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Full Trial Transcript

Sun, 25 Jan 2026 17:32:07 +0000

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.

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.

Colin Warner - Mistaken Witness ID / Perjury / False Confession

Sun, 25 Jan 2026 16:44:18 +0000

Warner, (Hilary) Colins (or Colin); murder; NRE: mistaken witness identification, perjury/false accusation, police officer misconduct, withheld exculpatory information, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

[501:889]; 2nd Dept. 4/28/86; affirmed

"[Warner's] conviction of second-degree murder was fully supported by the evidence..." S53 "It's been 16 years [as of 2017] since Warner, now 55, was released from the Fishkill Correctional Facility in upstate New York. But that stretch of time is dwarfed by the 21 years he spent locked up for a murder he didn't commit.

"In a shocking case of mistaken identity, institutional racism, and tortuous legalese, Warner was wrongly convicted of the murder of another teenager. Even though the key witness changed his story, Warner had an alibi and the real murderer eventually admitted his guilt, the wrongly accused man was kept behind bars for more than two decades, several of those years in solitary confinement. All the while, Warner's childhood friend, [Carl] King, fought to prove his innocence.

"[O]n April 10, 1980, a 16-year-old named Mario Hamilton was killed with a gunshot to the head on Flatbush Avenue. Two 14-year-olds were interrogated by the cops: Thomas Charlemagne, the only witness to the murder, and Hamilton's brother, Martell. Exhausted after hours of interrogation, Charlemagne picked Warner's mug shot out of the police book. Warner had one prior, nonviolent offense for carrying a switchblade, a charge for which he was still serving three years' probation.

"Warner was arrested based on those two juveniles' statements, despite the lack of evidence tying him to the crime. Warner did not know Hamilton at all.

"King, 17 at the time, had not been with Warner when the murder took place, but he knew who had.

"'Two of my friends were with Colin at the time. They gave that information to the police. They gave statements as to Colin's whereabouts. They knew he was innocent,' King said.

"A second man, 15-year-old Norman Simmonds, was arrested months later for being the driver of the car that was supposed to have been taken before and after killing Hamilton. The two men, who had never met, were tried together two years after Warner was arrested.

"During the trial, Simmonds confessed to Warner that he had really committed the crime.

"But Simmonds refused to tell anyone else that Warner was innocent, and he rejected a plea deal that would have exonerated Warner.

"The first trial ended in a hung jury, with Charlemagne changing his testimony to say that only Simmonds had been the killer in a drive-by shooting of Hamilton. But the second trial resulted in [convictions for] second-degree murder for both, partially due to Charlemagne's initial testimony.

"In his early years in prison, Warner got into fights, unable to control his fury and frustration towards the system's indifference. 'I don't give a f--k about nothing because I'm innocent! You can't treat me like a guilty person!' Warner remembers thinking. He would spend four years in solitary confinement.

"Gradually, he learned to channel his emotions differently, going back to school in the prison system. 'I could not have kept that anger flowing like a river -- it would have destroyed me in prison,' he says.

"Finally, in 2001, King found a young lawyer, William J. Robedee, who believed in Warner's innocence and who joined King in tracking down Simmonds, who had been paroled in 1989, on Long Island.

"Simmonds had previously signed an affidavit in 1991 stating that he had acted alone in the murder, but it was deemed insufficient by the court. [Albert J. Murray].

"King and Robedee, who had just started his private practice after a short stint in the DA's sex crimes unit, persuaded Simmonds to give them a full deposition admitting he had murdered Hamilton alone. After 21 years in prison, King says, it only took 21 days for them to get in front of a judge and free his friend.

"Warner -- who was awarded $2.7 million in 2009 for his wrongful conviction -- moved to Georgia with his wife, Antoinette, and their daughter."

from NRE synopsis (by Maurice Possley):

"On April 10, 1980, 16-year-old Mario Hamilton was shot in the back of the neck [on a Brooklyn street].

"Thomas Charlemagne, 14, saw the shooting and ran to get Hamilton's 15-year-old brother, Martell. While Mario Hamilton was taken to the hospital, where he was pronounced dead, Charlemagne and Martell Hamilton went to the 67th Precinct police station.

"They were interviewed separately and with no guardian present for six hours. Charlemagne told police that he saw 18-year-old Colin Warner, a native of Trinidad from Crown Heights, step out of a car and shoot Mario, get back in the car driven by 15-year-old Norman Simmonds and leave the scene.

"The following day, police spoke with Martell Hamilton and showed him a photo lineup, but he did not identify anyone. He told detectives that two days earlier Simmonds had threatened to kill his brother. A detective then placed a photo of Warner alone in front of Martell and Martell said he may have seen him near the scene of the crime."

"Warner and Simmonds went on trial in March 1982. The trial had been delayed because Simmonds disappeared. He was arrested on a charge of robbing a restaurant in February 1982 and so was available to testify.

"At trial, Charlemagne testified that Mario Hamilton was killed by Simmonds in a drive-by shooting -- deviating from his earlier claim that Warner was the gunman who walked up and killed Mario.

"The trial ended in a hung jury...Warner and Simmonds were tried again in May 1982 and were convicted."

"Carl King, a boyhood friend of Warner's from Trinidad who had reconnected with him on a playground in Brooklyn before the shooting, had followed the case and devoted his life to trying to prove Warner's innocence."

"In 1999, King brought the case to the attention of attorney William Robedee, who was struck by Charlemagne's change in his account and the lack of physical evidence tying Warner to the murder. King had located witnesses never called by the defense who said Warner was not at the scene of the crime. Mario Hamilton's brother provided an affidavit saying that he only identified Warner because he was pressured by police.

"Robedee desposed Simmonds, who said under oath that he alone killed Hamilton. Robedee also presented two witnesses who were friends of Simmonds, who said they saw the shooting and that Simmonds acted alone. And Robedee developed evidence from the autopsy findings that demonstrated that the shooting was not the result of a drive-by shooting.

"The [Brooklyn DA's] Office conducted a reinvestgation, which included polygraph tests of witnesses and agreed not to oppose Warner's release.

"Robedee's motion to vacate the conviction was granted on January 31, 2001 and Warner was released on February 1, 2001.

"In 2002, Warner filed a claim with the New York Court of Claims. He settled the claim for $2 million.

"In 2017, Warner was the subject of Crown Heights, a cinematic dramatization of his wrongful conviction. The film was adapted from an episode of a This American Life podcast."

[All emphases added unless otherwise noted.]

Shih Wei Su - Perjury / False Confession / Prosecutor Misconduct

Sun, 25 Jan 2026 18:05:52 +0000

Su, Shih Wei; attempted murder; NRE: perjury/false accusation, prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, prosecutor lied in court

Suggestibility issues

[624:904]; 2nd Dept. 3/13/95; affirmed

"[W]e are satisified that the verdict of guilt was not against the weight of the evidence..."

R18 [559] "Shih Wei Su was eighteen years old when he was convicted of attempted murder at trial in Queens in 1992. The underlying incident involved the shooting of two victims at a pool hall in what the prosecution contended was a youth gang-related incident. The principal prosecution witness was Jeffrey Tom, a member of the Green Dragons, which was a rival of the gang with which Su was allegedly affiliated, the White Tigers. Neither Tom nor the two victims who were with him at the time of the shooting implicated Su in their initial statements to police, but they all changed their story at about the same time and implicated him one way or another. Tom was the most damaging witness, claiming that he knew Su and heard him give an order to shoot. Although Tom had his own robbery-by-extortion case, he denied, under questioning by the prosecutor, that the lenient plea bargain he had received (a youthful offender adjudication and sentence of probation) had resulted from any deal with the [DA's] Office. The prosecut[or] in her summation argued that Tom's testimony was truthful. Su was convicted and received the maximum sentence of sixteen and two-thirds to fifty years in prison.

"Su repeatedly challenged his conviction, both on direct appeal and collateral attack, claiming that Tom must have received some sort of promise or benefit for his testimony. However, the [DA] argued successfully that either Su or his attorneys were remiss for not making Tom's sealed plea and sentencing minutes part of the record. In 1999, over the [DA's] objection, a judge finally ordered Tom's plea and sentencing minutes unsealed, reasoning that the [DA] 'has no legitimate interest in shielding possible perjury.' The minutes proved that a prosecutor had made an explicit, on-the-record deal with Tom to grant him leniency in exchange for his trial testimony against Su. Tom's flat denials, elicited by a different prosecutor at Su's trial, [560] had been false. But the New York courts still would not grant Su any relief, accepting the [DA's] additional procedural argument that Su's Brady violation should not be considered on the merits.

