 is a cannon printer fax, and scanner combination, all in one.
(TORNCELLO) Can you tell the Court where you found that?
(BATES) At the residence of Jeff Nickel.
(TORNCELLO) Okay. 20?
(BATES) Is a CPU home computer, which is taken from the residence of Jeffrey Nickel.
(TORNCELLO) 21?
(BATES) 21 is a box of diskettes, keyboard, a security device hook up to that computer, and a computer camera mount to your computer.
(TORNCELLO) Okay. Thank you very much. I'll offer those as evidence.
(CZAJKA) [DC]?
(DC) Again a similar objection, Your Honor, that I had to the other items marked for identification. Items 8 through eighteen, same objection to these three items.
(CZAJKA) Why is it that you think these are relevant? [64]
(TORNCELLO) Again judge, to sort of paint the story, there are computer images.
(CZAJKA) It's apparent from the indictment; but why are they relevant? Explain? For the record?
(TORNCELLO) Count three, in this indictment, and count 1 of this indictment, alleges a photo and image of the defendant engaged in the act of sodomy, that was found on his computer. I wanted to inform the Court, that he has a computer, that he has scanner, that he has disks, that he has the technology and capability of taking such a photo, with the camera, that's why I put the camera in, scanning it on to his computer and saving it on a disk, that's my point judge.
(CZAJKA) You say in the indictment, number 3?
(TORNCELLO) I believe it's count three.
(CZAJKA) The photograph that came from the computer was that photograph, which is marked? [65]
(TORNCELLO) As People's number five for identification, only.
(CZAJKA) Was that photograph -- will there be a witness that testifies that that photograph was actually seized in the form it is now or some other form?
(TORNCELLO) Seized in some other form on a disk or the hard drive and then printed out on a piece of paper.
(CZAJKA) Well, no witness testified to that as of yet.
(TORNCELLO) That is correct.
(CZAJKA) I'll reserve on those three exhibits as well.
(TORNCELLO) Okay. Judge I don't think I have any further questions; can I check my notes for a second?
(CZAJKA) Yes.
(TORNCELLO) At some point in time that day, was Mr. Nickel arrested?
(BATES) Yes.
(TORNCELLO) Okay. Was he handcuffed?
(BATES) No.
(TORNCELLO) Why?
(BATES) He had a cast on. [66]
(TORNCELLO) Do you see Jeffrey Nickel in the courtroom today?
(BATES) Yes.
(TORNCELLO) Could you point to Jeff Nickel?
(BATES) Sitting next to [DC]. (Indicating).
(TORNCELLO) Your Honor, if the record could reflect that the witness identified the defendant?
(BATES) Yes.
(TORNCELLO) Thank you. No further questions. Thank you.
(DC) Good morning Investigator Bates.
(BATES) Good morning.
(DC) I would like to take you back in time, if I may, to the 3rd of August, of last year, and ask you if there came a time when you met on that day with a Miss Scostak of the Albany County Jail?
(BATES) Yes.
(DC) And she advised you that she had four letters, I believe you said, and some [67] photographs at that time?
(BATES) Yes.
(DC) And I believe you testified that you did not look at the photographs and did you not look at the letters, is that correct?
(BATES) Correct.
(DC) And after she made that advisement of you that she had that, did you inquire with her, whether she had looked at the letters or the photographs?
(BATES) Yes.
(DC) Did you ask her as to whether or not there was anything in the photographs, that were, illegal?
(BATES) Yes.
(DC) And did she respond to you?
(BATES) Yes.
(DC) What did she say?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) You chose not to look at them yourself?
(BATES) Correct.
(DC) Either at the letters or the photographs? [68]
(BATES) Correct.
(DC) Did there come a time then that you proceeded to secure a search warrant?
(BATES) Yes.
(DC) And did you go before a judge requesting a search warrant?
(BATES) Yes.
(TORNCELLO) Object to this line judge.
(CZAJKA) Sustained, well, unless I can imagine there might be some reference to some inconsistent statement in the application or I'll allow it subject to connection. Objection overruled. * Did you apply for a search warrant investigator?
[* As we see in several other trials presided over by Judge Paul Czajka, his instinctive reflex is to rule in favor of the prosecution; but then he has to backtrack, because he realizes he's made a mistake that could help the defendant on appeal.]
(BATES) Yes.
(DC) At the time you applied for the search warrant, had you looked at letters or the photographs?
(BATES) No.
(DC) When did you apply for the search warrant?
(BATES) August 4th. [69]
(DC) And in that search warrant did you secure an affidavit from Mrs. Scostak?
(BATES) Yes.
(DC) When you went before the Court for a search warrant, was it to search those four letters and photographs?
(BATES) Yes, including those.
(DC) But they had already been looked at, hadn't they?
(TORNCELLO) Objection judge.
(CZAJKA) Sustained.
(DC) I believe you told us that you went to interview a boy named ['Arthur'], is that correct?
(BATES) Correct.
(DC) When did you do that?
(BATES) August 7th.
(DC) And did that interview take place at [a certain group home]?
(BATES) Yes.
(DC) And did you take certain notes of that interview, Investigator Bates?
(BATES) Yes.
(DC) And do you have those notes today? [70]
(BATES) No, I don't.
(DC) Would it be correct to say in the taking of those notes there was never any questions indicated of what you asked, only answers, is that correct?
(BATES) It could be, I don't recall.
(DC) Well, would you like to look at them maybe to review those notes?
(BATES) If I can?
(CZAJKA) Is that your only copy?
(TORNCELLO) (Nod nod).
(DC) Excuse me, the notes that were taken on the interview of ['Arthur'], they were taken by you, were they?
(BATES) I believe so.
(DC) I'd just like to mark these for identification. Mr. Bates, I am going to hand you to Defendant's "A", and just ask you to examine that for the purpose of refreshing your [71] recollection. Have you had enough time to look at that have you?
(BATES) Yes.
(DC) I would like to ask you in that notation of that interview with ['Arthur'], there were no questions posed in your notes, are there? They're just a scattering of answers or presumed answers, is that correct?
(BATES) Correct.
(DC) Now, when you went up there to visit with this ['Arthur'], was there another investigator with you?
(BATES) Yes.
(DC) From the Sheriff's Department?
(BATES) Yes.
(DC) Did you have any social worker, any staff members from the school, any medical personnel, anyone like that with you?
(BATES) Not during the interview itself, no.
(DC) All right. Now when you got there for the interview, you identified yourselves, I'm sure to this ['Arthur']?
(BATES) Yes.
(DC) And did he respond to you when you got [72] there that he believed that you were there because of a slapping incident?
(TORNCELLO) Objection.
(DC) That was his early and first response to you?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) I don't remember.
(DC) Do you remember that at all coming up in that interview?
(BATES) It may have.
(DC) Do you recall it?
(BATES) No.
(DC) Nothing about a slap?
(BATES) It may have come up; I just don't remember any particulars about it.
(DC) Well, isn't it a fact, that when you got there, and you first started to speak with ['Arthur'], that he thought you were there because of a slapping incident that he had reported?
(TORNCELLO) Objection.
(DC) Isn't that correct?
(CZAJKA) Overruled.
(BATES) It could be; I simply just don't [73] remember.
(DC) Wouldn't that be something that you should have made some memory or note about?
(BATES) Well, if it's not in the notes, I didn't make a note of it.
(DC) Did you have a picture with you that day?
(BATES) I believe so, I believe so.
(DC) And is that a picture the one that is or has been marked for identification, here, as number five?*
[*This would appear to be the sexual photograph that was central to the case.]
(TORNCELLO) Five is not in evidence, I have not introduced it. I just pre-marked it. Would you like me to show it?
(CZAJKA) Give it to Mr. Bates please.
(DC) I'm just going to show you number five, marked for identification, but by the People, and ask you if that's refreshing your recollection, as to the photographs that you had with you?
(BATES) No, I didn't have this photograph with me.
(DC) At any time, Officer Bates, did you or [74] did anyone else, any other officer in your presence, ever show this photograph, to ['Arthur'], that's been identified as number five?
(BATES) Yes.
(DC) And when and where did you show this photograph to ['Arthur']?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) It was here at the Albany County Court House, myself, Assistant D.A. Ronnie Dumas the day of the Grand Jury, the first Grand Jury.
(DC) The photograph that you showed to ['Arthur'] back on the 6th of August what was that photograph if you recall?
(CZAJKA) I don't understand. What's the date of the Grand Jury presentation?
(DC) The 18th, I believe.
(CZAJKA) You're talking about a different date?
(DC) Yes, sir.
(CZAJKA) Well, did you show a photograph to the boy on the 7th?
(BATES) Not that I can remember, Your Honor.
(CZAJKA) All right. [75]
(DC) Now, had you had any specialized training, Mr. Bates, in conducting an interview of a young child?
(BATES) Yes.
(DC) Where did you receive that training?
(BATES) It was a brief overview of a training seminar conducted at the New York State Police Academy, titled sex offense seminar.
(DC) It was a brief one did you say?
(BATES) It covered several topics. It didn't focus in on conducting an interview. It touched on several topics.
(DC) Did they alert you at that session, not to ask, for example, direct questions of the child?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did they talk about blind interviews?
(BATES) No.
(DC) Are you familiar with the term, blind interview, in dealing with a young child?
(BATES) No.
(TORNCELLO) Objection Judge. I don't know what that -- I don't know.
(CZAJKA) I didn't hear the [76] question.
(The preceding question was read back.)
(TORNCELLO) Thank you.
(DC) Are you familiar with that term?
(BATES) No.
(DC) By the time -- isn't it a fact that by the time you went to visit with this ['Arthur'] at [the group home], you had already been on this investigation, at least four days, had you not?
(BATES) Correct.
(DC) And can I assume within that four day period you had developed a mind set, one way or the other, with respect to the investigation, hadn't you?
(BATES) No, not really.
(DC) Did you when you interviewed ['Arthur'], did you think it may be wise to have it video taped?
(BATES) We don't have that capability.*
[*Really? In the year 2000, the Albany County Sheriff's Department didn't have 'the capability' to videotape interviews?]
(DC) Does the Sheriff's Department of Albany County -- it doesn't have a video or tape -- [77]
(BATES) They're available tapes; it's not common practice.*
[* Oh, so you actually do have the capability to videotape.]
(DC) Well, wouldn't it have seemed to be at that time, and didn't the educate you, that it -- that it is a wise tool in interviews of children particularly the initial interview?
(BATES) I have heard opinions, I haven't heard fact or anyone advised me.
(DC) Could we agree if we had a live individual or interview, it would express fully and truthfully, just how that interview was conducted, wouldn't it?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did you make any attempt to tape the interview, to use some sort of tape recording to preserve what if any questions were asked, how they were asked, what if any answers were given and how it was given?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) No.
(DC) Again in your courses that you've taken with these young complainants, haven't you heard this method suggested? [78]
(BATES) Yes.
(DC) Wouldn't this be a way of keeping it in the open, out in the open, so that there could never be any criticism of what went on or how it went on?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did you ever, Investigator Bates, ask for a medical examination of ['Arthur']?
(BATES) Yes.
(DC) And was such a medical exam conducted?
(BATES) Yes.
(DC) Your Honor, if it please the Court, I was never provided and never made aware of any medical exam of this boy before, and this comes quite honestly, as a complete shock to me.*
[* This is a Brady -- or, 'discovery' -- violation of the first order. Clearly, this is potentially (highly) exculpatory evidence. And the prosecution side has obviously attempted to bury it. (Had it tended to show Nickel's guilt [which it did not], the results of this medical exam would have been front and center in the prosecution's case.)]
(TORNCELLO) I'm not aware of it either.*
[*Really? You're prosecuting a child sexual abuse case, and you didn't think to ask if a medical exam was performed? Even assuming Torncello was unaware of this exam, the law is crystal clear: He is presumed to have known about it. Thus, ignorance is no excuse. Defense counsel should have immediately moved for a mistrial.]
(DC) I would certainly find it helpful, Your Honor, to be able to review, any medical reports.*
[*'Helpful'? That's quite the understatement. These medical exam results could absolutely annihilate the case against Nickel. Here, defense counsel is being 'polite' to the point of obsequiousness; what he should be is hopping mad at this grotesque exemplar of prosecutorial misconduct.]
(CZAJKA) Do you have any reports?
(TORNCELLO) I'm sorry? [79]
(CZAJKA) Do you have any reports, any notes from the doctors?
(TORNCELLO) I don't think that one was completed.*
[* What the heck does that mean? Czajka just asked Torncello if he had any medical reports or notes; Torncello responded with a non-sequitor.]
(CZAJKA) All right.* I'll give you an opportunity to make whatever motions that are appropriate. Continue your cross-examination.
[*What do you mean 'all right'? You know damn well that was a flagrant discovery violation. So, why aren't you excoriating the prosecutor over this? Is it -- perhaps -- because you're functioning as the prosecutor you once were (and would be again)?]
(DC) Do you recall the name of that doctor?
(BATES) No.
(DC) Investigator Bates?
(BATES) No.
(DC) Do you recall when that examination was conducted?
(BATES) No.
(DC) Do you recall where it was conducted?
(BATES) It was, I believe, set up by [the group home].
(DC) And were you present or -- strike that. Have you talked to the people from [the group home] throughout this investigation, from time to time throughout this investigation?
(BATES) Yes.
(DC) To keep yourself abreast and updated [80] on it?
(BATES) Yes.
(DC) Did they report to you, the results of that examination in conversation?
(BATES) Yes.
(DC) And in reporting to you the results of that conversation, did they indicate to you, the particulars of that examination? Did they get into any particulars with you?
(BATES) No.*
[* So, they told you the 'results,' but not the 'particulars'?]
(DC) Did they tell you and I'll hopefully pronounce this correctly, did they tell you whether a culdoscope* was used in any diagnosis?
[*It's actually 'culposcope,' which is an instrument with a camera and light used for internal examinations.]
(BATES) Not that I can recall.
(DC) Did you see any notes or records from the time that you got there at [the group home] as to the questions and the order of the questions that you used for ['Arthur']?
(BATES) No, I don't believe I asked ['Arthur'] any questions, if I had a question for ['Arthur'].
(CZAJKA) Well, the question was, did you keep a record of any questions that you asked. If you didn't keep any was the question, you didn't keep a record. [81]
(BATES) Right.
(DC) Did you ask any questions of ['Arthur'] on the 7th of August, 2000?
(BATES) Not that I remember, no.
(DC) But your name appears on top of the notes. It refers to -- that notes were taken by you, is that correct?
(BATES) Correct.
(DC) So who was asking -- who if anyone was asking questions of ['Arthur'] on that day?
(BATES) Senior Investigator Mark DeFrancesco.
(DC) Did you make any observations as to whether or not Senior Investigator Mark DeFrancesco, was keeping any notes, of the questions he was asking ['Arthur']?
(BATES) No.
(DC) Did you make any observations as to whether Investigator DeFrancesco was keeping any notes on any answers that were given?
(BATES) No.
(DC) To the best of your knowledge, Investigator, did Investigator DeFrancesco have a note pad or pencil in his hands?
(BATES) Correct.*
[* This is non-responsive; defense counsel failed to follow up on this, which meant that it was never conclusively established whether DeFrancesco was taking notes of his own.]
(DC) That was your -- what you were doing, [82] correct?
(BATES) Correct.
(DC) But you only took down answers and no questions?
(BATES) Correct.
(DC) Did it -- did you happen to think at that time, officer, that without the video or without the tape, without the questions that were asked of ['Arthur'], that one day, that this might be looked upon with some suspicion by some --
(TORNCELLO) Objection as to --
(CZAJKA) Sustained.
(DC) This picture for identification that I showed you as number five, had you before the day of the Grand Jury, had you seen that picture before?
(BATES) Yes.
(DC) When did you first see that picture as you best recall?
(BATES) At the Colonie Police Department.
(DC) And when would that be?
(BATES) I don't recall the exact date.
(DC) And who brought that to your attention [83] that particular picture?
(BATES) Detective Tanski.
(DC) Now, he's a member of the Colonie Police Department, is he not?
(BATES) Correct.
(DC) And did Detective Tanski isolate this one photograph and bring it to your attention? Is that what you're telling us?
(BATES) I remember looking at that one image on the computer monitor, okay? His lab, I guess you would call it, so it would be yes.
(DC) But he, I mean Tanski, to your knowledge, had he ever seen the defendant?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Well Tanski is with a completely different Police Department, isn't he?
(BATES) Yes.
(DC) And he was given the job of pulling images off a computer because it's thought he has some expertise in that field, is that right?
(BATES) Yes.
(DC) All right. Now, you were physically present as he's pulling these off? Are you [84] the one that stopped him and said let me look at this one?
(BATES) No.
(DC) Was someone else from your department with you at that time?
(BATES) Yes, I believe there was someone with me; I don't remember who it was.
(DC) Was it that person who said here, let me look at this one?
(CZAJKA) Well, I don't understand what you mean by that? How do you know what to look at without looking? How could he ask that question without looking at it in the first place?*
[*Either Czajka wasn't really paying attention here, or he was trying to help the prosecution get out of the rather awkward position of having to explain precisely how and why that particular photo caught their attention, and how and why they came to think it depicted 'Arthur' and Nickel. (In fact, it depicted neither.) What Bates -- and whatever 'mystery' person was with him at the time -- seemed to have been doing was sifting through lots of pornographic photos, just bound and determined to find at least one that depicted Nickel and one of the alleged victims in this case. They appear to have landed on the one that they felt came 'closest.']
(DC) Well, Your Honor --
(CZAJKA) How could he refer to a particular image, without having seen it? If you've seen it, why would he say let me look at it?* Rephrase your question.
[*Czajka apparently does not understand -- or is pretending not to understand -- the concept of a 'thumbnail' image; i.e., a greatly reduced version of the image which, once clicked on, brings the full-size image up.]
(DC) Thank you, Your Honor. So we are clear, we are talking about People's number five here throughout these questions, okay? And all I'm trying to learn [85] from you officer, is how this particular image, ID'd as number five, popped to the forefront? Tell us how that happened.
(TORNCELLO) Objection judge.
(CZAJKA) If you know? Ifn you know? When you say popped to the forefront, came up on the screen?
(DC) Well, no. I thought he answered one of my earlier questions, Your Honor, I thought he said he wanted to look at that. I thought that was one of his answers to me, so I kind of pre supposed it may, and he was the one that said, hey, let me look at that. There was some, Your Honor, I think --
(CZAJKA) I don't remember that testimony. It may have been, but I don't remember.
(TORNCELLO) Does [DC] want to put it into evidence?
(CZAJKA) Make your objection. The last objection was sustained *; go ahead and ask another question [DC].
[*No, the last objection was not sustained. When Torncello objected just a moment ago, Czajka effectively overruled it by saying to the witness: "if you know?..." Once again, Czajka does not seem to be paying attention here.]
(DC) You're out at the Colonie Police [86] Department, you and another officer whose name you can't remember, and Officer Tanski, as I understand it, is running through a series of pictures that are coming up on the computer screen, that you're looking at with him, is that correct?
(BATES) Correct.
(DC) Is that what was going on? All right. And there were hundreds, were there not, of these images?
(BATES) (No response).
(DC) Let me say a great number, would that be fair to say?
(BATES) There were a number of pictures, but --
(CZAJKA) How many pictures were actually on the screen.
(BATES) Not very many.
(DC) So each time you would go up to a different field of pictures, is that what you mean?
(CZAJKA) A field of pictures? Was each image, was it a single picture on the screen one time or were there --
(BATES) I believe it was just one at a time, [87] but we had to narrow it down to maybe a couple dozen out of a vast amount.*
[*'Narrow it down' based on what, exactly? Defense counsel fails to ask this crucial question. Again, Bates etc. appear to have been bound and determined to 'find' at least one image depicting an alleged victim in this case.]
(DC) So a couple of dozen. So a couple of dozen that were brought up on the computer screen, and it was one picture at a time on the screen?
(BATES) I believe so.
(CZAJKA) Go ahead [DC].*
[*It's unclear why Czajka would say that here. Defense counsel had just asked a question, which Bates answered. Czajka does not seem to have interrupted DC verbally; but perhaps he made some sort of gesture which had this same effect.]
(DC) All right. Now again with respect to People's ID number five, what if anything did you say or what if anything did Detective Tanski say, when that picture came up on the screen?
(BATES) I recognized the people in the photo.*
[* Well, he was wrong; in fact, that photo depicted neither Nickel nor 'Arthur.' For one thing, whereas the boy in the image has brown eyes, 'Arthur's' eyes are blue. And then there's the fact that the defense counsel's photography expert conclusively established that the older person in that photo is not Nickel. But defense counsel does not ask what caused Bates to 'recognize' the people in the photo.]
(DC) All right. And your claim to this recognition would be, you had previously met Mr. Nickel, hadn't you?
(BATES) Yes.
(DC) And you had previously met ['Arthur']?
(BATES) Correct.
(DC) And did you tell us the date that this was done officer?
(BATES) I don't recall the exact date; it was prior to the Grand Jury actually.
(DC) Okay. A few days after, a week [88] before?
(BATES) (No response).
(DC) Sometime after the 7th, but before the 18th, would that be fair to say?
(BATES) Yes.
(DC) All right. Then was it you, because of what you believed to be this recognition, that you more or less singled out this photograph?
(BATES) I'm sorry?
(DC) Was it you, because of what you perceived to be this recognition, that you singled out this photograph?
(BATES) Yes.
(DC) And can we assume safely further that you probably brought that information forward to the DA's office, in some fashion?
(BATES) Yes.
(DC) Hey, I think I recognize a photograph here, would that be fair to say.
(BATES) Yes.
(DC) All right. And now comes the day for the Grand Jury presentment, is that correct?
(BATES) That's correct.
(DC) The 18th of August, 2000? [89]
(BATES) Correct.
(DC) Now you got ['Arthur'] in one of the rooms here in this building, prepping him for Grand Jury, I assume?
(BATES) Correct.
(DC) Were you present during that preparation with Ms. Dumas I think you said?
(BATES) Not during the preparation, no.
(DC) Had you given the picture to Miss Dumas before that preparation?
(BATES) Yes.
(DC) But that day for Grand Jury?
(BATES) I believe so. I don't remember the exact date I gave it to her.
(DC) So we know that sometime between the 7th of August and the 18th, the date of arrest, and the date of presentment to the Grand Jury, without knowing the exact date, you were the one who selected that particular photo because of your belief that you recognize the people in it, and that on the 18th before this child goes into the Grand Jury, this is exhibited to him, correct?
(BATES) Correct.*
[*So, here, the prosecution has done something (potentially very harmful) to 'Arthur' that Nickel wasn't even alleged to have done: show him child pornography. And they didn't have sufficient professionalism, a sense of responsibility, or ethics to first make damn sure he was the boy depicted in it, before exhibiting this to him? Did the prosecution truly see 'Arthur' as a child who needed to be protected in every way possible, or simply as an expendable pawn -- to be used however they saw fit -- in order to 'get' Nickel?]
(DC) And are you the one that exhibited it [90] to him?
(BATES) No.
(DC) Who did, if you know?
(BATES) Miss [Veronica] Dumas [the original prosecutor of the case].
(TORNCELLO) Judge I believe this was the subject of a suppression hearing held and this entire --
(CZAJKA) Well, there's no question outstanding.
(TORNCELLO) I think I guess I would object to the line of questioning and that is -- would be my request.*
[*Object based on what?]
(CZAJKA) I'll consider your objections as you make them. What -- was there some kind of weight determination for trial?
(DC) I don't recall there ever having been.
(CZAJKA) Whatever. I was just wondering. Go ahead. Miss Dumas is no longer with the DA's office, is that correct?
(BATES) To the best of my knowledge.
(DC) Now, again during this preparation, if you know, of this complaining ['Arthur'], [91] complainant, ['Arthur'], was there anyone present when Miss Dumas was talking to him, to your knowledge?
(BATES) Myself.
(DC) Any other members of your department or anyone else?
(BATES) I don't remember other members being there. There may have been ['Arthur's'] -- I believe she would be a social worker or counselor whose name escapes me. She may have been there. I don't remember if she was.
(DC) Amy Hingess?
(BATES) I think that's how you pronounce it; I don't recall. I don't know if she was in the room or not. I know this was around that day.
(DC) Before you interviewed ['Arthur'] at [the group home], did you make any inquiry of the staff there, regarding concerns for his maybe stability or truthfulness? Did you make any sort of background check before you sat down and interviewed ['Arthur']?
(BATES) I am sure I would have.*
[* What kind of mealy-mouthed answer is that? You either inquired about this, or you did not. It seems that Bates is hedging, afraid to admit that he wasn't really interested in 'Arthur's' reputation for veracity at all, given that, inquiring into it would have tended to dull the scent of the hunt.]
(DC) All right. And who would you have [92] made that inquiry of?
(BATES) It would have been one of two people I spoke with, which was either Amy Hingess or I believe she is the administrator.
(DC) O'Donnell?
(BATES) I don't recall the last name; I recall a first name of the Helen as an administrative --
(DC) All right. And did the -- did they share this information with you? Did they share information with you?
(TORNCELLO) Objection, withdraw judge as to that question. I withdraw, apologize.
(DC) Did they share information with you?
(BATES) Yes.
(DC) I would assume that one of your concerns would be, the truthfulness or imagination in dealing with a young child, would it not?
(BATES) Yes.
(DC) Did you make inquiries along those lines?
(BATES) I am sure I would have.
(DC) Well, it would be kind of important; [93] did you take any notes as to what you said or what they said to you?
(BATES) No.
(DC) Do you recall anything you said to them or anything they said to you?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) I don't recall. I recall speaking with -- and I don't recall the content of the conversation of their answers.*
[* Well, that's convenient. He's 'sure [he] would have' inquired into 'Arthur's' reputation for truthfulness etc.; and yet, he cannot recall anything they told him regarding this? That's not credible. The logical conclusion here is that, in fact, Bates was told his reputation for veracity was not very good. After all, had he been told that 'Arthur' was always truthful, it would have helped his case enormously to simply say so here. (And it may have hurt Bates' own credibility if he simply lied about what he was told, in the event that other witnesses said otherwise.)]
(DC) Well, when you went into this room alone, with ['Arthur'], and the other investigator, DeFrancesco, now there's just the three of you there alone, was it you that, or your partner, that asked for that sort of interview?
(BATES) I don't know what you mean by that sort of an interview?
(DC) All right. You're at [the group] home, you talk with the social workers, this Miss Hingess or Mrs. O'Donnell, someone by the name of Helen, now you and your partner go into a room alone with ['Arthur']. Who if anyone made that decision to do that alone? [94]
(BATES) It would have been either myself or my supervisor.
(DC) Did your supervisor have any independent, to your knowledge, have any independent conversation, with the staff at [the group home] before the interview started of ['Arthur']?
(BATES) Not that I can remember.
(DC) You were both present and together all the time while you were there as far as you recall, you and DeFrancesco?
(BATES) Yes, as far as I can recall, we were together.
(DC) Now, do you recall any conversation by a staff member at [the group home] wherein, they indicated to you, in words or substance, that this ['Arthur'], in the past, has made some things op?
(TORNCELLO) Objection.
(DC) Do you recall --
(TORNCELLO) That calls for hearsay, judge.
(CZAJKA) Sustained.*
[*Why did Czajka sustain this objection? He'd just overruled Torncello's immediately prior objection to a question which asked essentially the same thing. Are Czajka's rulings on objections basically arbitrary at this point?]
(DC) Do you feel you have any expertise at all, Mr. Bates, in interviewing, a child complainant?
(BATES) I'm sorry?
(TORNCELLO) Objection, asked and answered. He answered where he went to classes.
(CZAJKA) Well, whether -- the question, the question wasn't asked, nor was it answered, but what difference does it make what his opinion of his own expertise is? It's sustained for that reason.
(DC) The day that ['Arthur'] went before the Grand Jury, did you also talk with him on that day in addition to Mrs. Dumas?
(BATES) I am sure I would have talked to him, yes.
(DC) Did you keep any notes or record of that interview?
(BATES) No.
(DC) Do you know on the day of the Grand Jury was that Miss Dumas the first interview [96] with ['Arthur']?
(BATES) I'm not sure.
(DC) Are you aware as the investigating officer in this case, as to whether she or any other's D.A.'s representatives ever interviewed ['Arthur'] before the day of the Grand Jury presentment?
(BATES) Not that I'm aware of, or can remember, no.
(DC) Did you ever -- did you ever or did any member of your department, ever put ['Arthur'], in a -- in a motor vehicle and drive him anywhere?
(BATES) Yes.
(DC) First was it on more than one occasion or just that one occasion?
(BATES) I recall one.
(DC) All right. Do you recall a date?
(BATES) The day of the Grand Jury.
(DC) And where did you drive him to?
(BATES) The Town of Bethlehem.
(DC) Did you drive him to Lansing Drive?
(BATES) Yes.
(DC) Who else was in the vehicle beside you and ['Arthur'] the day of the Grand Jury when you [97] drove him to Lansing Drive?
(BATES) Investigator Montaleone.
(DC) Was this the first that your department had driven him to that
location?
(BATES) Yes.
(DC) And was the purpose of that driving, to reinforce or to have him, identify a residence?
(BATES) Yes.
(DC) What time of day was that done, officer?
(BATES) I believe it was -- it was in the afternoon. I don't recall the exact time.
(DC) Well, do you recall what time the Grand Jury met that day?
(BATES) No, I seem to recall being a morning Grand Jury, but I'm not
positive.
(DC) Before you drove him, by the Lansing Road address, number 36, had you previously quizzed him, as far as the identification of that residence?
(BATES) Yes.
(DC) Now, how long after you drove him by the Lansing Drive address was it before he testified before the Grand Jury in terms of, [98] was it minutes or hours, whatever it might be?
(BATES) That was after the Grand Jury.
(DC) Was Ms. Dumas with you?
(BATES) No.
(DC) Just you and the other investigator?
(BATES) Yes.
(DC) Did you make inquiry after the Grand Jury, of maybe the way that ['Arthur'] had testified to some questions or answers given before the Grand Jury?
(BATES) I'm sorry?
(DC) Did you make any inquiry or talk with ['Arthur'] after Grand Jury? Did you familiarize yourself with how he testified before the Grand Jury?
(TORNCELLO) Objection.
(CZAJKA) I don't understand what you're asking?
(DC) Do you know whether or not before the Grand Jury there was any description of the house, given by ['Arthur']?
(BATES) Yes.
(DC) Do you know, if you know, if that description -- did he say the house was [99] white?
(TORNCELLO) Objection, he's asking what ['Arthur'] said in the Grand Jury.
(CZAJKA) Is that what you're asking [DC]? What ['Arthur'] said to him with respect to the description of the house?
(TORNCELLO) Objection.*
[*Why is Torncello making an objection when Czajka is asking a question?]
(CZAJKA) Well, ask a question again and I'll hear you both.
(DC) All right. In a conversation after the Grand Jury that you had?
(CZAJKA) In a conversation?
(DC) In a conversation that Officer Bates had after the Grand Jury, with ['Arthur'], was there inquiry made, as to a description he gave of the house?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) At any time during the course of your questioning of -- let me withdraw that. Outside of the first day, August 7th, that you met with ['Arthur'], when's the next time you physically see him or talk to him? [100]
(BATES) I believe it was just a couple of days later; I don't recall the exact date.
(DC) Where did that meeting take place?
(BATES) [The group home].
(DC) Who was present for that?
(BATES) Myself and I believe it was Investigator Thompson.
(DC) Now, was that the second interview of ['Arthur'], again conducted with just the two of you, the two officers?
(BATES) The two of us were there, I don't recall if there was a social worker in the room or not. I don't recall.
(DC) Did you or your partner make any notes of that second interview, with ['Arthur']?
(BATES) No.
(DC) If there had been anyone else in the room did you make any observations as to whether they may have any notes of that?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Now on this first interview that you had with ['Arthur'] on the 7th of August, how long did that take?
(BATES) Maybe an hour, roughly. [101]
(DC) And the second interview took how long?
(BATES) The second interview was the best I can remember much less than the first, so somewhere in the area of a half hour, possibly.
(DC) When was the next time that you saw ['Arthur'] or anyone from your department, if you know?
(BATES) After the second time?
(DC) Yes, sir?
(BATES) I believe I would have seen him next at the Grand Jury. I don't recall seeing him between that day and the Grand Jury.
(DC) On the second interview, did you make a determination, to either video or tape record that interview?
(BATES) No.
(DC) And did you not even find it necessary, to take any notes?
(BATES) No.
(DC) In the Grand Jury presentation, which would now be the third time you met with him, correct?
(BATES) Correct. [102]
(DC) That was in the District Attorney's office here?
(BATES) I remember seeing him in the DA's office, but we also met in -- there's another room off the District Attorney's office, it's like a living room type setting, a part of it.
(DC) To your knowledge, does the DA's office have recording devices, tape recording devices?
(BATES) Not to my knowledge.
(DC) Video cameras? Was anything videoed or recorded of that interview?
(BATES) Not that I'm aware of.
(DC) On the several times that you met with ['Arthur'], let me ask you this, with interview number one, did you talk with any parent?
(BATES) No, not that I remember.
(DC) With interview number two, did you talk with any parent or?
(BATES) I did meet with a parent now you mention it. I don't remember who it was though, but it was at [the group home].
(DC) Did you make any inquiry, officer, of [103] that parent, as to the reliability of ['Arthur'] in statements that he made or did not make?
(BATES) Not that I can recall.
(DC) Did that parent alert you to any difficulties along these lines?
(BATES) No, not that I remember.
(DC) Did you make any inquiry as to whether or not in the past, ['Arthur'] had ever told a -- I guess a kid would call it a fib?
(BATES) No.
(DC) Did you check with anyone at [the previous group home] where ['Arthur'] had been a student before going to [the 'new' group home]?
(BATES) No, not that I can remember.
(DC) Did you ever make any inquiry of [the 'new' group home] as to his reputation for telling or not telling fibs?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) The picture that you showed to ['Arthur'], did you ask him to initial it or did anyone in your presence ask him to do that?
(BATES) What picture are you referring to?
(DC) Well, People's for identification [104] number five?
(TORNCELLO) Judge, can we put it into evidence please? If -- we have been referring to it for about an hour now and I'll be glad to.
(CZAJKA) Answer the question, did he initial it?
(BATESA) No, no, I don't think so.
(DC) May I have just a moment please, Your Honor? Now, I would like to bring you back, if I may Mr. Bates, to the 7th of August, and more particularly the Town of Bethlehem Lansing Drive, there came a time in that day, when you and another officer, arrived at what you believed to be the residence of Jeff Nickel, did you not?
(BATES) Correct.
(DC) And when you arrived at that residence, I think the D.A. asked you about what time that occurred?
(BATES) Correct.
(DC) Do you recall what answer you gave to the D.A. here this morning?
(BATES) Late afternoon. [105]
(DC) Now, was there something that made you believe it to be late afternoon as opposed to, earlier, middle afternoon?
(BATES) No.
(TORNCELLO) Objection.*
[*This objection, which was actually made after Bates had already answered the question, was not ruled on by Czajka.]
(DC) Did you see any notes or memoranda, as to what time you arrived there?
(BATES) No.
(DC) So when you say late afternoon, as you sit here today, I have to assume it's a guess on your part?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did the other officer that accompanied you, did he -- did he, to your knowledge, keep any record as to time after your arrival?
(TORNCELLO) Objection.
(DC) If you know?
(CZAJKA) I sustained the objection -- I'll speak up. I thought I said it.
(DC) Now when you arrived at the Lansing Drive address, whatever time that was, did you have an occasion to meet someone? [104]
(BATES) Yes.
(DC) Your Honor, could I impose upon the Court, I have an injury to my leg, would it be acceptable if I sat? Thank you.
(CZAJKA) Let's take a break for a few minutes.
(Whereupon, a recess was had.)
(TORNCELLO) Can I put one thing on the record? During the cross-examination there was an issue that came up about medical treatment, of a boy, named ['Arthur']. We contacted [the group home] and they faxed over whatever information they had, it looks like it contains about three pages of medical handwriting judge and I've given a copy to [DC]
(CZAJKA) You didn't have it before?
(TORNCELLO) I did not know of its existence until this morning. Thank you. [107]
(CZAJKA) Okay. Do you need time to review that before you resume your cross-examination, [DC]?
(DC) No, sir.* I would like to resume my cross-examination with the officer, if I may, Your Honor, and we are referring to August 7th.
[* Well, the problem is, defense counsel never did carefully scrutinize this rather illegible -- because faxed and hand written by a doctor -- document. Nor did he attempt to call to the stand or consult with the doctor who wrote it. About all that could be made out were the phrases 'no erythema,' and 'no apparent injury.' To this day, we are unable to decipher the vast majority of what was written in this report, which could well be devastating to the prosecution's case. Nor does Czajka attempt to correct or punish this blatant discovery violation.]
(BATES) Okay.
(DC) That's the question did you have occasion to meet with someone.
(CZAJKA) August 7th, August 7th the date of the search warrant that you executed or August 7th the day you seized that property.
(BATES) Yes.
(CZAJKA) Okay. It was the 18th that you went with the boy to the Grand Jury?
(DC) Yes.
(CZAJKA) Yes, any way, the question was -- what was the question?
(DC) Did there come a time on August 7th, when you arrived at the residence of Jeff Nickel? [108]
(BATES) Yes.
(DC) And when you arrived there, what if any person did you first come upon?
(BATES) A lady who I believed to be Jeff's mother, during the initial contact.
(DC) All right. And she was at the residence on that day, and made the initial meeting with you?
(BATES) Yes.
(DC) Now, how did you gain her attention? Did you ring the bell, knock on the door or was she out on the lawn or what?
(BATES) I either rang the door bell or knocked on the door, I don't remember. I remember going to the front door and knocking or ringing the door bell.
(DC) Were either you or your partner in a uniform that day or in civilian clothes?
(BATES) Civilian clothes.
(DC) And the vehicle that you used to go there, was that marked with any emblazonment on it identifying it as a Sheriff's Department car or was it what we might call an unmarked car?
(BATES) Unmarked car. [109]
(DC) So that when you approached and did you approach Mrs. Nickel on that day?
(BATES) Yes.
(DC) You and your partner -- and who was that partner?
(BATES) Investigator Thompson.
(DC) All right. Now, if her recollection as far as time, was near or early afternoon would you disagree with that?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Now, when you approached Mrs. Nickel, was that the first you had seen her?
(BATES) I believe so.
(DC) Now, members of your department had been there before though, hadn't they?
(BATES) Correct.
(DC) As a matter of fact, they made a couple of visits there before this August 7th, didn't they?
(BATES) Yes.
(DC) And do you know who was involved a couple of days before in going to that residence?
(BATES) Yes. [110]
(DC) What was that person's name?
(BATES) Investigator Montaleone.
(DC) Was Investigator Montaleone -- do you know whether or not he spoke with Mrs. Nickel?
(BATES) I believe he did.
(DC) And was there not a plan or a scheme devised by your department, a few days before the 7th, wherein Investigator Montaleone would go to the Nickel residence, and pretend to inquire about a motor vehicle and photograph an accident?
(TORNCELLO) Objection, relevance.
(CZAJKA) When you make an objection don't give me a reason unless I ask for it. Let's start over.
(DC) You were aware of that, weren't you?
(BATES) Yes.
(DC) And there was no accident, that was a complete fiction, wasn't it? There was no accident. It was a complete fiction.
(BATES) Correct.
(DC) And this was a few days before the 7th [111] that Montaleone went there, and what kind if inquiry was he making, if you're aware?
(TORNCELLO) Objection.
(CZAJKA) Sustained. You weren't present with this other investigator, when he went?*
[* So, Czajka reflexively sustains the prosecutor's objection, but then has to backtrack a bit. Shouldn't he have asked that question before ruling on the objection?]
(BATES) No.
(DC) Did you go back a second time?
(BATES) I believe so, yes.
(DC) Again under this pretext of some V&T accident that never occurred?
(TORNCELLO) Objection.
(CZAJKA) What's the source of your information about this?
(BATES) Well, as far as I know, it wasn't a plan.
(CZAJKA) Whatever it was, what was the source of your information, with respect to investigator Montaleone?
(BATES) It came from Investigator Montaleone himself.
(CZAJKA) He told you this?
(BATES) Yes.
(CZAJKA) So you weren't -- did you not watch it happen? You didn't listen [112] to it?
(BATES) Correct.
(CZAJKA) Sustained.*
[*On trans. pg. 110, Czajka effectively overrules Torncello, on this same basic objection. Again, Czajka's objection rulings would appear to be arbitrary.]
(DC) To your knowledge, did Investigator -- if you know, did investigator Montaleone tell Ms. Nickel, that a car believed to belong to Jeffrey had been in an accident at one of the shopping center in Delmar?
.(TORNCELLO) Objection.
(CZAJKA) If you know? Just so I understand, were you with Investigator Montaleone at any time, that he spoke with the defendant's mother?
(BATES) No.
(CZAJKA) All right. Objection sustained.
(DC) Now, you know that this was a falsehood, don't you?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Were you aware that Mr. Nickel, had been under some serious investigation, prior to your arrival in the 7th?
(BATES) No.
(CZAJKA) Well, Investigator, [113] you find out on the 3rd, that this guy is doing something with kids; he wasn't under investigation?*
[*Even pro-prosecution 'Judge' Czajka is becoming rather exasperated with Bates' lack of candor.]
(BATES) I misunderstood the question.
(CZAJKA) All right. Read it back.
(The preceding question was read back.)
(CZAJKA) Go ahead.
(BATES) Yes I'm sorry, I thought you were referring to the accident here. I'm sorry.
(DC) And it would be fair to certainly describe him as a suspect before the 7th, wouldn't it?
(BATES) Yes.
(DC) When you went there on the afternoon of the 7th, there was no doubt in your mind when you went there, but that you were going to arrest Mr. Nickel, was there?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Had there been a discussion within your department, as to when you were going to arrest Mr. Nickel?
(TORNCELLO) Objection. [114]
(CZAJKA) Well, to the extent that may be relevant for a determination as to what a person, a reasonable person, innocent of any crime may have believed, at that time of the statement that was allegedly made by the defendant, and the investigator's actions with respect to that issue, I will allow it.
(BATES) Yes.
(DC) And that discussion about arresting Mr. Nickel, involved what? What was that discussion?
(TORNCELLO) Objection.
(CZAJKA) I don't understand, a discussion between the Investigator and some third police officer?
(DC) No, no, within their own depaertment, Your Honor. I was trying to inquire as to --
(CZAJKA) Rephrase the question, if you would.
(DC) All right. When you went to Jeffrey Nickel's house on the 7th of August, he was a suspect, and you knew you were going to arrest him, isn't that a fact? [115]
(TORNCELLO) Objection.
(CZAJKA) Well, it's two questions.
(DC) I'm sorry for the compound question. When you went to Jeffrey Nickel's house on the 7th of August, you knew, did you not, you were going to be arresting Jeff Nickel?
(BATES) No.
(DC) When you arrived at Jeffrey Nickels --
(CZAJKA) Investigator, whether you did it that day or some other day, whether it was going to be done by you, or someone else in your Department, he was going to be arrested one way or the other, right?
(BATES) That was our goal, yes.
(CZAJKA) All right.
(DC) So that when you arrived at his house the fact that you didn't handcuff him at that moment, had no bearing on the fact as to whether you were or were not going to arrest him, did it?
(CZAJKA) I don't understand what you mean.
(DC) Well, I believe he testified, Your Honor, that he followed this [116] officer, in his vehicle, down to their station, and --
(CZAJKA) You started to say -- explain what it was that you're getting at?
(DC) Lack of use of handcuffs at the time that you arrive at the Nickel residence, was not because he was not going to be, strike that. I'll strike that question, Your Honor.
(CZAJKA) All right.
(DC) Mr. Nickel was going to be escorted by you and another officer to your facility, one way or the other, was he not, when -- when your arrived there on August 7th?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) If Mr. Nickel said he didn't wish to speak with you at that time, what was your plan? What were you going to do?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did you officer, or your partner, identify yourselves to Mrs. Nickel, the defendant's mother, as people from [the group home]? [117]
(BATES) No.
(DC) Did you ask her or tell her that you wanted to speak with Jeffrey?
(BATES) Yes.
(DC) And of course you did want to speak with him, didn't you?
(BATES) Yes.
(DC) You also were going to arrest him, weren't you?
(BATES) There was a very good potential.
(TORNCELLO) Objection, because I want him to clarify. They were there twice, one time, I think, to invite him back to here, and then another time, later on.
(CZAJKA) Your objection is as to time and place or?
(TORNCELLO) As to form would be my objection. I just want to know when he's talking about.
(DC) I am talking about --
(CZAJKA) The 7th?
(DC) Early afternoon of the 7th, Your Honor, he's right, that was the time he returned to the home. [118]
(CZAJKA) On the same day you went there twice the same day?
(BATES) Yes.
(CZAJKA) You are talking about the first trip?
(DC) The first trip, yes, sir. All of these questions deal with the first trip. Did you understand that to be what I was speaking about?
(BATES) Yes.
(DC) Did you indicate to Mr. Nickel -- there came a time that you met Mr. Nickel, did there not?
(BATES) Yes.
(DC) On the 7th again on this first visit to his house by you?
(BATES) Yes.
(DC) And did you indicate to him that you wanted to discuss with him, this slapping incident?
(BATES) Yes.
(DC) And this slapping incident involved one ['Arthur'], did it not?
(BATES) Yes.
(DC) Now, Mr. Nickel was not accused of [119] slapping ['Arthur'], was he?
(BATES) No,
(DC) But it was someone else?
(BATES) Correct.
(DC) And Mr. Nickel would have been a witness to that?
(BATES) Yes.
(DC) So you asked him to come with you to the station, to discuss that, did you not?
(BATES) Yes.
(DC) Or you asked him to go with you to discuss that?
(BATES) Yes.
(DC) So would it be proper to conclude as Mr. Nickel I believe you said he drove his vehicle behind your vehicle down here to the Court house building?
(BATES) Yes.
(DC) And would it not have been reasonable for him to believe at that time, that he was coming to the Court house building, to discuss that slapping incident?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Now, did you say that his arm was in a [120] cast at that time?
(BATES) Yes.
(DC) So you would not have been able to secure a handcuff around the arm or hand that the cast was on?
(BATES) Correct.
(DC) Now, when you got here to this building, the Courthouse, the building on the corner of Columbia and Eagle Streets in the City of Albany on the 7th of August, 2000; what time did you arrive?
(BATES) We came directly from down here from 36 Lansing Drive and again it was, late in the afternoon, late in the afternoon, being four, 4:30,* somewhere in that area.
That's false; it was, in fact, around 2:30. Why is Bates 'subtracting' a couple of hours? In order to make Nickel's 'statement' seem 'voluntary.']
(DC) What makes you remember that?
(BATES) That's just what -- late afternoon, late afternoon, nothing in particular makes me remember it.
(DC) So if he arrives here at four o'clock, he arrives here at four o'clock. Okay. What does it take, a half hour down here from Delmar from his house?
(BATES) A half hour or less.
(DC) Assuming you move a little bit slower [121] if you've got somebody following you? He didn't know where he was going except to be following your vehicle?
(BATES) Correct.
(DC) And it has been your experience when people are following you when you're leading the way it takes longer than it ordinarily would if you're just driving yourself?
(BATES) It could.
(DC) Yes. So, if you left there let's say around 3:30, and by there I'm referring to Lansing Drive in Delmar, you would have arrived at the home sometime prior to that, wouldn't you?
(BATES) Yes.
(DC) You would have had the conversation with the mother because Jeff wasn't physically on the scene when you first arrived, was he?
(BATES) Right.
(DC) Did you inform the mother that it was about slapping a student at [the group home]?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Do you when you are out in your [122] unit --
(CZAJKA) Excuse me for a minute. Was any of your conversation with the defendant's mother, in the presence of the defendant?
(BATES) I don't think so.
(CZAJKA) Then I'm losing my mind; did you inform her about the slapping business?
(BATES) No.
(CZAJKA) All right. Go ahead.
(DC) Now, when you got down to this building, the courthouse building, the Sheriff's Department, has an office here, several offices in this building, don't they?
(BATES) Yes.
(DC) And some are emblazoned, I would take it, or identified by marks on it of the Albany County Sheriff or such a fashion as to identify what was inside that office?
(BATES) Correct.
(DC) Now, the office to which you led Mr. Nickel, that you described as the chief's office, that does not have any emblazonment on the door, does it? [123]
(BATES) Not the exterior door, no.*
[*Actually, not anywhere in that room at all.]
(DC) So if any of us were to walk through that door and open that door up, we would not know that we were going through that or that we were in the chief's office by markings on the door?
(BATES) Not that door, no.
(DC) And the chief is -- was the chief there that day?
(BATES) Yes.
(DC) Was he dressed in civlian clothes like you and your partner?
(BATES) He commonly is, but I don't remember, sometimes he does wear a uniform.
(DC) Apparently he's in civilian clothes here today?
(TORNCELLO) When you say chief, I believe I think it's Chief [Craig] Apel, he's here.
(CZAJKA) That's who you're talking about?
(DC) He's here today in civilian clothes, wasn't he?