"Finally, on July 11, 2003, the Second Circuit granted Su's federal habeas corpus petition and directed that he be retried within sixty days or released. The court excoriated the prosecutor [Linda Rosero] for 'knowingly elicit[ing] false testimony' from a witness whose credibility was 'central to the deliberations of any reasonable jury,' for failing to correct such false testimony, and for 'bolster[ing]' Tom's lies during her closing argument. In vacating the conviction, it reasoned that a conviction obtained through 'testimony the prosecutor knows to be false is repugnant to the Constitution.' As the Bronx [DA] had done in the Poventud case, the Queens [DA] tried to get Su to accept a 'time-served' plea bargain,* but Su refused. After postponing the trial on several occasions, [DA] Richard Brown's office, on November 5, 2003, moved to dismiss all charges."

[* This offering of 'time-served' to a(n often innocent) defendant who has just had a conviction overturned -- meaning that he would then be released immediately (but with the conviction still on his record, and virtually no chance of ever being financially compensated) -- is a common face-saving prosecution ploy. Often, as was the case here, it is only several months later that the prosecution finally drops all charges.]

from NRE synopsis (by Maurice Possley):

"In June, 2001, Su filed a petition for a writ of habeas corpus. The U.S. District Court [Allyne Ross] denied the petition, finding that the evidence of the deal had been hidden, but that Su was not prejudiced by its suppression.

"In July 2003, the...Second Circuit granted Su's petition...because evidence of the deal had been withheld from Su's defense lawyer and because prosecutors knowingly allowed Tom to lie about the deal."

"In October 2008, the city of New York settled the wrongful conviction lawsuit brought by Su for $3.5 million."

[All emphases added unless otherwise noted.]

Frank Sterling - False Confession / Police Misconduct

Sun, 25 Jan 2026 18:06:01 +0000

Sterling, Frank; murder; NRE: false confession, police misconduct, misconduct that is not withholding evidence

Suggestibility issues

A9 [1636] "Viola Manville, a seventy-four-year-old woman who regularly enjoyed hiking the countryside of Hilton...on the outskirts of Rochester, was killed during the morning of November 29, 1988. She had been badly beaten and shot with pellets from a BB gun. Her body was left alongside railroad tracks, in the general vicinity of where a man had tried to rape her some three years earlier. That man, Glen Sterling, remained in prison following his conviction for the rape attempt. Glen Sterling's brother, Frank, was among the many people interviewed by sheriff's detectives during the homicide investigation. Frank Sterling had no prior criminal record* and no reputation for violence. Although no physical evidence linked him to the crime, the authorities apparently reasoned that he may have had a motive to kill Ms. Manville in retaliation for his brother's conviction and punishment. Sterling accounted for his whereabouts on the day of the murder, explaining that he had been working as a school bus monitor during the morning, returned home, walked to a grocery store to make a purchase, and watched cartoons on television in the afternoon. His alibi was confirmed and neither he nor anyone else was arrested in the ensuing weeks and months."

[* That was also true of Nickel. ]

[1637] "More than two-and-one-half years later, in July 1991, detectives again visited Frank Sterling at his home. He had just returned from a truck-driving job that had consumed the better part of two days. Although tired, he agreed to a polygraph examination, and accompanied the detectives to the sheriff's office in Rochester. During the pre-examination session, the polygraph technician falsely told Sterling that his brother Glen had bragged to other prisoners that Frank had killed Ms. Manville. After the examination, Sterling was advised that he was being deceitful when he denied the killling. As midnight approached, another interrogator took over the questioning. He got Sterling to admit he was angry enough about his brother's incarceration to have killed Manville, but Sterling continued to deny that he had done so. He asked to be hypnotized to prove that he was telling the truth. The investigators responded by holding his hands and assisting him with relaxation exercises. They told him that 'we were here for him, we understood [and] felt he should tell the truth to get it off his chest.' Roughly eight hours into the interrogation session, Sterling admitted killing Ms. Manville. Shortly after five o'clock in the morning, a twenty-minute video-recording preserved his detailed confession."

[But note that investgators failed to videotape the entirety (or even the vast majority) of this many-hours-long interrogation session. (In Nickel's case, detectives failed to videotape anything at all.)]

"Sterling repudiated his confession shortly after making it, but his recantation was not believed. With his incriminating admission serving as the primary evidence of his guilt, Sterling was convicted of murder following trial in September 1992. Just days later, several townspeople alerted the police that nineteen-year-old Mark Christie was bragging that he had 'just gotten away with [1683] murder.' Christie was among the individuals questioned by the police during the 1988 investigation of the killing. Then sixteen, Christie maintained that he had gone to school at mid-morning on the day of the murder. Although school records indicated that he did not attend class until 1:20 that afternoon, investigators did not pursue him as a suspect. Police interrogated Christie again in December 1992, following his reported boastings about the murder. He claimed that he had only been 'kidding around' when he made those statements. The results of an initial polygraph exam, in which he denied the killing, were deemed 'incomplete' owing to Christie's erratic breating and excessive movement. He passed a second exam, administered the next day. The judge in Frank Sterling's murder trial [Donald T. Wisner] concluded that Christie's purported admissions were not believable, and imposed a sentence of twenty-five years to life on Sterling on December 23, 1992.

"In 1994, Mark Christie strangled four-year-old Kali Ann Poulton after luring her into his apartment. He then disposed of her body in a water coolant tank at his workplace. Later he participated in searches for the child, whose disappearance caused widespread alarm and grief throughout the greater Rochester community. The killing remained unsolved until 1996, when Christie blurted an admission during an argument with his wife that he had killed Kali. His wife called the police. Christie confessed to investigators, who subsequently uncovered the child's body."

[1639] "Christie's admission and conviction with respect to Kali's death inspired a new series of challenges to Sterling's conviction, which renewed the allegation that Christie was responsible for murdering Ms. Manville. Beginning in 1996 and over the next several years, Sterling filed a series of motions to vacate his conviction, all of which were denied. In late 2008, 'touch DNA' -- testing on skin cells left on the clothing that Ms. Manville had worn when murdered -- implicated Christie in the killing. In early 2010, after being interviewed in prison by an Innocence Project attorney and an interrogation expert, Christie confessed to murdering Ms. Manville. Frank Sterling's conviction was vacated and he was released from prison in early April 2010, after spending eighteen years incarcerated for a crime he did not commit.

"Christie pleaded guilty to murdering Ms. Manville in October 2011...At the sentencing hearing, one of Ms. Manville's grandsons observed that '[n]ot only did [Christie] murder my grandmother, he also took the life of a child so that's unforgivable.' Kali Ann Poulton's mother wiped at tears while reflecting that her daughter would still be alive if the investigation into Ms. Manville's murder had resulted in Christie's arrest and conviction, instead of Frank Sterling's. 'Of course it has crossed my mind. What if?...But unfortunately it is what it is. We can't go backward.'"

C10 [485] "Frank Sterling was...convicted of murder based on a confession, which he had given after a thirty-six hour trucking shift followed by an eight-hour police interrogation.* Over the course of the next eighteen years, Sterling brought six appeals in which he argued for a new trial on the grounds that the evidence implicated a man named Mark Christie, an original suspect in the murder. His appeals were unsuccessful, despite presenting evidence that Christie had bragged about committing the murder, providing tips to investigators about how Christie frequented the same path where the murder occurred and loved to shoot a BB gun -- the murder weapon -- and highlighting the fact that Christie was convicted of a different murder several years later. Finally, in 2004, the trial court [Frank P. Geraci] permitted testing on a hair that was found in the victim's hand, but denied testing on the 'victim's clothing, vaginal swabs, fingernail scrapings, and/or pieces of the bloodstained BB gun,' on the ground that Sterling had not established a 'reasonable nexus between the testable items, the particular facts and circumstances surrounding his conviction and how DNA testing of such items would have produced a more favorable result at trial.'"

[* So, Sterling had gone without sleep for some 44 hours before 'detectives' (finally) wrung a false confession out of him. This is even longer than the 36 hours in the Daniel Gristwood case.]

"The hair turned out to belong to the victim, and it was not until 2006 that the [DA's] Office agreed to additional testing of the other items. It was this testing that not only excluded Sterling, [486] but also implicated Christie. In 2010, eighteen years after he was wrongfully convicted, Frank Sterling's conviction was vacated."

from NRE synopsis (by the Innocence Project):

"Sterling's alibi was airtight -- numerous co-workers testified that he was at work as a bus aide at the time of the murder."

"Investigators approached Sterling as he returned from a 36-hour trucking job. He agreed to an interview at the police station, which began in the afternoon and continued overnight into the following morning. Sterling maintained his innocence, while saying he had trouble remembering. The interrogation included several highly suggestive methods -- including hypnosis and the suggestion of details. At one point, the officers showed crime scene photos to Sterling to 'help him remember.' Interrogation standards followed by hundreds of law enforcement agencies throughout the country admonish against such techniques.

"The officers had Sterling lay on the floor with his feet up on a chair and his eyes closed. As they rubbed his back, the interrogators insisted that Sterling had committed the murder, showed him pictures of the crime scene and the victim's body and shared key details with him. One of the officers told Sterling that he would feel better if he let out his anger towards the victim, telling him that the victim 'deserved what she got,' and insisted that 'we're here for you, we still care for you.'

"Finally, after more than eight hours at the police station, Sterling tightened up, began to shake, and blurted out 'I did it, I need help.' At this point, the officers demanded a videotaped confession and an exhausted Sterling complied. His confession included numerous inconsistencies, including the incorrect location of the crime scene on a map. Sterling also could not describe what he had supposedly done with the BB gun, and where or how many times he had shot the victim. Despite his immediate recantation of the confession, he was charged with murder."

"Before his sentencing, Sterling and his attorneys learned about Mark Christie, a 20-year-old man ffrom Rochester -- and an early suspect in the murder -- who was not investigated further after he gave police a false alibi that they took at face value."

"Sterling filed a wrongful conviction lawsuit and in May 2014, Monroe County agreed to settle the case for $8.625 million. He also received $2.1 million in compensation from the New York Court of Claims. Sterling died of a heart attack in June 2017."

[All emphases added unless otherwise noted.]

Douglas Warney - False Confession / Officer Misconduct

Sun, 25 Jan 2026 18:06:59 +0000

Warney, Douglas; murder; NRE: false confession, false/misleading forensic evidence, police officer misconduct, misconduct that is not withholding evidence, misconduct in interrogation of exoneree

Suggestibility issues

N4 [96] "In 1997, [Warney] was convicted of murder based upon self-incriminating statements made by [Warney], a mentally retarded man suffering from serious physical and mental disabilities at the time of his interrogation and arrest. Failure by police and prosecutors to further investigate and analyze forensic evidence that was inconsistent with [Warney's] alleged confession. More sophisticated DNA testing was unavailable at the time of trial. During the post-conviction phase, the prosecutors originally opposed and the court denied a defense motion for more advanced DNA testing. It is noteworthy that those very tests (conducted voluntarily by the [DA's] office along with a post-conviction investigation) eventually led to the exoneration."

C10 [484] "Douglas Warney was convicted in 1997 of killing William Beason, a civil rights activist, in large part based of a confession he gave which was 'riddled with errors.' Once more sophisticated DNA testing became available, Warney, in 2004, petitioned the court for access to post-conviction DNA testing. The [DA's] Office opposed the testing, stating 'DNA results now would add nothing to what we already know or what the jury knew at the time of the trial,'* and the court [Harold L. Galloway] denied Warney's motion and rejected claims that someone else could have committed the crimes as 'too speculative.'"**

[* The first part of this statement is false, and the second is meaningless. This was all just bluster to try to protect a (wrongful) conviction.]

[** This, too, is some combination of false and meaningless: How is it ever 'too speculative' to demand that all possible forensic tests be performed in order to establish the true perpetrator of a given crime? The court above was apparently just as anxious to protect this wrongful conviction as the prosecutor.]

"Unbeknownst to [Warney], the [DA's] Office decided to conduct testing on the samples the next year, based on the theory that Warney must have had an accomplice, and thus a potential murderer was still walking the streets..."

[Note that this puts quite a different light on the DA's motivations for conducting DNA testing than was implied by the NYS Task Force on Wrongful Convictions (N4) report cited above, which wrote: 'It is noteworthy that those very tests (conducted voluntarily by the [DA's] Office...) eventually led to exoneration.' Yes, the DA's office 'voluntarily' had these tests conducted. But it did not do so out of an interest in ascertaining whether Warney was wrongfully convicted, but rather, because it believed that another person may have also been involved in this crime. Thus, the Task Force was putting an unwarrantedly positive 'spin' on the DA's motives here.]

L23 [768] "According to police investigators, Warney's confession contained numerous nonpublic facts that seemingly corroborated his guilt...[T]hese included:

- that the victim was wearing a nightshirt; - that the victim was cooking chicken; - that the victim was missing money from his wallet; - that the murder weapon was a knife with an approximately twelve-inch serrated blade; - that the knife had been kept in the kitchen; - that the victim was stabbed multiple times; - that the victim owned a pinky ring and a particular necklace; - that a tissue used as a bandage was covered with blood; and that - there was a pornographic tape in the victim's television.

"The investigator who interrogated Warney emphatically denied feeding Warney crime facts or suggesting answers to him during the unrecorded interrogation.* The prosecutor who successfully convicted Warney argued to the jury that the accuracy of Warney's confession was corroborated by his detailed knowledge of these nonpublic crime facts. Although the state had no other evidence than the confession from the unrecorded interrogation, Warney was convicted...It would be almost a decade before DNA testing established his innocence, and he was fully exonerated."

[* Nickel's interrogation was not recorded either.]

[750:731]; 4th Dept. 11/15/02; affirmed

"The verdict is not against the weight of the evidence...[Warney] confessed to the crime and gave accurate descriptions of many details of the crime scene."

[How does the phrase 'accurate description of many details' square with the characterization that Warney's confession was 'riddled with errors'? (In any event, as shown above, the details he did get right were fed to him by the police.)]

16 N.Y.S.3d 428; Court of Appeals 3/31/11; civil suit

[Warney spent more than nine years in prison for a murder he did not commit. IQ of 68, 8th-grade dropout. DNA and fingerprint match to Eldred Johnson, who stated that he acted alone. Even by trial time, none of the tested blood evidence matched Warney or victim. (Just blood typing available at the time.)]

from Records and Briefs:

[13] [DA Michael C. Green; ADAs Larry Bernstein and Wendy Evans Lehman.]

"William Beason was found stabbed to death in his apartment on January 3, 1996...Douglas Warney, who had full-blown AIDS, was arrested three days later on the basis of a false confession elicited by the Rochester police..."

"Some blood found at the scene -- on a blue towel and tissue found in the bathroom -- was determined not to come from the victim or Mr. Warney, but the testing conducted on it -- which predated DNA technology -- could not identify its source. Forensic analysis of the other evidence -- including blood collected from under the victim's fingernails and a fingerprint found on a videotape box in the victim's room -- was inconclusive."

[53] [Dets. Evelyn Beaudrault, John Gropp ]

[54] "Rather than properly investigating the crime to find the true perpetrator... Beaudrault and Gropp fabricated false inculpatory evidence against an innocent man, by falsifying a typewritten statement that they attributed completely to Mr. Warney, by feeding Mr. Warney non-public details about the crime that only the police and the perpetrator could have known, and by falsely claiming that the non-public details originated with Mr. Warney.

"The...officers lied to the prosecution and defense counsel to conceal the unconstitutional tactics they employed to secure the so-called 'confession,' thereby suppressing the fact that they had falsified statements attributed to Mr. Warney...At the preliminary hearing and trial... Beaudrault and Gropp provided false, perjurious testimony, consistent with their pretrial reports and communications with prosecutors, that Mr. Warney, voluntarily and without being fed facts, gave details of how he committed the crime, including facts that only the perpetrator or the police would know."

"To create corroborative evidence to bolster the so-called 'confession'... Robert Garland, an evidence technician with the RPD [Rochester Police Department], falsely claimed that a partial fingerprint lifted from the murder weapon was inconsistent with the victim's print and consistent with Mr. Warney's print when, in fact, Mr. Warney was excluded or at least could not be included as a possible source of the print. Garland concealed the true, exculpatory nature of the fingerprint evidence from the prosecution and defense counsel and provided false, perjurious testimony at trial concerning the fingerprint evidence."

"In addition...Stephen Edgett, another RPD evidence technician, determined that at least one print from a videotape box found at the scene of the murder belonged to an unidentified source -- meaning that it belonged to neither the victim nor Mr. Warney. Yet, neither Edgett nor the other...officers conducted any investigation to determine the source of the fingerprint."