(BATES) Yes.
(DC) And I assume you have secretaries or [124] personnel ladies or something that work or?
(BATES) Yes.
(DC) And men secretaries, whatever the case may be, and they're in civilian clothes, are they not?
(BATES) Yes.
(DC) So it takes on the demeanor and the appearance of something like a business office, does it?
(BATES) It could, yes.
(DC) Now, you did not advise Mr. Nickel of any Miranda warnings, did you?
(TORNCELLO) Objection.
(CZAJKA) Why?
(TORNCELLO) Relevance. This is just -- we never talked about a statement. We never talked about anything with any time with this witness and it's outside the scope.
(CZAJKA) Overruled.
(BATES) No.
(CZAJKA) I mean the fact that there's no jury here does not mean that the defendant doesn't have the opportunity to contest the voluntariness of the statement. He still does. He still gets two bites at [125] the apple. Overruled.
(DC) I believe you indicated that you were in and out of that room, much of the time, weren't you?
(BATES) Yes.
(DC) Now, if we were talking about four, talking your figure, we are talking about four o'clock?
(CZAJKA) I think the witness said between four and 4:30, if I remember correctly.
(DC) Within that time frame, your estimate as to what the time was, to your knowledge, when does Mr. Nickel leave that office?
(BATES) Between 8 and 8:30.
(DC) And then is he instructed to follow you back to the Delmar residence?
(BATES) Yes, follow or meet. I believe it was follow.
(DC) He did that?
(BATES) Yes.
(DC) Now during this period of time, from four or 4:30 to 8 or 8:30, Mr. Nickel has been continually in the presence of some [126] officer of your department?
(BATES) Yes.
(DC) Now, I assume at Lansing Drive no one did or no one advised him of any rights while you were still there before you left to come down, did you?
(BATES) No.
(DC) Since you didn't drive down together, can we assume that no one advised him of his rights as you respectively motored to this building?
(BATES) Yes.
(DC) Now, after Mrs. Nickel introduced you to Jeffrey or the two of you met one another, and you tell him this is about that you want to talk to him about this slapping incident, that was a slapping incident of ['Arthur'], wasn't it?
(BATES) Yes.
(DC) What if anything did he say to you?
(BATES) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Wait, wait what was the question? What did the defendant say to him? [127]
(CZAJKA) Yes.
(TORNCELLO) Withdraw.
(CZAJKA) Answer the question.
(BATES) Repeat the question.
(The preceding question was read back.)
(DC) What if anything did the defendant say to you before -- after you talked to him or broached the subject of the slapping incident?
(BATES) He acknowledged that he knows ['Arthur'], and he was aware of the slapping incident.* He mentioned something about a weather man.
[*That's extremely misleading, because, as Nickel knew full well, the 'slapping incident' never happened -- it was a figment of 'Arthur's' imagination. (See 'Arthur's' testimony below.)]
(DC) A what?
(BATES) A weather man, that he didn't physically slap ['Arthur'].
(DC) When you said aware of a slapping incident, aware that a report had been made of one or that one actually happened?
(BATES) I don't recall or if it went to that much detail at that particular time.
(DC) All right. Had you satisfied yourself at that point, when you asked him about this, had you already satisfied yourself that no [128] such incident had happened?
(BATES) I wasn't sure if the incident had happened or not, yes to be honest.
(DC) And that reason for your confusion was because ['Arthur'], recanted that?
(TORNCELLO) Objection.
(CZAJKA) What confusion?
(DC) Confusion about whether the slapping incident, did or did not ever occur?
(CZAJKA) Sustained.
(DC) Now, were you ever present in the room when any Miranda warnings were ever given, to Mr. Nickel?
(BATES) No.*
[*That's true -- because Miranda warnings never were given to Nickel.]
(DC) When Mr. Nickel arrived here, at your office, did you enter the office with him?
(BATES) I believe so, yes.
(DC) All right. Could we safely assume that someone would have started some conversation with Mr. Nickel when he arrived at the office?
(BATES) Yes.
(DC) Who started a conversation with Mr. Nickel?
(BATES) It would have been Senior Investigator [129] Mark DeFrancesco in the office.
(DC) All right. Could we assume then if he told Mr. Nickel he was coming down to discuss this alleged slapping incident, that he would have began with that?
(TORNCELLO) Objection.
(CZAJKA) Sustained as to form.
(DC) What if anything did you hear the Investigator say with regard to this slap?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) I don't remember anything about the topic initially.
(DC) Well, what did you hear him say to him?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) I left shortly right after he went in, I didn't get over to listen to the conversation, the deck is maybe fifteen feet roughly, inside that door. I really wasn't listening.
(DC) An investigation that you had been on since the 3rd of August, realizing a suspect was going to be interviewed that was the [130] purpose of bringing him down, wasn't it, or having him come down?
(BATES) Yes.
(DC) You didn't remain to hear any of that interview?
(BATES) No.
(DC) Beside the officer who allegedly conducted the interview, were any other officers listening to it, to your knowledge?
(BATES) Not to my knowledge, no.
(DC) Now again, in your chief's office here, these interviews, are they recorded?
(BATES) No.
(DC) Are they video taped?
(BATES) No.
(DC) Would it be fair to say then that the only information we have, with respect to whether or not Miranda warnings were ever given, would be through this other investigator, is that correct?
(BATES) As far as I know.
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Were you aware that questioning was going on of Mr. Nickel? [131]
(BATES) Yes.
(DC) Was there -- were you aware of any questioning, of Mr. Nickel, about the alleged slapping incident?
(BATES) No, not that I can remember.
(DC) Did there come a time during the course of Mr. Nickel's presence in your office, that handcuffs were brought in and thrown on the desk in front of him?
(BATES) Not that I know of.*
[*He's lying: Bates is the person who did this.]
(DC) Were you present during this interview, or strike that. In your presence did you hear anyone say to Mr. Nickel, these are only misdemeanors, let's get out of here and you would be going home?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) No.*
[*Well, DeFrancesco did in fact say this.]
(DC) Were you present or did you hear anyone say that gee, your mother might suffer a stroke if you don't go ahead, and tell us something?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) No.*
[*Well, DeFrancesco did say that as well; although, it actually related to his coercing Nickel to sign a 'consent' to search (after Nickel had already been shown a search warrant anyway).] [132]
(DC) Now, I think you talked about an instrument that you called a consent to search; now you were, I believe, it was your testimony, if I recall it correctly, Mr. Bates, that talked with Mr. Nickel, about a -- what you commonly call a consent search, is that correct?
(BATES) Correct.
(DC) Now, did you hear or were you present and did you hear Mr. Nickel ask for an attorney?
(BATES) No.*
[* Well, Nickel did.]
(DC) Was he ever permitted, to your knowledge, to call an attorney?
(BATES) No.*
[*That's for damn sure.]
(DC) When you spoke to Mr. Nickel about a search and seizure waiver, did you advise him, you know, in words or substance, look, if you would like the advice of counsel, you're free to call or, call one before you sign it?
(BATES) I wasn't present during this signing and reading of the search and seizure waiver.*
[*That's awfully convenient.]
(DC) I'm sorry sir, I didn't realize that. Well, I have no further questions. There's [133] no information you would have about this document other --
(BATES) Other than being familiar with the document. It's a standard document in our department. I understand having seen it afterward, but it would be after the fact. Yes.
(DC) Okay. Now, Mr. Bates, I think you told us that beside these several visits that you had with ['Arthur'], you were also present when another child was interviewed?
(BATES) Yes.
(DC) Do you recall who that other child was?
(BATES) After ['Arthur'], ['Chris'].
(DC) All right. Now, is ['Chris'] the boy from ________, isn't he?
(BATES) He may be, I'm not positive. I'm not sure of his address.
(DC) But you were present during the conversation between your partner and ['Chris']?
(BATES) Yes.
(DC) Is it not a fact that during that interview ['Chris'] told you that there [134] was no sexual abuse? Isn't this a factor --
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(BATES) He may have, I don't have the affidavit or statement to refresh my memory on it.
(DC) But you don't deny that?
(BATES) No.
(DC) Was this interview of ['Chris'], recorded, televised or in any manner preserved so that we can review it or look at it today?
(BATES) No.
(CZAJKA) Somebody took notes?
(BATES) Yes, I thought he meant video tape.
(DC) Electronically recorded in any way?
(BATES) No.
(DC) But again those notes, never reflected what questions were asked, did they?
(BATES) They may not have, no.
(DC) May I have just a moment please, Your Honor? Now with respect to this ['Chris'], was Mr. Nickel's contact with him [135] according to your interview, done in class? Was that the relationship?
(BATES) Yes, it was a summer classroom camp type thing at --
(DC) And other children were always present?
(BATES) They are other children, yes.
(DC) And other teachers and assistants also present?
(BATES) I believe so.
(DC) And this ['Chris'] that indicated to you he never or to you and your partner he never wanted Mr. Nickel to get into any trouble?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did he say that to you in your interview?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did ['Chris'] tell you in that interview --
(TORNCELLO) Objection.
(CZAJKA) Let him finish the question.
(DC) By the way, do you know the date of [136] that interview?
(BATES) After August 7th, possibly August fourteenth, I don't recall off the top of my head without looking at it.
(DC) May I? I'll just ask you to look at the top of these notes if you don't mind? I'll mark it first for identification. If that refreshes your recollection, would you look at the top?
(BATES) August 16th.
(DC) Where did this interview take place?
(BATES) At our patrol station in Voorheesville.
(DC) And again just you two officers there?
(BATES) Yes.
(DC) Was there any medical examination of ['Chris'] to your knowledge?
(BATES) No.
(DC) Did you interview ['Chris'] after that date of August 16th?
(BATES) Did I interview him after that.
(DC) Yes, sir.
(BATES) Not that I can remember, no.
(DC) Were you here when he was present to testify before the Grand Jury? [137]
(BATES) Yes.
(DC) Was that on the 18th, two days later?
(BATES) Yes.
(DC) Did you interview ['Chris'] that day in preparation for his Grand Jury testimony?
(BATES) No.
(DC) Before you interviewed ['Chris'], did you make any sort of background check as far as his reliability or unreliability might be concerned?
(BATES) No, not that I can remember.*
[*So, with 'Arthur,' Bates says he's 'sure [he] would have' made such inquiries; but with 'Chris,' he simply did not?]
(DC) Now, did ['Chris'] during this interview, indicate to you that he would get "whacked" on, to get started to --
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did this interview with ['Chris'] develop, that any relationship or exposure of Mr. Nickel and Mr. -- and ['Chris'], would have been with other people present?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Just a short bit more Mr. Bates. You agree that your arrival at the Nickel's [138] residence, on August the 7th, the first arrival there, in the afternoon hours that you previously described, in establishing that time, you're not relying on any notes, are you?
(BATES) Correct.
(DC) And you're talking about an event which was almost a year ago, are you not?
(BATES) Correct.
(DC) Could you state with absolute certainty, that it would not have been, could not have been, 2:30 that you arrived there?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Your estimate of your time or arrival is just that, isn't it? An estimate, I guess, if you will?
(TORNCELLO) Well, is it an estimate?
(BATES) Yes.
(DC) Thank you. No further questions. *
[* So, defense counsel fails to ask Bates any questions about the alleged victim 'Brendan.']
(TORNCELLO) Just a couple of questions, Mr. Bates. [139] You talked about when you first arrived at 46 Lansing Drive, and there was some conversation about a slapping incident with the defendant, right?
(BATES) Right.
(TORNCELLO) Do you recall who initiated the term "slapping incident," or who talked about it?
(BATES) Mr. Nickel initiated that.*
[*Well, that would appear to contradict an answer Bates gave to defense counsel above (tr. pg. 126):
<<< (DC) Now, after Mrs. Nickel introduced you to Jeffrey or the two of you met one another, and you tell him this is about that you want to talk to him about this slapping incident, that was a slapping incident of ['Arthur'], wasn't it?
(BATES) Yes.>>>]
(TORNCELLO) So, is it fair to say that you didn't say you're coming with us about the slapping incident?
(DC) Objection, he's leading the witness.*
[*If the transcript is correct, Czajka simply ignored this objection from defense counsel.]
(TORNCELLO) What did he say?
(BATES) He mentioned to him there was a complaint made against him concerning a child, stemming from [the group home].
(TORNCELLO) Okay.
(BATES) Stemming from [the group home], he responded this must be the incident where ['Arthur'] got slapped* and he began to build on that, he said yes, that's what it is.
[*Nickel did not say that, because he knew 'Arthur' had not been slapped -- that this was a figment of 'Arthur's' imagination. (See 'Arthur's' testimony below.)] [140]
(TORNCELLO) Did you know about a slapping incident, before you arrived, at Jeff Nickel's house?
(BATES) I believe so, I think I did know about that.
.
(TORNCELLO) Okay. Now, when you arrived down here that afternoon, into this building?
(BATES) Right.
(TORNCELLO) You said you went to the chief's office, right?
(BATES) Right.
(TORNCELLO) Were the secretaries present when you arrived?
(BATES) No.
(TORNCELLO) Did you have any idea what time they usually leave in the afternoon?
(BATES) I believe they leave, 4:30, four, five, some I believe work eight to four, some nine to five.
(TORNCELLO) So they weren't here when you arrived; it was after the secretaries any way had gone home?
(BATES) Right.
(TORNCELLO) Okay. Thanks. Now, over the course of your investigation, you have had a chance [141] to meet ['Arthur'], right?
(BATES) Yes, right.
(TORNCELLO) Have you also had the chance or the opportunity to look at photos of ['Arthur']?
(BATES) Yes.
(TORNCELLO) Have you had the opportunity to see photographs of Jeffrey Nickel?
(BATES) Yes.
(TORNCELLO) Now as with that, with that in mind, I would like to show you People's number five for identification, have you seen that image of that photograph before?
(BATES) Yes.
(TORNCELLO) Where have you seen that image?
(BATES) First the Colonie Police down here, Colonie Police, I've seen them during the interview of myself and [Veronica] Dumas [the original prosecutor in the case].
(TORNCELLO) Do you recognize any of the individuals, in that image?
(BATES) Yes.
(TORNCELLO) Who do you recognize? [142]
(BATES) I recognize ['Arthur'] and Jeffrey Nickel.*
[*Whether he's lying or simply incompetent, he's wrong on both counts. As to the younger person depicted, it cannot be 'Arthur,' because, whereas the boy in the image has brown eyes, 'Arthur's' eyes are blue. As to the older person in the photo, though Czajka refused to let him testify as an expert, the defense's photography expert proved conclusively that the older person in the image is not Nickel.]
(TORNCELLO) Okay. Now, you first saw that on the computer with Investigator Tanski, right?
(BATES) Right.
(TORNCELLO) Then that's a print out, right?
(BATES) Right.
(TORNCELLO) Does that print-out fairly and accurately represent what you initially saw on the computer, with Investigator Tanski?
(BATES) Yes.
(TORNCELLO) I would like to offer People's number five.
(DC) Objection.
(CZAJKA) What's the basis of your objection, [DC]?
(DC) That it's being offered, Your Honor, for this witness to make an identification of certain people. And I think that's a question of fact really for this Court to determine, not this witness.
(CZAJKA) Sounds like your rolls are reversed. Didn't you tell me, the other day [DC], he couldn't call a witness for that purpose, whether this is [143] admissible?
(DC) Well, I don't think I would respectfully suggest, Your Honor, that this witness does not pretend to be an expert in this field of identification.
(CZAJKA) Of course not. Any way, as to the admissibility of the evidence, what did you wish to -- what's your position?
(DC) That it not be admitted into evidence.
(CZAJKA) The reason being?
(DC) As I stated, because of the identification issue.
(CZAJKA) All right. The objection is overruled.
(Whereupon, People's Exhibit "5" was received in evidence.)
(TORNCELLO) Nothing further. Thank you.
(CZAJKA) Any recross [DC]?
(DC) Yes, sir. [144] You have now looked at People's "5" that's been marked in evidence Officer Bates, and this is the same depiction of a picture, that you saw in the Colonie Police Station, which you initiated it being pulled as identifying the defendant, and ['Arthur'], is it not?
(BATES) (No response).
(DC) This is one and the same photograph?
(CZAJKA) I don't know what you mean by being pulled?
(DC) Selected out of all of the photographs that you viewed?
(CZAJKA) To be printed?
(DC) Yes, sir.
(CZAJKA) You directed the investigator from Colonie to print this?
(BATES) Yes.
(CZAJKA) Or asked him any way. You caused him to push the print button?
(BATES) Yes, I did.
(DC) That was because not of what ['Arthur'] told you at that time, or not what [145] anyone else told you at that time, it was your own singular decision?
(BATES) Correct.
(DC) Based on your opinion, that that picture depicted the defendant, isn't that correct?
(BATES) Yes.
(DC) Now, that picture that you are looking at, number five, does it show but a profile, of the defendant?*
[*This is an egregious error by defense counsel. It doesn't show the defendant at all, because it's not Nickel. Here, defense counsel seems to be acceding to the (false) notion that it depicts the defendant. This was devastating to Nickel's defense.]
(BATES) I'm sorry, does it show?
(DC) But a profile, not a full face, is it?
(BATES) Correct.
(DC) It would be one side of the face?
(BATES) Correct.
(DC) When you pulled that off the computer did you ask this Tanski how long can something like that be on the computer? Can you tell the age of that or did you ask him anything like that?
(BATES) No.
(DC) Ask him whether or not there would be any way he or any other photographic expert could tell, whether this had been circulated around for years or was brand new? [146]
(BATES) No, I didn't ask that.*
[* The reason Bates didn't ask these sorts of questions, is because he was 'sure' the photo depicted Nickel and 'Arthur'; this tunnel vision on his part made him totally uninterested in verifying whether this truly was the case.]
(DC) I think you said that one of the items marked for identification here was a 35 millimeter camera; did you ever check to see if that camera, were capable of taking that picture?
(BATES) No.*
[*Again, nothing can be permitted to dull the scent of the hunt.]
(DC) Did you ever make any determination, your or through Tanski, whether that image, was initially created on the computer or was one brought into that computer from someone other system?
(TORNCELLO) Objection as to form. I just don't understand it.
(CZAJKA) I don't know either. Rephrase the question [DC]. Read it back.
(The preceding question was read back).
(CZAJKA) Having had it read back, do you understand the question, do you?
(TORNCELLO) I think I do, yes I think so. Go ahead.
(CZAJKA) Do you understand the question? [147]
(BATES) I don't believe I understand it.
(CZAJKA) Actually, it's two questions. Do you know if -- that -- is that came from that computer originally or some other computer?
(BATES) It was retrieved directly from that computer.
(CZAJKA) I mean was it originally produced on that computer?
(BATES) Oh, I don't know where it was originally produced.
(DC) May I see that? For the purpose of identification you did -- People's five now in evidence, with respect to the individual that you identified as Jeff Nickel in that photograph, were you able to do so by the color of the eyes?
(BATES) No.
(DC) What color are the eyes in that photograph?
(BATES) Of Jeffrey Nickel?
(DC) Yes, sir?
(BATES) I don't recall.
(DC) Well, were they open or closed?
(BATES) I don't remember. [148]
(DC) With respect to the hair line of the individual depicted, the adult individual depicted, in People's "5", did you make any examination of the hair line?
(BATES) Did I make any examination of it, no.
(DC) All right. Well, when you pulled this photograph, were there any bed clothing or anything like that shown in the photograph?
(BATES) Clothing?
(DC) I mean like, sheets or?
(BATES) Sheets, yes.
(DC) All right. And you conducted a search of Jeff Nickel's house, didn't you?
(BATES) Yes.
(DC) Did you see a sheet like that in his house?
(BATES) No.
(DC) Anything on the wall in that picture, that would have told you that was Jeffrey Nickel's house?
(BATES) No.
(DC) What were the color of the walls?
(BATES) In the picture or?
(DC) In the picture?
(BATES) I believe it was light blue. [149]
(DC) Now, you obviously would have asked ['Arthur'] about the colors of the walls in the room in which the picture was taken, wouldn't you?
(BATES) Yes.
(DC) And he told you blue also, didn't he?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) You have been in Jeffrey Nickel's bedroom, haven't you?
(BATES) No.
(DC) Other members of your Department have, right?
(BATES) Right.
(DC) In the course of your investigation, did you ask the other members of the department what are the calls of the walls in his bedroom?
(BATES) Yes.
(DC) What did they tell you will?
(BATES) It wasn't blue. I believe it may have been off white or something to that effect.
(DC) In reviewing this picture number five in evidence, it only shows the extreme right portion of the male torso, isn't that [150] correct?
(BATES) Yes.
(DC) Did you examine the hair pattern on that photograph with any hair pattern on Mr. Nickel?
(BATES) No.
(DC) Did anyone to your knowledge?
(BATES) Not to my knowledge.
(DC) During the course of your investigation, did you ever ask Mr. Nickel, to strip to the waist or to pose so that you can make an observation?
(BATES) No.
(DC) Before August 3rd of 2000, had you ever met Mr. Nickel to your knowledge?
(BATES) No.
(DC) Was your first encounter with Mr. Nickel on the 7th of August?
(BATES) Yes.
(DC) Even during that period of time that is the time that all this time that he was at your station here or your office, you were in and out not really there when the -- when he was talking to the other officers, isn't that a fact? [151]
(BATES) Yes.
(DC) Did you say you also identified the boy in this picture as ['Arthur']?
(BATES) Yes.
(DC) And what color are the eyes of the boy in this picture?
(TORNCELLO) Objection, show him the picture.
(CZAJKA) I sustained the objection.* The exhibit speaks for itself.
[*No, he did not -- at least, according to the stenographer's transcript.]
(DC) May I be permitted to ask him what the exhibit shows, Your Honor?
(CZAJKA) Testing?
(DC) Yes.
(CZAJKA) I'll allow it for that reason, yes.
(BATES) And you asked me?
(DC) The color of his eyes in the picture?
(BATES) I believe blue.*
[*Wrong -- the boy in this picture clearly has brown eyes. This can scarcely be an honest mistake on Bates' part -- he's looking right at it. The reason he's saying the 'picture boy's' eyes are blue is because that's the actual color of 'Arthur's' eyes. (Another clue to Bates' lack of candor here is his use of the words 'I believe' [blue]. That's something someone might say when they're going purely on their own memory; but it is not something one would say when they're looking right at the object in question.)]
(DC) What color are his eyes?
(BATES) I'm not sure.*
[*First he says the boy in the picture -- which he's looking right at -- are blue; but immediately after that, he says he's 'not sure' what color they are? This is ridiculous.]
(CZAJKA) The eyes?
(DC) Yes, sir.
(BATES) I'm not sure.*
[*Well, why doesn't defense counsel just show it to Czajka, or even, any other prosecution witness? Because he never does so, there is no indication on the trial record of the 'picture boy's' eye color.]
(DC) I believe the photo in evidence number [152] five also shows what I would call like a pillow, do you recall that in the photograph?
(BATES) Yes.
(DC) And was it multi colored?
(BATES) I believe so.
(DC) And did you check in your search of the residence of Jeff Nickel, did you check for any multi color pillow?
(BATES) Not specifically, we didn't have that picture until after we were searching his house. We didn't specifically search for a pillow to fit that picture.*
[*True enough. But it is also the case that the police-taken photos (which they tried to hide -- see DeFrancesco's Day Two testimony) -- also do not show such a pillow -- or, for that matter, the above-mentioned sheets -- in Nickel's bedroom, or anywhere else in his house.]
(DC) At any time prior to any search warrant, did you go back or at any time check to see if there was anything like that there?
(BATES) No.
(DC) Nothing further. Thank you. Could I just have one moment judge? Thank you, Your Honor. No further questions.
(TORNCELLO) May I? Okay. I want to go back a little while. The People have no more questions.
(CZAJKA) Call your next witness. Step down Investigator.
(Whereupon, the witness was excused).
(DC) May we approach please, Your Honor?
(Side bar)
(DC) As the Court is aware, sometime during the examination of Mr. Bates, it was learned that a medical examination was run on ['Arthur'], and again, during that period --
(CZAJKA) Step back so we can talk. Start again [DC] please?
(DC) Yes, Your Honor. If it please the Court? Sometime during the examination of Mr. Bates, it was revealed, that to the defense for the first time, that there had been a medical examination of, a [154] physical examination conducted of one ['Arthur']. And again, during that period of time, Mr. Torncello was kind enough to have a faxed copy of that report provided to me, with a copy, which I had a chance to do a cursory review. Your Honor, it puts me in a bit of a problem with this, had I known of a medical examination, I probably would have requested one myself or I would have at the very least, at this very minute, been able to have a chance to digest some of the writings. As brief as this is in all honesty, I can make out some of the words.
(CZAJKA) May I see it?
(DC) Yes. There's present, the taking of several different kinds of drugs, one of the drugs, I remember is, one I'm only familiar with, I think they had a program on it maybe last night on television on how devastating this one particular drug was. In all honesty, I haven't prepared myself, medically enough to know. And there's words there, that I'm going to have someone interpret for me* and to [155] be honest with you, I can't read them or properly interpret them. I'm not even sure that I can tell from that document what the conclusionary result is; I could guess at it, but I'm not positive.
[*There's no evidence defense counsel actually did this.]
(CZAJKA) All right.
(DC) If the prosecution, you know, this puts me, under the circumstances, in a bit of a -- a bit of a problem here, I would say.
(CZAJKA) So what do you want me to do I should say?
(DC) Well, at least I would like to have the opportunity to be able to decipher what the devil it says.
(CZAJKA) Before you cross-examine the child?
(DC) Yes I think so.
(CZAJKA) Mr. Torncello?
(TORNCELLO) Yes?
(CZAJKA) As I understand it, this was not a medical exam ordered by your department by any means, correct?*
[*Well, that's a helpful lifeline to the prosecution. The fact is, it doesn't matter who ordered it -- or even whether or not Torncello knew about it. As Bates himself testified, the police were certainly aware of it (and apparently chose -- because it was not helpful to the prosecution case -- to not share its existence with Torncello himself). As was previously mentioned, the law is crystal clear here: The prosecution is presumed to know about it -- because otherwise, it could just make sure the police never tell them anything that is helpful to the defense case, and the prosecution could thereby always plead ignorance.]
(TORNCELLO) That's correct.
(CZAJKA) Do you know -- do you [156] know the circumstances in which the medical exam was requested?
(TORNCELLO) I do not. I didn't know about the medical exam at all. I'm assuming, and I don't know, but that it was something that perhaps [the group home] does as a matter of course.
(CZAJKA) That would be my guess, but I mean do you have any information with respect to that?
(TORNCELLO) I have a witness who is a social worker for [the group home] that I intend to call today; she is right outside the door, if you want to?
(CZAJKA) Bring her in okay.
(CZAJKA) Ms. Amy Hinges,* do you know anything about a medical exam of ['Arthur'], performed by a doctor, back in August of 2000?
[*Her last names may actually be spelled Henges.]
(HINGES) I know that he had an exam. [157]
(CZAJKA) Do you know who caused that exam to be conducted?
(HINGES) It is routine at [the group home] if allegations are made by a child, that the child is seen by a doctor.
(CZAJKA) It's a decision by [the group home] personnel at [the group home]?*
[*Czajka keeps harping on this issue of who ordered the exam to be conducted, as if that somehow relieved the prosecution of its obligation to inform the defense about it well before trial ever began. It does not. Czajka either doesn't understand the law on this issue, or he is simply aiding the prosecution notwithstanding his full knowledge as to the absolute irrelevance of who ordered the exam to be performed.]
(HINGES) Yes.
(CZAJKA) Any questions, Mr. Torncello, with respect to that limited issue?
(TORNCELLO) I do not.
(DC) No, sir.
(CZAJKA) You can step out please.
(Whereupon, the witness was excused.)
(CZAJKA) It's certainly not unreasonable for [DC] to have an opportunity to review this, to prepare for cross-examination; however, I don't want to have to bring the child in and out of the Court house, so do either of you have any ideas?*
[*So, it's not as if 'Arthur' had already testified, and would need to be put on the stand a second time. (But he was in the courthouse by that time, and indeed, is the very next witness to be called.) Though Czajka is trying to appear to be balancing competing concerns here, the fact is, he's leaning heavily towards 'protecting' this child simply from having to come to the courthouse a second time. The reality that this would destroy defense counsel's ability to effectively cross-examine 'Arthur' is given virtually no weight by 'Judge' Czajka.]
(TORNCELLO) The only thing I [158] guess we can go forward, and --
(CZAJKA) I think it would be hard for the child. I am not --
(TORNCELLO) Subject to, I mean, maybe [DC] will look at it and think there's no need to cross-examine him. I can have him always available to come back another day. Would you prefer -- would the Court prefer that I put him on for tomorrow? Would the Court prefer?
(CZAJKA) I'm not going to try your case for you.*
[*Well, as we shall see later on (re: the issue of what the sex photo is being offered as evidence of), Czajka has no qualms about instructing the prosecution about how it should try its case.]
(TORNCELLO) No, I don't care.
(CZAJKA) And again, don't misunderstand me, I'm not making any determinations, as to whether or not there's any validity to the allegations or not, just keeping in mind that the witness is a child, would you prefer to call another witness at this time, rather than calling him now, only to have him called back again? I'll leave it up to you because [DC] does have a valid concern, and legitimate request.
(TORNCELLO) Here's my [159] preference is to call him now, have direct and cross, and [DC] can call --
(CZAJKA) Do you want to talk to the social worker first before you decide?
(TORNCELLO) Yes.
(CZAJKA) I'm not directing you to, but I think it's a good idea.
(TORNCELLO) I'll do that.
(Whereupon, a recess was had.)
(TORNCELLO) Yes, I've spoken with Mrs. Hinges, social worker for ['Arthur'], and it's her suggestion and my request, that we -- given the testimony today, get as much as we can today and if need be, if he has to come back tomorrow, and talk about some medical issues, he will be available and she would be available.*
[*The reality is, for whatever combination of reasons, that does not happen. Thus, defense counsel is never able to use these medical exam results to effective cross-examine 'Arthur,' or anyone else for that matter.]
(CZAJKA) Then that's what we will do, right? Make sense [DC]? So that way you have an opportunity to consult with someone about the report.* Make sense?
[*That never happened either.]
(DC) Yes, your Honor. I'm hoping that I will, as I say, my first problem with this document is one of unscrambling the written portion. [160]
(CZAJKA) I can't read much of it either.*
[*So, even Czajka is acknowledging that this report is largely illegible; and thus, basically useless, unless the doctor who wrote it were brought in (or at least consulted).]
(DC) For example, I have heard of this one drug.
(CZAJKA) You don't have to explain your request; I already said it's a valid one.* Bring the boy back.
[*If Czajka truly believes this is a valid issue/request, why does he not even attempt to sanction the prosecution for -- or try to rectify -- this blatant discovery violation? And why doesn't he offer a 'helping hand' to the defense on this issue (as he often does to the prosecution) once 'Arthur' has finished testifying?]
(CZAJKA) What's your name?
( 'ARTHUR') ['Arthur'].
(CZAJKA) And how do you spell your last name?
('ARTHUR') _____________.
(CZAJKA) And how do you spell your first name?
('ARTHUR') ______________.
(CZAJKA) Is it ______________?
('ARTHUR') Yes.
(CZAJKA) How do you spell that?
('ARTHUR') ____________.
(CZAJKA) Do you have a middle [161] name?
('ARTHUR') ___________.
(CZAJKA) What do you want me to call you?
('ARTHUR') _______________.
(CZAJKA) And do you know who I am?
('ARTHUR') The judge.
(CZAJKA) All right. And that man behind me, he just asked you a question, what was that about?
('ARTHUR') To tell the truth.
(CZAJKA) All right. How old are you?
('ARTHUR') Ten.
(CZAJKA) And what day were you born?
('ARTHUR') _____________________.
(CZAJKA) And where are you living now?
('ARTHUR') [The group home].
(CZAJKA) And how long have you been there?
('ARTHUR') I have no clue.
(CZAJKA) Okay. Is that the [162] only place you remember living ['Arthur']?
('ARTHUR') And [names the road where his previous group home is located].
(CZAJKA) And where did you live on ___________ Road?
('ARTHUR') [Names group home].
(CZAJKA) Do you recall living any other places?
('ARTHUR') No.
(CZAJKA) Okay. And are you in school now?
('ARTHUR') Yes.
(CZAJKA) What grade?
('ARTHUR') Fourth.
(CZAJKA) And what subjects are you taking these days?
('ARTHUR') Everything.
(CZAJKA) Tell me what they are?
('ARTHUR') Health, science, social studies, language and art, history.
(CZAJKA) What is your favorite subject?
('ARTHUR') History class.
(CZAJKA) Yeah? What did you learn about in history class these days? [163]
('ARTHUR') The Civil War.
(CZAJKA) Do you have books on the Civil War?
('ARTHUR') Yes.
(CZAJKA) Or is it the same history book for all history subjects?
('ARTHUR') All history subjects.
(CZAJKA) That's the same book?
('ARTHUR') Yes.
(CZAJKA) What's the name of that book?
('ARTHUR') The Civil War.*
[*That makes no sense. A book covering 'all history subjects' would obviously not be entitled, 'The Civil War.' The reason for pointing this out is not simply to show that 'Arthur' gave an incorrect answer; it's to demonstrate why he did so, as well as highlight the fact that this obviously mistaken answer doesn't seem to faze Czajka at all. 'Arthur' already appears to be just 'playing along,' telling Czajka what the former believed the latter wanted to hear, regardless of its actual accuracy. Moreover, Czajka appears completely uninterested in further exploring what this may mean in terms of 'Arthur's' overall ability to answer questions accurately; i.e., there are no follow-up questions on this.]
(CZAJKA) Do you read it?
('ARTHUR') Yes.
(CZAJKA) How's your reading these days?
('ARTHUR') Good.
(CZAJKA) Good. Do you have other books you read as well?
('ARTHUR') Yes.
(CZAJKA) What are the names of those books?
('ARTHUR') Harry Potter.*
[*Well, that is not the actual (full) name of any book.]
(CZAJKA) That sounds familiar. Which Harry Potter books have you read? [164]
('ARTHUR') Four or five.*
[*Some nine months earlier, when 'Arthur' was interviewed by Detective DeFrancesco , when the latter asked if he could read, 'Arthur' said that he could not. So, we are supposed to believe that, since that time, 'Arthur' has read 'four or five' rather dense Harry Potter books. Moreover, Czajka didn't ask how many Potter books 'Arthur' had read; he asked which books he'd read; i.e., for actual book titles. But Czajka doesn't follow up on that either.]
(CZAJKA) Yes. Tell me some of the characters that are in Harry Potter?
('ARTHUR') Mr. Harry Potter*, Mrs. -- the two kids I forget, the cat, the cat's name. I forget his name.
[*Harry Potter is a boy; and thus, does not have the title 'Mr.' And he can't remember any other characters in these 'four or five' books he supposedly read?]
(CZAJKA) How about do you recall any of the People's names at the school?
('ARTHUR') School?
(CZAJKA) What's the name of the school?
('ARTHUR') The Academy.*
[*That's incorrect -- the school in the Harry Potter novels is 'Hogwarts.' But perhaps 'Arthur' thought Czajka was asking for the name of 'Arthur's' own school. Unfortunately, that is not called 'The Academy' either.]
(CZAJKA) Harry Potter's -- what's the name of the school in --
('ARTHUR') ['Arthur' then names the school he himself goes to.]
(CZAJKA) What are the names of the characters in that book, other than Harry Potter? Do you recall?
('ARTHUR') No.
(CZAJKA) Okay. Who are your teachers?
('ARTHUR') [Then provides 3 teachers' first names].
(CZAJKA) You call them by their first names? [165]
('ARTHUR') Yes.
(CZAJKA) Do they teach you all the subjects or does each have a special subject to teach?
('ARTHUR') They all teach us one, they all teach us the one subject.*
[*This makes no sense either; no elementary school has three teachers all teaching the same subject. Czajka soon drops this issue, too.]
(CZAJKA) At the same time?
('ARTHUR') Yes.
(CZAJKA) How are you doing in school?
('ARTHUR') Good.
(CZAJKA) What kind of grades are you getting?
('ARTHUR') Good.
(CZAJKA) Did you have a report card recently?
('ARTHUR') Yes.
(CZAJKA) What were your grades?
('ARTHUR') All A plus.*
[*In her letter submitted to the probation department, apparently in an effort to ensure that Nickel received the maximum possible sentence, Amy Hinges (or possibly Henges) indicated that, because of Nickel's actions, 'Arthur' was having difficulty focussing at school. Given that she wrote this letter only two months after 'Arthur's' above testimony, it would appear that either 'Arthur' is misrepresenting his grades, or Hinges/Henges is misrepresenting 'Arthur's' state of mental health.]
(CZAJKA) Excellent. Good job. Now, do you know who this man is standing right over there?
('ARTHUR') Yes.
(CZAJKA) Who is he? [166] Peter [Torncello, the prosecutor].
(CZAJKA) And did you see the lady over to your left?
('ARTHUR') Yes.
(CZAJKA) See that gadget she has right there?
('ARTHUR') Yes.
(CZAJKA) Do you know what it is?
('ARTHUR') No.
(CZAJKA) Do you know what she is doing?
('ARTHUR') Typing.
(CZAJKA) And do you know why?
('ARTHUR') So they have information.
(CZAJKA) That's right. She's putting down everything you and I say. So you have to answer all our questions, so she can get it clearly, right?
('ARTHUR') Yes.
(CZAJKA) All right. And do you know why you're here today?
('ARTHUR') Yes.
(CZAJKA) Why is that?
('ARTHUR') Because of the Jeffrey Nickel case.* [167]
[*This would seem to be a rather odd way for a 10-year-old boy to put it. It appears that 'Arthur' had spent a great deal of time listening to detectives discuss this 'case,' and had adopted -- among other things -- their way of referring to it.]
(CZAJKA) All right. And you told this man behind me, something earlier, you told me, what was that?
('ARTHUR') To tell the truth.
(CZAJKA) And what does that mean, to tell the truth?
('ARTHUR') It means like if I say, you're a girl, this is part of a lie, if you if -- I say you're a girl, it's a lie. If I say you're a boy, it's the truth.
(CZAJKA) All right. What if I told you that thIs dress I'm wearing is pink?
('ARTHUR') It's a lie.
(CZAJKA) And what if I told you that Mr. -- Attorney Torncello has lots of hair, what would that be?
('ARTHUR') A lie.
(CZAJKA) Do you go to church?
('ARTHUR') Yes.
(CZAJKA) Do you, what kind of a church do you go to? Do you have any religious upbringing or instruction when you go to church?
('ARTHUR') No.*
[*Really? He goes to church, but there's no religious upbringing or instruction? Perhaps he did not understand the question. Here's the critical point: He didn't say that he did not understand it; he simply 'went along,' telling the person asking questions what he thought the latter wanted to hear. It would be naive to believe this did not also happen the several times he was 'interviewed' by the police and prosecutors.]
(CZAJKA) When you're playing [168] with your friends, on the playground, is there a playground at your school?
('ARTHUR') Yes.
(CZAJKA) And you're fooling around playing baseball or on the swings or something, and you lie to one of your friends, would that be good or bad?
('ARTHUR') Bad.
(CZAJKA) All right. When you lie to one of your teachers, would that be good or bad?
('ARTHUR') Bad.
(CZAJKA) When you lie in this courtroom, would that be good or bad?
('ARTHUR') Bad.
(CZAJKA) Now, what would be the worst of these three lies?
('ARTHUR') To tell the lie in the courtroom.
(CZAJKA) What would be the next worse?
('ARTHUR') To tell a lie to a teacher.
(CZAJKA) The next?
('ARTHUR') To tell a lie to your friends.
(CZAJKA) Okay. What will happen to you if you tell a lie to your [169] friends.
('ARTHUR') He will not like you very much.
(CZAJKA) What would happen if you tell a lie to your teacher?
('ARTHUR') They would send you to the principal's office.
(CZAJKA) What would happen if you tell a lie in this courtroom to this judge, me?
('ARTHUR') They would send me to prison.
(CZAJKA) That's what you heard?
('ARTHUR') (Nod nod).
(CZAJKA) You have to say yes or no. Remember she has to get everything down.
('ARTHUR') Yes.
(CZAJKA) You say you go to church?
('ARTHUR') Yes.
(CZAJKA) What did you learn in church about lying?
('ARTHUR') That it's not so good.
(CZAJKA) Okay. Either or both of you wish or want me to inquire further? [170] Mr. Torncello?
(TORNCELLO) No thank you.*
[*Of course Torncello doesn't want to inquire any further; 'Arthur' has already clearly demonstrated -- to any neutral observer -- that he is not competent to testify under oath, what with his obviously nonsensical answers, and moreover, clear evidence of him changing his answers in an effort to say what he thinks his questioner wants to hear.]
(CZAJKA) [DC]?
(DC) Could I be allowed to inquire?
(CZAJKA) Not with respect to this issue, but I'll ask any questions that you would like me to ask of this witness,* if you want to.
[*Emphasis added. Czajka will soon break that promise.]
(DC) Could I ask the Court to maybe -- to pose some issues to the Court, outside the hearing of the witness?
(CZAJKA) You know what ['Arthur']? I'll ask you to step right down over there for one minute, all right? Don't go too far though. Lieutenant Stoudt?
(Side bar)
(DC) Your Honor, if the Court would inquire, as to whether or not in preparing to come here today, and answering the Court's questions, did anyone prepare him for the kind of questions, and the suggested or recommended answers that he [171] would give. Did they also do that at the Grand Jury level, and maybe along the lines has he known children that told lies in the past, has -- do children tell lies, has he ever told a lie, has he ever told a lie and met no punishment as a result of that lie, or even where he was told nothing would happen to him. I would like to find out further, if he's on his currently taking any medications, if he knows the kinds of medication, whether he took any medication today, before coming here. I don't know, as I say unfortunately, I don't know what effect the various medications could have, on him and what they are, but so that we would be sure that -- have children told lies to him before, did anything bad happen to them when they told lies to him, I guess along that would be about it, Your Honor.
(TORNCELLO) Absolutely opposed to anything further.
(CZAJKA) I'm satisfied that the -- step back. The Court is satisfied that the child understands.* Come back up here ['ARTHUR'], and I'll ask you one or two more [172] questions. Let me ask you in my words, do you promise and swear that you will tell the truth in here?
[*Czajka is 'satisfied' that the child 'understands' what, exactly? How to tell his questioner what he thinks the latter wants to hear, regardless of its accuracy?]
('ARTHUR') Yes.
(CZAJKA) You already told me what would happen if you don't?
('ARTHUR') Yes.
(CZAJKA) Before I make a ruling do either of you wish to be heard? Mr. Torncello?
(TORNCELLO) No.
(CZAJKA) You indicated to me that you don't wish any further inquiry; you're satisfied, I take it?
(TORNCELLO) Absolutely satisfied.
(CZAJKA) Do you wish to be heard before I rule as to whether the child can testify under oath, [DC]?
(DC) Your Honor, I already presented my questions to the Court.
(CZAJKA) You protected the record in that regard.
(DC) I don't find anything [173] further, Your Honor, except no, sir. I don't find anything further, no.*
[*What would have been the point of defense counsel trying to inquire further? Czajka -- despite his own promise -- never even asks the questions defense counsel just proposed.]
(CZAJKA) I find that the child, does understand the nature of the oath the consequence of testifying falsely and may testify under oath.* You may proceed, Mr. Torncello.
[*Thus, Czajka simply -- and completely -- breaks his promise that he would ask defense counsel's proposed competency questions -- not even one of them. If Czajka was unwilling to disqualify this child from testifying under oath, then, under what circumstances would he do so? The obvious answer is: never. Czajka was just going through the motions. There was no way in the world -- no matter what 'Arthur' said -- that Czajka was not going to find him 'competent' to testify under oath. Why? Because otherwise, at least with regard to the charges regarding 'Arthur' (which were by far the most serious ones), the entire case against Nickel would have been dead in the water.]
(TORNCELLO) Thank you, Your Honor. Good afternoon.
('ARTHUR') Good afternoon.
(TORNCELLO) How are you today ['Arthur']?
('ARTHUR') Good.
(TORNCELLO) I'm going to ask you some of the questions that the Judge just did, can I ask how old you are?
('ARTHUR') Yes.
(TORNCELLO) How old are you?
('ARTHUR') Ten.
(TORNCELLO) And when's your birthday?
('ARTHUR') ___________________.
(CZAJKA) Excuse me, so the [174] record is clear with respect to those requests, that does not -- I'm not ruling prospectively with respect to any cross-examination on that issue.*
[*Here's Czajka backpedaling again, after he realized that he reflexively did something to aid the prosecution that could help the defendant upon appeal.
This statement by him does nothing to alter the fact that Czajka broke his promise to ask the competency questions proposed by defense counsel, or, that Czajka's 'finding' that 'Arthur' was competent to testify under oath was patently absurd.]
(DC) I understand that, Your Honor.
(CZAJKA) Excuse me ['Arthur'].
('ARTHUR') Yes.
(CZAJKA) Go ahead.
(TORNCELLO) May I? Okay. You're ten, right?
('ARTHUR') Yes.
(TORNCELLO) And where do you live?
('ARTHUR') A group residence.
(TORNCELLO) And where is that group residence?
('ARTHUR') [Responds with the name of the group home.]*
[*Torncello asked where the group home was; not the name of it.]
(TORNCELLO) Okay. And that's here in _______________ is it?
('ARTHUR') Yes.
(TORNCELLO) Do -- okay. Do you have any brothers or sisters?
('ARTHUR') Yes.
(TORNCELLO) Who do you have?
('ARTHUR') [Says how many siblings he has of each gender.]
(TORNCELLO) Are they older brothers and sisters or younger? [175]
('ARTHUR') [Specifies who's older vs. who's younger].
(TORNCELLO) Okay. And do they live with you at the group residence?
('ARTHUR') No.
(TORNCELLO) They don't, right? How about mom, do you have a mom?
('ARTHUR') Yes.
(TORNCELLO) And where does your mom live?
('ARTHUR') In _________________.
(TORNCELLO) Do you see her times?
('ARTHUR') Yes.
(TORNCELLO) You see your mom and you visit her?
('ARTHUR') Yes.
(TORNCELLO) She visits you?
('ARTHUR') Yes.
(TORNCELLO) Okay. The Judge asked you about school a little while ago, right?
('ARTHUR') Yes.
(TORNCELLO) How about sports, do you like sports?
('ARTHUR') Yes.
(TORNCELLO) And what kinds of sports did you play?
('ARTHUR') Baseball.
(TORNCELLO) You like baseball?
(DC) Objection please, I [176] am not sure I understand, the purpose of these questions.
(CZAJKA) Sustained.
(TORNCELLO) Okay. ['Arthur'], did you used to live at [names first group home]?
('ARTHUR') Right.
(TORNCELLO) Is that what you told the Judge?
('ARTHUR') Yes.
(TORNCELLO) And can you tell us do you know a man by the name of Jeff Nickel?
('ARTHUR') Yes.
(TORNCELLO) Okay. And where did you meet Jeff Nickel?
('ARTHUR') [Names location of first group home].
(TORNCELLO) And what is [names location], is that [names group home]?
('ARTHUR') Yes.
(TORNCELLO) And is that a home also?
('ARTHUR') Yes.
(TORNCELLO) Did you -- you lived there, right?
('ARTHUR') Yes.
(TORNCELLO) Okay. Do you recall when you met Jeff there?
('ARTHUR') No.
(TORNCELLO) You don't remember. So at some point in time I guess you went from [first group home] [177] and you moved to [second group home]?
('ARTHUR') Yes.
(TORNCELLO) All right. And when you moved, did you still see Jeffrey Nickel?
('ARTHUR') Yes.
(TORNCELLO) Okay. Was he a worker at [first group home]?
('ARTHUR') No, he was a volunteer.
(TORNCELLO) He was a volunteer -- was he specifically a volunteer for you or for all of the kids?
('ARTHUR') All of the kids.
(TORNCELLO) When you moved to [the second group home], was he a worker [there]?
('ARTHUR') No.
(TORNCELLO) Okay. What was his job at [second group home]?
('ARTHUR') To volunteer.
(TORNCELLO) A volunteer at [second group home], was he a volunteer for all the kids or just you?
('ARTHUR') For just me.
(TORNCELLO) Now, did you ever have a chance to go places with Jeffrey Nickel?
('ARTHUR') Yes.
(TORNCELLO) Okay. And was that when you were before when you were at [the first group home]? [178]
('ARTHUR') No.
(TORNCELLO) But when you moved to [the second group home]?
('ARTHUR') Yes.
(TORNCELLO) All right. You got a chance to go places with him, right?
('ARTHUR') Yes.
(TORNCELLO) All right. And were there other people from [the second group home], would they go along with you for some of the visits?
('ARTHUR') Yes.
(TORNCELLO) Okay. All the time or some of the time?
('ARTHUR') Some of the time.
(TORNCELLO) Okay. For instance at first when you went with Jeffrey Nickel, would they be alone visits or were there other people that would go?
('ARTHUR') (No response).
(TORNCELLO) Do you know I mean or not?
('ARTHUR') No.
(TORNCELLO) Okay. Is is sometimes people from [the second group home] went, right?