"It is now known that the source of the fingerprint is the real perpetrator, Eldred Johnson, an individual who had a history of committing violent acts and slaying innocent people. In fact, just two weeks prior to the Beason murder, Johnson murdered his landlord's wife and almost killed his landlord by repeatedly stabbing them. While Beason was not arrested for those crimes until over two years later, he had been arrested and convicted for numerous crimes in the State of New York, including violent felonies, prior to the Beason murder. Thus, Johnson's fingerprints were in the statewide fingerprint database and accessible to the...officers for comparison with the unidentified print at the time of Mr. Warney's wrongful arrest. Because the...officers failed to investigate this obvious lead, Johnson remained free and subsequently attempted to kill two other individuals by slashing their throats. Had the...officers run the unidentified print through the statewide database, they would have identified and located Johnson to prevent him from brutalizing other innocent people."

"The unconstitutional and tortious acts of the...officers were not isolated incidents. Rather, these acts were consistent with the custom, policy, and practice of the Rochester Police Department to condone, encourage, and/or facilitate the use of coercive tactics against witnesses and suspects, the fabrication of evidence, the failure to disclose exculpatory evidence, the failure to properly investigate serious crimes, and the failure to adequately train and supervise officers in critical law enforcement responsibilities."

[Offcrs. Sandra Adams and Thomas Jones also involved in case.]

[57] "On the morning of January 3, 1996, Michael Lee called the police to report that his roommate William Beason was missing. RPD officers reported to the Lee/Beason residence...With the aid of the Fire Department, RPD officers forced open the door to Beason's bedroom suite and found Beason's body on his bed, lying on his back, with numerous stab wounds to his neck and chest. There was a large quantity of blood on and around his body, and the suite appeared to be ransacked, with papers and clothing strewn about. Two pornographic tapes were found on the bedroom floor and one in the VCR."

"RPD evidence technicians processed the crime scene, finding and collecting a bloodstained knife, a bloody towel, and bloody tissue from the bathroom. They also lifted fingerprints from the crime scene, including six prints from one of the videotape boxes found in Beason's bedroom suite and one partial print obtained from the murder weapon."

"Lee last saw Beason on the morning of Sunday, December 31st, right before Lee left on a trip to Toronto. He told police that he returned from Toronto on Tuesday, January 2, 1996 and noticed that Beason's car was in the garage, though Beason should have gone to work that day and he always drove to work. When Lee went into the house, he noticed that Beason was not there and that, among other things, the window in the kitchen was left open and snow from a weekend storm had accumulated by it. Lee made several unsuccessful attempts to reach Beason on his cell phone that day. On the next day, January 3, 1996, Lee called Beason's workplace and was told that Beason was not there. Lee then noticed that a crockpot in the kitchen had been left on with chicken cooking inside. At this point, Lee decided to call the police.

"Based on an autopsy conducted on January 4, 1996, the medical examiner determined that Beason had been stabbed nineteen times in the neck and chest and died as a result of the stab wounds. The wounds were found to be consistent with the bloody knife recovered in Beason's bedroom. The medical examiner also found defensive wounds on Beason's left hand and, as a result, clippings of his fingernail were collected. It became readily apparent to the police that Beason died after a violent struggle and that the perpetrator was cut during the attack and went into the bathroom to clean blood off himself with the tissue and towel recovered by the police. The biological evidence recovered during the autopsy and the blood evidence from the scene were submitted to the Monroe County Public Safety Laboratory for analysis."

"On January 4, 1996, after the news of Beason's murder was widely reported in the press, Mr. Warney called the RPD in reference to the murder. Mr. Warney -- who has an IQ of 68, was in special education until he dropped out of school in the eighth grade, and was heavily medicated for full-blown AIDS -- was severely mentally impaired at the time he called the RPD. In fact, just days prior to the Beason murder, Mr. Warney had been hospitalized in a Rochester psychiatric facility for making crank calls to the police."

"Mr. Warney had a passing acquaintance with Mr. Beason prior to his death. Mr. Beason had previously met Mr. Warney and had hired Mr. Warney to clean his house and shovel snow from the driveway in front of his home. The last time Mr. Warney was at Beason's house was to shovel snow in the winter of 1994, and the last time Mr. Warney saw Mr. Beason was at the Monroe Avenue Pub after the Fourth of July fireworks in 1995."

"Prior to January 4, 1996, officers at the RPD knew of Mr. Warney because of his crank calls to the police in December 1995 and also because he had called the police on a prior occasion about drug activity in his apartment building."

"On the evening of January 4, 1996...Officer Sandra Adams, who previously responded to Mr. Warney's complaints about drug activity in the building, went to his apartment in response to Mr. Warney's call to the police."

"Mr. Warney informed Adams that he was concerned that his name was brought up in connection with the murder of a man named William on Chili Avenue. In response, Adams left her card and told Mr. Warney that he would be contacted by an investigator."

[58] "After eventualy speaking with Mr. Warney...Adams preparted a report, which stated that Mr. Warney implicated his cousin Brian Szymkowski in a homicide on Chili Avenue involving a man named William."

"On January 6, 1996, Gropp and Beaudrault arranged a meeting with Mr. Warney. They picked him up at his apartment at approximately 10:45 a.m. and brought him to the police station, where they placed him in a small office."

"Almost immediately, Gropp, in the presence of Beaudrault, began employing escalating coercive tactics to force Mr. Warney to make statements or admissions concerning the murder. Gropp began to verbally abuse Mr. Warney and threaten him, both physically and otherwise, in order to force him to admit that he committed the murder.

"In response to Gropp's intensified interrogation tactics, Mr. Warney requested an attorney, but Gropp and Beaudrault rejected Mr. Warney's request, stating that he did not need an attorney because they were simply investigating the crime."

"Neither Gropp, Beaudrault, or anyone else ever informed Mr. Warney of his Miranda rights* at any point during the interrogation."

[* This was also true of Nickel. ]

"Despite denying Mr. Warney's request for an attorney and despite the increasingly threatening atmosphere to which [he] was being subjected, Mr. Warney denied knowing anything about the crime."

"After...constant and repeated threats, Mr. Warney yielded to [their] coercive tactics and provided at least four different versions of events. The first...implicated Szymkowski and conformed to the facts Mr. Warney allegedly reported to Adams two days before. According to the second statement, however...he joined Szymkowski inside Beason's home. In the third...Mr. Warney's story evolved into an admission of greater culpability, as he stated that he and Szymkowski stabbed Beason together. By the fourth and final version of events, reflected in a typewritten statement created by Beaudrault and Gropp, Szymkowski was no longer present during the crime, and Mr. Warney falsely confessed that he acted alone in murdering Beason."

[59] [A second, even more detailed 'statement' was elicited later that same day.]

"The...officers did investigate Szymkowski and determined that he could not have participated in the crime because he was at a secured facility during the time in question and, thus, could not have left."

[60] "In the typewritten 'confession,' Mr. Warney purportedly stated that he stabbed Beason in the downstairs kitchen, but Beason was in fact attacked and killed in his upstairs bedroom...Mr. Warney also allegedly stated that he drove his brother's Chevrolet to Beason's home, yet his brother had not owned a Chevrolet in years and did not even own a car at the time of the murder...The...officers also attributed to Mr. Warney the admission that he cut his finger and bled at the scene of the crime -- an admission that was central to the police theory of the crime since they recovered a bloody tissue and towel in the bathroom, which suggested that the perpetrator used these items to wipe his wounds. But when Mr. Warney's hands were inspected and photographed on January 6, 1996 -- only days after the murder occurred -- he had no cuts or scratches, and when post-arrest blood group and enzyme testing was conducted on the tissue and towel, it excluded him and the victim as the source of the blood."

[62] [ADA Richard Keenan made closing argument.]

"[At trial,] the defense presented evidence from Thomas Rodwell, the County's serologist, who stated that enzyme testing excluded both the victim and Mr. Warney as the source of the blood found on the blue towel left in the [63] bathroom."

from NRE synopsis (by Maurice Possley):

"During 12 hours of police interrogation, Warney gave varying accounts."

"Warney's confession...contained numerous inconsistencies. Szymkowski was in a medical facility at the time of the murder. Warney said he killed Beason in the kitchen, although evidence showed the murder occurred in the bedroom. He said he tossed his bloody clothes in a garbage can, but the can -- which had not been picked up -- had no bloody clothes. Warner was no stranger to police. A few days before Beason's murder, police took Warney to a psychiatric hospital after he made dozens of false calls reporting fires and car accidents and ordering pizzas. He had checked out after one day."

"When prosecutors interviewed him, [Eldred] Johnson admitted that he had acted alone in killing Beason and that he did not know Warney.

"On May 16, 2006, Warney's conviction was vacated and he was released from prison.

"Warney filed a claim with the New York Court of Claims that was settled for $400,000. As part of Warney's civil suit against the city, Ron Smith & Associates reviewed the print on the knife and concluded that Warney could be excluded as its source based on an 'absence of feature correlation.' Smith opined that Garland had tried to 'bolster the fingerprint evidence in the eyes of the jury.'

"In 2011, Warney settled a federal civil rights lawsuit against the city of Rochester for $3.75 million."

[All emhases added unless otherwise noted.]

Wilson Sharrif & Anthony Yarbough - False Confession / Perjury

Sun, 25 Jan 2026 18:07:07 +0000

Wilson, Sharrif AND Yarbough, Anthony; murder; NRE: false confession, perjury/false accusation, false/misleading forensic evidence, inadequate legal defense, police officer misconduct, forensic analyst misconduct, misconduct that is not withholding evidence, misconduct in interrogation of exoneree

Suggestibility issues

K19 "Anthony Yarbough and Shariff Wilson were convicted in connection with the 1992 triple homicide of Yarbough's mother, sister and a girl. In light of new DNA evidence, the convictions were overturned on Feb. 6 [2014]."

from NRE synopsis (by Maurice Possley):

"In the early morning hours of June 18, 1992, 18-year-old Anthony Yarbough came home to his apartment in the Coney Island neighborhood of Brooklyn...and found his 40-year-old mother, Annie, stabbed to death. Yarbough's 12-year-old half-sister...and her 12-year-old friend...were also stabbed to death.

"Yarbough went outside and found his uncle waiting at a bus stop. They returned to the apartment and used a neighbor's phone to call police.

"That same day, police began interrogating 15-year-old Sharrif Wilson and Yarbough. Both youths said they had spent the night along the Brooklyn waterfront and in Greenwich Village and that Yarbough discovered the bodies when he arrived home at about 6:30 a.m.

"After several hours, Wilson gave a videotaped confession in which he said that he and Yarbough had stabbed the victims and then tied them up while they were still alive. After 15 hours, Yarbough signed a statement confessing to taking part in the murders with Wilson.

"The cases were severed and Wilson went to trial first in January 1994. There was no physical evidence linking Wilson to the murders. The prosecution played the video of his confession for the jury. The prosecution also presented testimony from a medical examiner who said that based on the autopsy, he believed the victims were killed shortly before Yarbough said he discovered the bodies.

"Wilson denied committing the murders and said that he falsely confessed because police threatened him and promised that he would be released if he confessed.

"On January 19, 1994, Wilson was convicted of three counts of murder. Two days later, before Wilson had been sentenced, Yarbough went to trial. Prosecutors presented a confession signed by Yarbough, who testified and denied he and Wilson committed the crime. Yarbough said he signed the confession after detectives struck him and he was told that Wilson had confessed and implicated him. A mistrial was declared after the jury was unable to reach a verdict.

"By the time Yarbough went on trial again a few weeks later, Wilson had agreed to testify for the prosecution in return for a sentence of 9 years to life in prison. Wilson told a jury that he and Yarbough committed the murders together. The medical examiner testified that the victims were killed shortly before 6:30 a.m., when Yarbough said he discovered the bodies. Yarbough testified and denied committing the murders. A jury convicted Yarbough of three counts of murder on February 16, 1994."

"In 2005, long after Yarbough's convictions were upheld on appeal, Wilson wrote a letter to Yarbough's aunt admitting he had falsely implicated himself and Yarbough in the murders and asking that he be forgiven.

"In 2010, Yarbough filed a petition for a new trial, citing Wilson's recantation as well as evidence showing that the prosecution had provided reports to his defense attorney showing that rigor mortis was found in the three bodies, indicating that they had been killed several hours before Yarbough said he discovered them* -- at a time when Yarbough and Wilson were miles away. However, Yarbough's trial lawyer had failed to contact a medical expert or present any medical evidence regarding the time of death.

[* So, the above medical examiner was either grossly incompetent, or a liar.]

"The motion also claimed that Yarbough's lawyer had provided a constitutionally inadequate legal defense because she failed to call a witness who was in the victims' apartment the night before the murders. The witness had been present when Annie Yarbough, who sold narcotics from the apartment, was threatened with death by a customer who said she had cheated him in a drug deal.

"Yarbough's new lawyer also sought DNA testing of crime scene evidence, including scrapings from under Annie Yarbough's fingernails. In 2013, the DNA tests on the fingernail scrapings identified the DNA profile of a male that was not Wilson or Yarbough. The unknown DNA was linked to DNA left at the scene of another murder in Brooklyn in 1999 -- while Wilson and Yarbough were in prison for their convictions in these three murders.

"In September 2013, Yarbough's lawyer filed a motion to vacate Yarbough's convictions. On February 6, 2014, following an investigation by the [Brooklyn DA's] Conviction Integrity Unit, the [DA] requested that the convictions be vacated. The motion was granted, Thompson dismissed the charges and both men were released.

"In November 2014, the state of New York agreed to pay Yarbough $3.5 million in compensation. In January 2015, Willson died of health problems exacerbated by years in prison. In July 2015, Wilson's sister filed a wrongful death lawsuit against the city of New York and the [NYPD]. In March 2017, the city of New York settled the case for $13 million. Yarbough also received a $13 million settlement."

[All emphases added unless otherwise noted.]

Kin-Jin (David) Wong - Perjury / False Confession

Sun, 25 Jan 2026 18:07:16 +0000

Wong, Kin-Jin ('David'); murder; NRE: perjury/false accusation, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

M19 [340] "Kin-Jin 'David' Wong, an illegal Chinese immigrant from Fujian province by way of Hong Kong, worked in the Chinatown section of New York City in the early 1980s. In 1984, he was convicted in state court of participating in a robbery...Wong has since publicly acknowledged his culpability for that crime. After his robbery conviction, Wong began a journey through the prison system that in 1986 led to Clinton Correctional Facility..."

"At approximately 4 p.m. on March 12, 1986, a cold and snowy afternoon, Wong was outside in the Clinton prison yard when another inmate, an African American later identified as Tyrone Julius, was stabbed to death. At the moment of the stabbing, the yard contained 600 to 700 inmates milling around, preparing to line up and return to their cells. Wong and many, if not most, of the other prisoners were dressed identically in state-issued green clothing. Amidst all this activity, a white corrections officer, Richard LaPierre, manned his post in an eighty-foot-tall [341] observation tower at the edge of the yard, located approximately 120 to 130 yards from the scene of the stabbing. LaPierre claimed that, just prior to the murder, he saw a group of inmates clustered together and watched one inmate, wearing a hood, walk past the group. He then noticed another inmate leave the group, approach Julius from behind, and give him a 'shot' to the lower neck or shoulder. Only at this point -- after Julius had fallen face-first into the snow -- did LaPierre raise his binoculars and attempt to track the assailant's path. While LePierre informed his colleagues by radio that an inmate was down and tried to describe the location, he also made an effort to follow the perpetrator winding his way through the yard: crossing the field and stopping by a fence, turning to face the tower, shaking hands with other prisoners and mixing into the crowd gathered to gawk at the victim. In due course, LaPierre succeeded in contacting another tower and alerting the guard as to the site of the person he believed to have committed the crime.

"Following LaPierre's communication, corrections officers singled out two Asian inmates in the yard, Tse Kin Cheung and David Wong, and one of them -- Wong -- soon became the chief suspect.

"From the start, Wong seemed like an unlikely perpetrator. No weapon or blood was found on Wong's person, even though the type of wound inflicted on Julius would have 'spurted' blood, according to the subsequent testimony of the medical examiner. Furthermore, LaPierre's physical description of the stabber immediately after the incident failed to match that of Wong in several crucial aspects: In the 'Unusual Incident Report' he composed on the day of the murder, LaPierre indicated that the stabber at first 'appeared to be white' and failed to mention the presence of dark gloves, which Wong happened to be wearing when he was detained by [342] another corrections officer in the prison yard. Moreover, LaPierre evidently never cited the presence of a large Chinese newspaper, an item found in Wong's possession at the time he was apprehended.

"[D]uring his testimony, LaPierre contradicted himself with respect to his description of the assailant's hands, commenting at one point that he had white hands and elsewhere that he wore dark gloves.