('ARTHUR') Yes.
(TORNCELLO) And sometimes you went alone with Jeff? [179]
('ARTHUR') Yes.
(TORNCELLO) Is that what you called him? What did you call him?
('ARTHUR') Jeff.
(TORNCELLO) You called him Jeff? Okay. Now, I want to take your memory and try to go back a little bit and take your memory back to around June or July of 2000, last summer okay? Do you recall last summer?
('ARTHUR') Yes.
(TORNCELLO) Around June 10th or so, or from June and July, did you ever have a chance to go and play with Jeff?
('ARTHUR') Yes.
(TORNCELLO) Okay. And where would you go, what kinds of things would you do?
('ARTHUR') Go to the swimming pool, go to the movies.
(TORNCELLO) Okay. Like when you say the swimming pool what, where is the swimming pool there -- strike that. Well never mind, I won't ask that one. Do you know where Jeffrey Nickel lives?
('ARTHUR') Yes.
(TORNCELLO) Did you ever go to his house? [180]
('ARTHUR') Yes.*
[*The fact is, 'Arthur' has never set foot in that house. (But he was driven by it by prosecutors / investigators.)]
(TORNCELLO) Okay. And do you know what city it's in or town or no?
('ARTHUR') It's in Delmar.
(TORNCELLO) Delmar? And how would you get to Jeff's house from [the second group home]?
('ARTHUR') He would drive me there to his house.*
[*That's false; Nickel never drove him to (or even by) his house.]
(TORNCELLO) Okay. What kind -- did he have a car?
('ARTHUR') Yes.
(TORNCELLO) What kind of car did he have?
('ARTHUR') A red car.
(TORNCELLO) A red car? And when he would drive would it just be you and Jeff?
('ARTHUR') Yes.
(TORNCELLO) You have been to his house, right?
('ARTHUR') Yes.
(TORNCELLO) One time or more than one of time?
('ARTHUR') More than one time.*
[*Again, 'Arthur' has only been driven by the house, and even then, only by prosecutors/investigators.]
(TORNCELLO) Okay. And can you describe his house? Is it big or little or what color is it, any of that?
('ARTHUR') It's big, white on the outside.*
[*No it isn't -- it's blue.]
(TORNCELLO) Okay. You have been inside?
('ARTHUR') Yes.*
[*No, he has not.]
(TORNCELLO) Was anyone else with you when you went [181] with him?
('ARTHUR') No.
(TORNCELLO) Okay. You said you went to the pool, you went to the movies, and things like that?
('ARTHUR') Yes.
(TORNCELLO) Was there a pool hear [near?] his house?
('ARTHUR') Yes.
(TORNCELLO) And was that the Park -- was there a town park or a something like that?
('ARTHUR') Yes.
(TORNCELLO) Okay. And did you ever go to a pool there?
('ARTHUR') Yes.
(TORNCELLO) Well, a lot of times or one time or do you recall?
('ARTHUR') Lots of times.
(TORNCELLO) And was Jeff the one that took you to that park?
('ARTHUR') Yes.
(TORNCELLO) He did, okay, what kinds of things would you do? What would you play with Jeff?
('ARTHUR') We have a game called bull that we used to --
(CZAJKA) Bull?
('ARTHUR') Yes. [182]
(TORNCELLO) What's bull? That's the game that you invented?
('ARTHUR') Yes.
(TORNCELLO) Okay. Tell me what bull is?
('ARTHUR') Bull is a game, that he chases after me, and I jump over him.
(TORNCELLO) Okay. Where would you play this game?
('ARTHUR') In the swimming pool.
(TORNCELLO) Did you have your bathing suit on?
('ARTHUR') Yes.
(TORNCELLO) And did Jeff have his bathing suit on?
('ARTHUR') Yes.
(TORNCELLO) And what would happen, when you played the game bull? You said there was chasing; was it in the water?
('ARTHUR') Yes.
(TORNCELLO) What kinds of things would happen then?
('ARTHUR') He would accidentally slip and put his hands in my pants.*
[*Firstly, this simply never happened. Secondly, given the fact that both persons were moving pretty vigorously, it would have been virtually impossible for one to put his hands in the other's pants -- especially, 'accidentally.']
(TORNCELLO) Okay. And would he put his hands in the front of your pants or the back of your pants or?
('ARTHUR') He put in both.*
[ *Nonsense. Nickel never put his hands down 'Arthur's' pants -- in or out of the swimming pool.]
(TORNCELLO) In both? [183] Did that happen, sort of lots of times or?
('ARTHUR') Lots of times.*
[*Nope -- never.]
(DC) Objection, we have a singular count, Your Honor.
(CZAJKA) Which count?
(TORNCELLO) That's not true, there's a count of endangering the welfare of a child* that goes from January 2000, through August of the 2000, Your Honor, which discusses a course of conduct, of a sexual nature.
[*This misdemeanor 'endangering' charge is virtually always tacked on to the more serious felony charges in child abuse indictments, which would seem superfluous, given that the former can only be punished by a maximum of one year, whereas the latter can be punished by 7 to 25 years. But the 'endangering' charge is valuable to the prosecution, because it allows them to throw the proverbial 'kitchen sink' of 'evidence' at the defendant. Moreover, if the felony counts are eventually overturned, because the 'endangering' charge is so vague, and could cover almost anything, the state can save face by salvaging at least something.]
(CZAJKA) Objection overruled.
(DC) Your Honor, if I could point out to the Court if we are talking about a period of time here, that's going to cover a 7 month period.
(CZAJKA) Well now, all he's talking about is the Summer of 2000.
(TORNCELLO) That's correct. Okay. Now, you talked about that sometimes he will put his hands inside your pants?
('ARTHUR') Yes.
(DC) Objection to the [184] recapitulation by the D.A.
(CZAJKA) Overruled.
(TORNCELLO) Okay. Now, was there ever a time when he put his finger inside of you?
('ARTHUR') Yes.*
[*Baloney -- never happened.]
(DC) Objection,* leading the witness.
[*This objection came too late -- 'Arthur' had already answered this question.]
(CZAJKA) Overruled. There's no reference to the -- overruled. Go ahead.*
[*Many of Czajka's rulings in this (and many other) cases were certainly questionable. But this one was flat wrong: What Torncello did here was classic 'leading of the witness'. What Torncello should have done was something along the lines of: 'Okay. And did anything else happen?']
(TORNCELLO) Okay. And where did that happen -- where did that --
('ARTHUR') In the pool.
(TORNCELLO) In the pool, at the same pool that we are talking about in the park?
('ARTHUR') Yes.
(TORNCELLO) Okay. And how did that feel?
('ARTHUR') It hurt.*
[*No, it didn't 'hurt,' because it simply never happened.]
(DC) Objection,* leading.
[*Again, this objection came too late already answered question.]
(CZAJKA) Overruled.
(TORNCELLO) He can answer, right Judge?
(DC) He did answer.
(TORNCELLO) Well, did you say anything to Jeff when that happened? [185]
('ARTHUR') Yes, I said stop.*
[*No, he didn't 'say' anything, because it didn't happen. But 'Arthur' is providing this answer because he senses that it is the 'right' (expected) one.]
(TORNCELLO) Okay. Did he say anything to you?
('ARTHUR') No.
(TORNCELLO) Okay. Now, you went to the pool a few times and were there any other places that you went? Did you visit other places?
('ARTHUR') Yes.
(TORNCELLO) Where?
('ARTHUR') The movie theatre.
(TORNCELLO) You did? You went to the movies?
('ARTHUR') Yes.
(TORNCELLO) And again did you go lots of times or just once or?
('ARTHUR') Just once.
(TORNCELLO) Do you recall what movie you saw?
('ARTHUR') X-Men.
(TORNCELLO) Was that a good movie? Did you like it?
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Well, what happened at the movie? Did anything happen at the movies?
('ARTHUR') Yes.
(TORNCELLO) What happened?
('ARTHUR') He put his hand on my leg. [186]
(TORNCELLO) Okay. Any place else? Did he put his hands --
(DC) Objection, leading the witness.
(CZAJKA) Overruled.* Go ahead. You can answer the question.
[*Once again, Torncello was clearly leading the witness, which is not permitted under the rules of evidence. And once again, Czajka wrongly overruled defense counsel's objection to this.]
('ARTHUR') What was you saying again?
(TORNCELLO) Well, did he put his hand any place else on you?
('ARTHUR') Yes.
(TORNCELLO) Where?
('ARTHUR') On -- his mouth touching my penis.*
[*Firstly, that never happened. (And 'Arthur' is only saying it did happen because [i.e., after] the prosecution side showed him a sexual photo, and convinced him that it depicts himself and Nickel, when it actually depicts neither.) Moreover, 'Arthur' isn't even answering the question that Torncello actually asked here. Torncello asked where else Nickel (supposedly) put his hand, not his mouth. It seems that 'Arthur' is anxious to just regurgitate everything he is 'supposed' to say, so he can get this over with. That's quite understandable. But it does not help to get at the actual truth.]
(TORNCELLO) Okay. Now, that was at the movies?
('ARTHUR') Nope.
(TORNCELLO) Okay. That began at the movies, I'll talk about that later, okay? But, anything else at the movies? Did he touch you any place other than your leg?
('ARTHUR') No.
(TORNCELLO) Okay. Now, you said you have been to Jeff's house, right?
('ARTHUR') Yes.*
[*Wrong.]
(TORNCELLO) Incidentally, do you see him here in the courtroom today, if you look? [187]
('ARTHUR') Yes.
(TORNCELLO) Did you see -- you can just point to him?
('ARTHUR') Right there (pointing).
(TORNCELLO) Okay. What color suit does he have on?
('ARTHUR') Black and white.
(TORNCELLO) Okay. Judge, if the record could reflect that the witness identified defendant?
(CZAJKA) He has.
(TORNCELLO) Thank you. Earlier you just talked about an incident you said where he put his mouth on your penis, right?
('ARTHUR') Yes.
(TORNCELLO) Okay. Where did that happen?
('ARTHUR') His house.
(TORNCELLO) Okay. I want to show you a photograph, okay? It's -- we call it People's number "5" for -- in evidence, right? You see that photograph?
('ARTHUR') Yes.
(TORNCELLO) Okay. And have you seen that photograph before ['Arthur']?*
[*Apparently, for whatever reason, 'Arthur' does not answer this question, because Czajka soon interjects (with a leading question of his own).]
(CZAJKA) Okay. You were shown [188] that before, right?
('ARTHUR') Yes.
(TORNCELLO) Okay. I think you probably met some police officers or Sheriffs, right?
('ARTHUR') Yes.
(TORNCELLO) Ronnie [Veronica Dumas, the initial case prosecutor] from our office, did she show you?
('ARTHUR') Yes.
(TORNCELLO) Okay. Now, do you recognize anybody in that photograph?
('ARTHUR') Yes.
(TORNCELLO) Who do you recognize?
('ARTHUR') Me and Jeff.*
[*He is incorrect on both counts. Whereas the boy in the photo has brown eyes, 'Arthur's' eyes are blue. And though Czajka would not permit him to testify as an expert, the defense did hire a photography expert, who proved conclusively that Nickel was not the older person depicted in that sexual image.]
(TORNCELLO) Okay. Do you recall that picture being taken ['Arthur']?
('ARTHUR') Yes.*
[*Well, he's mistaken, because it's not even a picture of him -- no one knows who is actually depicted in it.]
(TORNCELLO) How was that taken -- how was that picture taken? Was there another person in the room?
('ARTHUR') No.
(TORNCELLO) How did that picture get taken?
('ARTHUR') He took the flash off and he set it, when I -- when I was taking a nap.*
[*The reason 'Arthur' describes Nickel's camera in such detail here is because Nickel had in fact taken pictures of himself and 'Arthur' by setting the timer (and then coming into the frame). But these were 'regular' pictures, not pornographic ones. Everyone had their clothes on. Secondly, 'Arthur' stated this picture was taken in Nickel's bedroom. If Nickel had, in fact, taken the flash off, the picture would not have come out well at all, given that this is obviously indoors.]
(TORNCELLO) And there was -- did he have a camera?
('ARTHUR') Yes. [189]
(TORNCELLO) Okay. And where was the camera?
('ARTHUR') Sitting on his window sill.*
[*In Nickel's bedroom, there are no window sills -- at least none wider than one-half inch or so. (See: Nickel's home.) That would not have been nearly wide enough to set this 'old-style' camera on.]
(TORNCELLO) Okay. And do you recall you said something about a flash, do you recall a flash going off? Are you -- do you remember the flash?
('ARTHUR') There wasn't no flash.*
[*The pictures Nickel did take of himself and 'Arthur' were taken (at least primarily) outside. Thus, it makes sense that 'Arthur' would say there was 'no flash.' Only, he's conflating those ('regular') outdoor-taken pictures with this sexual photo taken indoors.]
(TORNCELLO) There wasn't no flash; did you hear the camera go off?
('ARTHUR') No.
(TORNCELLO) Okay. Now, you said earlier I think something about a timer, is that right?
('ARTHUR') Yes.
(TORNCELLO) That's what you're talking about? How does that work, do you know?
('ARTHUR') No clue.
(TORNCELLO) Okay. You don't have any clue about that. Did Jeff have a computer?
('ARTHUR') Yes.
(TORNCELLO) And where was the computer, do you know?
('ARTHUR') By the window.*
[*So, 'Arthur' claims this picture was taken in Nickel's bedroom. There was not -- and never had been -- a computer there (as photos taken by the police themselves -- which they tried to hide [see buried evidence] -- showed). Nickel's computer was actually in the basement 'rec room' -- where there are no windows.]
(TORNCELLO) It was by the window in what room?
('ARTHUR') In his bedroom.
(TORNCELLO) In his bedroom. And where was the [190] camera? Was the camera also -- well strike that. You tell me where was the camera?
('ARTHUR') In the window sill in his bedroom.
(TORNCELLO) Okay. About how often would you -- would you go with ['Arthur'], do you recall?
('ARTHUR') ['Arthur']?
(TORNCELLO) I'm sorry I. I'm getting silly here. About how often would you go with Jeff?
('ARTHUR') No clue.
(TORNCELLO) Okay. Is it sort of would I be right if I said that your visits with him started in June last year?
('ARTHUR') Yes.
(TORNCELLO) And they went through July or so?
('ARTHUR') Yes.
(TORNCELLO) Okay. And again, were you living at [the second group home] during that July, June and July period?
('ARTHUR') Yes.
(TORNCELLO) Okay. I think that's it judge. Can I just have a minute to look at my notes?
(CZAJKA) Sure. Okay? [191]
(TORNCELLO) I am thinking, okay? I'm a slow thinker. The last time you saw ['Arthur'], did you notice, boy, I did it again, didn't I? The last time you saw Jeff, ['Arthur'], did you notice anything about his hands?
('Arthur') Yes.
(TORNCELLO) What did you notice?
('ARTHUR') His hand -- his left hand has a cast.
(TORNCELLO) The left hand had a cast?
('ARTHUR') (Nod nod).
(TORNCELLO) Okay. Left hand. I think that's it. That's it well, let me think, okay. I'm looking at photographs. Just a second judge. Okay. Just to be sure it's understood, People's "2", make that 2 A, I hand you now something that has been -- we will call it People's 2 A for identification, can you look at that? See that?
('ARTHUR') Yes.
(TORNCELLO) What is that? Can you tell us what that is?
('ARTHUR') The Recognition Dinner at [192] [the second group home].
(TORNCELLO) What's the Recognition Dinner?
('ARTHUR') It's a dinner where all of the houses get together, and the people out there say how good you have been doing.
(TORNCELLO) Okay. Did you get recognized? Were you part of recognition to say how good you did?
('ARTHUR') Yes.
(TORNCELLO) Do you recognize anybody in that photograph?
('ARTHUR') Yes.
(DC) Objection.* This is only made for identification this -- he's identified it.
[*Again, too late -- already answered.]
(CZAJKA) Overruled.
(TORNCELLO) Okay. Who do you recognize?
('ARTHUR') Jeff and me.
(TORNCELLO) Okay. And is that the way Jeff looked at the Recognition Dinner?
('ARTHUR') Yes.
(TORNCELLO) And is that the way you looked at the Recognition Dinner?
('ARTHUR') Yes.
(TORNCELLO) Okay. At this [193] time, I'll offer People's number 2 A, in evidence and show it to [DC].
(DC) Objection.
(CZAJKA) I'll reserve; go ahead Mr. Torncello, anything else Mr. Torncello?
(TORNCELLO) One other thing you told us a little earlier, that when you were at the -- when you were talking about the pool, and you said that ['Arthur'] put his finger in you, what did he do?
('ARTHUR') ['Arthur']?
(TORNCELLO) I'm sorry, Jeff put his finger?
(DC) I'm going to object to that line of questioning as leading and it's already been asked and answered.
(CZAJKA) Overruled, but I don't know that I, well -- I didn't hear the full question, so I'm not ruling. I'll give you an opportunity to object again. Ask your question again.*
[*Yet again, Czajka reflexively sides with the prosecution, backpedaling only when he realizes he may have made a mistake that could help the defendant on appeal. (And here, Czajka acknowledges he 'overruled' even when he hadn't actually heard the ['full'] question.]
(TORNCELLO) Okay.
(CZAJKA) Don't answer the question yet ['Arthur'].
('ARTHUR') Okay. [194]
(TORNCELLO) Let me ask it first. Well, what I want to say is where did Jeff put his fingers in you when you were in the pool in Bethlehem?
(DC) Objection.
(CZAJKA) Overruled.
(TORNCELLO) You can answer?
('ARTHUR') In my butt.*
[* Baloney -- never happened.]
(TORNCELLO) Okay. And you said it hurt, right?
('ARTHUR') Yes.*
[*No. It didn't 'hurt,' because it didn't happen.]
(TORNCELLO) Can you describe how much?
('ARTHUR') It hurt a lot.*
[*The reason why Torncello was eliciting this (false) testimony was because it was necessary to establish an element of the crime 'Aggravated Sexual Abuse in the First Degree.']
(TORNCELLO) Okay. And did he stop when you asked him to?
('ARTHUR') No.*
[*'Arthur' didn't ask Nickel to stop, for the simple reason that Nickel never did this to 'Arthur.']
(TORNCELLO) No further questions. Thank you.
(DC) Good afternoon.
('ARTHUR') Good afternoon.
(DC) If you can answer for me please, are you presently receiving any medication, pills or drugs, or things of that nature? [195]
('ARTHUR') Yes.
(DC) And if you know, is it more than one type of pill and drug or just one type?
(CZAJKA) You can answer his questions and I'll tell you if you don't have to ['Arthur']. Go ahead.*
[*'Arthur' must have hesitated to answer, and looked at Czajka at this point.]
('ARTHUR') More than one type.
(DC) How many types of pills or drugs do you take a day?
('ARTHUR') One at one o'clock, and uhm -- one at 11, and four or five and at 8 o'clock.*
[*That doesn't actually answer the question counsel asked, which was how many types of pills he takes.]
(DC) Is that 8 o'clock in the evening or 8 o'clock in the morning?
('ARTHUR') 8 o'clock in the evening.
(DC) Do you take these medications every day?
('ARTHUR') Yes.
(DC) Have you been taking this medication, for some period of time?
('ARTHUR') Yes.
(DC) Do you know the name of the medication that you take at 11 o'clock?
('ARTHUR') Adoral [Adderall].*
[*All of the following are taken from the 2002 edition of the Physicians' Desk Reference (PDR):
Adderall [pg. 3231]. Amphetamine (stimulant); Attention Deficit (Hyperactivity) Disorder [AD(H)D]
Prescribed for: moderate to severe distractability, short attention span, hyperactivity, emotional lability, impulsivity.
"Clinical experience suggests that in psychotic children, administration of amphetamine may exaggerate symptoms of (a) behavior disturbance and (b) thought disorder" [Emphasis added.]
[pg. 3232] "Long-term effects of amphetamine in children have not been well established."]
(DC) Do you know the medication that you [196] take at one o'clock?
('ARTHUR') Clonidine.*
[*Clonidine [pg. 1037]; for treating hypertension, but also a general calming agent. [PDR Companion Guide, 2002, pg. 1512]; used off-label for obsessive-compulsive disorder; [ibid., pg. 1513]; off-label use as sedative]
(DC) Do you know the four or five that you take at 8 o'clock?
('ARTHUR') Ritalin,* Zoloft,** uhm -- Senokot,*** and I forget the other one.****
[*Ritalin [pg. 2387] "Ritalin is a mild central nervous system stimulant." Prescribed for attention-deficit disorders. "Sufficient data on safety and efficacy of long-term use of Ritalin in children are not yet available." "Clinical experience suggests that in psychotic children, administration of Ritalin may exacerbate symptoms of behavior disturbance and thought disorder. [Emphasis added.]]
[**Zoloft is not actually listed as a 'current medication' on 'Arthur's' medical exam form. It is generally prescribed for depression.]
[***Senokot is a laxative.]
[****This would appear to be Risperdal, which is listed as a 'current medication' on 'Arthur's' physical exam form. [pg. 1796]; Antipsychotic. "Safety and effectiveness in children have not been established."
Thus, at the time of trial, 'Arthur' was taking either four or five different psychiatric medications. The main problem for the defense here was that, at the time of trial, it did not have any of the above information. Moreover, we still don't know precisely what these medications were prescribed for.]
(DC) Before coming here today, or at any time today, did you take any medication?
('ARTHUR') Yes.
(DC) Would that have been your 11 o'clock medication?
('ARTHUR') No.
(DC) Would that have been your one o'clock medication?
('ARTHUR') No.
(DC) Would that have been the 8 o'clock medication?
('ARTHUR') No.
(DC) What kind of medication did you take today?
('ARTHUR') It's the 7 o'clock medication.*
[*So, 'Arthur' was taking psychiatric medications virtually around the clock -- during waking hours anyway.]
(DC) Oh, you took another one at 7 o'clock?
('ARTHUR') Yes.
(DC) In the morning?
('ARTHUR') (Nod nod). [197]
(DC) Okay. What did you take at 7 o'clock in the morning?
('ARTHUR') Zoloft.
(DC) Have you been on that medication for some period of time?
('ARTHUR') Yes.
(DC) Do you see a doctor regularly?
('ARTHUR') Yes.
(DC) How regularly do you visit with a doctor?
('ARTHUR') I can't answer that question because I don't know.
(DC) Would it be once a week or once a month?
('ARTHUR') Once a month.
(DC) Do you know that doctor's name?
('ARTHUR') Dr. Pitapato (phonetic) and Dr. Oberhyde (phonetic).
(DC) Do you know what if any specialty either of those doctors have?
('ARTHUR') No.
(DC) Have you been seeing each of those doctors for some period of time?
('ARTHUR') Yes.
(DC) Do you recall giving testimony before [198] a Grand Jury?
('ARTHUR') Yes.
(DC) On the day that you gave testimony before the Grand Jury, had you taken medication that day?
('ARTHUR) Yes.
(DC) Do you recall what medication you had taken that day and what time before you testified?
('ARTHUR') No.
(DC) On the day that you testified before the Grand Jury, did anyone ask you, if you were on any medication?
('ARTHUR') Yes.
(DC) Was that person -- do you know that person's name?
('ARTHUR') No.
(DC) Was it a woman or a man?
('ARTHUR') Woman.
(DC) Would the name Mrs. [Veronica] Dumas or Ronnie Dumas [the original prosecutor in the case], would that sound familar to you?
('ARTHUR') Yes.
(DC) Did you tell this Ronnie Dumas that yes, you were on medicafion?
('ARTHUR') Yes. [199]
(DC) Did she ask you what kind of medication you were on?
('ARTHUR') No.*
[*Something doesn't make sense here. If 'Arthur' is correct that Dumas asked if he was on medication, why wouldn't she then have asked what medication(s) he was on? But then again, that could have hurt her case.]
(DC) To your knowledge and did she check with any doctor at that time?
('ARTHUR') I have no clue.
(DC) Now, I think you told us about a park in the Town of Bethlehem, the town park I think you called it?
('ARTHUR') Yes.
(DC) And I believe you told us that you went there some time during the months of June and July, of 2000, the summer time?
('ARTHUR') Yes.
(DC) When the park pool was open?
('ARTHUR') Yes.
(DC) And that park pool was open to the public, was it not?
('ARTHUR') Yes.
(DC) And on the hot days there, they get a pretty good crowd, do they not?
('ARTHUR') Yes.
(DC) And on the times that you went there with Jeff, there was a good crowd there, was there not? [200]
('ARTHUR') Yes.
(DC) In the swimming pool and playing?
('ARTHUR') Yes.
(DC) So when you went to the pool, alone with Jeff, during July and August, there were other people and many of them present?
('ARTHUR') Yes.
(DC) And they were both adults and children, were they not?
('ARTHUR') Yes.
(DC) Are there -- strike that. Now, I know you told us you have been by or at Jeff's house, on more than one occasion?
('ARTHUR') Yes.
(DC) And do you know where that's located?
('ARTHUR') Delmar.
(DC) Do you know what street?
('ARTHUR') No.
(DC) What color was his house? Did you tell us white?
('ARTHUR') Yes.
(DC) And when you were there at his house that was the color of his house when you were there?
('ARTHUR') Yes. [201]
(DC) Did the police also drive you by his house at some time?
('ARTHUR') Yes.
(DC) Do you recall when that was that the police drove you by his house?
('ARTHUR') No.
(DC) Do you recall if it was before you testified before the Grand Jury?
('ARTHUR') Yes.
(TORNCELLO) Judge, I want him to clarify -- to clarify. I think the question was, do you recall, not when was it. So could we have --
(CZAJKA) You're correct.
(DC) Forgive me, I didn't mean it that way. When the police took you by that house, was that before you testified before the Grand Jury or after?
('ARTHUR') Before.
(DC) Okay. And was it the same day like earlier the same day or a few days before, do you recall?
('ARTHUR') A few days before.
(DC) Okay. And would you remember the [202] names of the police officers that drove you there?
('ARTHUR') Mr. -- Ronnie, and I forget the other guy's name.
(DC) Okay. Would Ron Bates, does that name sound familiar for Mr. Ronnie?
('ARTHUR') Yes.
(DC) Did you see him here today?
('ARTHUR') Yes.
(DC) And that the same Ronnie we are speaking of?
('ARTHUR') Yes.
(DC) All right. Now, I think you mentioned being in Mr. Nickel's bedroom, did you not?
('ARTHUR') Yes.
(DC) And the colors of the walls in Mr. Nickel's bedroom, were what color?
('ARTHUR') Blue.*
[*No -- they're actually off-white. (But the wall in the background of the sex photo was blue.)]
(DC) Now, when you went into Mr. Nickel's house, well, is it do you know what I mean by a one-story and a two-story house?
('ARTHUR') Yes.
(DC) When you entered the house, what room would you enter into?
('ARTHUR') The hall. [203]
(DC) Was it a rather long hall?
('ARTHUR') Yes.*
[*The way Nickel most commonly entered the house (which, again, 'Arthur' has -- in fact -- never set foot in) was through the door leading in from the garage. The other main way in was through the front door. But in either case, there is no 'long' hallway. Coming in through the garage, the den is immediately to the left; turning right, the bathroom is just a few feet down on the left; then one comes into the kitchen. Through the front door, one comes into the living room.]
(DC) And where was Mr. Nickel's bedroom off that hall?
('ARTHUR') In the top room.
(DC) In the what?
('ARTHUR') Upstairs room.
(DC) All right. And you were upstairs in that room?
('ARTHUR') Yes.*
[*No -- he has never been there -- or anywhere else inside Nickel's home.]
(DC) Did there come a time when one of the police officers, showed you a photograph that's been shown to you here this morning as People's "5"?
('ARTHUR') Yes.
(DC) And did they show you that photograph, before you testified before the Grand Jury or after?
('ARTHUR') Before and after.
(DC) Both times?
('ARTHUR') Yes.*
[*So, 'Arthur' was shown this pornographic image multiple times -- not by Nickel, but by the prosecution.]
(DC) Was it when you say before you testified before the Grand Jury, was it the same day earlier that same day or before that? [204]
('ARTHUR') Earlier the same day.
(DC) And was that photograph shown to you by Mr. Ron Bates?
('ARTHUR') Yes.
(DC) And did they tell you at that time, that you were going to be going into the Grand Jury?
('ARTHUR') No.
(DC) But you did go in before the Grand Jury, didn't you?
('ARTHUR') Yes.
(DC) Now, did you tell the Grand Jurors that beside the walls being blue and the house being white, that Mr. Nickel would have to duck his head to go through the door?
('ARTHUR') Yes.*
[*Although defense counsel does not specifically say 'the bedroom door,' given the extensive prior discussion of the bedroom, it seems pretty clear that that is what he was referring to, as well as how 'Arthur' understood it. But the fact is, Nickel did not have to 'duck his head' to go through that door -- or for that matter, any other door in that house. (See: Nickel's home.) However, it's pretty clear where 'Arthur' got this 'idea' from. Nickel had previously told him that, when the former lived in Boston, there was a door leading from the basement to a back patio that he would have to duck his head to go through. Thus, with the 'help' of some highly suggestive interviewing (see: Suggestibility section), 'Arthur' came to conflate that story about one of Nickel's previous residences with this subsequent one.]
(DC) Did you tell them that?
('ARTHUR') Yes.
(DC) Now, you described a camera being on the window sill in Mr. Nickel's bedroom?
('ARTHUR') Yes.
(DC) How many windows were in that room?
('ARTHUR') Two.*
[*Actually, there are three windows in Nickel's bedroom.]
(DC) And how big was the window sill? Could you show us with your hands or? [205]
('ARTHUR') About this big (indicating).
(DC) All right.
(CZAJKA) Three and a half feet [DC]?*
[*Where had 'Arthur' actually seen window sills (approximately) that wide? In the basement of the group home where he lived at the time.]
(TORNCELLO) Are we talking about the window or the window sill?
(CZAJKA) Do you know what the window will is? What's the window sill?
('ARTHUR') It's like the holding the wall.
(CZAJKA) Where is it in the window?
('ARTHUR') Like here's the ground, here's the window sill.
(CZAJKA) Where the window --
('ARTHUR') It's right in the side the window sill.
(DC) Okay. Now, did you tell the Grand Jury, that in Mr. Nickel's bedroom, there was a water bed?
('ARTHUR') Yes.*
[*False. But like the above 'head-ducking' reference, its source was something Nickel had previously told 'Arthur.' He had mentioned that his sister (in Virginia) had a waterbed.]
(TORNCELLO) I understand the rules of evidence, I'm going to object to form. If he asked him what he talked about in the Grand Jury. Thanks. [206]
(DC) Now?
(CZAJKA) Object when the question is asked, if you wish to.
(TORNCELLO) Your Honor --
(CZAJKA) If you wish to make an objection, do so in a timely manner.
(DC) When you -- did there come a time, that you went to see Dr. Oberheim, on August the 9th? Do you recall that visit of 2000?
('ARTHUR') Yes.
(DC) And did Dr. Oberheim ask you any questions?
('ARTHUR') Yes.
(DC) Did he run a physical examination of you at that time?
('ARTHUR') Yes.
(DC) When on or about -- let me ask you, do you recall when this Ron Bates first came to see you?
('ARTHUR') No.
(DC) But without remembering the date, do you recall the event? Do you recall when you first met him?
('ARTHUR') Yes.
(DC) And did you tell him or did you say to [207] him that you believed he was there because of some slapping incident?
('ARTHUR') Yes.*
[*Indeed -- that's why Nickel thought they had come to see him as well.]
(DC) Had you reported some slapping incident?
('ARTHUR') No.
(DC) To the school?
('ARTHUR') Yes.
(DC) And did there come a time after you reported that slapping incident, that you realized that didn't happen?
('ARTHUR') One wonders if, later on, 'Arthur' also realized that the sexual acts he testified to here never happened either.]
(DC) And for --
(TORNCELLO) Objection.
(CZAJKA) Sustained, I don't understand what you're talking about. Sustained. The objection is sustained.*
[*If Czajka doesn't understand what defense counsel was talking about, then he must not have been paying very good attention, given that, earlier that same day, Bates testified at some length about this supposed 'slapping incident.' Also, Torncello was objecting far too late -- 'Arthur' had already answered this question (and DC was already starting to ask another one). Lastly, it seems rather odd not only that Czajka sustained this objection (given that the question was already answered), but also, that he said 'sustained' three times.]
(DC) Well, at first you told the school, that you had been slapped, didn't you?
('ARTHUR') Yes.
(CZAJKA) Well, the school is the -- did you talk to a person at the school?
('ARTHUR') Yes. [208]
(CZAJKA) Who was it?
('ARTHUR') My principal.
(CZAJKA) Okay.
(DC) Her name was what?
('ARTHUR') Oh, lord.
(DC) Miss O'Donnell?
('ARTHUR') No.
(DC) Miss Hinges?
('ARTHUR') No.
(DC) That is all right if you don't remember. Did Amy Hinges ever talk to you about that --
('ARTHUR') Yes.
(DC) -- Report? And there came a time, did there not, when you told her that that didn't happen?
(TORNCELLO) Objection.
(CZAJKA) Well, no foundation as of yet. It's not clear that he told her, what if anything he told her.
(DC) The principal or when you reported this slapping incident at --
(CZAJKA) Excuse me, what did you tell the principal about slapping? [209]
('ARTHUR') I told her that his friend slapped me.
(DC) Whose friend?
('ARTHUR') Jeffrey Nickel's.
(CZAJKA) Okay. And then you went back and indicated to him that that wasn't correct?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
('ARTHUR') Yes.
(DC) Okay. And who did you tell that that wasn't correct to?
('ARTHUR') My social worker.
(DC) That's Amy Hinges?
('ARTHUR') Hinges, yes.
(DC) And did you tell Amy Hinges that it may have been something that you dreamed or dreampt?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
('ARTHUR') Yes.
(DC) Did you sometimes dream about things?
('ARTHUR') Yes.
(DC) Do you sometimes mistake a dream for what really happened?
(TORNCELLO) Objection. [210]
(CZAJKA) Overruled.
('ARTHUR') Yes.
(DC) If you know, the medication that you took, I'll strike that. Have you in the past told things that maybe weren't true?
('ARTHUR') Yes.
(DC) And how many times have you done that?
(TORNCELLO) Objection.
(CZAJKA) Overruled, if you know. Do you know the times you said things that aren't true?
('ARTHUR') No.
(DC) What would be your best guess?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
('ARTHUR') About two.
(DC) Did you get in any trouble?
('ARTHUR') Yes.
(DC) The first time that you told something that wasn't true, what trouble did you get into?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
('ARTHUR') Staying in my room all day. [211]
(DC) And what was that that you said that wasn't true? What was that about?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
('ARTHUR') That Jeff gave me, a motorcycle.
(DC) And who did you tell that to?
('ARTHUR') My staff.
(DC) And then did you later tell them that wasn't true?
('ARTHUR') Yes.
(DC) And the second time that you remember telling something that wasn't true, what if any punishment happened then?
('ARTHUR') I had to clean up all day and clean every room, and make dinner all day.
(DC) All right. And what was that untruth that you told about?
('ARTHUR') That Jeff gave me a saxophone.*
[*So here, the two things 'Arthur' admits to having told untruths regarding both related to Nickel.]
(DC) Okay. Did you think that he had given you those things?
('ARTHUR') Yes.
(DC) By then later on you found out that it wasn't so?
('ARTHUR') Yes.
(DC) May I have just a [212] moment please? I have no further questions. Thank you, Your Honor. Thank you young man.
(CZAJKA) Okay?
(TORNCELLO) Can I ask ['Arthur'] just to clarify something?
(CZAJKA) It's your case.
(TORNCELLO) No further questions. *
[*What made Torncello change his mind here? Perhaps a look from Czajka?]
(CZAJKA) ['Arthur'], step down.
(Witness excused).
(DC) Your Honor, I would ask the D.A. could be admonished to keep him available because of that medical.*
[*Well, for whatever reasons(s), 'Arthur' does not take the stand again.]
(CZAJKA) He understood that.
(DC) Okay. I don't think we can get in another witness before two or -- can we?
(TORNCELLO) It's another child, but I imagine we can. [213]
(CZAJKA) Spell your name for me.
('BRENDAN') [Then spells his name].
(CZAJKA) How old are you?
('BRENDAN') Ten.
(CZAJKA) What do you want me to call you?
('BRENDAN') [Then specifies].
(CZAJKA) ['Brendan']?
('BRENDAN') Yes.
(CZAJKA) ['Brendan'], you hear how loud I'm talking? Think you can match me?
('BRENDAN') Yes.
(CZAJKA) All right. What do you want me to call you?
('BRENDAN') ['Brendan'].
(CZAJKA) All right. That man behind me.
('BRENDAN') Yes.
(CZAJKA) What just happened with him?
('BRENDAN') He was telling me, for the swearing thing.
(CZAJKA) For the what? [214]
('BRENDAN') He told me to tell the truth and nothing but the truth.
(CZAJKA) What did you tell him?
('BRENDAN') Yes.
(CZAJKA) Yes what?
('BRENDAN') Yes, sir.
(CZAJKA) Yes what? I know that's all you said is yes, but what do you mean when you say yes?
('BRENDAN') I wouldn't lie.
(CZAJKA) Okay, What does that mean to lie?
('BRENDAN') To say somebody says that you were doing something, but you weren't, that's a lie.
(CZAJKA) What grade are you in ['Brendan']?
('BRENDAN') Fifth.
(CZAJKA) Where?
('BRENDAN') [Names school].
(CZAJKA) [Repeats school name]. Who is your teacher?
('BRENDAN') [Names teacher].
(CZAJKA) What classes do you [215] take? What are your subjects?
('BRENDAN') Reading, math, language arts, social studies, science.
(CZAJKA) How are you doing in these classes?
('BRENDAN') Great.
(CZAJKA) What are your grades?
('BRENDAN') Passing grades, I don't know exactly what they are.
(CZAJKA) What's the last report card you got?
('BRENDAN') I got a 91 quarterly average.
(CZAJKA) Good. How's your reading?
('BRENDAN') Great.
(CZAJKA) Yes. Do you read any books?
('BRENDAN') Yes.
(CZAJKA) What?
('BRENDAN') 'Everlasting,' right now I'm reading is 'The Fix Up Place of Frank Wyler,' 'The Fighting Grounds,' and one other thing I don't remember.
(CZAJKA) Do you go to church?
('BRENDAN') No. [216]
(CZAJKA) Did you ever?
('BRENDAN') Yes.
(CZAJKA) Did you ever have any kind of religious instruction?
('BRENDAN') No, we just go on a Sunday night with my grandmother, and we would go and play the game.
(CZAJKA) And who are you living with now?
('BRENDAN') My mom and dad.
(CZAJKA) Any brothers and sisters?
('BRENDAN') Yes.
(CZAJKA) What are their names?
('BRENDAN') [Names one of them].
(CZAJKA) Older or younger?
('BRENDAN') Older.
(CZAJKA) What grade is he in?
('BRENDAN') [Answers].
(CZAJKA) You and he get along?
('BRENDAN') Sometimes.
(CZAJKA) Sometimes not?
('BRENDAN') Yes.
(CZAJKA) I figured. When you and he play, do you ever lie to him? [217]
('BRENDAN') No.
(CZAJKA) You don't?
('BRENDAN') No.
(CZAJKA) How about with your pals? What's your best friend's name? Do you have a best friend?
('BRENDAN') Yes.
(CZAJKA) What's his name?
('BRENDAN') [Names him].
(CZAJKA) Do you ever lie to him?
('BRENDAN') No.
(CZAJKA) How about just in fooling around, do you lie to him?
('BRENDAN') Only like turn around, like turn around jokes where you say see the man behind you and he turns around and you say -- I forget the word you say.
(CZAJKA) That would be a lie?
('BRENDAN') Joking lie.
(CZAJKA) Yes. Do you know what it means to tell the truth here in this courtroom?
('BRENDAN') Yes.
(CZAJKA) What? [218]
('BRENDAN') To tell what you know, and tell, tell what you know, and what you remember about whatever it's about.
(CZAJKA) And what if you tell me something that's not true?
('BRENDAN') It's a lie.
(CZAJKA) And what would happen?
('BRENDAN') I don't know.
(CZAJKA) Well, if you are playing with your brother, and you got mad at him, told a lie, would you get in trouble?
('BRENDAN') Yes.
(CZAJKA) If you were playing with your teacher, or you're talking to your teacher about your homework, and you told your teacher you lost your homework when in fact you didn't do it, would you get in trouble for that?
('BRENDAN') Big trouble.
(CZAJKA) Now, if you told a lie here in this courtroom, would you get in trouble for telling a lie here?
('BRENDAN') Yes. [219]
(CZAJKA) What would be the most serious trouble you would have of those three lies?
('BRENDAN') Courtroom.
(CZAJKA) And why do you think so?
('BRENDAN') Because you were told to put your left hand on the bible, and swear that you would tell the truth that you did it.
(CZAJKA) Do you promise and swear that you will tell the truth?
('BRENDAN') Yes.
(CZAJKA) All right. Now ['Brendan'], see Lieutenant Stoudt there?
('BRENDAN') Yes.
(CZAJKA) Go sit with her for a minute. Attorneys? Mr. Torncello?
(TORNCELLO) No concerns, Your Honor.
(DC) I'd respectfully request the same questions I posed as I would have asked the Court to pose to ['Arthur'].
(CZAJKA) Okay. And I don't believe it's necessary to inquire further, do the People? What's the People's position?*
[*Torncello just told Czajka that he had 'no concerns.'] [220]
(TORNCELLO) I think that the inquiry was appropriate, in light of 60.20 of the Criminal Procedure Law.
(CZAJKA) [DC]?
(DC) My only exception was to the Court's not asking the questions that I requested.
(CZAJKA) And I find, like I did with respect to the first child witness, that the child is fully capable of understanding the nature of the oath, and testifying under oath. Come back up ['Brendan'].
(TORNCELLO) Thank you, Your Honor. Good afternoon ['Brendan'], how are you doing?
('BRENDAN') Good.
(TORNCELLO) What's your birthday?
('BRENDAN') [Specifies].
(CZAJKA) Remember ['Brendan'], you've got to speak loud.
('BRENDAN') Okay. [221]
(CZAJKA) What is your birthday?
('BRENDAN') [Repeats answer].
(TORNCELLO) Okay. And how old are you?
('BRENDAN') Ten.
(TORNCELLO) And where do you live? Can you tell me that?
('BRENDAN') [Specifies].
(TORNCELLO) You live in [names town]?
('BRENDAN') Yes.
(TORNCELLO) Who do you live with there?
('BRENDAN') My mom and dad.
(TORNCELLO) How about your brother?
('BRENDAN') He lives with my mom and dad.
(TORNCELLO) Okay. You said he's older your brother, right?
('BRENDAN') Yes.
(TORNCELLO) How much older?
('BRENDAN') [Specifies].
(TORNCELLO) So he's your _______________, right?
('BRENDAN') Yes.
(TORNCELLO) He's older, right?
('BRENDAN') Yes.
(TORNCELLO) Does he ever let you forget it? [222]
('BRENDAN') Sometimes.
(TORNCELLO) Okay. Now, the Judge asked you about grades and all that stuff, right?
('BRENDAN') Yes.
(TORNCELLO) I want to direct your memory back to last summer, okay? Did you have a chance to go to summer camp last summer?
('BRENDAN') Yes.
(TORNCELLO) Okay. And just so we know, is that -- what was the name of that summer camp?
('BRENDAN') [Specifies].
(TORNCELLO) Did it start around July 3rd of 2000 and go through July 14th of 2000?
('BRENDAN') You're right.
(TORNCELLO) Okay. And tell me about the camp? What did you do at summer camp?
('BRENDAN') We walked to the door.
(CZAJKA) Remember talk up ['Brendan'].
('BRENDAN') We walk through the doors and then we go, we meet with our groups and as soon as everyone was there, we go to the bathroom and we change into our swim shorts and go down to _______________ and we swim for a while. Then we -- [223]
(TORNCELLO] I'm going to interrupt you a little bit, where did you go first? Where was the camp located?
('BRENDAN') [Specifies].
(TORNCELLO) Right here in _____________?
('BRENDAN') Yes.
(TORNCELLO) Okay. What was the name of that camp?*
[*Torncello had already asked this question (and 'Brendan' had already answered it).]
('BRENDAN') [Answers].
(TORNCELLO) And did you sleep overnight at the camp?
('BRENDAN') No.
(TORNCELLO) You just drove there in the morning, is that right?
('BRENDAN') Yes.
(TORNCELLO) And then how did you get home?
('BRENDAN') My dad would come and pick me up around five.
(TORNCELLO) Okay. Did you go -- how many days did you go to the camp?
('BRENDAN') Either a week or two weeks.
(TORNCELLO) But did you go Monday through Friday?
('BRENDAN') Yes.
(TORNCELLO) Okay. And at that time, did you meet a man name Jeffrey Nickel?
('BRENDAN') Yes. [224]
(TORNCELLO) Okay. And what was his role? What did he do at ___________ Camp?
('BRENDAN') He was one of the counselors.
(TORNCELLO) He was a counselor? Was he your counselor?
('BRENDAN') Yes.
(TORNCELLO) Okay. And was he sort of in charge of some of the kids?
('BRENDAN') That were in my group.
(TORNCELLO) How many kids were in your group, if you remember?
('BRENDAN') Either six to eight or eight to ten.
(TORNCELLO) Boys and girls?
('BRENDAN') Yes.
(TORNCELLO) Okay. Do you see Jeff Nickel in the courtroom today?
('BRENDAN') Yes.
(TORNCELLO) Okay. Can you point to him?
('BRENDAN') (Pointing).
(TORNCELLO) Maybe describe a little how his tie -- what color is his tie?
('BRENDAN') A bluish color.
(TORNCELLO) Your Honor, if the record could reflect that the witness identified the defendant? [225]
(CZAJKA) Yes.
(TORNCELLO) Thank you. Now, where was the first time or when was the first time that you met Jeffrey Nickel?
('BRENDAN') The first day I walked into [camp].
(TORNCELLO) You've never seen him before, right?
('BRENDAN') No.
(TORNCELLO) Okay. And he was your counselor and did he become your friend?
('BRENDAN') Yes.
(TORNCELLO) At first, right was, he your friend?
('BRENDAN') Yes.
(TORNCELLO) Okay. And what kinds of things did you do at the camp you said?
('BRENDAN') We'd go to ___________ Park and then we would swim there and come back, and I think we would have a snack or something like that and then we'd go walk around the museum, and then like the last couple of days we would go to a couple of the parks and walk around and play tag and stuff.
(TORNCELLO) Okay. When you went swimming did you arrive at camp with your bathing suit on?
('BRENDAN') We'd change there -- we changed. [226]
(TORNCELLO) Where would you change?
('BRENDAN') In the boy's bathroom.
(TORNCELLO) Where would Mr. Nickel be when you changed in the bathroom?
('BRENDAN') He'd normally be changed before us.
(TORNCELLO) Okay. He changed first?
('BRENDAN') Yes.
(TORNCELLO) Would he go into the bathroom with you?
('BRENDAN') Only to come tell us that you have to hurry up.
(TORNCELLO) Okay. And did you change in a big open area or in the stall?
('BRENDAN') In a stall.
(TORNCELLO) Did he go into the stalls?
('BRENDAN') No.
(TORNCELLO) Okay. You said you did go swimming pretty much every day?
('BRENDAN') Yes.
(TORNCELLO) And when you went swimming on some occasions, some times, did Jeffrey Nickel go swimming?
('BRENDAN') Yes.
(TORNCELLO) And did you ever play any games with Jeffrey Nickel? [227]
('BRENDAN') Yes, and other people from other groups.
(TORNCELLO) Okay. What kinds of games did you play with Jeff?
('BRENDAN') We'd play like swim tag, and bull and that would be basically it.
(TORNCELLO) Okay. What's -- you said bull, right?
('BRENDAN') Yes.
(TORNCELLO) What's bull?
('BRENDAN') It's like where there's one person, and he like pulls you in, and I don't remember the rest.
(TORNCELLO) Okay. Did you make up the game bull?
('BRENDAN') No, we just played it along.
(TORNCELLO) Okay. Did you ever play it with Jeffrey Nickel?
('BRENDAN') Yes, he was like the bull.
(TORNCELLO) He was the bull?
('BRENDAN') Yes.
(TORNCELLO) Okay. What would you do?
('BRENDAN') He would try to pull us in and we would have to get away, and when he got away we have to try to stay away and splash him and stay away.
(TORNCELLO) Did you ever come in contact with [228] Jeffrey Nickel? Did you ever touch him?
('BRENDAN') Yes, when I tried to get away.
(TORNCELLO) Did he ever touch you?
('BRENDAN') Yes.
(TORNCELLO) Where did he touch you? What kinds of -- what part of his body and what part of yours?
('BRENDAN') He'd like touch -- he would bring us -- his foot to pull us toward him and stuff.
(TORNCELLO) Where would his foot touch? What part of your body?
('BRENDAN') Either the back or he'd push us away and bring us back or something.
(TORNCELLO) And when you say the back -- when you say the back, what do you mean by that?
('BRENDAN') The area (indicating) where like the spinal cord is and stuff.