"Eyewitness testimony from Officer LaPierre proved to be a vital part of the prosecution's case at trial, especially when corroborated by another witness who purportedly enjoyed an even better view of the stabbing: Peter Dellfava, a white inmate at Clinton Correctional Facility, who stated that he was fifteen feet away when the murder occurred.

"Dellfava expressed certainty regarding Wong's identity, alleging that he had seen him many times and talked with him frequently. By the time he testified at trial, Dellfava was no longer incarcerated but, rather, out on parole and living in Medina, New York. Indeed, the Clinton County [DA] had written to the Parole Board on his behalf, resulting in a successful first appearance before the Board; the fact that Dellfava obtained parole at that stage was no small feat, in part because he had a previous record for attempting to escape from prison.

"Entrusted with the task of cross-examining LaPierre and Dellfava, and more generally formulating a defense, were two local lawyers assigned to represent Wong as indigent defense counsel, a duo that neglected to pursue several potentially fruitful investigative leads. Specifically, portions of the Department of Correctional Services' Bureau of Criminal Investigation (BCI) report, completed after the stabbing and disclosed to the defense prior to trial, alluded to the possibility of an alternative perpetrator. The report indicated that Otilio Serrano, a prisoner at Clinton, 'advised that an inmate named Gutierrez was the subject who had stabbed an inmate in the yard' before noting that Serrano recanted his assertion in a second interview. In yet a third interview, Serrano stated that Wong could not have committed the stabbing. In addition, the report contained an excerpt from a conversation with another prisoner, Alexander Winston Sylvester, where Sylvester declared that 'after stabbing the black inmate, the Puerto Rican inmate threw the blade down behind him onto the snow. A second Puerto Rican inmate picked up the blade, put it in a pair of gloves and walked up the hillside to the courts.' Despite the [344] statements, the defense attorneys spoke with neither Serrano nor Sylvester before trial. The lawyers did, however, decide to present an innocence defense -- five inmates (including both Wong and Tse Kin Cheung) testified that Wong did not commit the crime, but these witnesses did not identify the perpetrator.

"In July 1987, an all-white jury convicted Wong of murder in the second degree...[345] Even crediting LaPierre's and Dellfava's testimony...a gaping hole emerges when reflecting on this trial: the lack of any semblance of a motive for the crime. The trial adduced no evidence of a previous altercation between Wong and Julius, nor any festering gang rivalries implicating them. In the end, why would Wong seek to kill Julius, an African American inmate who had only recently arrived at Clinton?

[346] "The...Third Department...rejected Wong's appeal in 1990, concluding that 'the evidence is legally sufficient to support [Wong's] conviction' and noting that 'the contention that his legal representation was ineffective is patently without basis in the record.'"

[And yet, the NRE lists inadequate legal defense. Whether 'in the record' or not, defense attorneys' failure to interview witnesses who spoke of a different person having committed this crime would certainly seem to constitute ineffective assistance of counsel.]

[347] "[I]n December 2000... Dellfava recanted his trial testimony. Most notably, in an affidavit...Dellfava swore that he did not witness the stabbing of Tyrone Julius and that '[t]he first time I ever saw David Wong in person was in court.' As for how he came to testify against Wong, Dellfava asserted that he was friendly with several corrections officers from his prison job as a cook in the staff area and that a sergeant approached him shortly after the stabbing, asking whether '[i]t was an Oriental guy, wasn't it?' Sensing an opportunity to improve his own situation in exchange for cooperating in the Wong prosecution, Dellfava requested a transfer to a facility closer to his family and a recommendatoon for parole, both of which materialized.

[348] "Ultimately, further investigation...pointed to former prisoner Nelson Gutierrez as the perpetrator, reinforcing the hint that Otilio Serrano had provided fifteen years earlier when he stated to BCI officials that an inmate named 'Gutierrez' had stabbed Julius.

[349] "A new, more viable story of the stabbing began to take shape: the incident was retribution for a beating Gutierrez had previously suffered from Julius while at a New York City prison."

from NRE synopsis (by Maurice Possley):

"Wong testified in his own defense, but his attorney agreed to a court interpreter who did not speak Wong's dialect, leading to confusing testimony from Wong."

"Following his conviction, Dellfava recanted and other witnesses came forward and identified inmate Nelson Gutiereez, who died in 2000, as the actual killer.

"Based on the recantation, Wong was granted a hearing on the motion for a new trial. During the hearing, two former Clinton Correctional inmates testified that Wong did not fatally stab Tyrone Julius. Dellfava testified, 'I told them (police and the jury) that I'd seen David Wong go up behind someone and hit him. I didn't see any of it.'"

"Asked by Clinton County [DA] Richard Cantwell why he lied, Dellfava said, 'To get the hell out of that prison.'

"The defense also discovered that the prosecution had withheld a letter from the defense in which the prosecution recommended parole be granted to Dellfava.

"The motion for a new trial was denied, but in October 2004, the Appellate Division...overturned Wong's conviction and granted him a new trial. The charges were dismissed in December 2004. Wong was awarded $1,250,000 from the New York Court of Claims. Ultimately, Wong, who had entered the U.S. illegally as a teenager, was transferred to an immigration detention facility and deported to China."

[The above is not the only case in which a correctional officer helped to convict an innocent man; see also Thomas Bianco. And then there are the five Auburn prisoners who were convicted of phony 'weapon possession' charges due to corrupt Auburn c.o. Matthew Cornell: Naythen Aubain, Donnesia Brown, Sean Gaines, Jose Muniz, and Thomas Ozzborn. ]

[All emphases added unless otherwise noted.]

Shawn Williams - Perjury / False Confession

Sun, 25 Jan 2026 18:07:24 +0000

Williams, Shawn; murder; NRE: perjury/false accusation, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, perjury by official

Suggestibility issues [642:557]; 2nd Dept. 5/6/96; affirmed

"[W]e are satisfied that the verdict of guilt was not against the weight of the evidence..."

N16 "[A]fter serving about 25 years in prison, [Williams] walked away a free man July 13 [of 2018]...On July 13...Brooklyn...Justice Shannon Hudson granted a motion to vacate Williams' conviction and dismiss the original indictment, ordering his immediate release. Williams, who was convicted for the 1993 shooting of Marvin Mason, is the latest defendant tied to former Brooklyn detective Louis Scarcella whose conviction has been overturned...Shawn's conviction rested on testimony from a sole eyewitness, Margaret Smith, who claimed that she had seen Williams at the scene with a gun around the time of the killing, even though it was midnight and she was looking down from her sixth-story window,* more than 100 feet away...In 2013...Smith recanted her testimony, stating that she had been coerced by Scarcella into naming Williams..."

[* Yet again, we have a supposed 'identification' of a person at street-level by someone looking out a window from several stories up -- here, at midnight, no less. That's absurd. The fact that any jury or judge would buy that is an indictment of their extreme gullibility.]

"[T]he defense team also found evidence placing Williams in Pennsylvania at the time of the murder..."

from Records and Briefs:

"When Officer [John] Salerno...arrived on the scene, he saw Mason lying down in a pool of his own blood, with a single gunshot wound to the head. [from FN2: The bullet entered above Mason's left eye and traveled toward the back of the head, from left to right...The bullet and copper jacket...were recovered from the brain tissue..Because there was stippling near the wound, [Dr. Stephen] Doroux concluded that the gun was no more than two feet from the decedent's head when it was fired.] Mason's [4] backpack or knapsack, which was on the lobby floor near his body, had been opened and its contents strewn about..."

"Margaret Smith...was in her sixth-floor apartment bedroom talking on the telephone with a friend when she heard the gunshot...At the time, she was sitting on the windowsill bench, from [5] which she had a view of Eastern Parkway...About two minutes before she heard the shot, she had seen her neighbor, Marvin Mason, enter the building..."

"'Damn, is that a shot?,' Smith said to her friend on the telephone, as she leaned on the window sill and looked down to the street below...She saw two young men emerge from the building; one was wearing black pants and a shirt with horizontal stripes, while the other wore black pants and a plain white shirt...The young man in the striped shirt, whom Smith claimed she recognized as [Williams], was putting a gun into his waistband..."

"Smith... [6] maintained that she knew [Williams] from the neighborhood; she also said she knew his nickname, Murdock..."

"After the building, the two young men turned left and headed down the block in the direction of Buffalo Avenue...The two young men, who were standing near a lamppost, turned around and looked back at the building; Smith claimed that before they ran out she could clearly make out that one of the two was [Williams]..."