(TORNCELLO) Could the record reflect where you just indicated?
(CZAJKA) His back from the -- his neck he pointed at his neck and below his shoulder blade.
(TORNCELLO) And in addition to that, did he ever touch you, in a private area?* [229]
[*Having failed to get 'Brendan' to say that Nickel touched him anywhere -- or in any way -- that might be seen as sexual, Torncello now asks him a leading question which, under the rules of evidence, is not permitted. But defense counsel does not object.]
('BRENDAN') Yes.
(TORNCELLO) Okay. And tell me about that? Was that in the pool as well?
('BRENDAN') Yes.
(TORNCELLO) And what part of his body touched you in your private area?
('BRENDAN') His foot.*
[*Really? Supposedly, Nickel is touching 'Brendan,' as the law so crudely puts it, 'for sexual gratification.' And Nickel is using his foot to achieve this? Come on.]
(TORNCELLO) Okay. Where would the foot touch you?*
[*Torncello makes it sound like this (supposedly) happened lots of times. In fact, the count of the indictment here alleges that it occurred just once.]
('BRENDAN') In my private area.
(TORNCELLO) Okay. When you say private area, what do you mean? Do you have -- what words do you use for your privates?
('BRENDAN') Testicles.
(TORNCELLO) His foot would touch your testicles?
('BRENDAN') Yes.
(TORNCELLO) How did that feel?
('BRENDAN') It hurt.*
[*This seems to be something 'Brendan' was coached to say, given that, 'Arthur' used the exact same words.]
(TORNCELLO) It hurt. Did you say anything to him?
('BRENDAN') Uhm -- not really.
(TORNCELLO) Did he say anything to you?
('BRENDAN') Just sorry throughout the day.*
[*In fact, Nickel said no such thing to 'Brendan.' However, it is possible that 'Brendan' is saying this in an effort to 'help' Nickel.]
(TORNCELLO) Okay. So?*
[*So... what, exactly? Albeit inaccurately, 'Brendan' did fully answer Torncello's question here.]
('BRENDAN') And he apologized throughout the whole day, yes.
(TORNCELLO) Okay. More than once, right? [230]
('BRENDAN') Yes.*
[*Nope -- never.]
(TORNCELLO) Okay. Did you say anything to him then?
('BRENDAN') Not really.*
[*So, Nickel is supposedly apologizing -- several times throughout the day -- for touching 'Brendan's' testicles with his foot. And 'Brendan' did not respond at all to these apologies? That's not credible. Even a child knows that when someone apologizes to you, you're supposed to say something like, 'oh, that's okay.' But to say nothing would be very awkward indeed.]
(TORNCELLO) Okay. Did you ever tell your mom and dad that?
('BRENDAN') No.
(TORNCELLO) How come?
('BRENDAN') Because I didn't really know what it was like when I was nine.*
[*Well, this trial was only about ten months after the alleged 'foot' incident. He's since turned ten, but, what could have made him 'aware' of the (supposedly) sexual nature of this event in the intervening period? The answer seems clear: police and prosecution 'interviewing'/coaching.]
(TORNCELLO) Okay. No further questions. Thank you very much.
(DC) Good afternoon, ['Brendan'], again I'm going to bring you back to that time period, of July 3rd to July 14th of the year 2000. If I understood your testimony, you attended a day camp called ____________, and it was a five day a week camp, at _____________, and there were other boys and girls that attended too, is that all correct?
('BRENDAN') Yes. [231]
(DC) All right. And your parents would drop you off and pick you up at the end of the day? That was sort of the system, was it?
('BRENDAN') Yes.
(DC) And I believe that you told the D.A., that you were in a group of maybe somewhere between six and ten children?
('BRENDAN') Yes.
(DC) Now besides your group, were there also other groups?
('BRENDAN') Yes.
(DC) Assigned to this ______________ camp?
('BRENDAN') Yes.
(DC) How many groups would you say?
('BRENDAN') Other than me about four.
(DC) Other than your group, four or five. So you would have had 40 or 50 kids total?
('BRENDAN') Yes.
(DC) And they would break, I assume, the groups into groups of ten or less?
('BRENDAN') Yes.
(DC) And you would have some sort of a supervisor guiding each of the groups?
('BRENDAN') Yes. [232]
(DC) So if we had about five groups you would have at least five supervisors for each group?
('BRENDAN') Yes.
(DC) And then would the groups of supervisors would they have like an assistant or someone to help them?
('BRENDAN') No.
(DC) Was there someone called Peter who assisted?
('BRENDAN') I think he was the person that would come get us off to -- get out of our cars and go into the things and mark us down.
(DC) Okay. So when you finished whatever at the _____________ Pool and take a swim in the summer time on hot days I assume?
('BRENDAN') Yes.
(DC) To give you a chance to, kind of get rid of some energy, right?
('BRENDAN') Yes.
(DC) Okay. And all of your groups would go at the same time?
('BRENDAN') No, I think only two groups went at one time. [233]
(DC) So maybe you would have been between sixteen and twenty kids?
('BRENDAN') Yes.
(DC) Going down to the pool?
('BRENDAN') Yes.
(DC) Okay. And you would get into your bathing suits and come and horse play around the pool?
('BRENDAN') Yes.
(DC) And on one of these days if I understood your testimony correctly, you were in the pool playing various chase and splash games?
('BRENDAN') Yes.
(DC) When Mr. Nickel's foot, touched you in the testicular area, is that correct?
('BRENDAN') Yes.
(DC) And you told him that hurt or you said that hurt?
('BRENDAN') I didn't say it.
(DC) In any event, he apologized for that?
('BRENDAN') Yes.
(DC) Was there a lot of rough housing happening around in the pool?
('BRENDAN') Not really. [234]
(DC) Would you pull kids into the pool or?
('BRENDAN') No.
(DC) Pull them toward you or push them away?
('BRENDAN') No, only when we were having like making wars and stuff, we'd throw water at him and they moved back.
(DC) Okay. I thought you said they would push you sometimes?
('BRENDAN') Yes, well, we were splashing and they would like accidentally hit us in the shoulder or something.
(DC) Okay. But it was -- were these games so we can better understand for those of us that haven't played either, just like horsing around in the water, is that a way to describe it?
('BRENDAN') Yes.
(DC) And can we agree that, when we horse around in the water, we will sometimes hit someone by accident or mistake?
('BRENDAN') I don't know.*
[*Wait a second. 'Brendan' just said: "...they would accidentally hit us in the shoulder or something." But just a minute later, he 'doesn't know'?]
(DC) Let me ask you a little bit about this, did some investigator come and talk to you? [235]
('BRENDAN') Yes, they called my mom and then we went down to the police station, and we talked.
(DC) Okay.
(CZAJKA) Thanks.*
[*It's unclear who Czajka's thanking here, or for what.]
(DC) Was your mom present when you talked or just you and the investigator?
('BRENDAN') Just me and the investigators.*
[*Right -- that way, they had freer rein to 'coach' him etc.]
(DC) Okay. And did they tell you that they were investigating a particular individual?
('BRENDAN') Yes, I don't remember.
(DC) Did they take any notes? Did you see they were writing things down?
('BRENDAN') Yes.*
[*Well, the defense did not get a copy of any notes taken of the interview(s) with 'Brendan,' which constitutes yet another Brady (discovery) violation.]
(DC) Was there anyone else present besides you and the two investigators?
('BRENDAN') No.
(DC) Do you recall when this was that they talked to you?
('BRENDAN') About a week or two after [camp].
(DC) Sometime, would you say, in July or was it August?
('BRENDAN') I think the end of July or the beginning of August.
(DC) And were they asking you questions at [236] that time about Jeffrey Nickel?
('BRENDAN') Yes.
(DC) When they started to question you, how did they begin?
('BRENDAN') I don't remember.
(DC) Did they ask you, whether or not Jeffrey Nickel's contact with your testicle, whether that was an accident or not?
('BRENDAN') Yes.
(DC) Did you tell them you didn't know?
('BRENDAN') Yes.
(DC) What did you tell them then?
('BRENDAN') I don't remember.
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(DC) And you finished about within the course of that period of time, from July 3rd to July 14th the period [the camp] --
(CZAJKA) And when in that time frame did this incident occur?
('BRENDAN') I think the last week.
(DC) But did you ever go back to class after it?
('BRENDAN') After my session was over? [237]
(DC) No, no.
(CZAJKA) After your camp that day.
(DC) After the day you talked about the foot, in your private era, did you have other --
('BRENDAN') When I was down in the station.
(DC) No, I'm sorry. I am confused?
(CZAJKA) The day you swam and you talked about the foot and going back to the [site of the camp], that day?
('BRENDAN') Yes.
(DC) All right. And did you go to camp the next day at ______________ camp the next day?
('BRENDAN') Yes.
(DC) And the next day?
('BRENDAN') Yes.
(DC) Okay. And then camp ended?
('BRENDAN') I think so.
(DC) Okay. During that three day period that you went back to camp after this that you recounted for us, did you ever complain about this to any personnel there at the [238] camp?
('BRENDAN') No.
(DC) To your mom or dad or?
('BRENDAN') Because I didn't know what it meant.
(DC) Okay. May I have just a moment please? I think that's all, Your Honor. Thank you ['Brendan'].
(TORNCELLO) Yes, judge. When you talked about Jeff Nickel's foot being up by your testicles, was that on the outside your swim trunks or on the inside of your swim trunks?
('BRENDAN') Inside.*
[*That's not credible. Firstly, virtually all modern swim trunks have inner linings. That means that, standing on one foot, with his other foot, Nickel would have had to get past not only the outer layer, but also the inner one, and then somehow home right it in this boy's testicles. Secondly, this particular pool had a significant downward slope to it, which would have made all of these supposed maneuvers all the more difficult.]
(TORNCELLO) Okay. And?*
[* And... what? Again, albeit implausibly, 'Brendan' did fully answer the question Torncello just asked.]
(CZAJKA) Say that again?*
[* Well, the stenographer clearly heard 'Brendan's' (first) answer just fine. What else was Czajka unable to hear -- or perhaps heard incorrectly?]
('BRENDAN') Inside.
(DC) Your Honor, I'd object* to the question as not being covered on direct or cross.
[*Well, it was far too late for defense counsel to object to this question: 'Brendan' had already answered it, Torncello had started to ask another question; Czajka then interjected; and last but not least, 'Brendan' answered this question yet again. In any event, Czajka -- as the one deciding Nickel's guilt or innocence -- could hardly 'un-hear' these answers. (Nor did he have the benefit of the above analysis of the implausibility of 'Brendan's' responses here.)]
(CZAJKA) What do you say to that? [239]
(TORNCELLO) I think it was Judge. We talked about it on cross-examination, the contact that he had between his -- on his testicles.
(CZAJKA) Okay. Sustained.
(TORNCELLO) Now, I'm not sure, maybe I did ask this, maybe I didn't ask this, did his foot being in contact with your testicles, did that happen one time or more than one time?
('BRENDAN') One time.
(TORNCELLO) Okay. No further questions.
(CZAJKA) Thank you ['Brendan']. Attorneys, come see me in 201.
<END OF DAY ONE>
Trial Transcript - Day Two
Trial Transcript - Day Two (May 18, 2001)
(Annotated)
[Typographical / Syntax errors have been left uncorrected]
[246] (CZAJKA) Good morning. You were both kind enough to accommodate my schedule, and I'm the person that's late this morning, please excuse me for that. Are we -- do we have to do anything before the next witness is called?
(TORNCELLO) The only thing is I want to renew my request, on the letters, People's number one through four for identification. It's our position that they contained admissions of the defendant, to the specific charges in the indictment.
(CZAJKA) I haven't read them yet.
(TORNCELLO) The only reason is I want to make a point, as I'm close to resting, and I don't think I can rest unless a decision is made on that, that's all, at some point.
(CZAJKA) I'll deal with it before you rest.
(TORNCELLO) Great. Thank [247] you. Other than that --
(DC) I'll reserve my objection.
(CZAJKA) I'll give you both an opportunity to argue after I've read the materials and before I rule.
(DC) Your Honor, with respect to the reading materials, I believe they were handed up to the Court, four letters, I was provided with but one letter, so, three of the letters that the Court is going to have I never --
(TORNCELLO) Let me say that there were four envelopes, there is one letter. The other envelopes contain photographs, with notations on the back of the photographs, that's what we are referring to. I think you've had an opportunity any way to see them though, haven't you?
(DC) That I have. I thought maybe four envelopes were handed up and four letters.
(TORNCELLO) Four envelopes.
(DC) And Your Honor, before -- as to the joint capacity of the [248] Court in this trial as both the trier of the law and the facts, of course these were the kinds of the -- the things that we were very careful of with respect to a jury, so again, we would like to ask the Court to, you know, use its discretion.
(CZAJKA) I appreciate that, I'm confident that I can disregard that which is inadmissible. Certainly including, the things that we discussed in pre-trial.
(DC) Thank you, sir.
(CZAJKA) Call your next witness.
(TORNCELLO) We call ['Chris'].
(CLERK) Good morning. Tell me your full name?
('CHRIS') I know my middle name.
(CZAJKA) Great.
('CHRIS') Okay. [Gives full name]. [249]
(CZAJKA) What do you want me to call you?
('CHRIS') Either ___________ or ___________, I don't really care.
(CZAJKA) All right. How do you spell that?
('CHRIS') Which one. __________ or ___________?
(CZAJKA) All of them.
('CHRIS') [Spells both full first name and shortened version.]
(CZAJKA) What about your last name?
('CHRIS') My last name is spelled _____________.
(CZAJKA) All right. How old are you now ['Chris']?
('CHRIS') I am 11 and 3/4.
(CZAJKA) Whoa. What's your date of birth?
('CHRIS') I was born on ______________.
(CZAJKA) [Repeats birth year]. Where were you born?
('CHRIS') I don't know.
(CZAJKA) And where are you living now?
('CHRIS') I'm living in _______________. [250]
(CZAJKA) Okay. Whereabouts?
('CHRIS') [Gives address].
(CZAJKA) Who are you living there with?
('CHRIS') I am living with -- with my mother, step-father, my brother and my little sister.
(CZAJKA) What's your little sister's name?
('CHRIS') [Gives name].
(CZAJKA) How old is she?
('CHRIS') She is 8.
(CZAJKA) Okay. And are you in school?
('CHRIS') Uh-huh.
(CZAJKA) Yes?
('CHRIS') (Nod nod).
(CZAJKA) You have to say yes or no ['Chris'].
('CHRIS') Yes.
(CZAJKA) What school are you in?
('CHRIS') [Specifies].
(CZAJKA) What grade are you in?
('CHRIS') 6th.
(CZAJKA) What classes do you take? What subjects?
('CHRIS') Math, science, social studies, reading, library, same things, and I think that's it.
(CZAJKA) Okay. What is your favorite subject?
('CHRIS') Math.
(CZAJKA) And what are you learning about in math these days.
('CHRIS') Measuring.
(CZAJKA) What? How so?
('CHRIS') (No response).
(CZAJKA) What are you measuring?
('CHRIS') Right now the centimeter part.
(CZAJKA) Uh-huh. How do you measure the volume of a rectangle, the area of a rectangle? Is that what it is you're doing, things you're learning about?
('CHRIS') Yes.
(CZAJKA) How would you determine what the area of a rectangle is?
('CHRIS') I don't know. [252]
(CZAJKA) Tell me what you've learned in math in measuring?
('CHRIS') We have learned about inches, centimeters, and right now I'm learning about cubic stuff, observing an area.
(CZAJKA) What does that mean?
('CHRIS') I don't know yet.
(CZAJKA) You are going to start learning, that's why they're teaching you?
('CHRIS') Right.
(CZAJKA) If you knew that already they wouldn't have to teach you, right?
('CHRIS') Right.
(CZAJKA) What are you learning about in reading in English class?
('CHRIS') I think in English now I'm learning about -- I don't remember.
(CZAJKA) That's okay. How's your reading?
('CHRIS') Pretty good.
(CZAJKA) Are you able to read pretty well?
('CHRIS') Uh-huh. [253]
(CZAJKA) Write pretty well? Say yes or no.
('CHRIS') Yes.
(CZAJKA) Are you reading any books?
('CHRIS') In reading.
(CZAJKA) What was -- what is your favorite book that you have read?
('CHRIS') This one like I'm reading in the classroom is 'A Dog Called Kitty.'
(CZAJKA) Is that a good book?
('CHRIS') Yup.
(CZAJKA) What's it about?
('CHRIS') It's a dog that a girl keeps, that a girl is afraid of, but then when she -- when they realize the dog is so kind and it's starving to death, that's when she is not afraid and she helps the dog.
(CZAJKA) Okay.
('CHRIS') And it keeps coming when the mother says, come kitties.
(CZAJKA) The dog comes?
('CHRIS') Yes.
(CZAJKA) That's a silly book!
('CHRIS') Yeah. [254]
(CZAJKA) Do you go to church at all?
('CHRIS') Uh-huh.
(CZAJKA) What church do you go to?
('CHRIS') [Answers].
(CZAJKA) And do you have any religious instruction when you go to that church?
('CHRIS') I don't know.
(CZAJKA) Well, do you just attend services or do you also have a teacher that teaches you about religion?
('CHRIS') We don't get taught about religion, I don't really know how to explain what we get taught about.
(CZAJKA) Do you go every week?
('CHRIS') Uh-huh.
(CZAJKA) What day of the week do you go?
('CHRIS') Well, I guess Sundays, Saturday and Wednesday.
(CZAJKA) Three days a week?
('CHRIS') But Saturday is just for kids.
(CZAJKA) Okay. [255]
('CHRIS') Sunday is for kids and adults, so is Wednesday.
(CZAJKA) For kids and adults?
('CHRIS') Uh-huh.
(CZAJKA) What's that shirt you have on.
('CHRIS') As [name of school he attends] shirt.
(CZAJKA) Okay. Do you know who I am?
('CHRIS') Uh-huh.
(CZAJKA) Do you know what my job is?
('CHRIS') The judge.
(CZAJKA) Okay. Do you know who the other people in the courtroom are?
('CHRIS') No idea.
(CZAJKA) How about that lady over there?
('CHRIS') She's the typist.
(CZAJKA) Do you know what she's doing?
('CHRIS') Typing up what I said.
(CZAJKA) Very good. How about this man behind me?
('CHRIS') (Nod nod). [256]
(CZAJKA) He's the first person you talked to when you came up here, right?
('CHRIS') Uh-huh.
(CZAJKA) You and he talked?
('CHRIS') Yes.
(CZAJKA) What did you talk about?
('CHRIS') Telling the whole truth.
(CZAJKA) And did you?
('CHRIS') Uh-huh.
(CZAJKA) Remember to say yes or no.
('CHRIS') Yes.
(CZAJKA) What does that mean to you?
('CHRIS') It means that if you tell the truth you're correct, if you tell a lie, you're not.
(CZAJKA) You're getting it correct?
('CHRIS') Yes, and correct.
(CZAJKA) Give me an example of something that's true?
('CHRIS') If I broke the window, but I didn't want to say I broke it, I still said it, that [257] way I would get wouldn't get into much trouble as I would if I lied and said my brother broke the window.
(CZAJKA) If you broke the window and I asked you if you broke the window, would that be truthful?
('CHRIS') If I broke the window?
(CZAJKA) If you broke the window and I asked you, if you broke the window, what would a lie be?
('CHRIS') I didn't, my brother did it.
(CZAJKA) Okay. And if that was a lie that you told to your brother, about your sister, you told your sister that your brother broke the window, that would be a lie, would that be good or bad?
('CHRIS') Bad.
(CZAJKA) And if you told a lie like that to your teacher, would that be good or bad?
('CHRIS') Bad.
(CZAJKA) And if you told a lie like that to your mom, what would that be?
('CHRIS') Bad.
(CZAJKA) How about if you told [258] a lie like that here in court in the courtroom to me.
('CHRIS') Really bad.
(CZAJKA) What would be worse, what would be the worst of all these?
('CHRIS') Telling a lie in here.
(CZAJKA) Why is that?
('CHRIS') Because you can get arrested.
(CZAJKA) You can get arrested?
('CHRIS') Uh-huh.
(CZAJKA) I couldn't hear?*
[* Once again, Czajka apparently has trouble hearing something that the stenographer heard just fine. What else did he not hear, or hear incorrectly?]
('CHRIS') You'd get arrested if you told a lie in Court.
(CZAJKA) Okay. And did you learn about telling lies when you got to church?
('CHRIS') Uh-huh, yes.
(CZAJKA) And what have you learned in church about lying?
('CHRIS') That lying --
(CZAJKA) Speak up.
('CHRIS') That lying isn't right, but telling the truth is better and instead of lying. And no lying is also in the commandments.
(CZAJKA) In the commandments, [259] and what are the commandments?
('CHRIS') You can have no other God --
(CZAJKA) No, no, no, don't tell me what they are, what are they about?
('CHRIS') About the rules for God, rules for us.
(CZAJKA) Okay. And what if you break one of those rules of God?
('CHRIS') God will punish us.
(CZAJKA) Okay. ['Chris']?
('CHRIS') Yes.
(CZAJKA) What I'd like for you to do is to step out in the hallway with Lieutenant Stoudt, okay?
('CHRIS') Yes.
(Whereupon, the witness was excused.)
(CZAJKA) All right. Mr. Torncello, do you wish to be heard with respect to the issue before the Court?
(TORNCELLO) Judge, no. I have no exceptions or additional requests for any further questioning of the witness.
(CZAJKA) [DC]? [260]
(DC) Your Honor, my request would be the same as having -- that I made with all the children called here.
(CZAJKA) Okay. I'm satisfied that this child, like the others, is an intelligent child, and in fact, more mature or his beyond his years, very bright, like the other two children, and fully capable of understanding the nature of the oath, and in fact, may testify under oath.
(TORNCELLO) Thank you.
(CZAJKA) Bring him back in.
(DC) Respectfully take an exception.
(CZAJKA) Come back up here ['Chris'].
('CHRIS') Okay.
(Whereupon, the witness resumed the witness stand,)
(CZAJKA) Now, you swear promise that you will tell the truth?
('CHRIS') Yes.
(CZAJKA) Okay go ahead. [261]
(TORNCELLO) Thank you, Your Honor. Good morning ['Chris']?
('CHRIS') Good morning.
(CZAJKA) Remember ['Chris'], you have to speak up.
('CHRIS') Okay.
(CZAJKA) So, that even the people in the back of the room can hear.
('CHRIS') All right.
(TORNCELLO) I guess so everyone knows, can you state your name for us again?
('CHRIS') I am ['Chris'].
(TORNCELLO) Okay. And ['Chris'], when is your birthday?
('CHRIS') [Specifies].
(TORNCELLO) Do you recall what year you were born in?
('CHRIS') 89.
(CZAJKA) 1989?
(TORNCELLO) Is that --
('CHRIS') Well, I am going to be twelve this [262] year.
(DC) Object to the statement of age, by this witness.
(CZAJKA) Well, I suppose age is something that would require -- none of us have personal knowledge of our own age.
(DC) That's correct.
(CZAJKA) So this witness is no different from the rest of us I suppose, in that regard. Objection overruled.
(TORNCELLO) Thank you. ['Chris'], do you got to school?
('CHRIS') Yes.
(TORNCELLO) And where do you go to school?
('CHRIS') [Specifies].
(TORNCELLO) What grade are you in?
('CHRIS') Sixth.
(TORNCELLO) Where do you live? What town or community do you live in?
('CHRIS') I live in ______________.
(TORNCELLO) And you live --
(CZAJKA) Remember to speak up; you live in _______________?
(TORNCELLO) And who do you live with in _____________? [263]
('CHRIS') My mother, my stepfather, my brother, my little sister.
(TORNCELLO) Okay. Now, for how long have you gone to __________ School?
('CHRIS') (No response).
(TORNCELLO) Do you recall?
('CHRIS') No, I don't.
(TORNCELLO) Okay. Have you been there for a few years?
('CHRIS') Yes.
(TORNCELLO) Okay. And you're in what grade now?
('CHRIS') Sixth.
(TORNCELLO) Okay. I want to bring your attention back to last year, back to 1999, so I'm a assuming you're in fourth grade, is that right?
('CHRIS') Yes.
(TORNCELLO) And I want you to focus on the month of about July, of 1999, okay? During that time did you meet a person or do you know a person by the name of Jeff Nickel?
('CHRIS') Yes.
(TORNCELLO) And where did you meet Jeff Nickel?
('CHRIS') My school.
(TORNCELLO) Okay. What was -- do you know what [264] was his job at [the school]?
('CHRIS') A teacher assistant.
(TORNCELLO) Okay. He was a teacher's assistant?
('CHRIS') Uh-huh.
(TORNCELLO) Was he assigned to the fourth grade or to your grade?
('CHRIS') I believe so.
(TORNCELLO) Okay. Or was he assigned to every grade? Did he work with all the grades do you know?
('CHRIS') I don't know.
(TORNCELLO) Okay. Now, well I guess incidentally, do you see Jeff Nickel in the courtroom today?
('CHRIS') Uh-huh.
(CZAJKA) Say yes or no?
('CHRIS') Yes.
(TORNCELLO) Can you point to him, please?
('CHRIS') Right there (indicating).
(TORNCELLO) What color jacket does he have on?
('CHRIS') Vanilla colored.
(TORNCELLO) Judge, I'd ask the record reflect that the witness identified the defendant.
(CZAJKA) Yes. [265]
(TORNCELLO) Okay. Back in July of 1999, where would you see Jeff Nickel? Where would you see him?
('CHRIS') In the classroom.
(TORNCELLO) All right. And did you talk to him?
('CHRIS') Uh-huh, yes.
(TORNCELLO) Did he help you with your subjects and with your class work?
('CHRIS') Yes.
(TORNCELLO) Did you become friends with him?
('CHRIS') Yes.
(TORNCELLO) All right. Did you ever have any contact with him. I mean physical contact with him?
('CHRIS') Alls I can remember is being restrained once, being restrained by him once.
(TORNCELLO) Being restrained by him once?
('CHRIS') Yes.
(TORNCELLO) Could you have -- when you say restrained, did his hands come in contact [266] with you?
('CHRIS') Yes.
(TORNCELLO) And where were his hands, when they were in contact with your body?
('CHRIS') I personally don't remember.
(TORNCELLO) Okay. Now, did you ever have any -- do you recall any sexual contact?
('CHRIS') No.
(TORNCELLO) With Jeff Nickel?
('CHRIS') No.
(TORNCELLO) Okay. During that period at all do you recall anything like that?
('CHRIS') No.
(TORNCELLO) Okay. Do you recall having any conversation with Jeff Nickel, concerning touching?
('CHRIS') I don't remember.
(TORNCELLO) You don't remember? Okay. Could I have just a minute judge? Okay. You said earlier that Jeffrey Nickel was your friend, right?
('CHRIS') Yes.
(TORNCELLO) Okay. Did there come a time when things changed when he really wasn't? That [267] you didn't think of him as your friend any more?
(DC) Objection, immaterial and irrelevant.
(CZAJKA) Overruled.
('CHRIS') Can you say that again?
(TORNCELLO) Yes. Did there come a time when things changed and that he wasn't really your -- that you didn't consider him your friend any more?
('CHRIS') Yes.
(TORNCELLO) Okay. And was that because did he make you feel uncomfortable?*
[* Again, Torncello is leading the witness, which is a clear violation of established rules of evidence.]
(DC) Objection.
('CHRIS') Yes.
(DC) Move to strike.
(CZAJKA) I'm going to give the D.A. a little latitude here.* Overruled.
[* The reason why Czajka is flouting established rules of evidence here is because he knows Torncello has not been able to elicit anything from 'Chris' that would constitute a crime on Nickel's part. So, as de facto second prosecutor, once more he gives Torncello a little 'help.']
(TORNCELLO) Thank you. Did something happen that changed your feeling for Jeffrey Nickel that made it, like you said,* it changed that at first you were comfortable and later you were uncomfortable?
[* Now, Torncello has gone beyond merely posing a leading question -- he's actually putting words in this witness' mouth: It wasn't "like 'Chris' said" -- it was Torncello who used the word 'uncomfortable.']
(DC) Objection.*
[* This time, Czajka simply ignores defense counsel's objection.] [268]
(TORNCELLO) Did something happen?
('CHRIS') Not that I remember.
(TORNCELLO) Okay. Judge, I have no further questions.
(CZAJKA) You have no questions [DC]?
(DC) May I have just a moment? Your Honor, we have no questions of ['Chris'].
(CZAJKA) ['Chris'], you're all done. Thank you.
(Whereupon, the witness was excused.)
(TORNCELLO) Good morning. Could you state your name for the record, please? [269]
(DEFRANCESCO) [Detective] Mark DeFrancesco.
(TORNCELLO) And what is your occupation?
(DEFRANCESCO) I am an inspector with the Albany County Sheriff's Department.
(TORNCELLO) How long have you been an inspector with the Sheriff's Department?
(DEFRANCESCO) Since September.
(TORNCELLO Okay. September, 2000?
(DEFRANCESCO) 2000, correct.
(TORNCELLO) Okay. And how long have you been employed in total, by the Albany County Sheriff's Department?
(DEFRANCESCO) Since April of 1991.
(TORNCELLO) Okay. Can you give us an idea of some of your duties and responsibilities, I guess as an inspector?
(DEFRANCESCO) As an inspector I am in command of the Office of Professional Standards which encompasses internal affairs and inspections.
(TORNCELLO) Back in August of 2000 what was your title?
(DEFRANCESCO) Senior Investigator.
(TORNCELLO) Give us an idea then, in August of 2000, what were your duties and responsibilities then? [270]
(DEFRANCESCO) I was a supervisor of the Criminal Investigations Unit within the Sheriff's Department.
(TORNCELLO) Okay. And I guess, what's the Criminal Investigations Unit?
(DEFRANCESCO) It's a unit in the Sheriff's Department which investigates crimes, major felonies, actually all felony investigations, crimes against children, computer crimes, everything with the exception of narcotics and vice.
(TORNCELLO) Okay. Narcotics and vice is a separate unit?
(DEFRANCESCO) Correct.
(TORNCELLO) Do you have staff that works for you or below you?
(DEFRANCESCO) Yes.
(TORNCELLO) How many people are involved with that staff, if you remember?
(DEFRANCESCO) It varies, usually four investigators.
(TORNCELLO) Okay. I want to bring your attention again back to August of 2000; at some point did you become involved in an investigation, of alleged child abuse?
(DEFRANCESCO) Yes. [271]
(TORNCELLO) And if you recall, when did you -- did you become involved with that investigation?
(DEFRANCESCO) I believe it was August 3rd of 2000.
(TORNCELLO) And how did you become involved, do you recall?
(DEFRANCESCO) I received a call from my superior, that a mail clerk at the Correctional Facility, the Albany County Correctional Facility had received letters in the mail and contained in the letters were some pictures.
(TORNCELLO) What did you do? Did you respond to the jail?
(DEFRANCESCO) No, I didn't. I sent an investigator over.
(TORNCELLO) Who was?
(DEFRANCESCO) I believe Investigator Ron Bates.
(TORNCELLO) Okay. And I'm assuming you're the boss and were you kept apprised of the investigation?
(DEFRANCESCO) Yes.
(TORNCELLO) Okay. Did you get a chance to see the letters?
(DEFRANCESCO) At some point, but not that day.
(TORNCELLO) Right. Do you recall what did you do that day on August the 3rd? Did you have any [272] part really in the investigation?
(DEFRANCESCO) Not on that day, no.
(TORNCELLO) What's your first -- what's the first real action that you took with respect to this investigation? Strike that, that's not so great. Did you identify any individuals that you wanted to interview?
(DEFRANCESCO) An individual was identified, a young boy needed to be interviewed.
(TORNCELLO) Who was?
(DEFRANCESCO) ['Arthur'].
(TORNCELLO) And did you do that? Did you interview ['Arthur']?
(DEFRANCESCO) Yes, I did.
(TORNCELLO) Do you recall when you interviewed ['ARTHUR']?
(DEFRANCESCO) I believe it was August 7th.
(TORNCELLO) And do you recall where you interviewed ['Arthur']?
(DEFRANCESCO) At [the group home].
(TORNCELLO) Okay. Without I guess -- with respect to the contents, did you get some information from ['Arthur']? [273]
(DEFRANCESCO) Yes, I did.
(TORNCELLO) After you received that information, from ['Arthur'], what did you do?
(DEFRANCESCO) I completed an affidavit, based on my interview.
(TORNCELLO) And then what was the next action that you took?
(DEFRANCESCO) I directed some people, some of my investigators, to locate Jeff Nickel.
(TORNCELLO) Okay. I want to show you an item, People's number 2 (A), 2 (A), which is let me show you what that is?
(DEFRANCESCO) This is a picture of Jeff Nickel and ['Arthur'].
(TORNCELLO) Okay. Do you know --
(DC) Hold it up inspector please. Thank you.
(TORNCELLO) And on the back of that photograph there are some initials, is that correct?
(DEFRANCESCO) Yes, sir.
(TORNCELLO) What are those initials?
(DEFRANCESCO) My initials, the date and time.
(TORNCELLO) Did you initial that?
(DEFRANCESCO) Yes, I did. [274]
(TORNCELLO) What role did that photo play in your investigation?
(DEFRANCESCO) Well, pardon?
(TORNCELLO) If any?
(DEFRANCESCO) When I was interviewing --
(DC) This is not in evidence. Any testimony now relating to this is beyond its identification.
(CZAJKA) Well, I have no idea what you mean. It's a bad question. The objection is sustained.
(TORNCELLO) Where did you get that photo?
(DEFRANCESCO) This is one of the photos that was secured from the Correctional Facility that came in the mail.
(TORNCELLO) Okay. And did you use that photo in some way?
(DEFRANCESCO) Yes, I did.
(TORNCELLO) How did you use it?
(DEFRANCESCO) I showed it to ['Arthur'] during my interview with him.
(TORNCELLO) Did you ask him who was in that picture?
(DEFRANCESCO) Yes. [275]
(TORNCELLO) Did he tell you?
(DEFRANCESCO) Yes.
(TORNCELLO) Did he tell you it was Jeff Nickel?
(DEFRANCESCO) Yes.
(TORNCELLO) Incidentally I guess just for -- does that photo, does this appear to be in the similar condition or same condition as when you received it on August 7, 2000?
(DEFRANCESCO) Yes, sir.
(TORNCELLO) Thanks. I'll offer that. I'll offer it again.
(CZAJKA) This will all be grist for the mill.
(TORNCELLO) Thank you. Now, after the interview with ['Arthur'] you said you instructed some of your investigators to go, visit Mr. Nickel, is that correct?
(DEFRANCESCO) Yes.
(TORNCELLO) Do you know where he lived?
(DEFRANCESCO) Yes.
(TORNCELLO) Where was that?
(DEFRANCESCO) I believe 46 Lansing Drive.
(TORNCELLO) How do you know where he lived?
(DEFRANCESCO) From the return address on the mail [276] envelopes.
(TORNCELLO) Okay. And did they do that? Did they go out to 46 Lansing Drive in Delmar?
(DEFRANCESCO) Yes.
(TORNCELLO) Do you recall who went out there?
(DEFRANCESCO) I believe it was investigator Ron Bates and Investigator Thompson.
(TORNCELLO) Okay. And you didn't go, did you?
(DEFRANCESCO) No.
(TORNCELLO) What was the result of their visit out to Lansing Drive in Delmar?
(DEFRANCESCO) Mr. Nickel came back to the Albany County Court House.
(TORNCELLO) Now, where -- on August 7, 2000, did you meet Jeff Nickel?
(DEFRANCESCO) Yes.
(TORNCELLO) Do you see him in the courtroom today?
(DEFRANCESCO) Yes, I do.
(TORNCELLO) Point to him please?
(DEFRANCESCO) Sitting next to [DC]. (Indicating).
(TORNCELLO) Your Honor, if the record could reflect that the witness identified the defendant?
(CZAJKA) Yes. [277]
(TORNCELLO) Thank you. Now where did you first see Jeff Nickel?
(DEFRANCESCO) Here at the Courthouse.
(TORNCELLO) Okay. And if you know, how did he arrive at the Courthouse?
(DEFRANCESCO) He drove his car here.
(TORNCELLO) Was another member of the Albany County Sheriff's Department in the car with him?
(DEFRANCESCO) No.
(DC) Objection.
(CZAJKA) If you know?
(DC) Unless he was physically present there and saw it?
(DEFRANCESCO) I was told he did not --
(DC) Objection, hearsay.
(CZAJKA) It's stricken.
(TORNCELLO) Okay. At some point did he find his way in the county -- into the building?
(DC) Objection.
(CZAJKA) Well, he got in the building?
(DEFRANCESCO) Correct.
(CZAJKA) Whether he found his way or was lead. He got in here? [278]
(DEFRANCESCO) Correct.
(TORNCELLO) Did he get into your office somehow?
(DEFRANCESCO) An office, not mine.
(TORNCELLO) Whose office did he go to?
(DEFRANCESCO) It was the complex of the chief and the deputy command office.
(TORNCELLO) Where is that office?
(DEFRANCESCO) Down in the basement floor of the courthouse here.
(TORNCELLO) Okay. Were you there?
(DEFRANCESCO) Yes.
(TORNCELLO) And Jeffrey Nickel was there, right?
(DEFRANCESCO) Correct.
(TORNCELLO) Anybody else?
(DEFRANCESCO) In and out of the office during the time were Investigator Bates, Montaleone, Reilly and Chief Apel and Investigator Thompson.
(TORNCELLO) Somebody showed him where your office was, right?
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) They brought him into your office?
(DEFRANCESCO) Correct.
(TORNCELLO) And what happened when he arrived? [279]
(DEFRANCESCO) (No response).
(TORNCELLO} Well strike that. Have you ever seen Jeff Nickel before?
(DEFRANCESCO) No.
(TORNCELLO) Had you ever met Jeffrey Nickel before?
(DEFRANCESCO) No.
(TORNCELLO) How were you dressed?
(DEFRANCESCO) In civilian clothes.
(TORNCELLO) Okay. Did you identify yourself?
(DEFRANCESCO) Yes.*
[* No he didn't.]
(TORNCELLO) I guess you identified -- did you introduce yourself?
(DEFRANCESCO) I told him my name, who I was, the fact that I was a supervisor and that he had met an investigator earlier.*
[* In fact, DeFrancesco did none of those things. He's lying -- four times over. But don't take our word for it. See the DeFrancesco section, where a federal judge finds his testimony (related to Miranda warnings) in another case incredible. The reason he is lying here is in order to make sure that Nickel's supposed 'statement' is found to be 'voluntary.']
(TORNCELLO) What kind of room did you -- describe the room that you were in, on that day, August 7th?
(DEFRANCESCO) It's a office with three or four desks in this office, they're three or four doors that have an office, one person in an office one field commander's office and another just a filing room.
(TORNCELLO) Okay. What was your initial [280] observation of Mr. Nickel? What was his demeanor like?
(DC) Objection, irrelevant.
(CZAJKA) Sustained, not for that reason, although that may or may not be accurate. Firstly, it's two questions. Ask one question at a time. I'll consider the objections as they're made.
(TORNCELLO) Thank you. Did you make any observations of him?
(DEFRANCESCO) Yes.
(TORNCELLO) And what were they?
(DEFRANCESCO) That he was very calm, relaxed and composed. *
[* This also helps DeFrancesco in his bid to make sure that Nickel's 'statement' is allowed into evidence. And there was probably even some truth to it -- at least, as it characterized Nickel's initial demeanor, before he found out what this was really all about (i.e., not a supposed 'slapping incident', as he'd been led to believe).]
(TORNCELLO) Did you invite him to sit down and talk with you?
(DEFRANCESCO) Yes.
(TORNCELLO) Okay. Where did you sit?
(DEFRANCESCO) I was seated behind a desk.
(TORNCELLO) Where did Mr. Nickel sit?
(DEFRANCESCO) Right beside me.*
[* This is -- at best -- misleading. When Nickel came into that room, he took a chair directly across from DeFrancesco. And be remained there for quite some time. Only later on did he sit (sort of) next to DeFrancesco, as the latter was typing up the 'statement.' (It's unclear why DeFrancesco would have misrepresented this issue -- perhaps [again] to help make this statement appear as 'voluntary' as possible.)]
(TORNCELLO) Okay. So you sat at whose desk, do you recall?
(DEFRANCESCO) It was one of the secretaries desks, I [281] believe Kim Shaw.*
[* Why wasn't DeFrancesco at his own desk, in his own office? Perhaps because he wanted to continue to obscure the fact that he was a policeman? Moreover, don't police usually have special interrogation rooms, with cameras and microphones mounted in the ceiling?]
(TORNCELLO) Is there a computer on the desk?
(DEFRANCESCO) Right behind it.
(TORNCELLO) All right. And Mr. Nickel sat right next to you?
(DEFRANCESCO) Correct, behind the desk, right next to me.*
[* Not exactly -- see above.]
(TORNCELLO) Could you see the computer screen?
(DEFRANCESCO) Yes.
(TORNCELLO) Could -- was Mr. Nickel's vision blocked in any way from seeing the computer screen?
(DC) Objection.
(CZAJKA) Overruled.
(DEFRANCESCO) No.*
[* Again, this is -- at best -- extremely misleading. At that point, as he is typing, DeFrancesco is -- of course -- sitting directly in front of the computer screen. Nickel is seated to his right. Thus, to the extent Nickel can see the screen, he's viewing it from an angle extreme enough to render actually reading what's on the screen almost impossible.]
(TORNCELLO) Now, what's the first thing the first thing that you talked about with Jeff Nickel, when you sat down at that desk.
(DEFRANCESCO) I advised him of his Miranda rights.*
[* Another lie. Neither DeFrancesco, nor anyone else, ever read Nickel his Miranda rights. (Again, see DeFrancesco section, where a federal judge essentially calls DeFrancesco a liar in another case, when the latter claimed to have read that suspect his rights.) Once more, this lie is in the service of having Nickel's supposed statement declared 'voluntary,' and thus, admissible as evidence against him.]
(TORNCELLO) How did you do that?
(DEFRANCESCO) We have a disk, a computer disk, that I placed into the computer and I pulled up a form.* It's a standardized form on that and the form is --
[* In order to read someone his rights, DeFrancesco puts a disk into a computer, and then reads them from a screen? This is not credible. Detectives and other members of law enforcement virtually always have preprinted Miranda cards that they read from. (The ACLU and other organizations provide them to members of the general public as well.) And, it's not as if these Miranda warnings are lengthy; indeed, an experienced member of law enforcement -- which DeFrancesco already was by that point -- would almost certainly have them memorized.]
(DC) Objection to the [282] characterization standardized.
(CZAJKA) Overruled, continue your answer.
(DEFRANCESCO) It's a standardized form and on the form it's captioned the Miranda warnings. I read the Miranda warnings from the computer screen which were on that form.*
[* No he didn't.]
(Whereupon, People's Exhibit "22" was marked for identification)
(TORNCELLO) Let me show you what's been marked as People's number 22, for identification is that the standard form that you're referring to?
(DEFRANCESCO) Yes, it is.
(CZAJKA) Well, the printed portion?
(DEFRANCESCO) Correct.
(CZAJKA) I mean?
(TORNCELLO) The top?
(CZAJKA) All right. Go ahead.
(TORNCELLO) I guess do us all a favor and read to the Court the Miranda warnings, in the same manner that you read them to Jeff Nickel, on [283] August 7, 2000?
(DC) I'm going to object, as what's being called for here is a reenactment. There would he no way to truthfully be able to determine how they were read on that day at that point in time, unless there was some recording or visual for the -- for the trier of fact to determine.
(TORNCELLO) Your Honor --
(CZAJKA) Don't interrupt.
(DC) That would be the basis of my objection.
(CZAJKA) Overruled. Go ahead.
(DEFRANCESCO) I stated that you have the right to remain silent, anything you say can and will be used against you in a Court of law.*
[* No -- he told Nickel none of that.]
(CZAJKA) I want to amend Mr. Torncello's question, I want you to answer the following question, instead read it in the manner in which you read it to Mr. Nickel on that day, interpose what if anything he said as you read it. Go ahead.
(DEFRANCESCO) Yes, sir. I stated to him one that [284] you have the right to remain silent, and I said two, anything that you say can and will be used against you in a court of law. That you have the right to talk to a lawyer, to have him present, while you are being questioned, that if you cannot afford a lawyer, one will be appointed to represent you before any questions. At this point I asked him if he understood what I just explained to him.*
[* None of the above ever happened.]
(DC) Your Honor, I believe he's reading from the printed form here; he read it incorrectly.
(CZAJKA) Well, that would be grist for cross-examination then. Go ahead.
(DEFRANCESCO) And he told me he understood. And I asked him if he wanted to continue and speak with me and he said yes.*
[* All of the above are indeed required under Miranda; but none of them actually happened here.]
(TORNCELLO) Now, after you read those warnings, did the interview or the conversation continue?
(DEFRANCESCO) Yes.
(TORNCELLO) And how did it -- describe the interview? Describe what you did and what he did, and tell us what happened? [285]
(DEFRANCESCO) We sat and we talked, Mr. Nickel told me it would be best of we started right from the very beginning, which he meant from the beginning of his life.
(CZAJKA) Well, you don't know what he meant. Just answer the question. Tell us what you said and what he said.
(DEFRANCESCO) He told me it would be better if we started from the beginning, I said fine. He started to explain to me his life experiences, starting around six or seven years of age, to the present time.
(TORNCELLO) Okay. And if you remember, what did he say and what did you say?
(DEFRANCESCO) He told me --
(DC) Objection.
(CZAJKA) Overruled.
(DEFRANCESCO) He told me that, how he first realized that he was gay, he had attended gay groups, he explained to me how he had partners, male partners and the break-ups with the male partners.
(TORNCELLO) Continue?
(DC) Your Honor, I'm going to object to the introduction of this line of [286] conversation, as not relating to or being definitive of a statement, but is being offered for the purpose of prejudicing the trier of fact here against the accused.
(CZAJKA) How so?
(DC) If I heard this statement to this point, he was recounting, that Mr. Nickel told him he was gay.
(CZAJKA) Well, I can tell you that I have no bias against the defendant because of sexual orientation if that is the implication, and even were the trier of fact to have such a bias, as I said, I don't, but were I to do so, I am confident that I can consider that which is relevant and admissible.*
[* Well, that's all very nice -- even if not altogether believable. But one should ask oneself: Why is the prosecution going into the gay-related stuff at all? Why did the police seize from Nickel's home -- and the prosecutor then attempt to introduce into evidence -- several gay magazines? In any event, it will soon become clear that Czajka is absolutely incapable of disregarding information which is absolutely irrelevant to the specific criminal acts Nickel was on trial for.]
(DC) I think the only purpose, Your Honor, for which this is being offered though, is an attempt to influence or prejudice against Mr. Nickel. It has no relevancy to the charges at issue here.
(CZAJKA) Mr. Torncello?
(TORNCELLO) It's part of the defendant's statement judge.*
[* Even if that's true, it in no way addresses defense counsel's concern that this is only being discussed in an effort to prejudice Nickel, and has no bearing on any of the actual crimes he was charged with. (Moreover, the judge is going to be reading this statement anyway. What's the point of going into [absolutely immaterial] portions of it now? There can only be one answer.)]
(CZAJKA) Overruled. Go ahead [287] Inspector, continue. Is there an outstanding question?
(TORNCELLO) The Inspector was in the middle of an answer, as I recall. Can you just tell us, what he said, what you said?
(DEFRANCESCO) As we spoke, I was -- correction, as I spoke to him, he spoke to me, he was saying so much that --
(CZAJKA) I want to amend something that I said earlier when I referred to the defendant's sexual orientation. The defendant's sexual orientation is not remotely relevant, and so, as trier of fact, it will not be up to me to determine whether he is or is not gay. That is not an issue before the Court. I want to make that clear. I didn't want to leave the impression that that might somehow effect the verdict because it won't. Go ahead.*
[* Some very flowery words, the only intended purpose of which is to try to ensure that Nickel would not be able to effectively use this issue on appeal. See Czajka section where he does precisely this -- and appellate lawyers call him out for it -- in other cases.]
(DEFRANCESCO) As we spoke to each other I would type some of what he said, what I was typing [288] what he was saying to me, if I typed something on the computer screen that was not as the way he wanted it to read or say, he would say no, no, no I meant this and I would go back and correct it to what he wanted it to say.*
[* No. As already noted, it is impossible for a person sitting next to someone who's typing on a computer to accurately make out what is appearing on the computer screen. Thus, the only way Nickel would know what DeFrancesco had typed was if the latter read it back to him, which DeFrancesco rarely (if ever) did. In any event, at no point did Nickel ever say anything along the lines of 'no, no, I meant this...'.]
(TORNCELLO) Did the defendant make corrections?
(DEFRANCESCO) As we were going along. *
[* No -- see above.]
(CZAJKA) So he was looking at the screen?*
[* Did Czajka actually think before posing this question? Common sense tells you that it's virtually impossible to see what's on a computer screen unless you're looking directly at it -- as opposed to sitting next to the person who's right in front of it, and trying to make out words on the screen from such an extreme angle. Or, perhaps Czajka is quite aware of the utter implausibility of DeFrancesco's claims here, and is simply -- and reflexively -- providing yet another 'helping hand' to the prosecution.]