[14] "Smith testified that when the two men, who by then walked down the block, turned to look back in her direction, she could clearly recognize [Williams]...[I]t is implausible that Smith's ability to see the young men would get better the further away they walked."

from NRE synopsis (by Maurice Possley):

"Shortly after midnight on July 9, 1993, 18-year-old Marvin Mason was shot to death during an apparent robbery in the lobby of the building where he lived on Eastern Parkway in Brooklyn...Several witnesses reported seeing two men run from the building, but none were able to identify them.

"Edmond Adams and Vanessa Wagner, who were sitting on a bench across the street, said they saw two men flee. Adams said one was 5 feet 2 inches to 5 feet 4 inches tall, and the other was 5 feet 4 inches to 5 feet 6 inches tall.

"At about 9 a.m., New York police detectives Louis Scarcella and Steven Chmil came to the Mason family apartment. Based upon his inquiries in the neighborhood, Mason's brother, Christopher, gave the detectives the name 'Murdock,' as one of the robbers. 'Murdock' was the nickname of 19-year-old Shawn Williams.

"Scarcella and Chmil created a photo lineup that included Willliams's photo. However, no one was able to identify him. The detectives visited the sixth-floor apartment of Margaret Smith, a building resident, that evening. She said from her apartment window she saw two men run away, but was unable to identify them. She said she recognized Williams from the neighborhood, but not as one of the robbers.

"The two detectives would later testify that based on a 'vibe' that Smith might know more than she was revealing, they returned to her apartment on July 27, 1993. Chmil also later testified that during this interview, Smith identified Williams as one of the robbers.

"Subsequently, another detective said that he spoke to Kenyatta Moore, who was in a police lockup. Moore disclosed that on July 11, two days after the murder, he heard Williams bragging about shooting Mason. Moore gave the same account under oath to a grand jury that indicted Williams for the murder.

"On October 1, according to the detectives, Smith identified Williams in a photo array and in a live lineup. Williams was arrested and charged with second-degree murder, although he was 6 feet tall -- at least half a foot taller than the description given by Edmond Adams.

"At the time Williams was arrested, he told Scarcella he was in Reading, Pennsylvania at the time of the murder. Williams said he had been arrested for drinking beer in public on July 2, 1993 and provided a false name to police. Scarcella claimed he looked for a record of that arrest and found none.

"On August 10, 1994, Williams went to trial in [Brooklyn]. Scarcella and Chmil testified that Christopher Mason gave them the nickname 'Murdock,' and how their 'vibe' led them to visit Smith when she first identified Williams.

"Smith was the only witness to identify Williams. She said she was sitting on the windowsill of her sixth-floor apartment talking on the phone when she heard the gunshot. She said she recognized Williams when he stopped under a streetlight. She said she saw his face when he looked up and laughed, and that she recognized him from a scar on his neck.

"However, in contrast to the detectives' testimony, Smith said her identification came during the first visit by the detectives on July 9, the same day of the shooting, not on July 27. She also said she -- not Christopher Mason -- first mentioned the nickname 'Murdock' to detectives. She said she had 'no doubt' that she told the detectives on that first day to look for 'Murdock.'

"Vanessa Wagner testified that she heard a loud noise and saw two young men flee from the scene. She did not identify Williams.

"On August 16, 1994, the jury convicted Williams..."

"In May 1996, the Appellate Division upheld the conviction..."

"In August 2013, the New York law firm of Cleary Gottlieb Steen LLP & Hamilton, along with the Legal Aid Society of New York, began representing Williams. Working with Kroll, Inc., an investigative agency, the legal team located and interviewed Smith. In her first meeting with Cleary and Kroll, Smith said Scarcella and Chmil coerced her to falsely identify Williams. Smith also confirmed that in about 2009, Williams, with the help of a relative, was able to telephone Smith. She told him that her testimony was false and coerced, and urged him to send someone to interview her.

"Smith said Scarcella and Chmil coerced her to falsely identify Williams. Smith signed a sworn affidavit that 'at no time' did she see any faces or physical characteristics of anyone leaving the scene of the shooting. She said that when Scarcella and Chmil came to her home to show her the photographic lineup, they 'moved very quickly through the book of photographs' until they 'stopped on a page, pointed to a particular photograph' and said that was 'Murdock.'

"Smith said that she did not recognize Williams from the photos, did not see him the night of the murder, and did not know his name or any nickname he had. She said the detectives told her that Williams was the killer.

"She admited she falsely identified Williams, but said she felt pressured to do what she believed the detectives wanted her to do. Smith also said she only identified Williams in the live lineup because she had already seen his photograph.

"Smith also disclosed that at the time of the trial, she lived in Georgia and did not want to testify. Police came to her home with a material witness order. She was taken to a Georgia court where she said she was arrested and jailed briefly. After her release, the officers came to her house and escorted her 'against my will, to New York by plane.' She concluded that she had to falsely testify against Williams so that the police and prosecution would let her alone.

"Smith said Scarcella and Chmil told her that 'several individuals (incuding another eyewitness) had informed them that Murdock was the individual who killed Marvin Mason.' However, no other witnesses gave such testimony."*

[* So, Scarcella and Chmil lied to her. But even if they had been telling the truth, this would still have been improper, because it would have been immensely suggestive.]

"After speaking with Smith, Cleary undertook a search for the material witness order in the materials provided by the Brooklyn [DA's] Office, but could not find it. Cleary asked the Brooklyn [DA's] Office to review their files, and a material witness order for Smith, dated August 2, 1994, was located. There was no evidence the order was ever disclosed to the defense at Williams's trial. Indeed, Williams had no recollection of ever being told of a material witness order for Smith.

"Williams's legal team retained Dr. Geoffrey Loftus, a University of Washington psychology professor specializing in memory. Loftus reviewed Smith's testimony at the trial and concluded it was unreliable and flawed. He said, 'Ms. Smith, from her window, would have been looking almost straight down at the subject. . .From this angle, Ms. Smith would almost certainly have only been able to see the top of the subject's head.' Loftus concluded that 'scientific evidence indicates it is highly unlikely that Ms. Smith could have been able to accurately perceive or memorize the subject's appearance given the lighting and distance under which the purported identification was made.'

"In addition, Erick Hylton, a former U.S. Marine who moved into Smith's apartment in 1993 (the same year as Mason's murder) and was still residing there, spoke to investigators. He said that he would not have been able to recognize anyone on the street -- even if he already knew the person -- because the street lighting was so poor.

"Williams's legal team also looked into his statement to Scarcella at the time of his arrest that he was in Reading, Pennsylvania at the time of the murder, and had been arrested on July 2 for drinking beer and provided a false first name. Athough Scarcella claimed he was unable to find the record, a search in 2014 turned up an arrest report for 'Tony Williams' at the exact time and location that Williams said he had been arrested. In addition, the legal team found medical records showing that Williams had received treatment at a hospital in Reading on July 11, 1993 -- two days after the murder.

"In May 2014, after getting Smith's recantation, Williams's legal team informed the conviction review unit at the Brooklyn [DA's] office. In 2015, the lawyers provided the additional information from Dr. Loftus and Hylton.

"In January 2017, Williams's lawyers filed a post-conviction motion in [Brooklyn] seeking to vacate his conviction. The [DA's] Office opposed the motion."

"On June 15, 2018, the Brooklyn [DA's] Office filed a letter with [Brooklyn] Justice Sharen Hudson saying it would no longer oppose the motion to vacate Williams's conviction.

"On July 13, 2018, Justice Hudson granted the motion and dismissed the indictment against Williams, who was released immediately after serving nearly 25 years in prison...Williams later filed a claim for compensation with the New York State Court of Claims as well as a federal civil rights lawsuit.

"The compensation claim was dismissed in 2022, but in April 2022, the City of New York agreed to pay Williams $10.5 million to settle the lawsuit. Williams subsequently filed an appeal of the dismissal of the compensation claim in the...Second...Department."

[All emphases added unless othewise noted.]

Randolph Williams - Perjury / False confession / Officer Misconduct

Sun, 25 Jan 2026 18:10:27 +0000

Williams, Randolph; murder; NRE: perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

2 N.Y.S.3d 612; 2nd Dept. 2/4/15; reversed, due to improper exclusion of defendant from pre-trial hearing

"After [Williams] argued with the victim, the victim was fatally shot in the vicinity of a basketball court at the Williamsburg Houses public housing development. A witness to the shooting, who knew both [Williams] and the victim, identified [Williams] in a lineup as one of the shooters, gave the police a sworn audiotaped statement, and testified before the grand jury. However, the witness notified the prosecutor that she would not testify at trial because she had been approached and threatened by a man whom she had previously seen with [Williams]. As a result, she feared for her own life and the lives of her family members.