(DEFRANCESCO) He was.
(DC) Objection as to the conclusion whether he was looking at the screen meaning thereby he was reading as opposed to merely seeing a screen. I object to the testimony of even seeing a screen, only the accused would know what he was looking at.
(CZAJKA) He was making corrections as you typed?*
[* Yet another helping hand for the prosecution side.]
(DEFRANCESCO) Yes, sir.*
[* No -- physically impossible, for the reasons noted above.]
(CZAJKA) Overruled. Go ahead Mr. Torncello.
(TORNCELLO) Thank you. And I take it, your conversation was reduced to writing, is that [289] correct?
(DEFRANCESCO) Correct.*
[* No -- DeFrancesco only wrote things down that would help the prosecution side. For example, he asked Nickel if he ever inserted his finger into 'Arthur's' rectum. Nickel adamantly denied doing so. But that denial is nowhere to be found in this supposed 'statement.']
(TORNCELLO) And that's what I want to get at, how was it reduced to writing. Would the defendant talk and then you -- you would write or did you type it? What actually happened?
(DEFRANCESCO) I would type it. We would talk both of us like you and I are talking now, and he talked and I typed on the computer as we went along, then he would stop and when I caught up to where we were in the conversation and continue our conversation.
(TORNCELLO) Okay. And you said that defendant would make some changes, is that correct?
(DEFRANCESCO) Yes.*
[* No -- see above.]
(TORNCELLO) Did he tell you how he wanted things phrased for instance?
(DEFRANCESCO) Yes.*
[* No.]
(TORNCELLO) Now, how long did this take, approximately?
(CZAJKA) How long did what take?
(TORNCELLO) The taking of the statement?
(DEFRANCESCO) Two and a half hours or so.*
[* No. Nickel walked into that room at about 2:30 pm, and the interrogation ended at about 8:00 pm, meaning that it lasted some five-and-a-half hours. (Bates also conveniently altered the actual times here in order to make the interrogation appear dramatically shorter than it actually was.) The reason why DeFrancesco is lying here is, again, to try to make the statement appear as 'voluntary' as possible. (2-1/2 hours looks a lot better than the actual 6-1/2 hours it took DeFrancesco to pressure and cajole him. (And even then, DeFrancesco still had to significantly alter what Nickel actually said.)] [290]
(TORNCELLO) Were you at the computer the whole time?
(DEFRANCESCO) No.
(TORNCELLO) Okay. Did you have anything to eat?
(DEFRANCESCO) We ordered outside for pizza; we had soda I believe and we also had coffee.
(CZAJKA) Did defendant eat?
(DEFRANCESCO) Yes, sir.
(CZAJKA) And drink?*
[* Well then, doesn't that just conclusively prove the 'voluntariness' of this 'statement'? (Not hardly.)]
(DEFRANCESCO) Yes, sir.
(TORNCELLO) Okay. And then I guess would you go back and continue writing the statement?
(DEFRANCESCO) Yes.
(TORNCELLO) Preparing the statement. Okay. Now, at some point in time, let me ask you, were you comfortable that the defendant could read?
(DC) Objection.
(CZAJKA) Overruled.
(DEFRANCESCO) Yes.
(CZAJKA) Well, the defendant's -- the witness is comfortable, is irrelevant.* Go ahead.[* Well, if that's irrelevant, why did you immediately overrule defense counsel's objection? The answer is clear: Once again, Czajka has reflexively sided with the prosecution, backpedaling only when he realized that what he just did could help the defendant win on appeal.]
(TORNCELLO) Could the defendant read?
(DEFRANCESCO) Yes.
(DC) Objection. [291]
(CZAJKA) How do you know that he could read?
(DEFRANCESCO) He told me he went to college.
(TORNCELLO) Okay. Did he tell you where he went to college?
(DEFRANCESCO) In Boston.
(TORNCELLO) Okay. Now, at some point in time did you print-out the statement?
(DEFRANCESCO) Yes, I did.
(TORNCELLO) And after you printed it out, what did you do?
(DEFRANCESCO) I handed it to Mr. Nickel and asked him to read it over.
(TORNCELLO) Okay. And where was he sitting when you asked him to do this?
(DEFRANCESCO) Again, right next to me.
(TORNCELLO) Okay. Did he read it?
(DEFRANCESCO) Yes, meticulously.
(DC) Objection as to that characterization.
(CZAJKA) Sustained.
(TORNCELLO) Did he -- tell me did he glance at it, did he take a while to look.
(DEFRANCESCO) He took a while with each page. He would read that page over and go on to the [292] next page.
(TORNCELLO) And at the conclusion, do you know how many pages the statement is?
(DEFRANCESCO) I believe six pages.
(TORNCELLO) At the bottom of the statement there's a little line for signatures?
(DEFRANCESCO) Yes.
(TORNCELLO) And did you ask the defendant to sign it?
(DEFRANCESCO) Yes.
(TORNCELLO) What did you say to him? What did you say. Did you say you have to sign that or sign that now? What did you do?
(DEFRANCESCO) I asked him if he would sign the statement.
(TORNCELLO) Did he sign the statement?
(DEFRANCESCO) Yes.*
[* It is true that Nickel signed at the bottom of the last page of the statement. But, unlike other statments taken by other investigators in this case, Nickel did not initial every page of the statement. Thus, DeFrancesco had the opportunity to -- and in fact, did -- alter what was printed on at least one of the pages after Nickel signed the statement. (Moreover, whether or not a suspect actually signs a statement is not nearly as significant as Torncello makes it out to be. In Martin Tankleff's case (see New York State Wrongful Convictions section), although he did refuse to sign a coerced 'confession' purportedly admitting that he killed his parents, this 'statement' was used against him at trial anyway -- and he was convicted.)]
(TORNCELLO) Did he sign it in front of you?
(DEFRANCESCO) Yes.
(TORNCELLO) Did you make him sign it?
(DEFRANCESCO) No.*
[* Well, there certainly were false promises and coercion involved, which -- had this interrogation actually been videotaped (or even audio-taped) -- would have rendered this supposed 'statement' involuntary and inadmissible. (Nickel was told what he did would only be subject to a fine, and that he wouldn't want his mother to have a stroke if they had to do things 'the hard way,' if he failed to 'cooperate.')]
(DC) Objection.*
[*This objection comes too late -- the question had already been answered.]
(CZAJKA) Overruled.
(TORNCELLO) Did you sign it?
(DEFRANCESCO) Yes. [293]
(TORNCELLO) Did you sign it in his presence?
(DEFRANCESCO) Yes.
(TORNCELLO) Was there anybody else present when he signed that document?
(DEFRANCESCO) I believe there was.
(TORNCELLO) Who was that, do you recall?
(DEFRANCESCO) I believe Investigator Reilly.
(TORNCELLO) Okay. Was Investigator Reilly in the room the whole time?
(DEFRANCESCO) The whole time the statement was taken, sir?
(TORNCELLO) Yes?
(DEFRANCESCO) No.
(TORNCELLO) Were other members of your department in the room?
(DEFRANCESCO) In and out of the room.
(TORNCELLO) Okay. Basically were you in the room with the defendant the entire time?
(DEFRANCESCO) Yes, sir.
(TORNCELLO) Okay. Let me do this, I have some questions I want to ask you specifically about that, but I'll offer it. Let's look at People's number 22 for identification, and if you can tell the Court what that is?
(DEFRANCESCO) This is the statement of Jeffrey [294] Nickel taken on August 7, 2000.
(TORNCELLO) Is that a photocopy or is it the original? Look at it?
(DEFRANCESCO) This is the original.
(TORNCELLO) Okay. If you can -- take your time, did you look at it and see if it's in the same condition or similar condition as when it was created on August 7, 2000?
(DEFRANCESCO) It appears to be in the same condition.
(TORNCELLO) Okay. Judge, I would offer People's number 22 in evidence?
(DC) Your Honor, would I be able to ask some preliminary questions?
(CZAJKA) Go ahead.
(DC) Before hand, in the nature of voir dire.
(CZAJKA) I would assume so.
(DC) Yes, sir. Good morning Mr. DeFrancesco. I am going to ask you a few questions, if I may this morning. I believe you testified with respect to People's number 22? [295]
(CZAJKA) Inspector, would you step down for a minute, please? Attorneys* come up.
[* Note that Czajka asks both Torncello and DC to come up. This is not always the case -- particularly during the defense photography expert's testimony below.]
(Side bar).
(CZAJKA) Come back inspector please.
(DC) Inspector, referring now to People's for identification, number 22. I'll hand this back to you for a moment, if I may? At the very top of item 22, there appears what we commonly refer to as the Miranda warnings do they not?
(DEFRANCESCO) Yes, sir.
(DC) And it is your testimony that as they appear there was as you gave them, that afternoon or evening?
(DEFRANCESCO) I don't think I understand?
(DC) Well, you're holding a document in your hands?
(DEFRANCESCO) Correct.
(DC) At the top of which are Miranda warnings?
(DEFRANCESCO) Yes, sir. [296]
(DC) Are those -- are the Miranda warnings that you say you gave to Mr. Nickel that afternoon?
(DEFRANCESCO) These are the Miranda warnings I gave with the exceptions.
(CZAJKA) With what?
(DEFRANCESCO) With exception.
(DC) Well, let me ask you this, let's look at the Miranda warnings number one.
(TORNCELLO) Objection.
(CZAJKA) Sustained. This should be voir dire, this may or may not be appropriate cross-examination, but it's not appropriate for voir dire.
(DC) Then I have no further questions.
(CZAJKA) What do you say to the People's offer of number 22?
(DC) Object to it, Your Honor, on the following grounds: That the Miranda warnings listed at the top of this document are not the proper Miranda warnings that must be provided to a defendant. If the Court will look at this document, you'll [297] notice that number one, it says that I have the right to remain silent, not that you have. He's the typer of it. That anything I say can and will be used against me in a court of law, he's the typer, he's the speaker. It's not whatever you say can be used against you in a court of law. Three, that I have the right to talk to a lawyer, that the investigator would have the -- such a right. It's -- there's a very important difference here, Your Honor. He should have been advised that you have the right as you sit there, to talk to a lawyer, not what his rights might be, and to have him with me, while I am being questioned. Well he's being questioned, it should be while you are being questioned you have the right to have that lawyer there. He's got that, if I cannot afford a lawyer if should be if you can't afford a lawyer, one will be appointed to represent you before any questioning, if you want one. It's continually used in the singular with the word I. I submit, Your Honor, that this is not the proper Miranda warning. It was [298] not intelligently given or understood to be given. It was not advising the defendant of his rights, nor was there any answer elicited as to whether or not even in this confused state, that the accused understood any of these answers. He wasn't stopped and asked after each one of them did you understand what I said, and gotten a response, and for that reason I'm going to object to it, Your Honor.
(CZAJKA) Wish to be heard?
(TORNCELLO) No, I think I'll rest on the testimony of the witness.
(CZAJKA) All right. Certainly at the conclusion of the trial, the defendant may wish to argue to the trier of fact that it should disregard the statement for those very reasons, consistent with the applicable CJI charge, but that does not go to the admissibility of the statement in the first place.* The objection is overruled, and Exhibit 22 is received. [299]
[* This would appear to be simply incorrect. If a statement is not truly 'voluntary,' it cannot be admitted into evidence -- at least as far as the prosecution's 'case-in-chief' is concerned. (It can, however, be admitted for the purpose of rebutting trial testimony.)]
(Whereupon, People's Exhibit 22 was received in evidence).
(DC) Your Honor, could I make an additional objection to the witness?
(CZAJKA) One minute. Go ahead.
(DC) Your Honor, I believe that pages, physically counting, the first two and a half, to three quarter pages.
(CZAJKA) Yes.*
[* Apparently, something caused defense counsel to pause, and possibly look up at Czajka, given that Czajka then interjects with "Yes." Thus, it would seem that defense counsel had reason to think Czajka was not actually paying attention to what he was saying.]
(DC) Which are taken in the nature of a sort of background or whatever one wants to characterize them, should not be regarded or admitted because they are not relevant to the charges in the indictment against this defendant. I would object in the basis that I'm also I asking for, I suppose, a redaction, if you will, although I appreciate it's the Court that --
(CZAJKA) Well, as I indicated earlier, I'm confident that I can disregard that which is irrelevant, and I will do so, subject to whatever arguments both of you have. Certainly if there was a jury here, we'd consider that in greater detail, and [300] I'll consider each of your requests and for a redaction and what if anything should be redacted, but I'm going to have to read it any way*, and you tell me at the appropriate time what you want me to disregard, and the reason for it, and I'll consider the request before I render a verdict. Make sense?
[*Note that Czajka has, apparently, not yet read the 'statement.' After he does so (just below), Czajka's behavior will change significantly.]
(TORNCELLO) Thank you. Judge, I wanted to ask for the purpose of a clean record, if I publish that document now. I'll read it very quickly, as quickly as is --
(CZAJKA) Read it to me?
(TORNCELLO) I do.
(CZAJKA) No, no, no.
(TORNCELLO) I would like to put it on the record.
(CZAJKA) The exhibit is in the record, it's marked and received. I can read it myself.
(TORNCELLO) I do have to ask particular questions with respect to the document.
(CZAJKA) I'll consider the objections as they're made. Do you want me [301] to read it first?
(TORNCELLO) Yes. Thanks judge.
(CZAJKA) While I'm doing is, why don't we take a few minutes?
(Whereupon, a brief recess was had).
(CZAJKA) Go ahead Mr. Torncello.
(TORNCELLO) I want to ask you a couple of questions about People's number 22 which is in evidence, okay. They're some terms there, that I would like you to explain to me, okay? The first one is, its called B/L, and later referred to as boy lover*; did you have a conversation with Jeff Nickel, about the term boy lover and what it means?*
[*Torncello knows damn well what the term 'boy-lover' means. His real purpose here is to say these terms as many times as he -- or prosecution witnesses -- possibly can, in order to distract Czajka's attention from the fact that evidence of the actual crimes Nickel was charged with is -- in this document, and throughout the trial itself -- slim to nonexistent. (The prosecution will use the word "boy lover" a total of 13 times. "NAMBLA," which stands for the North American Man-Boy Love Association, will also be used a total of 13 times. And, counting conservatively, there were an additional 16 timeswhen either Torncello or prosecution witnesses drew attention to Nickel's purported proclivities by some other means. Thus, in total, there were at least 42 propensity-related references by the prosecution, none of which had any bearing on any of the specific acts he was charged with.)]
(DC) Objection, the document speaks for itself.
(CZAJKA) You're referring to a conversation separate and apart from that which was reduced?
(TORNCELLO) I wonder if he [302] could explain to the Court what the term boy lover means and what about that means --*
[*Note that Torncello does not actually answer Czajka's question here.]
(CZAJKA) That's in his statement? Unless you're talking about some separate conversation?
(TORNCELLO) No.
(CZAJKA) The objection is sustained.
(TORNCELLO) And if you'd refer to page two, it says in the first paragraph it starts picking up the NAMBLA Journal, is that -- what does that mean?*
[* So, defense counsel's objection to Torncello trying to get DeFrancesco to 'explain' what 'boy-lover' means was just sustained; and yet, now Torncello's attempting to do exactly the same thing with the term NAMBLA. Thus, he's essentially disregarding Czajka's instruction on this issue. But it wasn't the first time, and it won't be the last. However, there will never be any real consequences for Torncello doing so.]
(DC) Objection again, Your Honor. These were the same pages that I was addressing earlier.
(CZAJKA) All right. Let me clear one thing up, inspector did it -- did you have any discussions with the defendant, that were not reduced to that document?*
[* This question was clearly addressed to DeFrancesco; and yet, Torncello then interjects.]
(TORNCELLO) Do you mean other days or times or just that interview?
(CZAJKA) Well during this period of time on this day?
(DEFRANCESCO) It's hard for me -- [303]
(CZAJKA) Did he say anything to you that was not reduced, that was not transcribed?
(DEFRANCESCO) No.*
[* That's false: For one, Nickel's adamant denial of the alleged digital penetration incident is nowhere to be found in this document.]
(CZAJKA) The objection is sustained.
(TORNCELLO) I'm asking you, do you have any experience in or some education, in sex crimes?
(DEFRANCESCO) Yes.
(TORNCELLO) Okay. And what kind of experience or where did you receive that training?
(DEFRANCESCO) I attended --
(DC) Again if I could just be heard on this issue? If the attorney would be kind enough to identify whether it was prior to or after his involvement in this case?
(TORNCELLO) Prior to your involvement in this case, did you have any experience in investigating or working on sex crimes?
(DEFRANCESCO) Yes, yes.
(TORNCELLO) And where did you get that training and where did you get that experience?
(DEFRANCESCO) I attended numerous training seminars [304] and conferences, including one which was the New York State Police Sexual Offender Seminar, Cornell Henry Seminar for Missing and Exploited Children, and other seminars that I don't recall off the top of my head.
(TORNCELLO) Is it fair to say some of them dealt with children?
(DEFRANCESCO) Yes.
(TORNCELLO) Okay. Did the topic or the term, NAMBLA ever come up?*
[* So, having been thwarted from discussing NAMBLA in terms of the purported statement, Torncello finds another way to continue harping on it. Note that he has yet to discuss anything in the 'statement' relating to actual criminal actions.]
(DEFRANCESCO) Yes.
(TORNCELLO) Do you know what that term means?
(DEFRANCESCO) Yes.
(DC) Objection again whether that's before he was talking about this, August 7th of 2000 or after it.
(CZAJKA) Overruled. Go ahead.
(DEFRANCESCO) NAMBLA stands for North American --
(CZAJKA) For the -- did you know what it meant before this statement?*
[* Yet again, Czajka reflexively sides with the prosecution, only to then have to backpedal. (The next word he was going to say after 'For the' was very likely: 'record').]
(DEFRANCESCO) Yes.
(CZAJKA) All right. Go ahead.
(DEFRANCESCO) NAMBLA stood for or stands for the [305] North American Men Boy Lover Association.*
[* Not quite.]
(TORNCELLO) Okay. And --
(DC) I'm going to object to this, Your Honor again, as being highly prejudicial to the case. Again, if a jury were here, I would be moving for a mistrial, because this does not deal with the accusations contained in the indictment. It's merely offered to prejudice the accused, and its only purpose is for that to be --
(CZAJKA) Overruled. It goes to well number one, it's part and parcel of exhibit 22, which the People allege is a statement given by the defendant. Number two, it is relevant for the purpose of the People's attempt to prove sexual gratification. You may proceed. Objection overruled.*
[* Firstly, Czajka cuts defense counsel off before the latter can finish. Secondly, what happened to: 'The exhibit is in the record...I can read it myself'? Czajka just sustained two defense counsel objections on virtually identical facts. So why is he now overruling? Third, the idea that what someone may read is relevant to proving an actual crime runs counter to the whole of the common law.]
(TORNCELLO) Thank You, Your Honor. The North American Man Boy Love Association*, do you know anything about them or the tenants or any -- what their beliefs are? [306]
[* Note that this is not exactly what DeFrancesco said 'NAMBLA' stood for.]
(DC) Again objection.
(CZAJKA) That calls for hearsay. Have you learned that through your experience as an investigator?*
[* This question is completely irrelevant to the core issue: One's reading material may not be used to prove an actual criminal action Either Czajka knows this is a red herring, and is being disingenuous, or he doesn't, and he's simply incompetent.]
(DC) Objection.
(CZAJKA) I'll allow you to voir dire before he answers the ultimate question; have you learned about the organization?
(DEFRANCESCO) Yes, to some degree.*
[* Well, not to the degree that he can get its actual name right.]
(CZAJKA) Go ahead.
(TORNCELLO) And what are, if you can, if you know, what are the tenants, some of their beliefs through your training?
(DC) Objection.
(CZAJKA) What -- explain the source of your information first.
(DEFRANCESCO) From working with other investigators who have dealt with crimes or investigations where NAMBLA came up.
(CZAJKA) Actually, wait. The reference in the statement, Mr. Torncello, is that or are -- is that defendant read a magazine, or looked at a magazine, not that he was a member of the organization.* So for [307] that reason the objection is sustained.
[* Yet again, Czajka backpedals after reflexively ruling for the prosecution. But in the meantime, (unfair) damage has been done. But even now, he's still wrong: Even if Nickel were a member of NAMBLA, that would not make this whole line of questioning constitutionally permissible. In this country at least, we're not supposed to convict people for the (lawful) organizations they may belong to; we're supposed to convict people only for what they DO.]
(TORNCELLO) Okay. Now, do you know if -- do you know if this defendant is a member of NAMBLA?
(DC) Objection.
(CZAJKA) Well, before you answer the question, tell me what the source is of your information?*
[* Again, this is a red herring.]
(DEFRANCESCO) Regarding his belonging?
(CZAJKA) Yes.
(DEFRANCESCO) I don't know.
(TORNCELLO) Okay. You don't know?
(DEFRANCESCO) No.
(TORNCELLO) Okay. Have you had a chance to review some of the items that were seized as evidence?
(DEFRANCESCO) Yes.
(TORNCELLO) Okay. Do they contain a number of NAMBLA magazines, and mailings?*
[* Clearly, Torncello's approach to prosecuting here is as follows: Regardless of a mountain of factual inconsistencies and other problems with the People's case against Nickel, so long as the former is able to show that he had some propensity along these lines, charging -- and convicting -- him with anything and everything is right, and just. Pyongyang [North Korea] would be proud.]
(DEFRANCESCO) Yes.
(DC) Objection.*
[* Again, given that then question was already answered, defense counsel's objection comes too late.]
(CZAJKA) These are the exhibits that are being reserved on?*
[* Another red herring. The real issue here is that these items are purely prejudicial, having no bearing on the actual acts Nickel was charged with. (Courts are supposed to weigh the 'probative' nature of the proposed evidence against its likely 'prejudicial' effect. Czajka either does not understand this, or simply doesn't care.)]
(TORNCELLO) Yes.
(CZAJKA) Sustained. If I receive them, they speak for [308] themselves. If they don't, they're not in evidence. Go ahead.
(TORNCELLO) Okay. Let me go back a little ways to August 3, 2000, you said that you were made award of letters that arrived at the jail?
(DEFRANCESCO) Correct.
(TORNCELLO) Are you aware that the letters -- do you know who the letters were mailed to?
(DEFRANCESCO) Mr. Peters.
(DC) Objection, hearsay.
(CZAJKA) Sustained. Once again, talking about exhibits one through four that I reserved on? Sustained.
(TORNCELLO) Well, as part of your investigation did you learn, who those letters were mailed to?*
[* This is virtually the exact same question Torncello just asked, the objection to which was sustained.]
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Do you know who Matthew Peters is?
(DEFRANCESCO) Yes.
(TORNCELLO) Who is Matthew Peters?
(DC) Objection, irrelevant as to who is Matthew Peters. [309]
(CZAJKA) I'll allow it subject to connection.*
[* Once again, having previously sustained defense counsel's objections to virtually the exact same questions, Czajka now overrules. It would seem that, if Torncello persists in his misconduct for long enough, Czajka will simply relent.]
(TORNCELLO) Who is Matthew Peters?
(DEFRANCESCO) Matthew Peters -- he was confined to the Albany County Correctional Facility. He was there on charges related to a conviction for a sexual offense involving children.
(TORNCELLO) On August 3, 2000, was he an inmate at the Albany County Correctional Facility?
(DEFRANCESCO) Yes, he was, he was.
(CZAJKA) So what's the purpose of that evidence?
(TORNCELLO) That's the tie up of People's one through four, that's all.*
[* No it isn't. Torncello is absolutely attempting to prove guilt by association.]
(CZAJKA) Well, other than to prove that the defendant was associating with those convicted of sex crimes, what's the relevance?
(TORNCELLO) Again, I think it goes to the intent issue that I have to prove with respect to several other counts in the indictment.* It is also further proof, in order to authenticate the letter, that are the letters that is in People's one through four. **
[* Baloney. 'Intent' cannot be established through who one associates with. That's just the 'guilty-by-association' argument in sheep's clothing.]
[** To the extent that this sentence may be said to make any actual sense, 'who Matthew Peters is' -- meaning (as Torncello clearly does) what sort of crimes he was charged with or convicted of -- does not 'authenticate' anything, as Torncello damn well knows.] [310]
(CZAJKA) [DC]?
(DC) I object to it, Your honor.
(CZAJKA) Objection sustained. The question and answer are stricken.*
[* That's very nice, but what does this actually mean? It's still in the record i.e., the trial transcript. Moreover, Czajka -- the very person who is also determining guilt or innocence -- has already allowed -- and heard -- all of this.]
(TORNCELLO) Okay. Now, on August 7th; did you ever go to Lansing Drive?
(DEFRANCESCO) Yes.
(TORNCELLO) As part of the search?
(DEFRANCESCO) Yes.
(TORNCELLO) You did. And did you pursuant to that -- pursuant to the search did you go through that area? Did you go through the house?
(DEFRANCESCO) Yes.
(TORNCELLO) Okay. Were you pretty much throughout the entire house?
(DEFRANCESCO) I walked in several different rooms in the house.
(TORNCELLO) Okay.
(CZAJKA) What are you looking for?
(TORNCELLO People's 7. I want to show you People's number 7 marked for identification, if you can, can you tell the Court what that document is please? [311]
(DEFRANCESCO) This is Search and Seizure Waiver that was executed on that date.
(TORNCELLO) Now, did you prepare that document?
(DEFRANCESCO) Yes, I did.
(TORNCELLO) Did you assist in preparing that document?
(DEFRANCESCO) Yes.
(TORNCELLO) And when was that document prepared?
(DEFRANCESCO) Shortly after Jeffrey Nickel had signed the statement that he had given me.
(TORNCELLO) So on August 7th at the conclusion of him giving his written statement, that document was created, is that correct?
(DEFRANCESCO) That's correct.
(TORNCELLO) Okay. And why was it created?
(CZAJKA) Mr. Torncello, I made a mistake, but unlike suppression of a statement, where a defendant would get two bites, to where the Court in a pre-trial matter be suppressed and the trier of fact that is, it not consider the statement for [CPL] 60.45 reasons, that's not the case with a search, is it? That's purely legal, is it not?* [312]
[* To the extent this sentence makes any actual sense, note that Czajka is asking the prosecutor to answer a legal question. Note that he does not ask defense counsel this question. Moreover, if he truly does not know, what's he doing presiding over a trial?]
(TORNCELLO) You are correct. [DC] talked about it the other day and it seems like he's making an issue of the search, and I just want to explain to the Court that a search consent was signed and that the defendant signed it and a voluntary search commenced.*
[* This was hardly a 'voluntary' search. Firstly, DeFrancesco mentioned that they might have to 'tear the place apart' unless Nickel consented. Secondly, Nickel was shown the search warrant they had anyway. The latter -- as courts have consistently made clear -- vitiates any 'consent' to search, because the suspect is presented with a fait accompli; i.e., the search was going to happen regardless. (But detectives still prefer that a 'consent' be signed, because it makes it harder for a defendant to challenge the search.)]
(CZAJKA) That may or may not be the case. What's your position? Is it a legal and factual issue or that -- is it a legal and factual issue both for the pre-trial Court and trier of fact or is it --?*
[* Once again, 'Judge' Czajka asks a legal question of the prosecutor, but not the defense counsel.]
(TORNCELLO) A legal issue that's previously been determined.
(CZAJKA) All right. Then move on.
(TORNCELLO) You went to his house, right?
(DEFRANCESCO) Correct.
(TORNCELLO) And did you notice anything?
(CZAJKA) I'm not ruling, [DC], if you have a position that's contrary that you want to discuss at some point at the relevant time, I would be glad to hear it but right now move on Mr. Torncello. [313]
(TORNCELLO) You went to his house, right?
(DEFRANCESCO) Correct.
(TORNCELLO) And did you go down to the basement?
(DEFRANCESCO) Yes.
(TORNCELLO) What if anything did you notice down in the basement?
(DEFRANCESCO) A computer*, a printer, scanner, fax, copier.
[* Note that the computer was not in the bedroom, as 'Arthur' claimed (see his Day One testimony).]
(TORNCELLO) And how were things stored down in the basement?
(DEFRANCESCO) There was a second couple of rooms with a second room off the basement main room where the computer had been located. There was numerous boxes.
(TORNCELLO) Okay. And what were the boxes doing there?
(DEFRANCESCO) Jeffrey Nickel told me that he was packing to go to college.
(TORNCELLO) Okay. So, his -- were his belongings packed together?
(DEFRANCESCO) Yes.
(TORNCELLO) Okay. And is it fair to say that the room had been broken down and packed up and ready to leave?*
[* It's unclear what Torncello was trying to accomplish with this line of questioning. It certainly didn't help to prove any of the actual crimes Nickel was charged with. Perhaps he was insinuating something nefarious about the fact that Nickel was planning to go away to grad school.]
(DEFRANCESCO) Right some of it, yes. [314]
(DC) Objection.*
[* Again, defense counsel waited far too long to object to this line of questioning.]
(CZAJKA) Sustained.
(Whereupon, People's Exhibit "23" was marked for identification).
(TORNCELLO) I am handing you what's been marked as People's twenty-three for identification; tell me what that is?
(DEFRANCESCO) It's a picture of Jeffrey Nickel.
(TORNCELLO) Do you know when that was taken?
(DEFRANCESCO) It would have been after his arrest.
(TORNCELLO) Okay. On August 7, 2000?
(DEFRANCESCO) August 7, 2000.
(TORNCELLO) Do you know where it was taken?
(DEFRANCESCO) Albany County Correctional Facility.
(TORNCELLO) Do you know by whom it was taken?
(DEFRANCESCO) No, I do not.
(TORNCELLO) Does that picture fairly and accurately depict the way Jeff Nickel looked on August 7, 2000?
(DEFRANCESCO) Yes, it does.
(TORNCELLO) At this point, I would offer twenty-three in evidence judge.
(DC) May I see it judge? [315] I have to object on the basis that this is apparently in common parlance, a mug shot, if you will, wherein a sign is held in front of the --
(CZAJKA) What's the relevancy Mr. Torncello?
(TORNCELLO) His appearance on the day of, his appearance at the time. I think his appearance has changed, that's all.*
[* No, Nickel's appearance had not changed in any significant way: the length/style/color of his hair were all the same, he still had no facial hair, and his weight was virtually the same it had been for years. No: What Torncello was really doing here was trying to get this 'mugshot' in front of Czajka, so as to paint Nickel -- particularly given the paucity of evidence against him -- in the worst possible light.]
(CZAJKA) Somehow relating to Exhibit 5?* What are you getting at?
[* Another helping hand to the prosecution. Exhibit 5 is the oral sex photo (which -- as noted in great detail above -- depicts neither Nickel nor 'Arthur').]
(TORNCELLO) It may, it may yes.*
[* False, as Torncello knows damn well. It's not as if the older person in that image has, for example, facial hair, or a radically different hairstyle. But what the latter does have -- as the defense's photography expert found -- is a very different (relative to Nickel) pattern of hair on his back, meaning -- combined with other characteristic contrasts -- that this image does not depict Nickel.]
(CZAJKA) Well, it's your evidence.*
[* The irony of this statement will soon become clear, when Czajka redirects the prosecution's theory of the case re: the sex photo.]
(TORNCELLO) Yes, well, it may, I think, it would help the trier of facts.
(CZAJKA) Objection sustained.
(TORNCELLO) Thank you. I don't think I have any more questions, Your Honor. Can I check my notes for a second? Judge, no thank you. No further questions.]
(DC) If it please the [316] Court, Your Honor? Good morning, Mr. DeFrancesco; how are you?
(DEFRANCESCO) Good morning sir.
(DC) I'm going to bring you back in time, if I may, to, I believe the 7th of August, but you correct me if that's an incorrect date. Did you have occasion on that day, to sit and talk with a person by the name of ['Arthur']?
(DEFRANCESCO) Yes.
(DC) And who was there present with you?
(CZAJKA) What's the reference day [DC]?
(DC) August 7th, sir. About what time of day was that taking place?
(DEFRANCESCO) I would say like ten o'clockish.
(DC) In the morning, sir?
(DEFRANCESCO) Yes.
(DC) Is it not a fact that another officer [317] accompanied you, for that purpose?
(DEFRANCESCO) Yes.
(DC) And who was that other officer?
(DEFRANCESCO) Investigator Bates.
(DC) Okay. Is that Ronald Bates of your department?
(DEFRANCESCO) I couldn't hear you?
(DC) Was that Ronald Bates of your department?
(DEFRANCESCO) Yes.
(DCl And when you -- did you in advance of this interview, did you have -- did you have a chance to set it up as far as what location it was going to take place?
(DEFRANCESCO) With specifics no, no.
(DC) With respect to just a general location?
(DEFRANCESCO) Yes.
(DC) All right. And what was that going to be at the [group home], was it?
(DEFRANCESCO) Yes.
(DC) And that was a place you knew where the boy went to school?
(DEFRANCESCO) Correct.
(DC) Where his counselors would be and [318] other people of that nature, correct?
(DEFRANCESCO) Yes.
(DC) All right. And you chose to interview the boy alone, did you not? And by alone I mean you and Investigator Bates?
(DEFRANCESCO) Yes.
(DC) No one else was present?
(DEFRANCESCO) No, no one else was present. *
[* From the standpoints of making 'Arthur' feel more at ease as well as getting at the truth, this was a really bad idea. 'Arthur' had never seen these people before. And they're policemen. That sort of 'authority figure' has been proven to heighten children's suggestibility, even beyond how interviews are actually conducted. (See Suggestibility section.)]
(DC) Okay. Now, in your course of study that you have take, or let me just ask you this, would you have found it an aid or beneficial, in chatting with a young person of tender years or age, to have it recorded in some way?
(DEFRANCESCO) No.
(DC) You don't think that would be a wise thing to do?
(DEFRANCESCO) No.*
[* That's absurd. The overwhelming consensus among professionals -- even back then -- was that all such interviews must be recorded. (See Videotaped Interviews section.) But then again, perhaps everything hinges on what's meant by the word, 'wise.' If you're an incompetent interviewer of children, and/or, you're really only interested in 'getting' the defendant (as opposed to getting at the facts), then maybe recording is not wise.]
(DC) All right. Could we agree that it would if it were recorded, it would give us the benefit today, wouldn't it, of knowing every question that was answered, wouldn't it?
(DEFRANCESCO) Certainly.
(DC) Would you have found it a useful tool [319] to video tape such an interview again when you're dealing with someone of tender years?
(DEFRANCESCO) No, it would be more of a hindrance.*
[* If DeFrancesco means a hindrance to the child speaking freely, he's simply wrong. Professionals have found that children, handled properly, become accustomed to a camera almost immediately. (Again, see Videotaped Interviews section.) On the other hand, if he means a camera would be a hindrance to convicting people of things they did not do, then he's correct.]
(DC) Well again, with a television or a review, again, wouldn't we know exactly the questions that were asked the answers -- answers that were given?
(DEFRANCESCO) Certainly.
(DC) But you consider that to be a hindrance did you say?
(DEFRANCESCO) The fact of the cameras would be and video taping, yes.*
[* For the actual facts concerning this issue, see Videotaped Interviews section of this site.]
(DC) All right. Before you sat down to interview ['Arthur'], did you make any investigation with respect to his background?
(DEFRANCESCO) As far as, sir?
(DC) Anything.
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(DEFRANCESCO) I would have to say yes to some degree.
(DC) Some degree? And tell us, who did you get information from or what did you know?
(DEFRANCESCO) I don't remember her name, it was one I believe an Administrator of [the group home] [320] to the degree when ['Arthur'] came there, and where he was previous.
(DC) All right. Did you make any inquiry as to him of anyone else of the boy is on any medication?
(DEFRANCESCO) I don't believe I did.*
[* Well, someone who was interested in getting to the actual truth certainly would have.]
(DC) Would that have been important in investigating when you're going to interview someone and hoping to record the truth or the facts about the situation, to find out whether they're on medication?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Did you make any investigation to find out whether or not the boy, ['Arthur'], was on medication?
(DEFRANCESCO) No.
(DC) Would that have been a factor, would you consider an important factor to know?
(DEFRANCESCO) No.*
[* Well, then he's either incompetent or simply lying.]
(DC) Would you consider it an important factor to know, whether or not medications were given that day?
(DEFRANCESCO) No. [321]
(DC) Would you consider it an important factor to know, the type, if any, of medications, that were given?
(DEFRANCESCO) No.*
[* This is starting to remind one of the cartoon monkeys who 'see no evil,' and 'hear no evil,' as they use their hands to cover their eyes and ears.]
(DC) Would you have considered it an important factor, for this interview to determine whether or not ['Arthur'], has told untruths in the past?
(TORNCELLO) Objection?
(CZAJKA) Whether or not the witness believed or heard that he told untruths in the past, his position, as to whether or not it was an important factor, is not relevant, the witness' position.
(DC) Did you make any inquiry as to whether or not he told untruths in the past?
(DEFRANCESCO) No.
(DC) Did you make any inquiry as to whether or not he has been punished in the past for untruths?
(DEFRANCESCO) No.
(DC) Did you make -- did you ask any questions to ascertain whether or not he has been punished on more than one occasion, for the untruths? [322]
(DEFRANCESCO) No.
(DC) Only you and Officer Bates were present during this so called or this interview, isn't that correct?
(DEFRANCESCO) That's correct.
(DC) And was any of that interview reduced to writing?
(DEFRANCESCO) I made out and affidavit after my interview.
(DC) No, at the interview were you making --
(CZAJKA) Contemporaneously?
(DEFRANCESCO) I was not taking any notes.
(DC) If you knew at that time of the interview that the boy had told untruths in the past, would it have, strike that. I believe you said you went to 36 Lansing Drive, on the 7th of August, 2000 is that correct?
(DEFRANCESCO) Yes, sir.
(DC) And could we safely assume that besides yourself there were other Sheriff's Department personnel that went there?
(DEFRANCESCO) Yes.
(DC) You went there to conduct a search, [323] didn't you?
(DEFRANCESCO) Yes.
(DC) Sure. Now, did you take any camera man with you or anyone to take photographs of that?
(DEFRANCESCO) There would have been an investigator there to take photographs, yes.
(DC) And did they take photographs?
(DEFRANCESCO) Yes.
(TORNCELLO) You have them; they have been supplied.*
[* No -- the interior pictures taken by the police the day of the search were not 'supplied' to the defense until this second day of trial; and then, only because defense counsel cross-examined DeFrancesco about them. This is much like the medical exam notes of 'Arthur' that were not given to the defense until it cross-examined Investigator Bates. (See buried evidence .) (Exterior photographs of Nickel's home taken at a later time [apparently by a previous prosecutor] -- which are discussed below -- were provided to the defense before trial.)]
(DC) I'll have to check. Were there photographs taken of the bedroom of Jeff Nickel?
(DEFRANCESCO) I believe there was.
(DC) Did you go into the bedroom of Jeffrey Nickel?
(DEFRANCESCO) Yes.
(DC) Did you see any water bed in the bedroom of Jeffrey Nickel?
(DEFRANCESCO) No.*
[* Quite so -- and directly contrary to 'Arthur's' testimony (see Day One).]
(DC) Did you make an observation as to the color of the walls in the bedroom of Jeff Nickel?
(DEFRANCESCO) Yes. [324]
(DC) What color were they officer?
(DEFRANCESCO) I don't remember.*
[* Well, isn't that convenient? He knows the answer is off-white. But because 'Arthur' said blue, DeFrancesco doesn't want to say 'off-white.']
(CZAJKA) Well, if you don't remember the color, how is it that you remember that you made an observation of the color?*
[* Even pro-prosecution Czajka is growing tired of DeFrancesco's obfuscations. This is not an honest person. On the other hand, such disingenuousness is so common among 'law enforcement,' that they themselves coined the term 'testilying.' (See Police section.)]
(DEFRANCESCO) ['Arthur'] said they were blue and they weren't blue.*
[* Well, it took the 'judge' to finally get at least a partially honest answer from DeFrancesco.]
(CZAJKA) All right.
(DC) Did you see any computer in that room?
(DEFRANCESCO) No.*
[* That's correct -- and again, contrary to 'Arthur's' testimony (see Day One).]
(DC) May I have a moment please to look at my file? Thank you for permitting the delay, Your Honor.
(Whereupon, Defendant's Exhibit "B" was marked for identification).
(DC) I would -- could I show you Defendant's marked for identification, B, which I believe contains a packet of ten photographs, if you just take for a moment [325] and examine those please and then I'll ask you some questions about them.
(DEFRANCESCO) Yes, sir.
(DC) Firstly can you identify what those ten photographs depict?
(DEFRANCESCO) Pictures of 36 Lansing Drive, Delmar New York.
(DC) And was that the home that you went to to conduct this search?
(DEFRANCESCO) Yes.
(DC) And were those photographs taken by your department, of that home, at the time of that search?
(DEFRANCESCO) Yes, no, not at that time of the search, no.
(DC) Where [When?] were these taken investigator?
(DEFRANCESCO) I don't know.
(DC) Do they fairly and accurately depict the residence as you recalled the residence on August 7th of 2000?
(DEFRANCESCO) Yes.
(DC) Are those photographs in color?
(DEFRANCESCO) Yes.
(DC) Did those ten photographs depict the color of the house? [326]
(DEFRANCESCO) Yes, sir.
(DC) Would you be kind enough to tell the Court what color is depicted in those photographs?
(CZAJKA) What color the house is?
(DC) Yes.
(DEFRANCESCO) Light blue.*
[* This is more or less correct, and also contrary to 'Arthur's' claim that it's white. But even here, DeFrancesco seems to be hedging a bit. Most people, when asked to describe the exterior color, would simply say 'blue.' It's actually neither so 'dark' that it verges on black, nor so light that it verges on white. But implying the latter makes 'Arthur's' label of 'white' appear to be more plausible.]
(DC) Now, your department had brought ['Arthur'] even by that house, hadn't they?
(TORNCELLO) Objection, time frame.
(DC) Some time.
(CZAJKA) Ever?
(DEFRANCESCO) I believe they did.
(CZAJKA) Did you?
(DEFRANCESCO) No, sir. I did not.
(DC) Did he indicate, did ['Arthur'] indicate to you the color of the house was white?
(DEFRANCESCO) Honestly, I don't remember if he did or not. He may very well have though. *
[* Still hedging and obfuscating. You can bet that if 'Arthur' had gotten the color right, he'd have remembered that quite clearly.]
(DC) I would like to offer these, if I may?
(CZAJKA) On consent. [327]
(TORNCELLO) Yes. Can I have a look? No objection.
(Whereupon, Defendant's Exhibit "B" was received in evidence).
(DC) Officer, we talked before about photos being taken the night of the search after August 7th and those pictures you showed us were not of that event?
(DEFRANCESCO) That's correct.
(DC) All right. I don't recall ever seeing any pictures of the search.
(TORNCELLO) I don't think I have any other pictures.*
[* Even if that's true, it's irrelevant; under the law, the prosecutor is presumed to have all potentially exculpatory evidence. (Again, if the prosecutor could simply claim he or she 'didn't know,' there would be every incentive for the police to never make the prosecutor aware of such evidence.)]
(DC) Well, your department whether they took pictures the evening of August 7th, would have preserved those, would they not?
(DEFRANCESCO) Yes.
(DC) All right. And your office is right here in this building, is it?
(DEFRANCESCO) Not my office, but we do have an office here, yes.
(DC) Would they be fairly easily retrieved?
(DEFRANCESCO) They very well may be.*
[* More hedging / obfuscating.]
(CZAJKA) Is this your last witness?
(TORNCELLO) No.
(CZAJKA) How about if Inspector DeFrancesco goes to look and you call your next witness?*
[* How about if the'Judge' in this trial gets hopping mad about the prosecution burying exculpatory evidence -- now for the second time? How about imposing actual sanctions on the prosecution for such flagrant misconduct?]
(DEFRANCESCO) He will be here in ten or fifteen minutes.
(CZAJKA) Go ahead. Well is there an investigator or officer that's outside -- would you get him Lieutenant?
(DEFRANCESCO) He's not testifying so he can get it for me.
(DC) I would appreciate looking at those photographs before continuing, if I may. In the nature of conserving time, Your Honor, maybe I can jump to a different area while we're waiting. Okay. Now, this investigation you were the supervisor of this investigation, were you not?
(DEFRANCESCO) Yes.
(DC) And were you aware that some people [329] working under your command had been at the home of Jeff Nickel prior to August 7th, were you not?
(DEFRANCESCO) Yes, I was.
(DC) And you were aware also that they went there, and spoke with the mother of Jeff Nickel, were you not?
(DEFRANCESCO) Yes.
(DC) You were aware, were you not, that they gave a fictitious story to her, about wanting to see Jeffrey Nickel because of a V&T accident, in a shopping center?
(DEFRANCESCO) Yes.
(DC) And that was not the truth, was it?
(DEFRANCESCO) No.
(DC) Are you the one that authorized that not truth to be uttered?
(DEFRANCESCO) I don't believe I was.
(DC) As a matter of fact, you were aware they made more than one visit to the home prior to August 7th, again pursuing that non truth, isn't that correct?
(DEFRANCESCO) Yes.
(TORNCELLO) Objection.
(CZAJKA) That it's a policy? [330]
(TORNCELLO) On the grounds of relevancy.
(CZAJKA) That he authorized it?
(TORNCELLO) Or that even --
(CZAJKA) Overruled. I'll allow it. Go ahead [DC].
(DC) Is it a policy of your department to instruct or permit officers, to tell non truths?
(TORNCELLO) Objection.
(CZAJKA) What was the question? *
[* Once again, Czajka is apparently not able to hear something that the stenographer heard just fine. Or was this more about Czajja just not really paying attention?]
(The preceding question was read back).
(CZAJKA) So what's the difference? What's wrong with it? I don't understand the point?
(DC) Well, officers went to the home of Mr. Nickel and lied about it.
(CZAJKA) I understand that, but I mean is there some legal prohibition against officers lying to suspects that I don't know about?*
[* There's a quite interesting (and revealing) double-standard here. If Nickel (or any defendant) were shown to have lied to law enforcement personnel, that would most certainly have been used against him at trial. But here, when it's the other way around, somehow, that is not fair game.] [331]
(DC) I would hope there would be, but --
(CZAJKA) All right. Well, I don't know of any. Objection sustained.
(DC) You were aware, I think you told us --
(CZAJKA) Do you have the pictures?
(TORNCELLO) I sure do.*
[* As was the case with the medical exam notes, these police-taken interior photographs of Nickel's home were provided to the defense far too late for the latter to be able to effectively use them to cross-examine witnesses: Bates and 'Arthur' had finished testifying the previous day.]
(CZAJKA) Did you ever see those before?*
[* Again, whether or not Torncello ever saw them before is absolutely irrelevant. The law is clear that the prosecutor must be presumed to have dominion over any exculpatory evidence. (Another example of Czajka providing a helping hand to the prosecution.)]
(TORNCELLO) No.*
[* This is dubious indeed. Torncello is prosecuting a serious child sexual abuse case. And he didn't ask the police if they took any interior pictures of the location where the most serious act supposedly took place?]
(DC) I'm sorry, sir.
(CZAJKA) I asked the Assistant D.A. did he ever see those before and he shook his head no. Why don't we have them marked at your convenience, [DC]?
(DC) There came a time on evening of August 7th officer, when you were in the bedroom area of Jeffrey Nickel's home and Jeffrey Nickel's bedroom?
(DEFRANCESCO) Yes.
(DC) And there was no water bed in the [332] room? Can we safely assume there would have been a bed in the bedroom?
(DEFRANCESCO) Yes.
(DC) All right. And did you make an observation as to the -- the bed covers and colors of bed covers in that room?
(DEFRANCESCO) I would have noticed them; I don't recall them.
(DC) If I asked you if the bed spread were a solid white, would that refresh your recollection?
(DEFRANCESCO) No, because I don't recall.*
[* One can bet that had the bedspread in Nickel's bedroom actually matched the one in the sex photo, he would have remembered that.]
(DC) If I asked you that the sheets or pillows was a light blue, would that refresh your recollection?
(DEFRANCESCO) No, sir.
(DC) If I can show you People's for identification purposes, these two photographs in the hopes of refreshing your recollection?
(Whereupon, Defendants Exhibits "C" and "D" were marked for identification).
(CZAJKA) Go ahead.
(DC) Officer, I am going to show you [333] Defendant's "C" and "D" for the very limited purpose of seeing if it might refresh your recollection, as to the color of the bed spread or sheets or pillow cases that you found in that room on that night of August 7, 2000?
(DEFRANCESCO) In the picture the bedspread is white, solid white.
(DC) Does that refresh your recollection as --
(DEFRANCESCO) Honestly, I don't remember them. The picture didn't help me remember them.
(DC) Okay. Now, I would like to ask you, if I may officer, did there come a time on the day of August 7, that under your instruction you would have sent officers and directed them to go to the home of Jeffrey Nickel?
(DEFRANCESCO) Yes.
(DC) And the decision to send officers to that home, was made by you?
(DEFRANCESCO) Yes.
(DC) And could you recall the time of day that you made that decision?
(DEFRANCESCO) No. [334]
(DC) Well, you had interviewed ['Arthur'] that morning, hadn't you, like around ten o'clock?
(DEFRANCESCO) Yes, sir.
(DC) And you and Bates now I assume after you left ['Arthur'], were driving back in your car probably discussing the case, weren't you?
(DEFRANCESCO) Probably, I don't recall.
(DC) Well, was that the time that -- does that refresh your recollection as to the time when yoiu decided you were going to send officers to the Nickel residence?
(DEFRANCESCO) No, sir, it doesn't.
(DC) Where did you go after you left [the group home]?
(DEFRANCESCO) Here to the Courthouse, I came here to the Courthouse.
(DC) Did you send Bates somewhere else?
(DEFRANCESCO) I don't recall.
(DC) And what time of day did you make a decision to send officers to the Nickel residence?
(DEFRANCESCO) I honestly don't remember when I directed people to go there.
(DC) Who did you direct to go there? [335]
(DEFRANCESCO) Ultimately Investigator Bates and I believe Investigator Thompson.
(DC) Now, through your interview with ['Arthur'], were you made aware or did ['Arthur'] indicate or were you made aware of some slapping incident or hitting incident?
(DEFRANCESCO) Yes.y
(DC) And was also Bates made aware of that?
(DEFRANCESCO) He would have.
(CZAJKA) If you know?
(DEFRANCESCO) He would have been in the interview and heard the questions and answers.
(DC) Okay. Before you left well, when you were dispatching your officers to the Nickel residence, did you give them any instruction as to what they were to say, or what they were to do when they got there?
(DEFRANCESCO) I would have told them to see if Jeffrey Nickel --
(CZAJKA) The question calls for a yes or no.
(DEFRANCESCO) Yes.
(DC) Did you indicate to them, to either one of them that they were to indicate they were from [the group home]?
(DEFRANCESCO) No.
(DC) If they did this, this would have been done on their own?
(DEFRANCESCO) Obviously.
(DC) Were they to bring Mr. Nickel back to your office?
(DEFRANCESCO) Yes.
(DC) And can we assume that the purpose of bringing Mr. Nickel back to your office would have been to see, if you can get a statement from him?
(DEFRANCESCO) I would it would be fair to say it was to see if he would be willing to be interviewed regarding the allegations made.
(DC) Isn't that what I just said, to get a statement from him? Are we talking about the same thing in a different language?
(DEFRANCESCO) Different language.
(DC) You wanted to get a statement if you can, right?
(DEFRANCESCO) Surely.
(DC) All right. You wanted to get him in there for that purpose, didn't you? I mean that was the purpose of bringing him there, wasn't it? [337]
(DEFRANCESCO) I believe so.*
[* How mealy-mouthed can you get? He's 'in charge' of the 'investigation,' and he merely 'believes' that was the purpose of having Nickel come in?]
(DC) And with that purpose in mind, the longer a period of time that he may be in custody with your personnel, as opposed to the shorter period of time, might have some bearing on the statement, would you agree to that?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Would you agree, that a statement could be -- strike that. Would you agree that it would be beneficial to you and your department, if in the taking of a statement it were shorter in duration?
(TORNCELLO) Objection.
(CZAJKA) Sustained.*
[* It is absolutely indisputable that the answer to defense counsel's above question is yes: The longer it takes detectives to get a 'statement' from a suspect, the less likely it is that courts will rule that statement 'voluntary.' Now, whether it was legitimate for Czajka to sustain Torncello's objections here is debatable. On the one hand, these questions could be said to require DeFrancesco to draw conclusions, which is impermissible unless the witness has been qualified as an expert. There seems little doubt that an experienced detective is, in fact, an expert in the admissibility of statements made by suspects.]
(DC) What time of day did you dispatch officers, to the Nickel residence.
(DEFRANCESCO) I don't recall.*
[* How very convenient.]
(DC) Would you not have made some sort of note or log as to the various duties that officers were on?
(DEFRANCESCO) No.*
[* Well, it would certainly seem to be the professional thing to do. However, his failure to do so may have a motivation similar to that for his failure to electronically record any interviews in this case; i.e., if they were recorded, it could do a lot of damage to the prosecution's case.]
(DC) Would you not have kept some sort of log yourself, some chronology as to when you [338] directed things to be done?
(DEFRANCESCO) No.
(DC) As well do you have any idea what time these officers, pursuant to your direction, arrived at the Nickel residence?
(DEFRANCESCO) No, I don't.
(DC) Do you have any idea as to how long a period of time, they were with Mr. Nickel, before they physically brought him to you?
(DEFRANCESCO) No.
(DC) Do you have any idea as to what conversations they had with Mr. Nickel before they brought him to you?
(DEFRANCESCO) No.
(DC) Do you have any idea of any conversations that these officers would have had with Mrs. Nickel, the mother of Jeff Nickel?
(DEFRANCESCO) No.
(DC) Was Jeff Nickel's mother present, if you know, when the officers arrived that 7th of August?
(DEFRANCESCO) I don't know.
(DC) Now, what time did Mr. Nickel arrive [339] at your office?
(DEFRANCESCO) I'm not quite sure, I think it was after 4:30 or five o'clock.*
[* False. It was around 2:30. (But 'losing' 2 hours here helps make Nickel's 'statement' seem 'voluntary.')]
(DC) He would have had to travel from Delmar where Lansing Drive is located, to the corner of Columbia and Eagle Streets in the City of Albany, wouldn't he?
(DEFRANCESCO) Yes.
(DC) Now, when your officers were coming or bringing him in, did they radio dispatch you or communicate with you in any way that they were bringing Mr. Nickel down, that they'd him and were bringing him to your location?
(DEFRANCESCO) I believe they had.
(DC) And would that be by radio dispatch? How would that communication be made?
(DEFRANCESCO) It could have been made any of numerous ways.
(DC) What way do you recall it being made that day?
(DEFRANCESCO) I don't recall.
(DC) What are the ways it could have been made?
(DEFRANCESCO) Radio, telephone.
(DC) Is your department, if it were done by [340] radio, would your department keep a log of that radio call?
(DEFRANCESCO) It may or may not.
(DC) How so?
(DEFRANCESCO) Sometime frequencies are recorded, some are. If it went car to car or direct to me --
(CZAJKA) The question was about recording the call, was there a log entry?
(DEFRANCESCO) There is no log entry.
(DC) So when you are calling?
(CZAJKA) Is there a log that they're required to --
(DEFRANCESCO) No.
(CZAJKA) That's used from time to time?
(DC) Yes, sir.
(DEFRANCESCO) If I had spoken twith the dispatcher it would have been recorded and probably logged if he spoke with me.
(DC) If not, there would be no type of record communicating when your officers arrived? They're not required to keep that time, is that correct? [341]
(DEFRANCESCO) That's correct.
(DC) They're not required to log in anywhere?
(DEFRANCESCO) That's correct.
(DC) You're not required to log in with a prisoner that is brought before you?
(DEFRANCESCO) No.*
[* That's simply astonishing. How unprofessional can you get? (But then again, why would they want anyone to know just how long they'd 'put the screws' to someone?)]
(DC) So when you talk about times and statements and a guess of time, that is exactly what you're taking about, isn't it an estimate and guesses?
(DEFRANCESCO) Estimates.
(DC) Now, I think during the taking of this statement you had indicated that one of the responses to the DA's questions, that there was some food brought in?
(DEFRANCESCO) yes, sir.
(DC) You have testified in cases before, haven't you officer?
(DEFRANCESCO) Yes.
(DC) And you have testified about taking statements before, haven't you?
(DEFRANCESCO) Yes.
(DC) All right. Do you find it a beneficial tool for the purpose of making the [342] statement look a little more palatable, to have this sort of party atmosphere or pizza brought in for that purpose?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Kind of goes a little better? Now, I assume that before you started to take the so-called statement, there was some conversation that took place, wasn't there, between you and Mr. Nickel?
(DEFRANCESCO) Yes.*
[* Let's have another look at the top of transcript pg. 303:
<<< (CZAJKA) Did he say anything to you that was not reduced, that was not transcribed?
(DEFRANCESCO) No. >>>
Thus, on pg. 342, DeFrancesco directly contradicts what he said on pg. 303.]
(DC) All right. You just don't start out saying, I have the right to remain silent, do you?* I mean, there's some preliminaries to it, isn't there?
[* Here, defense counsel appears to tacitly concede that Miranda rights were given at some point; in fact, they were never given.]
(DEFRANCESCO) Correct.
(DC) All right. And there could be preliminaries not only between you, but between other officer, could there not?
(DEFRANCESCO) Yes.
(DC) Are you aware of any other officer to have a preliminary discussion with Mr. Nickel before you started your statement?
(CZAJKA) Do you mean other than those, other than Bates? [343]
(DC) Yes, sir.
(DEFRANCESCO) Not that I'm aware of it?
(DC) For how long a period of time did you converse with Mr. Nickel before you say you gave him his Miranda warnings?
(DEFRANCESCO) I would estimate about a couple of minutes, two or three minutes.
(DC) Got right to it?
(TORNCELLO) Objection.
(DC) Forgive me. Is it fair to say that your statement took approximately three hours?
(DEFRANCESCO) Probably, two and a half hours, without recalling exact times.*
[* As already noted, he's a couple of hours short here.]
(DC) Now, during that period of time, during that three hour period of time, do you recall saying to Mr. Nickel, at any time, that these were only misdemeanors, and wouldn't be all that big a deal?
(DEFRANCESCO) No.*
[* This is -- at best -- highly misleading. He may not have used the word 'misdemeanors,' but he did tell Nickel that what the latter did would only be subject to a fine.]
(DC) Do you recall telling Mr. Nickel, that or making reference to, that his mother could suffer a stroke, if he failed to sign this statement?
(DEFRANCESCO) No.*
[* He's lying. Again, see DeFrancesco section where a federal judge 'declines to credit' DeFrancesco's similar testimony in another case.] [344]
(DC) Do you recall indicating to Mr. Nickel, that if he signed the statement he could go home, but if he didn't, the inference would be he would not be going home?
(TORNCELLO) Objection?
(CZAJKA) I don't understand the question.*
[* The question would seem to be quite understandable. Was Czajka simply not paying attention?]
(DC) Do you recall saying to Mr. Nickel, that night, that if he signed that statement, he would be able to go home?*
(DEFRANCESCO) No.*
[* He may not have said so in so many words, but, as he knows damn well, he meant to convey -- and did convey -- precisely that impression.]
(DC) Did you speak to Mr. Nickel that evening about coercion or what might be considered coercion?
(TORNCELLO) Objection.
(CZAJKA) I don't understand?*
[* Again Czajka 'doesn't understand' a perfectly comprehensible question. Paying attention?]
(DC) My question of the witness, Your Honor, when he spoke to Mr. Nickel that evening about coercion?
(TORNCELLO) Objection.
(CZAJKA) The?
(DC) Use of that word, coercion.
(DEFRANCESCO) I don't recall even mentioning the [345] word.*
[* That's true enough. Defense counsel is asking some very inartful questions here, apparently trying to get at the issue of whether DeFrancesco actually employed coercion -- which he most certainly did (see above).]
(DC) I'm sorry?
(DEFRANCESCO) I don't recall mentioning the word.
(DC) Could you have?
(TORNCELLO) Objection, asked and answered.
(CZAJKA) Sustained.
(DC) Well, that word coercion didn't come up with respect to any accusations against Mr. Nickel that evening, did it?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(DEFRANCESCO) I don't remember.
(DC) During the taking of this so called statement from Mr. Nickel, no one else was continually present in the room beside yourself and Mr. Nickel, were there?
(DEFRANCESCO) No.
(DC) Did you have any recording device taking this conversation down?
(TORNCELLO) Objection.
(CZAJKA) Asked and answered.
(DC) Again, did you have any video cameras, recording the event of this evening with Mr. Nickel? [346]
(TORNCELLO) Objection.
(CZAJKA) Well, wasn't that in fact the other witness? Overruled.*
[* But note that, just above, Czajka effectively (and -- yet again -- reflexively) sustained (by stating "Asked and answered") Torncello's virtually identical objection, only to have to backtrack and correct himself.]
(TORNCELLO) I apologize.
(CZAJKA) Did you?
(DEFRANCESCO) No.
(DC) So the only two people in this world that know what was said, in that room, with respect to this statement, would be you, and Mr. Nickel, isn't that a fact?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(DEFRANCESCO) I don't believe so.*
[* What? He just agreed that he and Nickel were the only two people 'continually present' in that room throughout the interview / interrogation. And yet now, he says 'I don't believe' that only he and Nickel would know what was said there? This guy's so worn out from lying, and obfuscating, that he's no longer even making sense.]
(CZAJKA) You mean in its entirety?
(DC) Yes, sir.
(CZAJKA) Well, if only two people are present in effect it's been asked and answered.
(DC) The pictures officer, that you took the evening of August the 7th, 2000, while conducting a search of 36 Lansing Drive, you had never turned those over to the DA's office, had you? [347]
(DEFRANCESCO) I didn't take any pictures on that date, sir.
(DC) Your department?
(DEFRANCESCO) I don't know.*
[* How can that be? He's 'in charge' of this whole investigation? And yet, he doesn't know if these pictures were furnished to the prosecutor? He's either lying, or hopelessly incompetent.]
(DC) Right here and now is the first time to your knowledge your department ever turned those photographs over to the DA's office, isn't that a fact?
(TORNCELLO) Objection.
(CZAJKA) To your knowledge?
(DEFRANCESCO) I have no idea.*
[* This is critical exculpatory evidence, and you 'have no idea' if it was given to the prosecutor?]
(DC) Do you have the ability to find out?
(DEFRANCESCO) No.*
[* Assuming that's true, it's evidence of a grotesque degree of unprofessionalism.]
(DC) Would you keep a record of when documents are turned over to the DA's office?
(DEFRANCESCO) I don't know if there's any such document.*
[* And you'd been with the sheriff's department for some 9 years? Not remotely credible.]
(DC) Is there anything in your file when these pictures were retrieved that indicated, by date or time or any manner at all, no matter how informal, that they were turned over to the D.A.?
(CZAJKA) Well,* regardless, if the -- if the pictures should have disclosed to defense counsel,** it doesn't [348] matter whether it was this witness, the Assistant District Attorney or anyone else's fault, personally the People were required to provide the information, and it's as simple as that.*** It doesn't matter whether it was the office of the D.A. or the office of the Sheriff that was at fault, whether or not the People ever had these photographs to turn them over to you, whether or not it was personally Mr. Torncello or his predecessor it doesn't matter, he's responsible, the People of the State of New York are responsible. ****
[* Here, Czajka interjects, saving DeFrancesco from having to come up with yet another answer that could only serve to further highlight his office's dishonesty, incompetence, or both. Another Czajka helping hand to the prosecution.]
[** What does he mean -- 'if' they should have been disclosed? Obviously, there is no question but that they should have been.]
[*** That's all very nice and very true. But then, why -- earlier -- did Czajka keep harping on the strikingly irrelevant question of whether the medical exam of 'Arthur' had been ordered by someone on the prosecution team, or the group home?]
[**** So, 'the People...are responsible.' What does that actually mean? You impose absolutely no sanctions on them for this flagrant Brady (discovery) violation. Thus, they have every incentive to keep right on engaging in this sort of egregious misconduct. But again, the far more important issue as far as this trial and for this defendant, is the following: These pictures were provided to the defense far too late for the latter to be able to effectively utilize them in cross-examining prosecution witnesses. This was the second day of (a two-day) trial -- 'Arthur' had wrapped up his testimony the previous day.]
(DC) Okay. I have no further questions. *
[* Well, how about asking for some sanctions? Or even for a mistrial?]
(CZAJKA) Any redirect?
(TORNCELLO) Your Honor --
(CZAJKA) Whether or not there's a remedy or there's a specific remedy to -- for the Court to issue, is another question,* but the People are responsible any way. Redirect?
[* Well, it's certainly not a question addressed by either Czajka or defense counsel. That's it: DeFrancesco and the entire prosecution side are simply and totally let off the hook in terms of this severe constitutional violation.]
(TORNCELLO) No thank you.
(CZAJKA) Step down inspector. [349]
(Whereupon, the witness was excused).
(DEFRANCESCO) Thank you sir.*
[* Indeed: DeFrancesco owed Czajka a huge thank-you for (unwarrantedly) bringing a halt to this severe grilling by defense counsel.]
(TORNCELLO) Call Steve Tanski.
(CZAJKA) Before the next witness is called [DC], is there anything that you want to do with respect to these pictures?
(DC) Not at this time, Your Honor, no.* Just so it's clear, I'm only marking them as a Court's exhibit.
[* Actually, defense counsel never brings this issue up again, thus missing a chance to at least attempt to have some real sanctions imposed over this. (And even if the latter were not imposed, the mere attempt could have helped significantly on appeal.)]
(CZAJKA) Attorneys, as I understand it, the pictures, in question, are 22 in number, twenty in number, defendant's C and D are two of them, the remaining 18 have been marked as Court's exhibit number one.
(TORNCELLO) Yes.
(Whereupon, Court's Exhibit "1" was marked for identifucation).
(CZAJKA) Steve Tanski? [350]
(Whereupon, People's Exhibit "24" was marked for identification).
(TORNCELLO) Good morning. Can you state your name for the record, please?
(TANSKI) My name is Steve Tanski.
(TORNCELLO) What is your occupation?
(TANSKI) I'm a police officer, investigator, with the Colonie Police Department.
(TORNCELLO) How long have you been employed in total with the Colonie Police Department?
(TANSKI) A little over twenty years.
(TORNCELLO) And what's your current assignment with that department?
(TANSKI) My primary assignment is an investigator assigned to the juvenile unit and secondary responsibility is in the department's unit for computer crime -- that [351] unit.
(TORNCELLO) And if we can take each of those one at a time, tell us some of your duties and responsibilities, as a member of the juvenile unit?
(CZAJKA) Skip to that which is relevant to this case.
(TORNCELLO) Thank you. Did you -- were you asked to become involved in an investigation, of a man by the name of Jeff Nickel?
(TANSKI) Yes.
(TORNCELLO) Who asked you to become involved?
(TANSKI) I received a call from Investigator Ron Bates from the Sheriff's Department, Albany County, and he explained to me that he had a computer that was seized pursuant to a search warrant that he would like to have thoroughly analyzed.
(TORNCELLO) I take it you have some expertise in that area?
(TANSKI) Yes.
(TORNCELLO) Judge, would you like me to ask him about his background and training for that training? What do you have in that area? [352]
(TANSKI) Our department became --
(CZAJKA) If all we're talking about is talking [sic] pictures off the computer, I don't know that you need any particular expertise in that area.
(TORNCELLO) It might be a little more in depth.
(TANSKI) Our department became interested in and involved in the computer a few years ago, and in March of last year, I attended a specialty training school, for a specific sort of --
(DC) I object, that would have been after the fact.
(CZAJKA) March of what year?
(TANSKI) March of 2000.
(CZAJKA) Continue.
(TANSKI) It was a specialized school that pertained to specific computer software and it was put on by the administrator of this parrticular software, guidance software, out in California. The name of the particular support application is called NENCASE, that's the particular computer software that we in the Colonie Police Department use to analyze [353] computers. Subsequent to that, I attended training conferences, particularly to --
(CZAJKA) What does the software do?
(TANSKI) The software enables one to analyze computer information, without altering any of the contents of it, such as the dates, and times, files that are created and the access, so without altering any of that information, it's an application that allows you to look at and copy out, and analyze, if you will, files, contained on a computer medium.
(TORNCELLO) Okay. Thank you. Now, do you recall the date when Ron Bates asked you to become involved?
(TANSKI) I believe it was August the eighteenth.
(TORNCELLO) Okay. And what did you do? Did you set up a meeting with him or?
(TANSKI) Yes, Investigator Bates came over to our station with the computer and some peripherals, some other related materials and dropped that off to me. I issued a receipt and he explained what the fundamental fact of the case were. [354]
(TORNCELLO) Okay. I want to show you, I guess an item marked as People's number 20, in evidence, and let me just show you this. Is it -- have you seen this before?
(TANSKI) Yes.
(TORNCELLO) Where have you seen People's number 20?
(TANSKI) That would be the CPRU an Investigator delivered me on the 18th and the one that I analyzed.
(TORNCELLO) Okay. In addition to analyzing that computer, or the contents of that computer, did you perform any other analysis?
(TANSKI) Yes. After.
(DC) Your Honor, excuse me, objection. Could I -- would I be able to voir dire on a chain of custody of this before he's allowed to testify. I'm assuming they would ask now questions, about information or whatever from that computer, and we have here both on the record that Ron Bates dropped it off to him on the 18th of August and we have it being seized on the 7th of August, with no change of custody or control introduced. [355]
(CZAJKA) So what is it that you would like to do?
(DC) Voir dire him at this point.
(CZAJKA) This witness?
(DC) Yes, sir.
(TORNCELLO) Do you want me to offer it first?
(CZAJKA) I thought you offered it yesterday.
(TORNCELLO) I did offer and the Court reserved.
(CZAJKA) Correct. 20?
(TORNCELLO) Maybe you didn't.
(CZAJKA) I have it up to 19 that I reserved on.
(DC) Well, let me ask you this?
(CZAJKA) Let's clear it up. Well, in any event, we agree it's not received, whether you moved it in evidence or not is another -- it's not received.
(TORNCELLO) To protect myself, I would like to ask a couple of foundational questions, then offer it, subject to -- you have seen that [356] computer before?
(TANSKI) Yes, I have.
(TORNCELLO) At a glance does that appear to be in a similar condition or the same condition?
(CZAJKA) Did you receive -- does it appear to be in the same condition or similar condition?
(TANSKI) That I left it in, yes.
(TORNCELLO) Okay. I'll offer People's number 20, Your Honor.
(CZAJKA) Do you want to voir dire now?
(DC) May I please, Your Honor? Yes. Good morning Mr. Tanski, how are you? With respect to People's for identification, number 20, that was brought to you by Investigator Bates, on August the 18th, is that your recall as to when that was?
(TANSKI) Yes.
(DC) Were you provided with any information as to when that piece of evidence was seized?
(TANSKI) Yes.
(DC) Was that the 7th of August?
(TANSKI) I believe it was. [357]
(DC) And do you know where it was, between the 7th and 18th of August? Do you have any personal knowledge as to where that was?
(TANSKI) No, no direct knowledge.
(DC) I am going to object Your Honor, no proper foundation.
(CZAJKA) Correct me if I'm wrong, but Bates testified that you seized this, from the house?
(TORNCELLO) Yes.
(CZAJKA) I know he had a bunch of boxes up here and that was one of them. Is it clear on the record that this Bates testified that about this?
(TORNCELLO) Yes.
(CZAJKA) [DC]? I am trying to recall his testimony?
(DC) Your Honor, with respect to that, because there was a marking of a lot of things.
(CZAJKA) I believe he did, but honestly specifically I don't recall. Let's find it.
(CLERK) Our notes indicate that he did. [358]
(CZAJKA) Take your time. Let's find it.
(Whereupon, a portion of Ronald Bates testimony was re-read to the Court).
(CZAJKA) Okay. It's clear that Mr. or Investigator Bates did testify about Exhibit 20, and Bates did identify it as being one of the items seized from the house. Do you wish to be heard further with respect to the admissibility?
(DC) Yes, I would, Your Honor. Because we -- this officer now is going to be asked to testify about anything with respect to that, I would believe it would have to be a showing of a continuity of possession, that nothing was, you know, done with it or whose hands it was in. I have an understanding it may have been with the State Police for a while too for a time, so that's the reason for it.
(CZAJKA) All right. In a sense, at least part of the exhibit has already been received in as much as I [359] understand it, Exhibit 5 came from Exhibit 20, but in any event, your argument goes to weight, not admissibility, and it's received.
(Whereupon, People's Exhibit "20" was received in evidence).
(TORNCELLO) Just so we're clear, Ron Bates also identified number 21. I would like you to identify, what's been previously marked as People's number 21 for identification?
(TANSKI) It's a box containing, computer peripherals and cords, several floppy disks.
(TORNCELLO) Okay.
(TANSKI) Three ZIP drives and disks.
(TORNCELLO) Now, was that also, in addition to People's number 20 in evidence, given to you, and examined or looked at by you?
(TANSKI) Yes.
(TORNCELLO) Okay. Does that appear to be in the similar or same condition or similar condition as when you looked at it? [360]
(TANSKI) Yes, it does.
(TORNCELLO) I will offer it.
(CZAJKA) What's in there? You say peripherals, what does that mean?
(TANSKI) Keyboard, computer keyboard, camera, this is a computer mouse, and a fingerprint ID scan for -- it's just a device that's connected to the computer, and calls for a fingerprint ID in order to turn the computer on. So really it's an on / off switch.
(CZAJKA) What else is in there?
(TANSKI) Cords, power cords, external ZIP drive.
(CZAJKA) Numerous diskettes?
(TANSKI) That and ZIP disks.
(CZAJKA) Okay. ZIP diskettes hold more? Is that it?
(TANSKI) Yes, that's it.
(TORNCELLO) I'll offer that as People's number 21.
(DC) Objection.
(CZAJKA) What's the nature of your objection? [361]
(DC) Relevancy, Your Honor, what is the relevance of these items?
(TORNCELLO) Just items seized, judge in the case. There's a photograph taken from the computer, and --
(CZAJKA) Let's clear that up that wasn't clear. Show him Exhibit 5.
(TORNCELLO) Investigator, I'm going to show you People's number five in evidence, and ask you, have you seen that before?
(TANSKI) Yes, sir. I have.
(TORNCELLO) Where have you seen that item?
(TANSKI) I recovered this image from the slack space of one of the ZIP disks that I forensically analyzed.
(CZAJKA) What does that mean, slack space?
(TANSKI) What that is, Your Honor, is, the best analogy I can give you would be two boxes containing paper files, of one case, and the files merely fill up a box and a half, but yet you still have two boxes. The space left over in box number two would be the slack space in the computer. [362]
(CZAJKA) So it's not in a folder?
(TANSKI) No, this would be recovered from what is known as slack space, on a -- on one of the ZIP disks. That was an area of the disk that has been -- that is set to be written to, in other words, this was an image that was once there, it had been deleted,* remains in the slack space until such time at it's overwritten by another file.
[* That's absolutely correct: This image -- the sex photo depicting an older person performing oral sex on a younger person, which was absolutely central to this entire case -- had actually been deleted. It was only by using specialized software that one would be able to recover it -- or even know it was there.]
(CZAJKA) Oh, all right. So that didn't come from Exhibit 20?
(TANSKI) No, this particular came from one of the ZIP disks.
(CZAJKA) Which one?
(TANSKI) The ZIP?
(CZAJKA) In the box?
(TANSKI) In the box.
(CZAJKA) Dig that out. Let's have that marked.*
[* Though Czajka appears to ascribe great importance to that image now, later on, in order to lend yet another helping hand to the prosecutor, he will minimize its significance.]
(TORNCELLO) 21 A, B & C?
(Whereupon, People's Exhibits 21 A, B, C, ZIP drives, marked for identification). [363]
(TORNCELLO) Okay. Investigator Tanski, I am handing you what's been marked as People's number 21, A, B and C, for identification, can you tell me what they are, please?
(TANSKI) These are the three ZIP disks, that I analyzed and were given to me by Investigator Bates as part of the contents of a box.
(TORNCELLO) Okay. You analyzed these items, right?
(TANSKI) Yes, sir. I did.
(TORNCELLO) Do they appear to be in the same or similar condition as when you first looked at them when you made your observations back in August of 2000?
(TANSKI) Yes, they do.
(TORNCELLO) I'll offer them now, 21 A, B & C and offer 21 collectively.
(DC) Objection.
(CZAJKA) Which of these did five come from?
(TANSKI) My number twelve.
(CZAJKA) What's the --
(TANSKI) People's 21 a.
(CZAJKA) All right. [364] Take them one at a time. [DC], what do you say to 21 a?
(DC) Your Honor, my objection would be what I understood of what the officer had said, he recovered from some slack space off the ZIP disk which he marked as number three. I thought he said his numbering --
(CZAJKA) Does that correspond with A? Number twelve, as I understand it, Investigator Tanski, your twelve is People's 21 A?
(TANSKI) Yes, sir. Your Honor, it is. Where that image was recovered from.
(DC) All right. I had three for some reason.
(TANSKI) They correspond, the three disks, that I report, it lifted as one, two and three.
(CZAJKA) So what is it you want me to do with this if it's received in evidence? I have five in evidence.
(TORNCELLO) Right, I thought it was important for the Court to know where five came from. That's all.
(CZAJKA) So you told us. [365]
(TORNCELLO) All right. I am offering it into evidence.
(CZAJKA) For what reason?
(TORNCELLO) As proof from where People's number 25 came from. It came from a ZIP disk found in the defendant's possession. It was seized pursuant to the Albany County Sheriff's Department seizure.
(CZAJKA) [DC]?
(DC) Well, it wasn't found in the defendant's position, per say. It was -- this wasn't even found -- it had been found, as I understand it, by a device, isn't that so?
(TORNCELLO) Objection.
(CZAJKA) Was it?
(TANSKI) Yes, it needs to be recovered using software.
(DC) My understanding would be, Your Honor, that this number five in evidence here would not have been seen by this individual, as he went through this, until he used a recovery device to try to find out anything that had once been there [366] and no longer there. I believe that's what he's saying.
(CZAJKA) That's what it sounds like.
(DC) And I would object to its relevancy. Five is already in evidence.
(CZAJKA) Well, I'm not going to look through on a computer screen or otherwise, five has been received, the remaining I see little relevance to or no relevance to it at this point, except to the extent as identified it's the source of five.
(TORNCELLO) Okay. Thank you. Investigator, I am handing you a packet of photographs, which have been marked as People's number 24 for identification; can you tell us what that those images are?
(TANSKI) These are images that were printed from the hard drive of People's 20.
(TORNCELLO) Okay. Did you recover those images?
(TANSKI) Yes, sir. I did.
(TORNCELLO) And did you print-out those images?
(TANSKI) Yes, sir.
(TORNCELLO) And?
(CZAJKA) When you say the hard [367] drive, you mean that part of 20, exhibit 20, the Exhibit 20?
(TANSKI) Yes Your Honor. The tower.
(TORNCELLO) All right. And after you printed out those, incidentally, do they fairly and accurately depict the way the images appeared I guess on the computer screen when you first discovered them?
(TANSKI) Yes, they do.
(DC) I'm going to object.
(CZAJKA) To what?
(DC) He's not calling for testimony relative to something marked for identification, it's been identified.
(CZAJKA) Well, I think your objection is premature. Go ahead.
(TORNCELLO) Okay. Do they appear to be in the same condition or similar condition as to what -- when you created them?
(TANSKI) Yes, they do.
(TORNCELLO) When you created them by printing them?
(TANSKI) Yes.
(TORNCELLO) Okay. And thank [368] you. I'll offer People's number 24, in mass into evidence.
(DC) Your Honor, I'm going to object that the pictures are completely irrelevant to the case at bar.
(CZAJKA) Let me see them please.
(DC) Yes, sir.
(CZAJKA) What's the relevance Mr. Torncello?
(TORNCELLO) I believe they're relevant on several issues, Your Honor. Number one, they're photographs of the defendant with one of the victims in this case.
(CZAJKA) Which one is that?
(TORNCELLO) One of the latter ones, number two, I think it is very relevant, under the theory that this defendant is capable of taking photographs of himself. He's capable of taking photographs of himself and other children, and he's capable of transferring those photographs.
(CZAJKA) How do you know he took these pictures? [369]
(TORNCELLO) I don't know either.
(CZAJKA) Objection is sustained.
(TORNCELLO) Can I be heard? And that he's capable of transferring those photographs, to his computer, and storing those photographs, either in a ZIP drive, on a floppy or on his computer. And it's consistent with the evidence that's People's number five, already in evidence.
(CZAJKA) Objection sustained.
(TORNCELLO) Investigator Tanski, did you note anything, about the security system, attached to this computer and these items?
(DC) Objection irrelevant.
(CZAJKA) Sustained.
(TORNCELLO) Have you heard of a program called PGP?
(TANSKI) Yes.
(TORNCELLO) What's -- what is PGP?
(TANSKI) PGP is a software, the acronym stands for Pretty Good Privacy, and a software encryption type of protection, it allows for written files to be coded and then decoded [370] using special keys.
(TORNCELLO) Did this computer that you analyzed contain the computer program, PGP?*
[* So, despite the objection to his previous 'computer security' question having been sustained, Torncello persists anyway.]
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) In your area of expertise is it remarkable or of note that a computer contain the computer program, PGP?*
[* Torncello still persists in this vein, despite the specific PGP objection having been sustained. But then again, why abide by the Court's rulings, when failing to do so costs him nothing.]
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Judge, can I have just a minute please?
(CZAJKA) Yes.
(TORNCELLO) Nothing further judge. Thank you.
(CZAJKA) Go ahead.
(DC) Good afternoon Mr. Tanski, just a very brief few questions of you, for some more clarity, I think. When you took control of this computer, and you looked at the computer, you cannot pull up, what has been marked as People's number five in evidence, isn't this [371] a fact?
(TANSKI) I didn't try.
(DC) Well, you had to go to try to recover a missing portion, did you not? Did I understand your testimony correctly in that regard?
(TANSKI) During the forensic analysis of the computer, the picture just comes up.*
[* But Tanski just testified that the image was not in the computer -- it was on a disk.]
(DC) You talked, did you not, about a --
(CZAJKA) By operation of software?
(TANSKI) By operation of the software yes, Your Honor.
(DC) This was the software that you had to use to regain, isn't that correct?
(TANSKI) Yes, sir.
(DC) All right. So, in order to recapture People's "5" in evidence, you had to use special software to recapture that?
(TANSKI) Yes, sir.
(DC) All right. Now, in recapturing it, is there any way to indicate, in other words, within the capability to recapture it, it wouldn't have been there, it wouldn't have been seen? [372]
(CZAJKA) I don't know what it is you're asking.
(DC) I guess what we are asking here, without the software that you used, if someone put the disk in the computer, they wouldn't have seen number five, would they, in evidence?
(TANSKI) No, number five was deleted.
(DC) That's correct. And this software was, you bringing back that image of something that had been deleted?
(TANSKI) Yes, sir.
(DC) And would you be able to tell well, you wouldn't be able to tell when it was deleted, or would you?
(TANSKI) No, I would not.
(DC) You wouldn't have been able to tell, who if anyone had used that computer before, who had deleted it or who put it on, would you?
(TANSKI) No, that information would not be available.
(DC) No further questions. [373]
(TORNCELLO) Could anyone other than the defendant, access that computer, without the defendant's fingerprint?
(DC) Objection, it's not from the computer, it's from the disk.
(CZAJKA) Well, the witness did --
(TORNCELLO) Let me reword that. Prior to your forensic examination, did you have to have, in order to access the computer, was it required that the defendant put his finger and use his fingerprint to access the computer?
(DC) Objection.
(CZAJKA) Investigator Tanski, you described in that box, a switch that was activated by a fingerprint?
(TANSKI) Yes, sir.
(CZAJKA) That's what you're referring to Mr. Torncello?
(TORNCELLO) Yes.
(CZAJKA) You didn't need to turn the computer on?
(TANSKI) I didn't turn the computer on, Your [374] Honor.
(CZAJKA) You didn't need that to examine the computer?
(TANSKI) No, I did not.
(CZAJKA) The contents of the computer?
(TANSKI) No, sir.
(CZAJKA) You didn't turn the computer on?
(TANSKI) No, sir. My process is, is not to turn on the target of the computer at all, because in doing so, it would alter a number of files automatically without any goal.
(CZAJKA) So you somehow examined -- how did you examine the computer without --
(TANSKI) What I do, Your Honor, is I removed the hard drive, excuse me, I removed the hard drive, completely from that machine. I place it into our forensic machine, and then I analyze it, using forensic software.
(CZAJKA) All right.
(TANSKI) Without turning on the target computer, I'll be able to analyze.
(CZAJKA) Do you remember what [375] your question was?
(TORNCELLO) Talking about the security system, and could -- did you need the defendant's fingerprint to access that computer, and turn it on?
(DC) Objection, it's not the computer, it's a disk that he's using.
(TORNCELLO) My question was?
(TANSKI) You've got there --
(TORNCELLO) Did you need a security code?
(CZAJKA) Well, if I can access it without the disk in question without using --
(TORNCELLO) He's got a computer lab, a computer crime lab?
(CZAJKA) I think the objection is sustained.
(TORNCELLO) No further questions.
(DC) No further questions.
(CZAJKA) Thank you.
(Whereupon, the witness was excused).
(CZAJKA) Any more evidence Mr. [376] Torncello?
(TORNCELLO) I may have one that I would ask about four or five questions.
(CZAJKA) Who is that?
(TORNCELLO) Amy Hinges. I want to --
(CZAJKA) [DC]?
[DC] Yes, sir.*
[* Note that Czajka got defense counsel's attention, apparently in order to ask something of him, at which point Torncello simply cuts him off. Why? And why did Czajka permit this?]
(TORNCELLO) I don't remember if I asked ['Arthur'] the dates when his unsupervised visits began and ended, I'll ask her two dates, unless [DC] would stipulate. That's all.*
[* He's lying: When such visits began and ended is not 'all' that Torncello is going to ask of Hinges; in fact, this issue is merely a fig leaf for his real motive for re-calling her to the stand, as will soon become apparent. (In any event, Torncello had covered this issue with 'Arthur' -- see transcript pg. 190).]
(DC) My recall is there was something in the record about that.
(TORNCELLO) She is here.
(DC) I thought he asked ['Arthur']. If it's on the record we can --*
[* Note how Torncello cuts defense counsel off here. Why? Because Torncello knows that it is on the record, and that, if that record were read back, he probably would not be able to sneak in some entirely different, completely unrelated testimony from Hinges.]
(TORNCELLO I have five questions judge.*
[* That's another lie: Torncello will proceed to ask a total of twenty-two questions of Hinges here (at least 13 of which are substantive).] [377]
(TORNCELLO) Good morning. Can you state your name, please?
(HINGES) Amy Hinges.
(TORNCELLO) What is your occupation?
(HINGES) Social worker.
(TORNCELLO) Where do you work?
(HINGES) [Names agency which operates group home].
(TORNCELLO) How long have you worked at [that agency]?
(HINGES) Five and a half years.
(TORNCELLO) Okay. Do you know a boy by the name of ['Arthur']?
(HINGES) Yes.
(TORNCELLO) Do you know a man named Jeffrey Nickel?
(HINGES) Yes.
(TORNCELLO) Do you see Jeff Nickel in the courtroom?
(HINGES) Yes.
(TORNCELLO) Can you point to him, please?
(HINGES) (Pointing).
(TORNCELLO) What's he wearing? [378]?
(HINGES) A blue tie, brown colored jacket.
(TORNCELLO) Thank you. If the record could reflect that the witness identified the defendant?
(CZAJKA) Yes.
(TORNCELLO) At some point in time, was Jeff Nickel allowed to visit ['Arthur']?
(HINGES) Yes.
(TORNCELLO) And ['Arthur'] goes to your school or lives at [the group home]?
(HINGES) Yes.
(TORNCELLO) At some point in time did unsupervised visits, between Jeffrey Nickel, and ['Arthur'] begin?
(HINGES) Yes.
(TORNCELLO) Do you know when they began?
(HINGES) Somewhere around June 10th.*
[* Torncello already knew that, as evidenced by the following question he asked 'Arthur' [transcript pg. 179]: "Around June 10th or so, or from June and July, did you ever have a chance to go and play with Jeff?" Moreover, recall the following exchange between Torncello and 'Arthur' [transcript pg. 190]:
<<<(TORNCELLO) Okay. Is it sort of would I be right if I said that your visits with him started in June of last year?
('ARTHUR') Yes.
(TORNCELLO) And they went through July or so?
('ARTHUR') Yes.>>>
Therefore, Torncello's stated reason for re-calling Hinges to the witness stand was a total and complete lie, for which -- of course -- he would suffer no consequences whatsoever. His true motive will soon become apparent.]
(TORNCELLO) 2000?
(HINGES) Yes.
(DC) I'm going to object.
(CZAJKA) What's the source of your information Ms. Hinges?
(HINGES) I had come back from maternity leave, in May, and it was toward the end of May. It happened a couple of weeks after I came back [379] so approximately --
(CZAJKA) [DC]?
(DC) Withdraw that objection.
(TORNCELLO) Okay. Do you know when the unsupervised visits ended?
(HINGES) I don't know the exact date.
(TORNCELLO) What's your best guess?
(CZAJKA) Well, there came a time that they ended?
(HINGES) Yes, and it was, when the investigation started.
(CZAJKA) So prior to that.
(TORNCELLO) When the investigation began?
(HINGES) Yes.
(TORNCELLO) Okay. Are you familiar with ['Arthur']?
(HINGES) Yes.
(TORNCELLO) Okay. And you're just, have you been in contact this morning with [the group home agency] concerning either medical records or some treatment that ['Arthur'] has?
(HINGES) Yes.
(TORNCELLO) And what is that -- what is that for?
(HINGES) A physical form. [380]
(TORNCELLO) Okay. And is there anything of note or importance on that physical concerning his eye care?
(HINGES) Yes.
(TORNCELLO) Okay?
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) May I ask a question?
(CZAJKA) Is he color blind?*
[* What in the world prompt Czajka to ask that? How would he even know to ask it? In any event, he just aided the prosecution enormously.]
(HINGES) Yes.*
[* Well, that sure is awfully convenient. However, let us assume, for the purposes of argument, that she is actually telling the truth here. Why, then, when asked the color of anything, did 'Arthur' never -- at any point -- say something along the lines of: 'Well, I'm really not sure, because I have color-blindness'? Moreover, how does this explain why he 'identifies' himself as the boy depicted in a sex photo, given that, whereas 'Arthur's' eyes are blue, the boy in the image has brown eyes? How does it explain why he 'identified' Nickel as the adult in the picture, when the defense's photography expert proved that it was not? How does it account for the fact that, whereas 'Arthur' claims the oral sex (depicted in the image) occurred in Nickel's bedroom the background in that image obviously does not match Nickel's bedroom? How does it explain 'Arthur's' claim of a window will in Nickel's bedroom wide enough to set a camera on, when there is none? How does it account for a supposed computer in the bedroom that was never there? How about the nonexistent 'long hall' (supposedly) encountered upon entering Nickel's home? What about the imaginary door Nickel must duck under to enter his bedroom? Or the nonexistent waterbed in that bedroom?]
(DC) Objection.
(CZAJKA) Sustained.*
[* Well, that's interesting: Czajka just sustained defense counsel's objection to a question he (Czajka) himself had just asked. That means he knew it was an impermissible question. So then, why did he ask it? But it's too late anyway -- Hinges already answered it. Is Czajka -- as the person deciding guilt or innocence -- somehow supposed to disregard this?]
(TORNCELLO) Do you know if he's color blind?
(DC) Objection.
(CZAJKA) Without answering whether he is or is not, do you know? Don't tell me -- do you know the state of his colorblindedness?
(HINGES) Yes.
(CZAJKA) What's the source of your information?*
[* How about asking Torncello the question: 'Why did you so blatantly misrepresent to this court the <b> real <b> reason why you were re-calling Hinges to the stand?']
(HINGES) A physical form.
(DC) Objection.
(CZAJKA) Sustained. [381]
(TORNCELLO) All right. I have no further questions.
(CZAJKA) Any questions?
(DC) No, sir.
(Whereupon, the witness was excused).
t
(CZAJKA) Do you have any other evidence other than to your -- you're awaiting my decision on that which I have reserved?
(TORNCELLO) Subject to the reservation you made concerning the four envelopes and the balance of the evidence that I offered subject to that, we will rest.
(CZAJKA) All right.
(TORNCELLO) I do want, I guess, I do want the record to reflect as Ms. Hinges came into the courtroom today, they provided the D.A.'s office with a fax copy* of a physical examination, I received it when she walked into the courtroom. I have handed it to [DC].
[* So, yet another fax copy of a physical exam of 'Arthur.' One wonders if this is just as illegible as the previous one. (Nickel himself has never seen a copy of the notes from this other exam.)]
(DC) I'm objecting to it.
(CZAJKA) Well you are not -- [382]
(TORNCELLO) I'm not moving it into evidence, judge.
(CZAJKA) Let's take a break in this matter.
(Whereupon, a recess was had).
(CZAJKA) Ready. You may be seated. Thank you very much. Mr. Torncello, do you wish to be heard further with respect to the exhibit?
(TORNCELLO) Judge, I would like to renew my --
(CZAJKA) What's the number of that one? The letters? One, consisting of four envelopes with the contents.
(TORNCELLO) For one through four each identified.
(CZAJKA) All right. Do you wish to be heard further?
(TORNCELLO) Well, the only thing I would like to state that I believe that's very relevant for the case, judge, [383] because they identify the victims in this case,* and there are admissions in many respects of the conduct that is the subject of the indictment before the Court,** and with respect to the authenticity and authenticating letters judge, there's a number of reasons. I could tick off half a dozen right now if you would like me to for the record, which could authenticate the records, the return address which is on the outside of the envelope, the signature of the defendant, the fact that the defendant is writing to Matthew Peeters and that the seizure at his home, he received mail from Matthew Peeters, it identified the camp where he worked, he identified the victims ['Arthur,' 'Brendan,' and 'Chris'], it also indicated that he had a cut on his hands and I believe there's more judge, but I will just for the record, I think those are indications. And any one of those, could be used to authenticate the letter.
[* The letter only mentioned their first names.]
[* There are zero admissions as to the three top charges of oral sex, photographing the former, and insertion of a finger into 'Arthur's' rectum.]
(CZAJKA) [DC]?
(DC) Yes, Your Honor. I renew my objection to the introduction of the [384] four envelopes containing one letter, in this trial, on the basis that there was absolutely no authenticating proof in this record, no direct proof that there was letters, that originated or did come from, Mr. Nickel. They, I believe, bear a signature, first the same signature of the other one bearing an address somewhere, but it would have been a simple matter for the D.A., if he wished to introduce them, to call in the handwriting expert or something of that nature to authenticate that yes, this indeed was written by this person. There has been no direct testimony on the record of this court, that they were so written. Secondly, the relevancy of those letters, Your Honor, I have felt from the beginning that the efforts of the D.A. to have those introduced into evidence, was merely to be prejudicial in the nature against the accused. And offered primarily for that purpose, not for any secondary purpose, but for that purpose. So I object to them, Your Honor.
(CZAJKA) The objection with [385] respect to Exhibit two, one, and three is sustained, the objection with respect to exhibit four is overruled. And exhibit four is received.
(Whereupon, People's Exhibit "4" was received in evidence).
(DC) Exhibit four would be?
(CZAJKA) The letter.
(TORNCELLO) May I say something again? That they're offered with respect to the intent aspect of the indictment, they are not offered to show that the defendant has any inclination or any proclivity to have sexual relations with boys.*
[* And if you believe that, we have a bridge in Brooklyn we'd like to try to sell you. The prosecution used the term "boy lover" a total of 13 times. "NAMBLA," which stands for the North American Man-Boy Love Association, was also employed total of13 times. And counting conservatively, there were an additional sixteen occasions when either Torncello or prosecution witnesses drew attention to Nickel's purported proclivities by some other means. In total, then, there were at least 42 propensity-related references, none of which had any bearing on any of the specific acts he was charged with. (See Propensity / Who Cares section.)]
(CZAJKA) To what extent certainly the People are entitled under People vs. Molineux to prove intent, by referring to prior acts of misconduct or prior convictions,* but in this case, where certainly the trier of fact could infer such intent or such sexual gratification from the conduct itself, the probative value, is not [386] outweighed by the danger of prejudice,** not withstanding that no jury is here. Not withstanding the fact that I disregard it as continually do, and would in any trial. But for the record, those are, that one is received and others are not. With respect to the remaining exhibits, wish to be heard further Mr. Torncello?
[* Nickel had no prior convictions.]
[** This sentence is (internally) contradictory: If it is, in fact, true that "the trier of fact could infer such intent or such sexual gratification from the conduct itself," then there is no need for any 'evidence' to prove 'intent.' Czajka has apparently been reduced to spouting random legal aphorisms, as if one had pulled the cord of a deranged judicial 'Speak-and-Say.']
(TORNCELLO) Judge, they were the subject of the search warrants, they were items that were taken, I think, for various reasons, they're relevant they too, many of them go the intent of the defendant. In addition to that, they go to the opportunity of the defendant, for instance, the camera is one item, there's one item that's a book that its content is the sexual abuse of children. I think that item goes to the intent of the defendant. Thank you.*
[* Really? So now, in the United States (as opposed to, say, China or North Korea), we can convict people based on what they read? (This is a book co-written by a professor at Cornell University. Perhaps, then, he should be convicted -- as its author -- of even more serious offenses.)]
(CZAJKA) [DC]?
(DC) Your Honor, I would object to those items, being offered on the basis that, I do not recall any evidence in this trial, that the, that the camera which [387] is part of this was ever used.* There was no testimony on that.
[* There was certainly no evidence that this camera was used to take the sexual photo that is central to this case -- i.e., no negatives were ever produced.]
(CZAJKA) For the same reasons that I sustained the objection with respect to exhibits three, two and 1, I sustain the objection with respect to those exhibits.* Do you have a motion you would like to make at this time?
[* Well, that's all very nice, but Torncello has already succeeded in highlighting all of this non-evidence to Czajka, the person deciding guilt or innocence.]
(DC) Your Honor?
(CZAJKA) You rest?
(TORNCELLO) Yes, we do. The People rest.
(DC) Your Honor, with respect to the last witness that we only asked a few questions here from the stand, I note, Mrs. Hinges, that was called by the People, that I objected to the introduction of the medical report that the Court, as I recall sustained --
(CZAJKA) In fact, I didn't have to look at it.
(DC) Sustained that. So I would like --
(CZAJKA) In fact, Mr. Torncello didn't even move it into evidence. [388]
(DC) Okay. With respect to some allegations in that report of colorblindness, I'm moving to strike all of that from the record to.*
[* Well, this is a bit of a 'damned if you do, damned if you don't' situation for the defense: On the one hand, it may have been a good idea for counsel to remind Czajka that he is not supposed to take this supposed color-blindness on 'Arthur's' part into account. But on the other hand, in doing so, defense counsel actually reminded Czajka of it.]
(CZAJKA) It was sustained.
(DC) Thank you, sir. Your Honor, with respect to the now resting of the People's case, I would like to renew that which I offered to the Court before the trial, started, first with respect to the 7th count of the indictment, five of these counts in this indictment Your Honor --
(CZAJKA) Could I interrupt you for a second [DC]? Mr. Torncello, what was the name of the last child witness, the last child witness that testified?
(TORNCELLO) ['Chris'], Your Honor.
(CZAJKA) That was indictment 7?
(DC) Yes, sir.
(TORNCELLO) Count 7, yes.
(CZAJKA) There was evidence on the record, in both I believe either in the exhibit that I just received four and / or the [389] admission to the inspector, then Senior Investigator DeFrancesco, regarding the defendant's contact with that child, is there any evidence in the record to corroborate that?
(TORNCELLO) Well judge, it's our position that the defendant had the opportunity. The witness identified him, he showed he stated that he was a teacher's assistant at school, that he had -- he was a friend of his, that there had been some touching in which I think he used the word restraint, that he has been restrained by Jeffrey Nickel.* He also testified that at first he was friendly with him, that they thought they were friends and then later something happened, that changed his opinion of Jeffrey Nickel, ** and I don't know whether I think he may have used the word uncomfortable that made him uncomfortable or something like that. I think his testimony coupled with the statement given by the defendant, which is in evidence, which judge admittedly --
[* Yes, Nickel did 'restrain' 'Chris,' in precisely the way the former was trained (by that school) to do when any student became unruly.]
[** What happened was the initiation of this 'investigation.']
(CZAJKA) There's some evidence in the record corroborating the fact that [390] a crime was committed? That particular crime was committed? That corroborated the defendant's admission whatever the section is 60 --
(TORNCELLO) Judge, I think in the letter that was just submitted that would be further proof of it.
(CZAJKA) The admission to corroborate one another?
(TORNCELLO) One statement and another on the testimony of the witness that he had the opportunity and he was available for that.
(CZAJKA) Do you have anything to support that admission that may corroborate another --
(TORNCELLO) Not at present, Your Honor.
(CZAJKA) All right. I interrupted you [DC]. Continue please.
(DC) Your Honor, with respect to five of the counts in the indictment, they were brought on the complaint of an individual by the name of [391] ['Arthur']. I respectfully pointed out to the Court before this trial began that initially there was a criminal felony information filed against Mr. Nickel, in which ['Arthur'], alleged a violation of Section 130.80, a course of sexual conduct. And that subdivision two or (b) of that section, says that no other subsequent prosecution can be had for other sexual, alleged sexual acts, that occurred within that time frame. I would respectfully submit to this Court when -- that all of these allegations brought by ['Arthur'] occurred within that time frame,
and that therefore, that the People since they had begun a prosecution under Section 130.80, they were precluded from proceeding with these other five counts in this indictment, and I would move at this time that they be stricken.
(CZAJKA) And you?
(TORNCELLO) Same argument as last time.
(CZAJKA) My decision continues to be the same.
(DC) Your Honor, if it [392] please the Court, with respect to Count 7 of the indictment which the Court just made some inquiry, my recollection of the testimony, of the alleged complaining witness was that there was no sexual contact that existed, and there would have to have been, some corroboration other than corroboration -- an admission by the defendant and there's none, not on the record.
(CZAJKA) My recollection is consistent with yours; however, I would give the People an opportunity to bring something to my attention that perhaps I'm not able to recall at this time.* Failing that, your motion to dismiss count 7 will be granted.
[* How many 'opportunities' is Czajka going to give Torncello re: this issue? Czajka and Torncello just spent more than two full transcript pages in their vain attempt to salvage the count related to 'Chris.']
(DC) With respect to that count and the other six counts, I would respectfully move at this time, that the People have failed to prove as a matter of law, beyond a reasonable doubt, all of the necessary elements of those charges, to sustain those charges and move for their dismissal at this point.
(TORNCELLO) We believe that there is credible evidence on each and every [393] element of the crime charged.*
[* The hell there is: Other than 'Arthur's' word, there is no evidence whatsoever of the top three charges of oral sex, photographing the latter, and the insertion of a finger into 'Arthur's' rectum. Moreover, 'Arthur' was incontrovertibly wrong -- as established by the police's own photographs -- about each and every detail about Nickel's home (the supposed location where the oral sex / photographing supposedly occurred) that he provided.]
(CZAJKA) I so find.* [DC], do you wish to present a case?
[* Only a de facto second prosecutor could 'so find.']
(DC) Yes, sir.
(CZAJKA) Call your first witness.
(DC) Thank you sir.
(CZAJKA) So [DC] can adequately plan his defense, do you foresee coming up with anything beyond that which you told me?*
[* So here, under the guise of being helpful to the defense, Czajka is giving Torncello yet another chance to salvage the count pertaining to 'Chris.']
(TORNCELLO) No, Judge.
(CZAJKA) All right.
(DC) Your Honor, the defense would like to call Mr. Richard McAvoy as its first witness.
(TORNCELLO) May I approach, judge?*
[* Why did he need to approach the bench (i.e., Czajka), particularly, alone -- without defense counsel also present? Why did Torncello apparently need to keep defense counsel in the dark here?]
(CZAJKA) Mr. McAvoy is the witness we discussed pre-trial? [394]
(DC) That is correct, Your Honor.
(CZAJKA) And just briefly to summarize what the testimony -- his testimony is to be, he will testify, regarding Exhibit 5, and his opinion that the adult male pictured in that photograph, is not the defendant.
(DC) That's correct, Your Honor, yes.
(CZAJKA) Mr. Torncello?
(TORNCELLO) Judge, I think I'll have to just continue my objection. Under the -- first of all, I'm not aware of anything, that the --
(CZAJKA) You made an objection, yet so the record is clear, [DC] asked for an order or some ruling from the Court before the trial began as to whether or not I would allow the testimony. I declined to rule prospectively in that record.
(TORNCELLO) Right. It's our position, then that there was nothing that this witness can testify to, that is [395] scientific in nature or that has been seen by the scientific community, as to be an acceptable scientific principle, judge.*
[* Oh really? Richard McEvoy (note correct spelling of last name) was in charge of the Georgia Bureau of Investigation's photographic laboratories for over six years. He also worked on photo identification cases for other agencies, including the FBI. Some of his work involved the identification of persons depicted in bank surveillance photographs. The fact is, courts throughout the U.S. routinely admit this sort of expert testimony. Thus, there clearly is a need for it. See Photography expert and Photogrammetry sections.]
(CZAJKA) Well, whether or not the witness can testify and offer an expert opinion, you called a witness namely Bates Ron Bates, who testified without objection, that in his opinion, the person or persons depicted in Exhibit 5 were the defendant, and the child witness ['Arthur'].
(TORNCELLO) Correct. There's a big difference and the difference is that, this witness has never met ['Arthur'], okay?*
[* Hardly. As Torncello knows full well, the sole subject of McEvoy's proposed testimony is whether or not the adult pictured in the image is -- or is not -- Nickel.]
(CZAJKA) He's going to talk about ['Arthur'] or just the defendant?
(DC) Primarily the defendant, Your Honor.
(CZAJKA) So let's take one at a time.
(TORNCELLO) The second difference is that I didn't offer mine as an expert, he's just a lay person,* just like when I look at you --
[* Oh really? A detective -- with many years of experience -- is 'just a lay person' now?]
(CZAJKA) Your objection now [396] goes to his testifying at all?
(TORNCELLO) Correct.*
[* Why is Torncello so desperate to get this witness off the stand as soon as possible?]
(CZAJKA) Let's deal with that without regard to whether he does so as an expert.
(TORNCELLO) Well, I could have taken any --
(CZAJKA) If you presented evidence in this form certainly the defendant can, right? I mean, you opened the door at least to that extent, correct?* Whether or not he does so as an expert or otherwise.
[* Though Czajka may appear to be treating the defense on an equal footing as the prosecution here, the reality is that, regardless of whether anyone on the prosecution side claimed to have 'identified' the persons in the image, the defense had the right to call an expert to establish that Nickel was not the adult depicted therein. Thus, whereas Czajka seems to be establishing a floor above which a defense (expert) witness may testify, he is, in reality, establishing a ceiling, above which this witness will not be permitted to go.]
(TORNCELLO) My position would be if he didn't do so as an expert, then his testimony is irrelevant.
(CZAJKA) How so? How was Bates testimony in that regard relevant?
(TORNCELLO) He was an investigator who met Nickel, he has photos.*
[* What desperate nonsense. McEvoy was also 'an investigator who met Nickel,' and who also 'has photos' (which he took of Nickel, comparing the latter to the sex photo).]
(CZAJKA) Let's see if the defendant can lay a foundation and you can renew your objection at that time. Go ahead [DC].*
[* Despite Czajka asking defense counsel to continue, Torncello, in his utter desperation, prevents that.]
(TORNCELLO) Can I ask one [397] other question with respect --
(CZAJKA) Lay a foundation as to whether or not he knows the defendant, at least to the extent that Bates did.
(TORNCELLO) Well, I guess on re-cross, on redirect, I'm going to line up five hundred witnesses who are all going to come in here and say I looked at the picture.*
[* Now, Torncello is resorting to extreme sarcasm. This is immensely disrespectful; and yet, Czajka barely bats an eye.]
(CZAJKA) I've got to tell you, I was disinclined to allow this, but you're the one that asked Bates in the first place.* I looked at [DC], he happily declined to object --
[* Again, whether a detective testified he 'recognized' who was depicted in that image is absolutely irrelevant to the defense's obvious right to introduce evidence which is clearly exculpatory.]
(TORNCELLO) I also had --
(CZAJKA) You made your bed. Go ahead [DC].
(DC) If you please, state to this Court your name?
(MCEVOY) Richard McEvoy,* Jr.
[* Although the stenographer mis-spelled McEvoy's last name throughout the record, from here on, to avoid confusion, the correct spelling will be used.]
(DC) Where do you reside Mr. McEvoy?
(MCEVOY) Victor, New York.
(DC) And your occupation Mr. McEvoy is [398] what?
(MCEVOY) I consult and train law enforcement personnel, in the use of photography and digital imaging.
(DC) And how long have you been involved in training law enforcement personnel, in photography, and imaging training?
(MCEVOY) Since 1974 in the photography, and the digital, I would make an estimation 1990 to the present. Eleven, eleven years, it's a new field.
(DC) And are you a lecturer and do you conduct courses in those fields?
(CZAJKA) Well actually, [DC], what I preliminarily want to do is to find out, whether or not there exists a foundation to the same extent there was one for Bates.
(DC) I'd be happy to do that, Your Honor, yes.
(CZAJKA) We'll talk about it and deal with the expertise later, if at all.
(DC) Did there come a time in November of the year 2000, that you and Mr. Nickel and myself met? [399]
(MCEVOY) Yes.
(DC) And did you have occasion on that meeting to physically look at Mr. Nickel?
(MCEVOY) I did.
(DC) And on that meeting in November did you also have occasion, to spend a period of time within his presence?
(MCEVOY) I did.
(DC) And did you learn to recognize him from that meeting and experience his features and his profile and his looks?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(MCEVOY) I did.
(DC) And were you provided at that meeting a photograph which I'm going to show you, People's five in evidence, if I may? I'm going to show you People's five in evidence and ask you whether or not, you were physically shown that photograph?
(CZAJKA) Well, that would be the next question. Do you wish to inquire as to foundation with respect to that foundation?*
[* '...foundation with respect to that foundation'? Does that even makesense?]
(TORNCELLO) With respect to [400] whether or not he saw Jeff Nickel? No.
(MCEVOY) I have seen an image.
(CZAJKA) There's no question. As it again [DC], I think there's one outstanding.
(DC) Did there come a time, Mr. McEvoy, when People's five in evidence, that that was provided to you for examination and review?
(MCEVOY) Yes.*
[* That's true. But DeFrancesco, and the prosecution generally, fought tooth and nail to keep it from McEvoy. (Judge Thomas Breslin angrily ordered it to be made available to the defense.)]
(DC) Okay. Now, again in November of the year 2000, in your meeting with Mr. Nickel, did you in your capacity as a photographer take certain pictures of Mr. Nickel?]
(MCEVOY) I did.
(TORNCELLO) Objection.
(CZAJKA) Let's divide it up and do one thing at a time. Sustained for now.
(DC) Your Honor, I'm not sure on the division, I'm not sure.
(CZAJKA) Well, whether or not the witness or any witness for that matter can testify regarding his or her expert opinion on this particular issue, I want to [401] leave alone for now. As I indicated earlier, the People may indeed have opened the door to some kind of testimony regarding at least in a lay person's perspective, as to whether or not the person in Exhibit 5 is indeed the defendant. That as Mr. Torncello correctly argued does not require any expertise.* And the pictures -- the act of photographing the defendant, by the witness, delves into that area. Let's leave that for now.
[* That is simply false. Firstly, if there were never any need to have
photographic or photogrammetry experts establish who was -- and was not -- depicted in a given photograph, why do such experts routinely testify -- for example -- regarding surveillance photograph comparisons in bank robbery cases? Clearly, the simple existence of the field of photogrammetry demonstrates that a lay person is not reliably able to tell who is -- and is not -- depicted in a given photograph. (See Photogrammetry section, where even family members incorrectly 'identified' a man in a certain photograph as a captured POW.) Secondly, the adult male depicted in Exhibit 5 is not facing the camera, and therefore, cannot be identified via a layperson's simple examination of the face.]
(DC) Your Honor, my course of inquiry with this witness, was going to be, a, ultimately of course, in his opinion is that Jeffrey Nickel in People's 5?
(CZAJKA) Well, see if you can do that without regard to the photographs that he took*
[* Could Czajka hamstring the defense any more?]
(DC) Your Honor I think --
(CZAJKA) That's your intent?
(DC) I was doing both, both, Your Honor.
(CZAJKA) Well, as to the first one then we'll cross that other bridge if and when we get to it.
(DC) With respect to People's five in [402] evidence Mr. McEvoy, with respect to one of the individuals depicted in that picture, the one who appears from the photograph to possibly be an adult in that photograph, as you examine it and look at that photograph, is that Jeff Nickel who sits here in the Courtroom on trial today?
(TORNCELLO) Objection.
(CZAJKA) Overruled, again, I say so, based upon the People's own case, and their having opened the door to this type of testimony.*
[* Again, the defense's clear right to present such exculpatory testimony is in no way dependent upon whether or not the prosecution 'opened the door.' And there is also no legitimate reason for Czajka to 'find' that the defense may not go beyond where the prosecution did on this issue.]
(MCEVOY) I believe it not to be.
(CZAJKA) Is that based, Mr. McEvoy, on your having viewed the defendant, face-to-face?
(MCEVOY) It is. If I may qualify it further, among other things, yes.
(CZAJKA) Well, can you separate --
(TORNCELLO) Objection.
(CZAJKA) Can you separate your opinion?*
[* Once again, Czajka is ham-stringing the defense to the greatest extent he knows how.]
(MCEVOY) Yes.
(CZAJKA) Eliminate and [403] disregard everything and everything, other than your personally looking at defendant.
(MCEVOY) Okay.
(DC) What is your opinion with respect to --
(MCEVOY) I believe that this photograph here is not Jeff Nickel.
(DC) Okay. Now, with respect -- I would like to ask you about your background. You're a lecturer -- Your Honor, I'd like to qualify him as an expert in the field for consideration by the Court.
(TORNCELLO) Objection.
(CZAJKA) Before he's qualified as an expert let's figure out whether or not there's such a field and what is the field?*
[* If Czajka truly does not know that this is a field which requires -- and indeed, employs -- bonified experts, that would seem to indicate judicial incompetence.]
(DC) Your Honor, I think that in his comparative between actually having seen Mr. Nickel, the photographs that he took of Mr. Nickel, and then matching that to People's five in evidence, I feel he would be able to provide this Court, with a detailed explanation, as to why this could not be Mr. Nickel. And if a jury were here it would be my hope that this would aid that [404] jury.*
[* Well, one would hope that such testimony would also aid the judge as finder of fact (i.e., guilt or innocence) in this trial; assuming, of course, that Czajka was actually interested in the truth.]
(CZAJKA) So presumably this would be done outside the presence of the jury or at least preliminarily?
(DC) Yes, sir.
(CZAJKA) Let's do that. I'll give you an opportunity to make argument. Go ahead.
(DC) Would you be kind enough sir, to give this court, your background in the field of photography and imaging? Credentials, resume, if you will?
(MCEVOY) I began with photography at age 11 as a hobby, of course, was trained in the military, and did precision photography for the military, I then got into the news work again through photography, got into forensics photography, and ran the photo lab for the Georgia Bureau of Investigations as an --
(DC) Georgia Bureau of Investigations?
(MCEVOY) It's a police agency in the State of Georgia. Depending on one's definition, it's a bureau of investigation and it has powers of arrest, it has powers of investigation. There are other states that have this same or [405] similar unit, not uniformed.
(DC) How long did you -- were you employed?
(MCEVOY) Approximately a little over six and a half years.
(DC) And can you tell me in what capacity you were so employed by the Georgia Bureau of Investigation?
(MCEVOY) When I left I was in charge of their photography division there, which was a part of the homicide investigation team, and fire and arson investigation teams, and whatever else they would come up with if they needed --
(DC) Have you in the past worked on photo identification for other police agencies and assisted other agencies?
(MCEVOY) Yes, I have.
(DC) And among those would the Federal Bureau of -- of Investigations, that would be one?
(MCEVOY) Yes.
(DC) And other agencies?
(MCEVOY) Yes.
(DC) Have you worked on and identified photographs taken, for example, in [406] identification of people depicted on bank teller machines and bank robbery cases and things of that nature?
(MCEVOY) I have.
(DC) And have you had occasion, sir, to testify, in Court before, with respect to this field of expertise?
(MCEVOY) My function --
(TORNCELLO) Objection as to the chacterization, field of expertise. There's no --
(CZAJKA) Rephrase.
(DC) Excuse me, I apologize. In the field of identification from image or photo, have you had occasion to assist police agencies?
(MCEVOY) I have.
(DC) And have you had occasion to testify with respect to your findings?
(MCEVOY) Testimony to the findings and identification, no,* testimony as to the quality of the work and what I have observed, yes.
[* One of the cardinal rules of trial lawyering is never to ask a question -- at least of your own witness -- that you don't already know the answer to. Here, defense counsel has clearly broken that rule. Had he prepared this witness properly, he would not have asked this question -- at least, not in the way he did. (This question and answer were -- to say the least -- not helpful to the defense's case.)]
(DC) Your observations you're able to testify to?
(MCEVOY) Right.
(DC) Those were observations of [407] photographs?
(MCEVOY) Images, yes.
(CZAJKA) Image quality?
(MCEVOY) Of photographs, yes.
(CZAJKA) But you never said that's so and so after looking at the picture?
(MCEVOY) Others have of the work that I worked on.
(CZAJKA) Have you?
(MCEVOY) No.
(DC) Is your --
(TORNCELLO) Objection judge. I move right now for --
(CZAJKA) Well, whatever that's got to do with it, I guess there's a first time for everything, right? Not to say this will be, but that alone is not dispositive. I'll give you an opportunity --
(TORNCELLO) Judge, I think we have to have a full Frye Hearing* and determine --
[* A 'Frye Hearing' is a hearing where it is determined whether expertise is required -- and scientifically accepted -- in a given area. Now, it is Torncello who appears to be pretending he knows nothing of such experts routinely testifying in -- among others -- bank robbery cases.]
(CZAJKA) That sounds like what [DC] wants.
(TORNCELLO) To accept in the [408] community as scientific --
(CZAJKA) Go ahead. It sounds like that's what we are doing.
(DC) Have you assisted other police agencies, in identification from photographs?
(MCEVOY) I have.
(DC) On many occasions, sir?
(MCEVOY) I have.
(DC) Are you now and have you in the recent past been, conducting educational courses, and instructions for police agencies and police officers?
(MCEVOY) Yes.
(DC) Is it not a fact that almost exclusively you work for and with police agencies and not the defense?
(MCEVOY) That's true.*
[* This is actually why McEvoy was, initially, quite reluctant to be a defense expert/witness. In fact, he was initially quite adamant that, although he was willing to consult on the case, he would not actually testify for the defense. However, when he realized Nickel was definitely not the older person depicted in that sex photo, he changed his mind.]
(DC) And you're so employed, at the present time, are you not, by police agencies?
(MCEVOY) I am.
(DC) Is it not a fact that one of your well -- strike that. Now, in the course of your meeting with Mr. Nickel, did you take certain photographs of him? [409]
(TORNCELLO) Objection, leading,*
[* Not by any stretch of the imagination was this a leading question. Torncello is simply desperate.]
(CZAJKA) Overruled.
(MCEVOY) I took photographs of him.
(CZAJKA) Whether you have any other objection, we don't even want to get there yet. Let's figure out whether this is --
(TORNCELLO) Objection.*
[* So now, Torncello is making an objection to what the judge is saying -- and cutting him off, to boot.]
(DC) Have you found, sir, from your experience, in the law enforcement field, that identification from photographs, that there are techniques and abilities that are not possessed by the general public?
(TORNCELLO) Objection.
(CZAJKA) Well, that's one of the things I'll have to decide, objection sustained.*
[* This is absurd. If McEvoy is not going to be allowed to discuss why expertise truly is required here, Czajka will have no legitimate basis on which to decide whether McEvoy should be allowed to testify as an expert. Yet more hamstringing of the defense by de facto second prosecutor Czajka.]
(DC) Would you be kind enough to explain to us, as an example, whether or not as you viewed the ear portion, the ear on the body shown in that photograph, what discernible differences were you able to make with respect to it, as opposed to the ear examined on the photograph that you took of Jeff [410] Nickel?
(TORNCELLO) Objection.
(CZAJKA) Sustained. At this stage of the proceeding, I'm not receiving in evidence for the purpose of determining the guilt or innocence of the defendant, rather, this would be in the nature of a hearing outside the presence of the jury, if there were a jury, to determine whether or not this testimony is even admissible. So let's skip for the moment the witnesses -- work with respect to this case and determine whether or not this is even admissible. Did you have any other questions with respect to that issue?
(DC) Have you in the past, Mr. McEvoy, in examining photographs, and images, made comparisons of ear style or design?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(MCEVOY) If I can expand on this?
(CZAJKA) No.
(MCEVOY) Yes.
(DC) Have you on other occasions made [411] examinations of images of characteristics of the nose and nostril areas?
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(MCEVOY) Yes.
(DC) Have you made examination and comparisons dealing with the hair line?
(MCEVOY) Yes.
(TORNCELLO) Objection.
(CZAJKA) Overruled.
(DC) Have you made in the past comparisons dealing with body hair, on ones body?
(MCEVOY) Yes.
(DC) And on ones face?
(MCEVOY) Yes.
(DC) Have you made comparative photographs or inspections before, dealing with the construction of ones forehead?
(MCEVOY) Yes.
(DC) Have you in the past made comparisons with respect to the cheek bone and eye socket view of an individual?
(TORNCELLO) Objection.
(CZAJKA) Overruled. [412]
(DC) Have you made in the past --
(TORNCELLO) Judge, can I -- my objection now is just as to leading. Can we ask him what he does, instead of?
(CZAJKA) Well, for that reason your objection is sustained.*
[* Two transcript pages previously, when defense counsel asked McEvoy if he'd "made comparisons of ear style or design," and McEvoy asked if he could "expand on this," Czajka said no. But now, upon Torncello's objection and then suggestion 'Can we just ask him what he does?,' which is exactly what McEvoy had been trying to do earlier, Czajka indicates his agreement with this approach.]
(DC) Could you explain for us what you do in making these comparisons?
(MCEVOY) In this specific case or in general?
(DC) Just in general for now, sir?
(MCEVOY) You look for the geometric nature and patterning defects, if you will.
(DC) What do you mean by geometric? Explain what you mean by geometric patterns?
(MCEVOY) The shape. If you're going to do comparisons, the shape of ones nose, the shape of ones ear, teeth, nostrils, hair pattern within a body, on a body, on a head, or on the face. This amounts to a great deal of observance, and mental notation, between one or several images that are put forward to you. As an example, those things that you identify with and people do this intuitively without realizing it, and when I say [413] intuitively, people in general, the general population when they look at someone say I know him, or her, I know that object, they're doing pattern recognition.*
[* This is another example of very poor witness preparation by defense counsel. Torncello will soon seize on this, as 'proof' that, because anyone can do these sorts of comparisons, this would not be a proper subject of expert testimony. (But of course, laypersons would not do this in the scientific and systematic way that only a true expert could.)]
(DC) What does that mean?
(MCEVOY) Pattern recognition is, unique features of a person or an object. My job in doing a recognition or comparison between images is to see if there are unique features that will either eliminate, or positively identify, the object in question or the person in question. When doing comparisons within imagery that is a slide sometimes you have to come back as close as you can to the original source. If you're dealing with film, it's a negative. If you are dealing with digital imaging, you try to get as close to the original comport what we call it of the image. The print that is here --
(TORNCELLO) Objection.
(CZAJKA) Sustained. Go ahead [DC].
(DC) I think as you started to explain to us, your work, I think I interrupted you. And then as to what other characteristics you [414] would look at in comparison?
(MCEVOY) Ears is one, there's a method in the past, called Bertilion and I would have to check on the spelling of that, Bertilion, it was there at the turn of the century, and part of the Bertilion method was ear shape and the like. Also a fingerprint* and that fell out of favor because it was where you have a little more objective as -- you could put measurements to these at that time. I don't know how far you want me to go with this, but they have made --
[* Yet another example of poor witness prep by defense counsel. McEvoy is starting to wander way off track, which does not help his chances of being qualified as an expert here.]
(CZAJKA) I'll let you know.
(MCEVOY) Others have made identifications of ear prints where someone is listening for the --
(CZAJKA) I mean that is not relevant to this case.
(MCEVOY) All right.
(CZAJKA) Go ahead [DC].
(DC) Your Honor, I would like to be able to offer now Mr. McEvoy's examination, as an expert in this field.
(TORNCELLO) Objection.
(CZAJKA) Wish to be heard or inquire of the witness? [415]
(TORNCELLO) I think I wish only to be heard in two parts that I understand judge, that number one is that he has never testified to his finding of identification of photographs. He has never testified before to the findings of his identification of photographs. And number two, I think most importantly, when he talked about some of the qualifications he has, he said that, people do it intuitively without realizing it. And I thought that's important. I think that this is something that is outside of the scientific community. I don't believe it's an accepted practice among the scientific community or anything that a jury could understand or a finder of fact to understand.*
[* It's very difficult to imagine that Torncello actually believes what he's saying here. Really -- he's never heard about such experts routinely testifying in, for example, bank robbery cases?]
(DC) [DC]?
(DC) Your Honor, I respectfully disagree. I mean we can all concede in the past couple of days, you, the Court, the People and myself all looked at one another. And but I would dare say are you an expert? We have not looked at the features and looked at it in the detail that [416] this gentleman is prepared to testify in, and because of the importance of this identification in this case, I thought it important that we get -- call an expert in here to be able to do nothing more than aid the jury or the court, and maybe draw the Court's attention to certain areas and to particularize those area as an aid, if you will, in the decision making the Court has to do. And I don't sit around as laymen and measure or look at curves in ears or nostrils or things of this nature, I don't think any of us do. And as a layman we just don't perform that way. I think it certainly is an aid to have someone come in who does this as their life's work and show and instruct us what they did in a particular case. And that is why I was offering Mr. McEvoy.
(CZAJKA) Although Mr. McEvoy certainly seems qualified in his field, this particular portion of his field does not seem to me to be such that it requires any expertise, much less, an example of the kind [DC] suggests is appropriate. Indeed, although it's outside the record on this [417] particular hearing, this separate, discrete hearing, Mr. McEvoy's own testimony at the trial portion a few minutes ago, where he testified that based upon his own opinion, by looking at the defendant face-to-face, he is not the person in Exhibit 5, belies or suggests there's not even any need for such expertise, * whether or not there is such a field, whether or not it is recognized generally in the scientific community.** So, he may not testify beyond that which he is allowed to testify by virtue of the People having opened the door.*** Do you have any other questions with respect to his going back in the trial portion now, do you have any questions of Mr. McEvoy, with respect to observations he made of the defendant, face-to-face?****
[* Czajka's disingenuousness here is absolutely breathtaking. First of all, he is the one who so ham-strung McEvoy, that the latter was only allowed to testify as a 'layman' -- as Bates (supposedly) did -- based on simply looking at the image and then observing Nickel in person. Secondly, even so constricted, the fact that McEvoy can still conclude that Nickel is not the person depicted in this sex photo does not logically lead to the conclusion that 'anyone' could have done so, for the simple reason that this is precisely what McEvoy does for a living, and thus, he has far more experienc even on a simple 'observation' level than would virtually any layman.]
[** It bears repeating that, if Czajka truly does question the need for -- and obvious existence of -- such a field of expertise (as evidenced -- for example -- by experts routinely testifying as to the identity of persons depicted in bank surveillance photographs), he is clearly incompetent to rule on what sort of expert testimony should be permitted.]
[*** Again, whatever Bates testified to is a total red herring: The defense has a constitutional right to present exculpatory evidence regardless.]
[**** Lastly, the question must be asked: What is Czajka afraid of here? If there were a jury, it might (though still implausibly) be argued that McEvoy would confuse the members of it. But there is no jury here. So, what would the cause of justice have to lose by qualifying him as an expert? Nothing. But Czajka's cause of making sure Nickel was convicted definitely would suffer. A prosecutor (including, in name) he was before this trial, and a prosecutor he would (in name) become again several years after this trial.]
(DC) Well, yes, Your Honor. And some further -- I'm assuming the Court's ruling is I'm not permitted to call Mr. McEvoy as an expert?
(CZAJKA) That's correct.
(DC) All right.
(CZAJKA) I don't have to [418] determine whether he is -- whether or not he's an expert. I'm making a determination this is not beyond the cannon of a lay person.*]
[* Baloney -- as one suspects he damn well knows. But, let us examine this from one other perspective. Investigator Bates -- a supposed layman -- claimed Nickel was depicted in the image. McEvoy -- whom Czajka insists upon treating as a layman -- says Nickel is not the older person depicted therein. Ergo, it logically follows that laymen are not qualified to accurately and consistently judge whether a given person is depicted in a given image.]
(DC) Respectfully take exception.
(CZAJKA) Or a trier of fact.
(DC) I'd take exception, Your Honor. I would then like to ask Mr. McEvoy, with respect to being a photographer whether or not in that capacity, he took some pictures of my client and offered those?
(CZAJKA) Mr. Torncello?
(TORNCELLO) I haven't seen the photographs yet, oh, did -- you showed them to me?*
[* Note how Czajka swoops in to save Torncello from the embarrassment of initially claiming he'd never seen these photos, only to have to immediately backpedal.]
(CZAJKA) Well, to protect the record, do you want them marked?
(DC) Certainly.
(CZAJKA) Before you do that Mr. Torncello, let me ask you this, People's five, that's the contraband for which the defendant has been charged in count three? [419]
(TORNCELLO) Correct.
(CZAJKA) Do you want me to consider it for any other purpose?*
[* Now, Czajka is attempting to limit the damage (to the prosecution) from what he must know was his highly questionable decision to prevent McEvoy from testifying as an expert.]
(TORNCELLO) I think it's -- yes, I do. I think it's some proof of Count one.*
[* It's important to note that 'Arthur' said nothing about a supposed oral sex incident until he was shown that pornographic image.]
(CZAJKA) Well?*
[* Well what? Czajka just 'asked' (in reality, he was trying to convey a strong suggestion to) Torncello if he wished that image to be considered for any other purpose than the 'Use of a Child in a Sexual Performance' count. Torncello clearly responded that he did wish this image to be considered as proof of Count One, which charges the actual oral sex act itself. But Torncello is faiing to get Czajka's 'hint' here.]
(TORNCELLO) It's some proof.
(CZAJKA) I mean on your own* to introduce it for that purpose then the rest of this evidence is irrelevant.** If you want me to consider it, as proof of some other crime, namely count one?
[* The phrase 'on your own' is laughable here, given how Czajka is clearly trying to get Torncello to agree that Exhibit 5 (the sexual photo) should not be considered as proof of the sex act itself.]
[** This sentence actually makes no sense -- and appears to be saying the exact opposite of what Czajka actually means and is trying to convey. That is to say, with Torncello stating that Exhibit 5 should be considered as proof of the oral sex act itself, McEvoy's evidence is extremely relevant. On the other hand, if Czajka can get Torncello to agree that Exhibit 5 should not be considered for any but the 'Use of' charge -- which Czajka eventually does accomplish -- then, provided that Czajka acquits Nickel of the 'Use of' charge -- which he will do -- McEvoy's evidence would become at least somewhat less relevant. But even then, what McEvoy has to say here would still destroy 'Arthur's' credibility in general, and with respect to the oral sex accusation -- which Czajka will still convict Nickel of -- in particular.]
(TORNCELLO) I think it's proof of count one and count six, that's the endangering charge?*
[* Not only is Torncello not getting Czajka's 'drift' -- the former is now wishing Exhibit 5 to be considered for another charge as well!]
(CZAJKA) Come up please.
(Side bar).*
[* So, because Torncello won't 'take the hint' on the record, Czajka calls him up for a private sidebar -- without defense counsel present -- in order to 'get him with the program.' Now, there is never a good reason for the judge to have a sidebar with the prosecutor only. Moreover, given that there's no jury here to be influenced by whatever may be discussed, there's little or no reason to have any sidebars at all.]
(TORNCELLO) On second* thought, Your Honor, let me say that, People's number five in evidence, would be offered as proof of -- as some proof of count number three ['Use of...'], in that indictment judge that [420] the contraband that we believe is addressed, in count three.
[* Second thought? More like seventh thought. The following is part of Torncello's opening statement: "One of the things that [Tanski] found in the disks is the subject of count three. There's also further proof, of counts one and two, Your Honor, it's a photograph of this defendant engaged in an act of oral sodomy with ['Arthur']..." Then, we have Torncello eliciting testimony from Investigator Bates that he 'recognized' the people in the sex photo as Nickel and 'Arthur.' Obviously, Torncello was eliciting such testimony not only to try to convict Nickel on the 'Use of' charge (count three), but on the oral sex act (count one) as well. Then we have Torncello saying another three times (just above) that he does wish that image to be considered for more than just the 'Use of' charge.]
(CZAJKA) And [DC], in view of the fact therefore, I will not consider, Exhibit 5, as having any relevance or connected with the remaining counts, it would seem to me therefore, that this testimony, would serve no purpose?*
[* Wrong. For one thing, although Czajka will acquit Nickel of the 'Use of' charge, we of course do not yet know that; thus, McEvoy's testimony is still relevant even for that count. And it is still relevant for the oral sex (count one) charge itself -- which Czajka will -- incredibly -- actually convict Nickel of. But the broader issue here is that, if that sex photo is clearly established to not depict Nickel, that means 'Arthur's' credibility overall is gone. But Czajka -- as de facto second prosecutor -- just cannot have that.]
(DC) I think quite the contrary. The position taken by the D.A., initially, is exactly the position that he has proven or is attempting to prove through the witness ['Arthur'], is that those two counts are wrapped up in this, in this imagery shown in People's five.
(CZAJKA) Well, I mean it's his case.*
[* Again, this is laughable, given that Czajka has forcefully altered 'the People's' entire approach here.]
(DC) Yes, sir.
(CZAJKA) And if he tells me, not to consider it,* beyond count three, I will not and cannot.
[* The only reason why Torncello 'told' Czajka this -- as is blatantly obvious from the foregoing exchange -- is that Czajka instructed Torncello to tell him this. How Czajka can say such things with a straight face -- or for that matter, pretend to be a neutral arbiter -- is a mystery.]
(DC) Your Honor, I think this Court now can consider whatever was put before it as evidence in this trial, not what the D.A. -- [421]
(CZAJKA) I mean, certainly the defendant or the People couldn't do that. Strike that. Certainly that might have lead -- strike that.* The People having withdrawn that particular purpose for Exhibit 5 they're stuck with it.** So, in essence, you would be using this witness to prove something that you don't need to prove or disprove something that the People are not attempting to prove any more. Namely that, this picture is a picture of the defendant.***
[* Czajka is so desperate to get this witness off the stand, that he's veritably tripping over his own words at this point.]
[** It is Czajka himself who compelled 'The People' to do this. Moreover, it is -- in fact -- the defense that is 'stuck with' this outrageously pro-prosecution ruling on the part of this so-called 'judge.']
[*** No. As has already been noted, even if the defense knew for sure that Czajka was going to acquit on the 'Use of' charge -- which it did not know was going to happen -- the defense still had a very strong interest in impugning 'Arthur's' testimony and allegations in toto. (It's not as if Czajka ended up acquitting Nickel of all charges related to 'Arthur': He still convicted him of the 'sodomy' (the oral sex act itself), the 'Aggravated Sexual Abuse' (alleged insertion of finger into rectum), and 'Sexual Abuse' (simple touching) charges related to him.)]
(DC) Your Honor, the dispute of that picture, is vital to our defense, we are saying that's not --
(CZAJKA) Exhibit 3, strike that. Count three, alleges this is contraband. Whether or not -- without regard to tyhe identity of the people within that picture, whether or not this is the defendant, ['Arthur'], or anyone else, they are allegations that this is contraband, just simply by the nature of that which is pictured. Now, if that's the only reason [422] that they're going to use it, to prove that he possessed this contraband,* and they do not want me to consider it as proof of the remaining counts, then it would seem to me all of this evidence is irrelevant.**
[* Czajka either completely misunderstands the law here, or is simply pretending to misundersand it. The 'Use of a Child in a Sexual Performance' that Nickel was actually charged with is different from (and far more serious than) the charge of merely 'Possessing a Sexual Performance By a Child.' A 'Use of' charge alleges that the defendant himself caused a sexual act -- involving a specific child -- to be visually recorded. (And while it is technically true that the adult himself need not be included in such an image for it to be a crime, the fact is that, from the beginning, 'the People's' position had been that it depicted 'Arthur' and Nickel.)]
[** If Czajka truly does believe that (which there is great reason to doubt), then he's just flat wrong. At the risk of belaboring the point, this evidence would still be quite relevant, because it calls into serious question all of 'Arthur's' testimony.]
(DC) Your Honor, it does deal with contraband.* It deals with the sexual performance and it deals with the --
[* It is unfortunate that defense counsel himself then adopts Czajka's highly misleading term here.]
(CZAJKA) Sexual performance is the contraband. The picture itself --
(TORNCELLO) Correct, Your Honor.*
[* Not really. (Moreover, what, exactly, is 'correct'? In his apparent ardor to be on Czajka's 'side', Torncello actually cut Czajka off before the latter could finish what he was saying.)]
(CZAJKA) I would suggest therefore the fact it was the defendant himself, who was allegedly engaging in deviate sexual intercourse as alleged in count three is surplusage. The fact that because by law it could be anyone --*
[* While it is technically true that a defendant himself need not be depicted in a sexual image to convict on a 'Use of' charge, it has been 'the People's' theory of the entire case -- from the start -- that it does depict both 'Arthur' and Nickel. Because that was their theory, the defense constructed its own case accordingly. Thus, this constitutes a grossly unfair surprise to spring on the defense in the last few moments of this trial. (In any event, as has already been noted, a 'Use of' charge still requires that the defendant himself have recorded -- or at least, directed to be recorded -- such a sex act involving a child, himself.)]
(DC) If it were anyone, Your Honor, that's the subject matter of a different indictment, not of this indictment.
(CZAJKA) Well, I thought this picture was only in this indictment, not the other.
(TORNCELLO) I'm not sure [423] whether that picture is in the other one or not.
(CZAJKA) The fact that defendant is alleged in the to wit clause, that clause, that the defendant is alleged to be in that contraband, in that photograph, is surplusage. The People don't have to prove that's the defendant for the contraband in fact to be contraband.
(DC) Your Honor, that's what the People offered those as proof in this case. That's exactly what they were proving through their witness, ['Arthur'], as it applied to two counts, as it applied to the sexual act depicted.
(CZAJKA) Well, go ahead, do what you like. It's taking more time* than it would just to introduce the evidence. Just so the record is complete in view of the fact that the defendant does not seem to accept that stipulation, do you now want me to consider it for all purposes?**
[* So now, another major factor motivating Czajka has been brought into stark relief: He just wants this whole thing to be over as soon as possible. Damn the defendant's right to a fair trial, or anything else for that matter.]
[** This would seem to signal that Czajka will go ahead and convict Nickel of the oral sex charge simply out of spite, because defense counsel would not accede to his grossly un-judge-like redirecting of the People's entire case.]
(TORNCELLO) Please.
(CZAJKA) Okay. [424]
(Whereupon, Defendant's Exhibit "E" was marked for identification).
(DC) I would like to show you, Defendant's "E" for identification, and ask you to examine in totality the packet of sixteen photographs.
(MCEVOY) I have.
(DC) Okay. Are these, sir, the sixteen photographs that you took in November of 2000, of Mr. Jeff Nickel?
(MCEVOY) They are.
(DC) I would like to offer these.
(TORNCELLO) May I voir dire very briefly?
(CZAJKA) Did you already see these pictures?
(TORNCELLO) Some, yes.*
[* Baloney -- he saw all of them. He's just trying to save face re: his earlier claim that he had not seen them.]
(TORNCELLO) Mr. McEvoy, when did you take these pictures?
(MCEVOY) I did.
(TORNCELLO) When did you take these pictures?
(MCEVOY) May I refer to my notes to be exact? I'd say beginning of April or beginning [425] of November 2000. That's okay.
(TORNCELLO) Fair enough. Beginning of November, 2000?
(MCEVOY) Yes.
(TORNCELLO) Okay. Now, you already looked at People's number five?
(MCEVOY) Yes.
(TORNCELLO) Do you know, when this picture was taken?
(MCEVOY) I have no idea.
(TORNCELLO) Okay. So, would you have any idea, first of all, who is in this* picture?
[*Apparently, Torncello is now holding up and showing McEvoy one of the pictures McEvoy himself took of Nickel.]
(MCEVOY) The defendant.
(TORNCELLO) Right. Would you have any idea, if this is the way Jeff Nickel looked, when this was created?*
[* This question is quite confusing. Apparently, Torncello is holding up both the sex photo and a McEvoy-taken picture of Nickel. (Therefore, the first 'this' in question refers to one of these, and the second 'this' refers to the other.) It would seem that Torncello is attempting to make the point that, because McEvoy has no idea when the sex photo was taken, there would be no way for him to say what Nickel would have looked like at that time. But, on multiple levels, this argument simply does not make sense. Firstly, because Nickel only had 'away' visits with 'Arthur' for a short period of time, it could not be plausibly argued that his appearance could have changed in any significant way. Secondly, most of the physical features McEvoy uses to see if a certain person is depicted in a given photograph change very little over time -- or not at all.]
(MCEVOY) I would.
(TORNCELLO) Can you describe the way it looked to me, please?*
[* An even more confusing question than the one above. What in the world does Torncello mean by 'it'? Nickel himself is certainly not an 'it.' But perhaps he's referring to one of the photos he's holding. But if that is so, how is McEvoy supposed to 'describe' the way a photo 'looked'?]
(CZAJKA) Well, you know what look means Mr. McEvoy?*
[* Well, this was a(n absolutely unwarranted) very sarcastic remark. Either Czajka is too dense / angry to realize what a confusing question this truly was, or he's pretending not to realize it. But he's intimidated McEvoy sufficiently to 'gaslight' the latter, and throw him off.]
(MCEVOY) His ears I would assume to be different, or would not be different, I'm sorry.
(CZAJKA) That's the way he [426] looked, when that picture was taken? *
[* So now, Czajka himself is taking up this absolutely irrelevant 'point' that Torncello is trying to make.]
(MCEVOY) His physical features would -- I would expect to be the same.
(TORNCELLO) All right.
(CZAJKA) Well, that is not responsive.
(MCEVOY) Okay, yes, Yes.
(TORNCELLO) You're saying that these pictures fairly and accurately describe the way he looked in November of 2000, right?
(MCEVOY) Yes.
(TORNCELLO) Are these -- do these pictures fairly and accurately depict the way Jeff Nickel looked when that document was created, do you know?
(CZAJKA) Whether that day or --
(TORNCELLO) Do you know that answer? You can't say, can you?
(CZAJKA) Go ahead.
(MCEVOY) I am still thinking on this.
(CZAJKA) Just so you understand the question Mr. McEvoy, this photograph Exhibit 5.
(MCEVOY) Yes. [427]
(CZAJKA) Or this image, Exhibit 5, was generated on some day, whatever that day was.
(MCEVOY) Okay.
(CZAJKA) And assuming for the sake of argument, that it was a day in the life of the defendant.
(MCEVOY) Yes.
(CZAJKA) Assuming* -- not assuming that this is the defendant.
[* This seems to be something of a Freudian slip on Czajka's part. Moreover, note how, when Torncello was not pursuing this [absolutely irrelevant -- see note above] line to Czajka's satisfaction, the latter merely takes over; again, as de facto second prosecutor. And, last but not least, why isn't defense counsel exposing the sheer stupidity of this entire line of questioning?]
(MCEVOY) True.
(CZAJKA) Fix in your mind that particular day, whatever it was, do you understand that there was some day in time when that image was generated?
(MCEVOY) I do.
(CZAJKA) All right. That's the day in time to which Mr. Torncello refers.
(TORNCELLO) Can you say for sure, whether this is the way fairly and accurately it depicts the way Jeff Nickel looked at that other time?
(MCEVOY) Yes.
(TORNCELLO) You can say that?
(MCEVOY) Yes.* [428]
[* Czajka and Torncello -- absolutely uninterrupted by defense counsel -- have now browbeaten and gaslighted McEvoy to a point where he answers this (absolutely irrelevant -- see note further above) question incorrectly, which both Torncello and Czajka then seize upon, as if that somehow destroyed his credibility overall.]
(TORNCELLO) Do you know when that photograph was created?
(CZAJKA) Mr. McEvoy, how could you possibly say that if that picture could be -- that could have been a picture of something that happened 50 years ago?
(DC) As to the construction of the nose, ears, face, facial bones.
(CZAJKA) That is not what I'm getting at.*
[* That's quite true. Whereas defense counsel is (finally) trying to get things back on the track of actual relevancy, Czajka will not let go of this absolutely meaningless 'point' as to what Nickel looked like at the time the sex photo was taken.]
(DC) Wasn't that answer is that things wouldn't change?
(CZAJKA) Maybe I misunderstood the question then. Go ahead Mr. Torncello.
(TORNCELLO) Judge?
(CZAJKA) I shouldn't have said 50 years ago, 50 years was beyond or before Mr. Nickel, the defendant was born, but any way. Go ahead.
(TORNCELLO) I find the answer incredible.
(DC) Object to those remarks of counsel. [429]
(CZAJKA) It's stricken.*
[* Again, given that this is in the transcript, what on earth does it (supposedly) being 'stricken actually mean?]
(TORNCELLO) I am going to object, on the basis of foundation, more importantly, relevance. Thank you judge.
(CZAJKA) Well certainly the defendant or perhaps the People, I remember doing it myself once, the People have requested an Order of the Court, directing that the defendant -- to take his shirt off or look in a certain way or
something. I don't see anything wrong, therefore, with receiving these pictures for that same purpose. And the objection is overruled. Any other questions?
(DC) Just a few. Mr. McEvoy, so that there's no misunderstanding of the questions posed by the Court tand the D.A., you cannot compare* the pictures marked Defendant's "E", against number five, because in number five, you already indicated that that is not, Mr. Nickel in number five.
[* But of course, McEvoy in fact did 'compare' the sex photo with the ones he himself took of Nickel.]
(TORNCELLO) Objection.
(CZAJKA) That's what my [430] decision was, sustained.
(DC) The photographs that were shown to you as defense Exhibit "E", would the ear structure have remained the same in that individual over the years?
(TORNCELLO) Objection.
(CZAJKA) Sustained.
(DC) Your Honor, I would run through the other various parts, but if there's going to be the same objection, I'll shorten it then.
(CZAJKA) Okay.
(DC) Your Honor, in light of the fact that the Court has ruled, that we cannot pursue this witness as an expert, then there would be nothing further, no further inquiry that I can make at this time.
(CZAJKA) Do you have any questions?
(TORNCELLO) No thank you.
(CZAJKA) Call your next witness please, if you have any?
(Witness excused).
(DC) Your Honor, the defense would like to call as its second [431] witness, [Nickel's brother* ('NB')].
[* We choose not to name him.]
(DC) Would you state for this court lease [please] your full name?
(NB) [States name].
(DC) And how old are you [NB]?
(NB) 42.
(DC) And whereabouts do you reside?
(NB) 36 Lansing Drive, Delmar, New York.
(DC) And who do you reside there with?
(NB) My mother, and my brother.
(DC) The brother that you speak of, is that Jeff Nickel?
(NB) Yes, sir.
(DC) And is that Jeff Nickel seated with me at counsel table?
(NB) Yes, it is.
(DC) How old are you, [NB]?*
[* Defense counsel just asked that.]
(NB) Forty-two. [432]
(DC) And how old is Jeff?
(NB) Thirty-two, thirty-three.
(DC) So you're ten years apart?
(NB) Right.
(DC) Now, this address of 36 Landing Drive in Delmar, for how many years have you lived there?
(NB) Twenty-three years in July.
(DC) So you were only about ten when you moved in and your brother was just an infant, I take it?
(NB) Correct.
(DC) And did your brother live there and has that been his residence except for schooling, all of his life?
(NB) Yes.*
[* Actually, no: After college, Nickel lived in Washington, D.C. for about two years, then moved back to Boston for another four years, then moved to Albany where he had an apartment for a little over two years.]
(DC) All right. And except for your early years, that's been your residence all of your lives?
(NB) Yes.
(DC) Are you familiar with that house having lived there for some thirty-two years?
(NB) Yes, sir.
(DC) Are you familiar with the color of the house? [433]
(NB) Yes.
(DC) And what color is the house?
(NB) Interior?
(DC) Exterior of the house?
(NB) The exterior is blue.*
[* Right -- not white, as 'Arthur' has claimed. (Also note that he did not say 'light blue,' as DeFrancesco self-servingly did.)]
(DC) Is it sided in some way or is it just painted through or is it sided?
(NB) Vinyl siding.
(DC) Do you recall when that siding was added to the home?
(NB) Seven to ten years ago.
(DC) Has that siding always maintained that same color or has it been, to your knowledge, ever repainted or anything done with the color?
(NB) No, it's never been repainted.
(DC) Was there a place in that residence at 36 Lansing Drive, which was your brother Jeff's bedroom?
(NB) Yes.
(DC) And are you familiar with that room?
(NB) Yes, I am.
(DC) And the color of the walls in that room are what color?
(NB) Off white.* [434]
[* Right -- not blue, as 'Arthur' had claimed.]
(DC) How many windows are in that room?
(NB) Three.*
[* Right – not two, as 'Arthur' claimed.]
(DC) Is there a window sill in that room?
(NB) No, no, just the molding in the window. *
[* Right -- nothing like the width that would be necessary to hold an 'old-style,' 35-mm camera, which 'Arthur' claimed was placed there in order to take the sex photo.]
(DC) At any time in the thirty two years that you've lived in that house, was there ever a water bed in that room?
(NB) Never.*
[* Right, and contrary to 'Arthur's' claim that there was. (But Nickel had once told 'Arthur' that his sister had a waterbed, which is almost certainly how 'Arthur' got this idea.)]
(DC) In the thirty-two years that you have lived in that house, was the doorway such that, Jeff had to duck to enter it?
(NB) No.*
[* Correct -- and, once again, contrary to 'Arthur's' testimony. (But he almost certainly got that idea from when Nickel told him that, when he lived in Boston, to go out the back door, he would have to duck.)]
(CZAJKA) Had to do what?*
[* Once again, the stenographer heard the witness just fine; but Czajka, perhaps not really paying attention, did not quite 'catch' it.]
(DC) Duck or stoop to enter it?
(NB) No, sir.
(DC) Your mom has resided there with you that length of time also?
(NB) Yes.
(DC) May I have one moment please, your Honor?
(CZAJKA) Yes.
(DC) Was there ever in that bedroom that you identified as Jeff's bedroom, a computer in that bedroom? [435]
(NB) No.*
[* Right -- and yet again, contrary to 'Arthur's' testimony.]
(DC) Was there ever a water bed anywhere in the house?
(NB) No.
(DC) I have no further questions. Thank you.
(CZAJKA) Wait a moment.
(TORNCELLO! Thank you. [NB], have you lived at 36 Lansing Drive continuously for thirty some years?*
[* As Torncello well knows, NB had already said precisely that. His purpose in asking this question would seem to be to attempt to 'shame' NB for having lived there so long -- i.e., well after he'd graduated from high school, etc.]
(NB) I moved out for a period of one year.
(TORNCELLO) And when was that?
(NB) 1976, 1977.
(TORNCELLO) Okay. Where did you move then?*
[* What the hell difference does that make? Again, this appears to be a quite pathetic attempt at 'shamingt.' But then again, what else can Torncello do? He knows damn well that NB is 100% correct about what he testified to regarding Nickel's home, which is also directly contrary to what 'Arthur' testified to.]
(NB) The south end of Albany.
(TORNCELLO) Are you employed?*
[* Yet more attempted shaming.]
(NB) Yes.
(TORNCELLO) What do you do?
(NB) I work for a property management firm.
(TORNCELLO) Okay. Are you married?*
[* Yet more attempted shaming.]
(NB) No. [436]
(TORNCELLO) You're single. Do you have any children?
(NB) No.
(TORNCELLO) Did you reside at that address in July and August of 2000?
(NB) Yes.
(TORNCELLO) Okay. And was it just you and Jeff and your Mom?*
[* This too was asked and answered above.]
(NB) Yes, sir.
(TORNCELLO) Had you ever been in Jeffrey's room?
(NB) Yes.
(TORNCELLO) Okay. Had you ever been in the basement?
(NB) Yes.
(TORNCELLO) Where is your room?
(NB) On the second floor, where all the bedrooms are.
(TORNCELLO) Okay. Have you ever seen any sexually suggestive material, in or around Jeffrey's bedroom?*
[* Even Torncello's 'basement' question just above should have been objected to by defense counsel as being beyond the scope of direct examination -- i.e., what defense counsel himself asked this witness. But the 'sexually suggestive material' question went way beyond anything asked on direct. Moreover, what would this tend to prove?]
(NB) No.
(TORNCELLO) Uh-huh. So, if Nickel is, then, the fact that 'Arthur' was wrong about every single exterior and interior detail he
provided regarding Nickel's home somehow magically becomes absolutely irrelevant? In that case, why have trials at all?]
(DC) Objection.*
[* Finally.]
(TORNCELLO) It's part of the [437] evidence judge, it's in the statement.*
[* So what? It's outside the scope of the direct testimony, as defense counsel should have pointed out (and Czajka should have known -- or probably did know -- anyway).]
(CZAJKA) Use a different term.*
[* So now, Czajka reverts back to what he did earlier at trial -- as if that in any way cures the absolutely prejudicial nature of the sort of 'evidence' Torncello is obviously seeking to elicit.]
(TORNCELLO) Okay. Were you aware or had he ever confided in you that he was sexually attracted to young boys?
(DC) Objection.
(CZAJKA) Overruled.
(NB) Restate the question again?
(TORNCELLO) What don't you understand about it?
(CZAJKA) That's two questions. Ask one question at a time.*
[* So then, why did Czajka overrule DC's objection just above? (In fact, Torncello's previous question was also a compound question.) Yet again, Czajka reflexively rules for the prosecution, and then has to backpedal. (But of course, the compound nature of these questions is the least of the problems with them.)]
(TORNCELLO) Yes. Had he ever confided in you, that he was sexually attracted to young boys?
(DC) Objection.*
[* Note that Czajka will simply ignore this objection by defense counsel.]
(NB) No.
(TORNCELLO) Were you aware that he was sexually attracted to young boys? *
[* Similar to the situation with McEvoy, this whole line of questioning is obviously one that defense counsel had not adequately prepared this witness for.]
(NB) No, I was not.
(DC) Objection.*
[* Well, this objection came too late -- the witness had already answered.]
(CZAJKA) Sustained.*
[* Yeah, great. But Czajka still let Torncello pursue this whole line of questioning -- and heard all of this.]
(TORNCELLO) You were not?*
[* NB just answered that; but Torncello simply will not let it go.]
(CZAJKA) Well, I sustained the objection without some source of -- without indicating the source of his information. *
[* Another red herring happily supplied by the de facto second prosecutor in this case. Again, under the rules of evidence, cross-examination cannot cover subjects that were not covered on direct. Moreover, any 'judge' is supposed to weigh the likely 'probative' (i.e., legitimate) basis for any proposed evidence against its potential for unfair prejudice against the defendant. What Torncello is doing here is purely the latter.]
(TORNCELLO) The question was were you aware, he [438] already said that he hadn't confided in him. The next question was, were you aware?*
[* First of all (before defense counsel actually objected), NB already answered that question. Secondly, Torncello is flouting Czajka's sustaining of defense counsel's (belated) objection.]
(CZAJKA) I said the objection is sustained.
(TORNCELLO) Somebody else could have told him or he could have --
(CZAJKA) If someone else told him it's not admissible.
(TORNCELLO) That's why I asked were you aware.
(CZAJKA) I got you, you're right.*
[*What? Torncello's 'right' about what? That it's okay to keep flouting the 'judge's' rulings?]
(TORNCELLO) Did you ever see -- did your brother have a computer?
(NB) Yes.
(TORNCELLO) And did you ever see the computer?
(NB) Yes.
(TORNCELLO) It wasn't in his bedroom, right?
(NB) Yes.
(CZAJKA) I didn't understand.*
[* Yet again Czajka has a hard time following what the stenographer heard just fine.]
(TORNCELLO) Was it in his bedroom?
(NB) No.
(TORNCELLO) Where was his computer?
(NB) In the basement.
(TORNCELLO) Does this look like People's number 20 [439] in evidence, does that look like his computer?
(NB) Yes.
(TORNCELLO) Is that his computer?
(NB) Yes.
(TORNCELLO) Okay. And on the side of that computer is taped a picture of a young boy, and the words, NAMBLA, was that on his computer?*
[* There's an old lawyers' adage: 'If the facts are on your side, pound the facts. If the law is on your side, pound the law. If neither is on your side, pound the table.' (Moreover, why didn't defense counsel object?]
(NB) I honestly did not look that close. I wouldn't know.
(TORNCELLO) Okay. Have you ever heard of NAMBLA?*
[*Still no objection from defense counsel.]
(NB) Yes, I have heard of it, yes.
(TORNCELLO) And where did you hear it?
(DC) Objection.*
[*Finally!]
(CZAJKA) Overruled.*
[*What? Torncello is now asking about an organization mentioned on something that was supposedly taped to Nickel's computer? And Czajka is overruling defense counsel's objection to it? The rules of evidence and any pretense of a fair trial have now been dispensed with altogether.]
(NB) In the media.
(TORNCELLO) In the media. Okay.
(CZAJKA) I'm receiving it for purposes of impeachment,* not to prove --**
[* For purposes of impeaching who, exactly? Nickel's brother, who just said he had never looked at the computer close enough to see what was supposedly taped there? Or Nickel himself, who never even testified at trial?]
[** Note that Torncello then cuts Czajka off, with an oddly collegial 'correct.']
(TORNCELLO) Correct. Did you ever find any or have you seen any NAMBLA magazines or bulletins around the house?*
[* Yet again, defense counsel fails to immediately object.]
(NB) No.
(TORNCELLO) In Jeffrey's room? [440]
(DC) Objection, that has been asked and answered.
(CZAJKA) Sustained.
(TORNCELLO) Okay. Are you aware if anyone in your family, are you aware, if anyone in your family, knew that Jeffrey, was sexually attracted to young boys? *
[* Torncello knows this is a blatant violation of the rules of evidence. He's actually asking this witness what he knew about what others knew!]
(DC) Objection.
(TORNCELLO) It's in the statement.
(CZAJKA) I know that, but you're asking the witness whether he was aware if anyone else knew. Do you want me to rule on that?
(TORNCELLO) I'll withdraw that. Do you know a boy by the name of ['Arthur']?
(NB) No.
(TORNCELLO) So you never saw a boy ['Arthur'] at your home?
(NB) No.*
[* That's correct -- because 'Arthur' never set foot inside that house.]
(TORNCELLO) Let me show you what's been marked as People's number five in evidence, and ask you to look at that okay? Do you recognize the [441] boy in that picture?
(NB) No.*
[* Of course he doesn't recognize him, because he'd never seen either 'Arthur,' or whoever the boy depicted in the sex photo is.]
(TORNCELLO) Okay. No further questions judge.*
[* So, note that Torncello did not challenge Nickel's brother on anything he testified to about the exterior or interior of Nickel's home, all of which flatly contradicted 'Arthur's' own testimony.]
(DC) No further questions.
(CZAJKA) Step down.
(Witness excused).
(CZAJKA) Any other witness [DC]?
(DC) May I have just a moment, Your Honor?
(CZAJKA) Certainly.
(DC) Defendant is not going to call any other witnesses at this time.
(CZAJKA) Okay. How much time would you like to think about your summation [DC]? Length of time for summation? How much time would you like. When will you be ready to sum up?
(DC) Well, could the Court allow me forty minutes or so, or 45 minutes?*
[* So, Czajka just asked DC two different questions: 1) How much time will he need to prepare his summation; and, 2) how much time he will need to actually present his summation. It is unclear which one DC was actually answering.]
(CZAJKA) How much time do you [442] want? (And the same is true of when Torncello responds just below.)
(TORNCELLO) Half an hour or so, forty minutes, that's fine. Or a half hour.
(CZAJKA) Could I see you up at the bench for a minute?
(DC) All right.*
[* It would seem that defense counsel was invited up for this bench conference.]
(Bench conference).
(CZAJKA) Mr. Torncello, I take it you have nothing more with respect to count seven?*
[* This is the count related to the last child witness, 'Chris,' who did not testify as to any sexual abuse whatsoever. Here, Czajka is giving Torncello yet another chance to -- somehow -- salvage this count.]
(TORNCELLO) That's correct, Your Honor.
(CZAJKA) Count 7 is dismissed.
(DC) That's the right count? Right? Yes. Your Honor --
(CZAJKA) Based upon my determination that not withstanding the fact that there's admissions, by the defendant, of that of the facts underlying that allegation, there's insufficient corroboration, as a matter of law, to prove that the crime was [443] committed. Keeping in mind that it doesn't have to be a lot, but there is, as I recall the record, there's no evidence beyond the admission, so count 7 is dismissed.* Go ahead [DC].
[* Shouldn't Czajka have given this little 'spiel' prior to dismissing count 7 the first time (i.e., just above)?]
(DC) Your Honor, we would like to now at the close renew all the motions made at the end of the People's case, renew all those motions now fully set forth at this time and we would also like to respectfully request of the Court, if the Court feels this would be the appropriate time, that the admonitions with respect to the Court reminding himself about the defendant's right that one does not have to --*
[* Why does Czajka cut DC off here?]
(CZAJKA) Keeping that in mind, is there anything either of you want me to consider, in addition to the allegations, any legal issues, that you want me to consider. I mean, it's silly to have a charge conference, but do the People want me to consider any lesser included offense?
(TORNCELLO) No, Your Honor.
(CZAJKA) Do you [DC]? [444]
(DC) Your Honor?
(CZAJKA) I don't know that there are any. But does your client wish me to?
(DC) Your Honor, I hadn't given that a thought.
(CZAJKA) Let me know when we come back. Also from your cross-examination of the People's witnesses, I understand you want me to disregard the admissions allegedly made by the defendant on the grounds that they were not given voluntarily?
(DC) That's correct, Your Honor, yes.
(CZAJKA) Anything else in that regard?
(DC) The defendant not testifying.
(CZAJKA) Absolutely.
(DC) I think that's all.
(CZAJKA) Your motions to dismiss, are denied once again. And as I say, I'll consider that which you wish me to consider, immediately prior to opening statements, when we reconvene. [445] The People just for the record, the People are directed to keep all the evidence it submitted. Defendant will keep all the evidence that it submitted.
(Whereupon, a recess was had).
(CZAJKA) All set [DC]?
(DC) Yes, Your Honor.
(CZAJKA) Go ahead.
(DC) May it please the Court, Your Honor.
(CZAJKA) Before you up sum up, first is there anything else you would like me to consider in terms of the ultimate verdict, Mr. Torncello?
(TORNCELLO) No thank you.
(DC) I don't believe so, Your Honor.
(CZAJKA) Go ahead.
(DC) May it please the Court, Your Honor, family and friends of Jeff Nickel, Jeff, learned counsel, colleagues, Mr. Peter Torncello and Your Honor, we have come to a point in this trial, though it's [446] been relatively brief, only a couple of days, that I have the opportunity to address you now, Your Honor, as a juror, as a gentleman of the jury. And with Your Honor's permission, I am going to review some of the facts that I thought were important, for you to consider or think about. If I misstate any fact, it's because of a faulty recollection on my part. I will not intentionally refer to anything, that I didn't believe occurred in the course of this trial. When I sit down, as you are well aware, the D.A. will have an opportunity to get up, and I'm not permitted to answer or add to what I have said. I will try to cover the points that I think are important, and the points that I think important for the Court to consider. My not getting up when Mr. Torncello finishes is not because I didn't want or feel I could not answer everything that he might say, but as well recognize, I can't. Sir, under our system, a man is innocent until proven guilty. And under our system, the weight of that proof, must be [447] beyond a reasonable doubt. Beyond a reasonable doubt. Now, we have before us, six charges here. One misdemeanor charge, and five charges that would be felony charges. And if I may review maybe from this indictment, the first charge is called sodomy in the first degree, a class B felony. It talks about the commission of deviate sexual intercourse with another person, less than 11 years of age. In the particulars here my client is accused of putting his mouth, on the penis of one ['Arthur']. Now that's the charge. And now let's look at the testimony that's before this body. First the proof will show that this act, supposedly occurred, at Jeff Nickel's house. That's where it occurred. We know that that's where it's alleged to have occurred because that's where ['Arthur'] says it occurred. Now, let's look at that and let's look as what ['Arthur'] had to say about that. He says I didn't say 36, but the house he identified as 36 Lansing Drive is in [448] Delmar. He told you that house was white. I believe there were photographs entered in this trial, that would be clear the color of this house was blue. He told us that it occurred in a bedroom of the Jeffrey Nickel. He told us that in that bedroom, the walls were blue. We know from testimony that's not accurate. The walls were white. We know further from his testimony, that I said that Jeff Nickel had to duck his head to get through the doorway. We know from testimony, that that's not correct. We know from ['Arthur'] that he says it occurs on a water bed, we know that's not correct. Your Honor, a person might be confused about a couple of factors, but that's an awful lot to be confused about. And if one were to say to themselves well gee now, wait a minute, could it have been that he was confused, that maybe it wasn't the house, that maybe it was some other confusion [location?], no, no, that wouldn't be, you see, because the Sheriff's Department took him back there, didn't they? The testimony in this trial was on the day of the Grand Jury according to ['Arthur'] [449] that morning before he testified, they drove him by it and showed it to him according to the Sheriff's Department, they showed it to him that evening, so there's no question here, that he's got the house located, there's no inference that could be given now, it's somewhere else in that house in [than?] that bedroom. He's wrong on all of those factors. Absolutely and totally wrong. Now why is he wrong on all those factors? Well, let's look at something else we learned about ['Arthur'] the complaining witness here, in five of the six counts. We. know that he has told falsehoods in the past, don't we? We know that because under cross-examination, he admitted that. We know that he said, for example, that he was given a motorcycle by Jeffrey Nickel, and was punished for that. He was given a saxophone or something, and he was punished for that, and we know further, that it even goes beyond that, Your Honor, that he [450] told us from the stand that he made a report about being slapped, and then what happened with respect to the slapping incident when I asked him on cross-examination? He said yes, he recanted that, he took that back, that didn't happen. He must have dreampt or was in a dream and he thought it was real. In a dream and he thought it was real. Your Honor, these just can't be mistakes now of recollection or recall. These are things that just can't be explained away. There's no way that they can be explained away. We know that the boy was on medication, my goodness, he mentioned I don't know so many different times of day and having to take this drug and that drug, and what not. I'm not a psychiatrist, and I'm not here to analyze or pretend to analyze what the problem was, but I do know what I heard from that witness stand, and it just cannot gibe, that this defendant placed his mouth on the penis of ['Arthur'], at that home, doesn't add up. It can't be. I would respectfully suggest that [451] if someone does make a statement about a material fact, that is untrue, that you might disregard that untruth and you may further disregard the entirety of that person's statement. And isn't it curious too, again with this first count, a B felony, that the police say they took a statement, which we argue shouldn't be considered here because the Miranda warnings were not properly given to this, but even if the Court were to accept that, there is nothing in that statement, involving any sodomy in the first degree, as charged in that B felony. Now isn't that curious because we know the Sheriff's Department interviewed ['Arthur'] before they interviewed the accused. If they had that knowledge, that a B felony were committed, by the placing of the mouth on the penis of this ['Arthur'], and you're there with him for three hours, wouldn't logic dictate that you might raise that issue and say something about that to the accused, hey, what about this?* No, no, no, it's not. Except that continually over and over that he never hurt anyone in it. But here's a B felony, if it [452] were to be believed, why wouldn't that be inquired into? But even if the Court were to accept that statement, into its consideration, there's nothing to be found in there, Your Honor, about this sodomy charge. Going to, Your Honor, aggravated sexual abuse, and here again, this same ['Arthur'] is talking about the inserting of a finger in his rectum by the accused. Again if you were to take this statement, there's nothing in there about that action of a C felony. Now where does ['Arthur'] say this occurred? At a public pool, a public park, with other people in the pool and around. But remember too, Your Honor, that this is the same ['Arthur'], the very same one, who told us he reported a slapping incident to the head, that never happened. The same ['Arthur'] that said he gave him a motorcycle that never happened. The same ['Arthur'] that says he gave him a saxophone which never happened. The same ['Arthur'] who says the color of the house exterior is white, and it never was. The same ['Arthur'] who says the color of the walls were [453] blue, and they never were. The same ['Arthur'], who says he had to duck his head to enter the room, and that's not required. The same ['Arthur'] who says that a picture of a sexual performance was taken of him, in this same house. The same ['Arthur'] who says there was a computer in the room that never was. The same ['Arthur'] who says there was a camera on the window sill, except there's no window sill. The same ['Arthur'] who said that this window sill was -- I don't know if he measured it, maybe something like three feet wide or something, like that, he measures with his hands on the stand, as I recall, which is fine except the house doesn't have one. How do we know that. A man who lived there for thirty-two years of his forty-two years of life, described to us what that house looks like and that it hasn't changed. Your Honor, as you look at these three counts and ask on the testimony of this ['Arthur'], has this been proven beyond a reasonable doubt, with respect to this sexual performance, this photograph taken by a [454] camera on a shelf or sill, that doesn't exist? That's really the question here, isn't it? Really, I mean, either this boy is telling the truth or he isn't. I called them untruths, I can use other language to describe it, but I'll keep it as untruths. But we know these are untruths, we know they're not so. Again throughout these three counts, first three counts, of this indictment, we don't have over three hours of interview with this senior investigator, inspector whatever, he never talks about any of the three of those? It doesn't add up. Would logic dictate that's one of the things you can get to start off that would be good, those are the serious matters here. The case started, Your Honor, the other day, with a lady from the jail coming in here. She told us she was a receptionist, and that as clerk of some sort and that part of her duties were to open mail that came to the jail. And she opens a letter, and though they find nothing in seeing the photographs or whatever, she brings the letter to the attention of the Sheriff's Department. That [455] brings Deputy Bates or Investigator Bates into the situation, who then proceeds out to interview these various people. And it's interesting, isn't it, because it's Investigator Bates as I recall the testimony, who selected off the computer, an image, that he believes, is that of the accused and that of this ['Arthur']. He's the one that does this. He's the one that brings this image forward. He's the one and maybe he did believe, that in that image, that that was the accused. But thank God he's not the final word on that. There are other people, with their own two eyes that can look and examine that photograph and can look and examine the adult in the photograph, can look at the other photographs put into evidence by the defense, and make a comparison, and I suggest, Your Honor, when that is done there won't be any doubt that that is not the accused. This whole investigation has got no basis. This whole investigation got started, because of this letter, that was received, and things that were in that letter, that peaked the interest
[456] of the investigators, and that peeked its forward direction of accusatory instruments being made against this defendant. Your Honor, if the jurors or the Court in this case, are going to find somebody guilty of something, if that requires a finding beyond a retasonable doubt, could one imagine how a finding of guilty could be found of a person, on the testimony of so many untruths. So many of them. The record is full of them. It's as simple as that. The prosecution I know in its case, is going to rely on and has relied on, in my judgment, on prejudice, as opposed to proof. On the fact that they can come in and use this prejudice, to so cloud the mind of the Court and/or jury, that a finding could be found of guilty. But when your witnesses aren't giving it to you straight, nothing's going to help you. It is or it isn't. It's true or it ain't. It's as simple as that. And it can't be true if you sit up there on the stand, and tell a falsehood about a fact pattern as serious as this. We're not talking about now a trumpet, we are not [457] talking about a saxophone, we are not talking about now even being hit or slapped, we are accusing someone of a serious, serious matter, forcing that someone to go to trial and to defend themselves, to defend themselves in an atmosphere that one knew would be created. One knew there would be an atmosphere of prejudice. But Your Honor, either our verdicts are found [founded?] on the truth or they're found on the untruths. If this man were in police custody for as many hours that he was, and the police do not interrogate these issues, something -- something doesn't gibe. If the Court were to accept that statement and accept the admissions in it, you won't find any admission to B and C felonies he's charged with, that's for sure. After three hours of professional interrogation, enough said, it's not there. Your Honor, I thank the Court, and to use you as a jury and for listening to me. I pray that you'll render the right and fair and just decision here, that you'll give us a fair shake, that I know that -- I know [458] you will do. Thank you, sir.**
[* Defense counsel appears to have forgotten one rather crucial fact here: At the time Nickel was interviewed, the investigators had not yet 'discovered' the image they (wrongly) believed depicted Nickel performing oral sex upon 'Arthur.' This rather glaring error on defense counsel's part may have seriously compromised his credibility in Czajka's eyes.]
[** The following are some crucial points that defense counsel failed to raise in his summation:
- It was only after 'Arthur' was shown the oral sex photo that he alleged any oral sex (as well as the photographing of it) occurred.
- How the prosecution side buried evidence of Nickel's innocence by failing to turn over both the physical exam of 'Arthur,' as well as the police-taken interior photos of Nickel's home.
- The reason why 'Arthur' was telling so many of these untruths related to Nickel was not because 'Arthur' was 'lying', but rather, due to the extreme suggestiveness of the interviews conducted by the prosecution side. (Indeed, defense counsel failed to mention the word 'suggestibility' -- or any variations or synonyms thereof -- at any point during the trial.)]
(TORNCELLO) Thank you, Your Honor. Your Honor, the best evidence, that we have heard over the last two days, and most compelling evidence that we heard, over the past two days, might not have come from the witness chair.* It might have come, from People's "4", and it might have come from the statement that the defendant voluntarily ** gave to members of the Albany County Sheriff's Department. This trial began yesterday, with me, uttering the words, that by his own admission, and in his own words, Jeffrey Nickel is a boy lover.***
[* Well, it certainly didn't come from prosecution witnesses: 'Arthur' said numerous things that made no sense even when Czajka was 'assessing' his competency to testify under oath, and was wrong about literally every exterior and interior detail that he testified to regarding Nickel's home.]
[** As was discussed at length infra, this statement was most certainly not given 'voluntarily': Investigators never provided Miranda warnings, concealed their law enforcement identities, and employed thinly veiled threats and promises in order to coerce and cajole Nickel into making this 'statement' -- which DeFrancesco still felt compelled to alter even after Nickel had signed it.]
[*** So therefore, this Court should convict Nickel of anything and everything it was able to ram through the Grand Jury (a la 'indicting ham sandwiches,' etc.), regardless of a veritable mountain of inconsistencies and proven falsehoods. Let's be just like countries such as North Korea, China, and Russia, where people get convicted based not on what they did, but who and what they are.]
(CZAJKA) [DC] objected to that and I sustained his objection at the time of your opening statement. *
[* Ah, but Torncello isn't actually bound by court rulings, given that, all fig leaves aside, Czajka has functioned throughout trial as a de facto second prosecutor.]
(TORNCELLO) The statement --
(CZAJKA) I understand that it was later referred to, included in one or more of the exhibits, but you referred to your opening statement?*
[* What the hell difference does that make? If the objection was sustained, then Torncello had no business using that term again. So, here, Czajka reels back even the mild rebuke of Torncello he'd just provided.]
(TORNCELLO) Correct.
(CZAJKA) You didn't refer to [459] the evidence, so the truth is that that objection was sustained at the time. So go ahead.* [* What in the world does all of that mean? 'Go ahead' and keep using that term 'the Court' had told you to 'refrain' from using? Does Czajka's 'sustaining' of defense counsel's objections mean anything at all? Clearly, Torncello himself senses that he's been given a green light on this issue.]
(TORNCELLO) The evidence before the Court, for the Court to consider is that, Jeff Nickel, is a boy lover.* And that term doesn't come from the Albany County Sheriff's Department, it doesn't come from ['Arthur'], it doesn't come from ['Brendan'], it comes from the defendant, in his own words. And Judge, People's number four, which is, I believe, introduced into evidence, was not the product of some coercive interrogation by the Albany County Sheriff's Department. This was a letter, hand written, by the defendant,** and mailed to an inmate at the Albany County Correctional Facility who has been convicted of sodomizing little boys.***
[* So, Torncello simply repeats this same introduction to his 'summation.' He does not say anything along the lines of: 'The facts have clearly shown that the defendant is guilty of the following acts, because of the consistent and uncontroverted testimony of the witnesses for the prosecution.' Even he -- not terribly intimate with the actual truth -- can't make such a claim with a straight face.]
[** Torncello conveniently fails to mention that, nowhere in this letter does Nickel even so much as hint at committing the most serious acts he was now on trial for (oral sex and insertion of finger).]
[*** Right, so, because Nickel was writing to someone else convicted of 'sodomy,' he must, therefore, be guilty of such himself. Once again, Pyongyang (North Korea) would be proud.]
(CZAJKA) Well, that is not in the record.*
[* That's the least of the problems with what Torncello is trying to do. How about Czajka saying something along the lines of: 'Why are you not summing up with the actual facts of the case; i.e., those which tend to prove Nickel committed the actual acts that he was charged with?' Instead, we have another toothless rebuke of the prosecutor, which actually functions as yet another red herring which is most helpful to the prosecution.]
(TORNCELLO) Now --
(CZAJKA) What's not in the record is that fact that the recipient was convicted. [460]
(TORNCELLO) He used that term to describe himself, he doesn't use the more accurate term -- He didn't call himself, a man who puts his hands, inside the pants of and grabs the genitals of a nine-year-old boy.* He didn't call himself that, he calls himself a boy lover. He doesn't call himself a man, who takes his toes, and places them inside the swimsuit of a ten-year-old boy,** and touches his testicles and scrotum, and he calls himself a boy lover. Your Honor, he doesn't call himself --***
[* Firstly, that never happened. Neither Nickel's purported 'statement,' nor his letter to the jail inmate, says any such thing. Moreover, even 'Arthur's' own testimony -- replete with falsehoods as it is -- has no reference whatsoever to 'grabbing genitals.' So, Torncello is misrepresenting the trial record itself.]
[** This never happened either. ('Brendan' did claim that it did, but as noted earlier, this would have been a near physical impossibility, given the two layers of swimsuit Nickel would have had to get through, while standing on one leg in a pool that sloped downward.)]
[*** If Torncello were confident as to the strength of his case, he would not employ such inflammatory tactics. But he's desperate -- much like the way he was in the later Riback case. (See Torncello section.)]
(DC) I've got to object to this constant repertory Judge.
(TORNCELLO) They aren't my words judge.
(CZAJKA) The objection as to -- what do you object to [DC]?
(DC) To the continual comments, Your Honor, of the prosecutor, with respect to the boy lover business, and all of this.
(CZAJKA) All right
(DC) And I don't mean to [461] interrupt him again.
(CZAJKA) Come up for a moment, by the way.
(Side bar).*
[* It's unclear if this was just with Torncello, or defense counsel was also included.]
(CZAJKA) Okay. The objection is sustained.*
[* Great. But the damage has already been done.]
(TORNCELLO) Your Honor, the evidence in this case, doesn't only come from him, ['Arthur'], it doesn't only come from little ['Brendan'], it comes from the defendant, it comes from photographs,* the decision that is being made by the Court and by the jury, comes from the statement that the defendant gives.**
[* There's a lot of evidence that comes from photographs, all right: but it's virtually all exculpatory. The photographs taken by the police themselves, which they tried to hide (see buried evidence), demonstrated that 'Arthur' was wrong about literally every exterior and interior detail regarding Nickel's home to which he testified. And then, we have the oral sex image, which 'Arthur' claimed depicted himself and Nickel. Only, it couldn't have been either, given that a) the background details clearly didn't match Nickel's bedroom, where 'Arthur' claimed the oral sex happened, b) the eye colors of 'Arthur' (blue) and the boy in the image (brown) didn't match, and c) the defense expert established that Nickel was not the older person depicted in that image.]
[** As Torncello knows full well, this purported 'statement' says nothing about oral sex, photographing the latter, or insertion of a finger into anyone's rectum.]
(still TORNCELLO) Judge, let me just read a little of the defendant's statement for the Court,* concerning ['Arthur'].
[* Let's take another look at one particular portion of the transcript (pg. 300):
<<< (TORNCELLO) Thank you. Judge, I wanted to ask for the purpose of a clean record, if I publish that document [Nickel's purported 'statement'] now. I'll read it very quickly, as quickly as is --
(CZAJKA) Read it to me?
(TORNCELLO) I do.
(CZAJKA) No, no, no.
(TORNCELLO) I would like to put it in the record.
(CZAJKA) The exhibit is in the record, it's marked and received. I can read it myself. >>>
So, why does Czajka -- who is clearly bound and determined to get this trial over and done with as soon as possible -- now permit Torncello to do precisely what Czajka did not want done earlier that same day?]
(still TORNCELLO) At the current time, as we all know, ['Arthur'] was eleven years old and a resident of [a group home]. "I spend most Tuesdays and Saturdays with ['Arthur']. We do everything together,* fish, swim, watch movies, go to dinner, the town park in Bethlehem swimming. Yes, I have touched ['Arthur'], the touching gradually became sexual in nature,* touching [462] for sexual gratification,* and it seemed to be okay. While at the Bethlehem Town Park where we went swimming, ['Arthur'] and I were playing a game called bull, it's an opportunity for me to touch ['Arthur'] and I touched ['Arthur'] during the game. I would feel his bottom with my hand caressing it. I recall touching his groin and being stimulated by this.* I got hard and had an erection.* ['Arthur'] rubbed my groin during this game of bull on at least two separate occasions this summer.* I thought I was touching him affectionately."
[* None of these phrases are ones which Nickel himself would actually use. Several of them are in 'legalese,' clearly crafted by DeFrancesco for the purpose of meeting statutory requirements. In contrast to the practice of all of the other investigators in this case, DeFrancesco did not ask Nickel to initial each page of the purported statement. Moreover, DeFrancesco did, in fact, alter at least a portion of the statement after Nickel had signed it. (If such an action seems implausible, the reader is advised to see the Detective Mark DeFrancesco section of this site, in which a federal judge essentially says DeFrancesco was lying, in his testimony relating to the taking of a statement from another suspect.) The reality is that, because DeFrancesco failed to videotape this -- or for that matter, any other -- statement, there is no way of knowing the extent to which DeFrancesco altered it after Nickel signed it; or even, the degree to which it reflects what Nickel actually said during this interrogation.]
(still TORNCELLO) With respect to ['Brendan'], judge, another boy, "his name was ['Brendan'], twelve-years-old, I liked him a lot, he's cute. Curly brown hair, very tan, a little stocky, he's attractive. We started a friendship, yes, I touched him. Of course that excited me. I doubt he knew how much though. I recall one specific time he grabbed my leg under the water, my other leg went up into his groin under his suit, the first time it may have been an accident, but the second time I probably stuck my foot into his groin touching his penis and scrotum," [463] judge and he says ['Brendan'] didn't seem to mind this. "This tells me something. It told me he didn't mind it that it was invasive. I have a theory that he may have been touched sexually before because he wasn't ticklish, and my foot on his penis feeling -- it didn't bother him." That's the proof in this case, Your Honor. That's the proof. Those are the defendant's words. Those corroborate the statements from the witness stand, by the young boys,** and they serve as a way for the Court to judge the credibility of the witnesses and honesty of the witnesses and the truthfulness of the witnesses, who took that stand, and ['Arthur'], who looked at that photograph, People's number five, and I said, who is that ['Arthur']? That's me, and that's Jeff. Do we need more proof? That is enough right there.***
[* As has been noted, it is virtually impossible for someone, standing on one leg in a downward-sloping pool, to somehow maneuver his other foot through two layers of a boy's swimsuit. Now, here, we have the additional detail that the boy in question was grabbing the one leg Nickel was standing on. That means that 'Brendan' would have been bending down, at least somewhat, which would have made it even harder for Nickel to somehow maneuver his one free foot into this boy's groin area.]
[** Well, they certainly do not corroborate 'Arthur's' testimony concerning the top three charges of oral sex, photographing the latter, and the insertion of a finger into his bottom, given that Nickel's purported statement says nothing about any of these.]
[*** The hell it is. Not only are the contents of this 'statement' not -- in any way -- 'proof' of the top three charges, but, given the extreme implausibility of what this 'statement' says about how Nickel supposedly -- while standing on one leg -- maneuvered his other foot past two layers of the swimsuit of a boy who is also grabbing him by that first leg, this 'statement' doesn't even constitute credible proof of the lesser charge related to 'Brendan'.]
(still TORNCELLO) Everything else judge is gravy. This was a short trial. I'll be brief. We heard from Claudette Scostak, we heard from Ron Bates and Steve Tanski about his expertise in retrieving and recovering photographs, and in particular, People's number five which he [464] retrieved, and which Ron Bates and ['Arthur'] identified, as the defendant and ['Arthur']. You know judge, the defendant likes to state in his letter, in his statement, that he never hurt any boys. Is there anyone here, who saw the trstimony and saw those young boys, that would believe that they weren't harmed? He thinks it was beneficial for ['Arthur'] to have to sit there and in open court in front of people he's never seen in his life at the age of nine years old, and have to identify, a photograph, of the defendant, with his mouth on his, ['Arthur's'] penis.** That's a benefit? That's helpful? It's hurtful.
[* The fact is, none of these boys cried on the stand, or expressed anything that could be regarded as anguish or (emotional) pain. (Instead, they had the rather flat affect one would expect of witnesses who were simply regurgitating what they had been taught to say by the prosecutor.) Moreover, it is important to distinguish between harm caused by Nickel directly, and harm caused by the 'justice' process itself:
First, let's take 'Chris,' who failed to testify re: anything sexual happening to him, which is why that charge had to be dismissed. (Regarding all three boys concerning this issue, see Sentencing section of this site.) When one of 'Chris's parents was interviewed, that person indicated that what was really causing 'Chris' anxiety was the thought of Nickel being punished.
As for 'Brendan,' one of his parents said that he was doing fine, and did not see the need for any sort of counseling or therapy.
Now to 'Arthur.' Due to suggestive interviewing practices, he had become convinced that he'd experienced three very serious things that simply did not happen: oral sex, photographing of that, and insertion of a finger into his rectum. Because it messed with his sense of what was real, this 'memory implanting' arguably caused more harm to him than would have been done if these things truly had happened. Now, as to the brief touching which apparently did happen (outside clothing), it is plausible that 'Arthur' indeed was harmed. But even then, it is impossible to fully separate harm caused directly by Nickel himself from that caused by the 'legal' process.
Last but (certainly) not least, why is Torncello taking about 'harm' here at all? That is a topic which should be reserved -- assuming the defendant is convicted -- for the sentencing hearing. What Torncello is really doing here -- as he has done for most of this trial -- is urging Czajka to convict based not on facts and evidence (given that these are not on his side), but rather, on pure emotion.]
[** If Torncello truly believes that the persons depicted in that image are Nickel and 'Arthur,' then he's grossly incompetent. On the other hand, if he does not believe that, he's simply a liar.]
(still TORNCELLO) ['Brendan'], who had the misfortune* of knowing him for less than two weeks, ten days, he saw him because his parents sent him to summer camp. He's the boy who Jeff Nickel had a theory about, that when he didn't jump back, when Jeff Nickel put his foot inside the swimsuit --**
[* Was 'Brendan's' true misfortune having known Nickel (for a short period of time), or having been dragged into this grotesquely incompetent and unprofessional 'legal' process?]
[** At the risk of beating a dead horse, this didn't happen, because it was physically impossible.]
(CZAJKA) Mr. Torncello, will you be much longer?*
[* Ah, yes: For Czajka, getting this over and done with was an infinitely higher priority than actually giving Nickel a fair trial.]
(TORNCELLO) No. That his [465] theory was, it wasn't invasive. That he had been touched sexually because he wasn't ticklish and he -- it didn't bother him. Judge, you know, I'm almost done judge. Every bit of this defendant, every molecule of his being, is driven by his sex drive, and his need for sexual gratification involving young boys.*
[* Really? As is discussed extensively in the Sentencing and State Appeal sections of this site, while out on bail, Nickel wrote several letters to a ('like-minded') friend in another state. Nickel's prosecutors obtained copies of these letters, using them in attempts to both get Nickel's bail revoked, as well as have him punished as severely as possible. Torncello himself had clearly read them quite carefully, given the fact that he -- 'cherry-picking' -- used them against Nickel. Here are some excerpts from these letters:
"I've never had sex with any child." (from letter dated 9/16/00)
"I've never had any kind of sex with a boy." (from letter dated 11/16/00)
"[I have been] sexually inactive for well over two years..." (from letter dated 12/5/00)
So, Torncello is, once again, simply lying. But even if what he said were true, it would still not constitute proper summation remarks, because, rather than arguing actual evidence of concrete actions, Torncello is arguing for conviction based on who Nickel (purportedly) is. In a supposedly advanced democracy at least, that's not supposed to happen.]
(DC) Objection.
(CZAJKA) Sustained.
(TORNCELLO) Judge, read the letters, read his statement. He is driven by that need, judge.* You listened to the testimony, you have heard the evidence, you have seen the evidence, you have judged the credibility of the witnesses of the People, you have judged the credibility of the witnesses of the defense, and we will, ask at this time, Your Honor, and respectfully request that you find the defendant guilty of each and every charge, because there's credible, compelling evidence, on every element, charged in this indictment. Thank you.
[* DC's objection to this exact issue was just sustained. But no matter: Torncello was not actually bound by any of this 'judge's' rulings.]
(Whereupon, a brief recess was had).
(CZAJKA) Don't get up. Attorneys with respect to count three?
(TORNCELLO) Yes, Your Honor?
(CZAJKA) The definition of performance, means any play, motion picture photograph or dance?
(TORNCELLO) Yes, sir.
(CZAJKA) What is it that the People allege Exhibit 5 is?
(TORNCELLO) We allege it's a photograph, judge.
(CZAJKA) But it's not.
(TORNCELLO) Under that theory, once it's printed it is. I think that you can, I think that clearly construed --
(CZAJKA) You're suggesting because it was on the computer disk, it was a photograph?
(TORNCELLO) Sure.
(CZAJKA) What do you say [DC]?
(DC) Your Honor, I would [467] argue that no, it was not a photograph, and that it was on a computer disk and was brought back by the use of some software, that the detective from Colonie used to bring it back. It couldn't even be found there, you know, unless he used that software to resurrect and bring it back.
(TORNCELLO) Our point judge --
(DC) Then there was no ability to indicate how long or even when or who placed it there.
(TORNCELLO) At some point it's got to be a photograph scanned into the computer and put on the disk, that is it. It was a photograph. It's just, I mean, any -- I can give you a photocopy of a photograph and would that not fit the statute?
(CZAJKA) The Court as a finder of fact finds as follows: Under count one, charging sodomy in the first degree, in violation of 130.50 subdivision (3) of the Penal Law of the State of New York the class B violent felony, the Court finds the defendant guilty.* [468]
[* This is the oral sex charge. What the stenographer fails to record here is Nickel's incredulous <b> "what?" </b>]
Under count two, aggravated sexual abuse in the second degree, under Section 130.67 subdivision (1) (c), the Court finds the defendant guilty.*
[* This is the insertion of finger into a rectum charge.]
Under count three, use of a child in a sexual performance, in violation of Section 263.05, the Court finds defendant not guilty.*
[* This is, of course the photographing of the oral sex charge. Why did Czajka find Nickel not guilty of this, but guilty of everything else? We strongly suspect that this reflected a cynical attempt to minimize any negative fallout -- on appeal -- of Czajka's decision to bar the defense's photography expert (Richard McEvoy) from testifying as an expert. In other words, Czajka finding Nickel not guilty of this charge made it much harder for the defense to argue that it was actually prejudiced by Czajka's refusal to qualify McEvoy as an expert (who would then have been able to testify as to his conclusion that Nickel was not the older person depicted in that image). But given the fact that 'Arthur' said nothing about oral sex until he was shown that photograph, the fact is, the defense was still greatly prejudiced by the decision to bar McEvoy. (Czajka did, after all, 'find' Nickel guilty of the oral sex charge.) But even beyond the oral sex charge itself, qualifying McEvoy as an expert would have done immense damage to 'Arthur's' testimony in toto.]
Under count four, sexual abuse in the first degree, in violation of Section 130.65 subdivision (3), the Court finds defendant guilty.*
[* This is the count alleging the 'simple touching' of 'Arthur' ('for purposes of sexual gratification').]
Under count five, sexual abuse in the first degree, in violation of Section 130.65 subdivision (3), the Court finds defendant guilty. *
[* This is the count alleging the 'simple touching' of 'Brendan' (with Nickel's foot) ('for purposes of sexual gratification').]
And under count six, endangering the welfare of a child, the Court finds the defendant guilty. *
[* Czajka had 'deliberated' his verdicts for all of two minutes.
How do we know that? At the end of this trial, Czajka interrupted the prosecutor's closing statement by asking: "Will you be much longer?" When the prosecutor finished his closing, Czajka left the courtroom, presumably to deliberate his verdicts. But just two minutes later, Czajka returned to the courtroom and asked a technical question related to a photograph. He then rendered his verdicts.
The Court Clerk's notes indicate that the prosecutor began his summation at 4:10 P.M., and that Czajka rendered his verdicts at 4:20 P.M. Therefore, the summation and deliberation combined took a total of ten minutes. The prosecutor's summation spanned a full eight transcript pages. Because it takes approximately one minute to read through each transcript page (out loud, at a normal pace), the summation would have taken about eight minutes, meaning that Czajka 'deliberated' for a grand total of two minutes -- if even that long. (We suspect that these two minutes were really just a bathroom break.)]
This was late on a Friday afternoon. It would appear that, from the very beginning, Czajka was bound and determined that this trial would be over by Friday, no matter what. (Otherwise, it would have spilled over into the following week.)]
Defendant is remanded to the custody of the Albany County Sheriff. Any request before we adjourn [DC]? Bail is revoked. Any requests before we stand in adjournment? I'll set a sentencing date right now. How much time do [469] we need? Don't take him away yet. I'm not done.*
[* Apparently, the Sheriff's Department could hardly wait to get Nickel in handcuffs. Nickel recalls seeing one detective sitting right up front, hanging on Czajka's every word at the reading of the verdicts. This person appeared to be deeply concerned that Nickel might actually get acquitted. Notwithstanding the fact that a full acquittal would indeed have been far more fair and reasonable than what actually happened, this detective really needn't have worried: No matter what happened at trial, at least as far as most of the charges was concerned, there was never the slightest possibility that
Czajka wasn't going to convict.]
(TORNCELLO) Probation likes between six and eight weeks.
(CZAJKA) June 29th all right attorneys? That's a Friday.
(TORNCELLO) Yes, Your Honor.
(DC) No, Your Honor.
(CZAJKA) That's the last Friday of June; that's a bad day?
(DC) I'm not available that week, Your Honor.
(CZAJKA) All right. What's the next Friday in July? July 6th, is that okay [DC]?
(DC) Yes.
(TORNCELLO) Yes, Your Honor.
(CZAJKA) All right. July 6th.
(Whereupon, the proceedings concluded in the above-entitled manner).
For details regarding Czajka's highly questionable conduct in numerous other cases, see Judge Paul Czajka section of this site.