[Kings Cty. Ct. then held a pre-trial hearing.] "The court excluded [Williams] from the courtroom during the hearing...Three days after the hearing was concluded, the court entertained argument on the [prosecution's] application to determine whether the witness was practically unavailable [due to alleged threats -- see above]. The court determined that the witness was practically unavailable and that the [prosecution] had proven...that [Williams] had procured [i.e., caused] the witness's unavailability, thereby forfeiting his right to confront and cross-examine her. As a result, the court ruled that the witness's audiotaped statement and grand jury testimony could be admitted into evidence at trial.

"The jury convicted [Williams] of murder in the second degree and criminal possession of a weapon in the second degree.

"Contrary to [Williams'] contention, the verdict of guilt was not against the weight of the evidence..."

"Nevertheless, the judgment of conviction must be reversed and a new trial must be held. Here, [Williams] was not in the courtroom and was not allowed to confer with his attorney during the hearing."

from NRE synopsis (by Maurice Possley):

"In the early morning hours of February 27, 2007, 36-year-old Vincent Hill was fatally shot once in the chest near a basketball court in the east Williamsburg section of Brooklyn..."

"On March 21, 2007, police arrested 22-year-old Randolph Williams and charged him with murder and illegal use of a weapon. The detectives said that three witnesses had identified Williams as the gunman. All three had identified Williams in a live line-up and one of them, a woman, had identified him in a photo lineup as well, police said. The woman, police said, voluntarily came forward because she wanted to do the right thing.

"Williams went to trial in [Brooklyn] in March 2008. By that time, the two male witnesses had recanted their identification of Williams as the gunman. They said they had mentioned Williams' name to police and picked him out of the live lineup because they knew him previously. One of the men said he not only didn't see the gunman, but didn't see Williams at the scene at all.

"The other man said he could not identify the gunman, but did see that the gunman was wearing a jacket that was similar to one Williams had worn in the past. And he testified that just before the shooting, he heard the victim say, 'Here comes Pooch,' which was Williams' nickname.

"The third witness, who had given an audiotaped statement identifying Williams as the gunman, refused to testify, saying that she had been approached and threatened by a man she had previously seen with Williams. She said she feared for her life and the lives of her family members.

"The trial judge held a hearing to determine whether the witness would be declared 'unavailable,' and therefore police could testify to her identification of Williams. The judge ordered Williams excluded from the courtroom during the hearing, although Williams was allowed to hear a live audio feed from the courtroom while he was in a holding cell.

"Three days after the hearing was concluded, the judge ruled that the witness was unavailable and that the prosecution had shown that [Williams] was responsible. As a result, the judge ruled that Williams had forfeited his right to cross-examine the witness and that the audiotape would be played for the jury and her testimony before the grand jury would be read to the jury.

"Williams presented an alibi defense, contending he was 15 miles away with his girlfriend at Coney Island at the time of the shooting.

"On April 8, 2008, the jury convicted Williams..."

"In February 2015, the...Second Department...vacated Williams' convictions..."

"Prior to his retrial, investigators Robert Rahn and Kim Anklin, working for Williams' lawyer, Michael Farkas, interviewed the three eyewitnesses. The one who said he had not seen the gunman or Williams at the scene stood by that testimony. The one who said the gunman wore a jacket similar to one that Williams wore and heard Hill refer to Williams just before the shooting by the nickname 'Pooch' said that testimony was false and that he had no idea who committed the crime.

"The third witness -- the woman who had refused to testify at the first trial -- said that the police had forced her to identify Williams by threatening to have her arrested and evicted from her public housing apartment for dealing drugs out of her residence. She said the police account of her voluntarily coming forward as a Good Samaritan was false.

"The woman said that police showed her a photo array and told her to pick out Williams. She said that after Williams surrendered and was put in a lineup, she was again told by police to pick him out as the gunman. The witness said she feared being prosecuted for perjury for telling a grand jury in 2007 that Wiliams was the gunman.

"On March 15, 2016, after the retrial began, the female witness again failed to appear to testify. As a result, [Brooklyn] Justice Alan Marrus dismissed the case and Williams was released.

"In 2017, Williams filed a lawsuit in [Brooklyn] seeking compensation. He also filed a claim with the New York State Court of Claims, which was settled in December 2020 for $2,500,000."

[All emphases added unless otherwise noted.]

Jonathan Wheeler-Whichard - Perjury / False Accusation

Sun, 25 Jan 2026 18:12:28 +0000

Wheeler-Whichard, Jonathan; murder; NRE: perjury/false accusation, inadequate legal defense

C10 [488] "Just like the [Clinton] Turner court -- which summarily dismissed an appeal on the grounds of the unreliability of recantation testimony -- the court in People v. Wheeler-Whichard acknowledged that 'there is no form of proof so unreliable as recanting testimony,' but explained that taken together with the other evidence, and in the proper context such testimony can prove valuable.

"As part of a motion for post-conviction relief...Wheeler-Whichard...presented two witnesses who had recanted their testimony, four alibi witnesses [489] who had not been called at trial, and two other witnesses who corroborated the alibi witnesses. Taken together, the court found that this evidence was sufficient to show that Wheeler-Whichard was neither the murderer, nor even at the scene of the crime when it occurred."

from NRE synopsis (by Maurice Possley):

"On April 20, 1996, Joseph Foster was fatally shot in the lobby of the apartment where he lived...in the Bedford-Stuyvesant section of Brooklyn...Police soon arrested 16-year-old Jonathan Wheeler-Whichard after witnesses identified him as the gunman.

"At the time of his arrest, Wheeler-Whichard was free on bond after he was charged in February 1996 with arson. He rejected an offer from the prosecution to plead guilty to the arson in return for a sentence of one to three years in prison.

"In April 1997, Wheeler-Whichard went to trial in [Brooklyn]. The prosecution's case centered on the testimony of Sandra Woodard, and an acquaintance of Wheeler-Whichard named DaShaun Reed.

"A pathologist who performed the autopsy testified that Foster died of a gunshot wound. A detective testified that he recovered a .32-caliber weapon from a garbage bag outside of the building that -- based on a firearms analysis -- was the gun which fired the shot that killed Foster.

"Woodard testified that she saw Wheeler-Whichard confront Foster at the door of the elevator in the lobby of the building. After arguing about money and 'stuff,' she saw Wheeler-Whichard pull out an object and point it at Foster. She said she then heard shots fired and saw Foster fall down and cry for help. Woodard told the jury that Wheeler-Whichard threatened her as he left through the back door of the building. Woodard said she went out the front foor and called 911 from a pay phone.

"Reed testified that he and his cousin Dre encountered Wheeler-Whichard as he ran up a rear stairway between the first and second floors of the building right after shots were fired. Reed said that Wheeler-Whichard expressed regret for what he had just done. Reed said that he and Dre then went with Wheeler-Whichard into an unspecified second-floor apartment. Reed also testified that he saw Wheeler-Whichard attack Foster with a bat on two occasions in the past. After one of those attacks, Foster retaliated by slashing Wheeler-Whichard on the side of his face, Reed said.

"Reed told the jury that on the morning of the shooting, Wheeler-Whichard had pointed to his facial scar in a local pizza parlor and announced to all within earshot that he was, in effect, seeking revenge.

"Reed also testified that on the morning after the shooting, he heard Wheeler-Whichard tell Wheeler-Whichard's mother that he had tossed the murder weapon in the garbage chute. As a result, police had recovered the .32-caliber revolver.

"On April 15, 1997, the jury convicted Wheeler-Whichard...On May 7, 1997, at his sentencing hearing, Wheeler-Whichard was asked if he had anything to say. 'I feel sorry for Mr. Joseph's family, but I didn't do it, that's all I have to say,' Wheeler-Whichard said. [Brooklyn] Justice Herbert Lipp sentenced him to 25 years to life in prison. On May 29, 1997, he pled guilty to the arson charge and was sentenced to seven to 14 years in prison, to be served concurrently with the murder conviction sentence.

"His convictions were upheld on appeal. In 2007, after filing a pro se motion for a new trial, attorney Lynn Fahey, of Appellate Advocates -- who had represented Wheeler-Whichard on appeal -- was appointed to represent him once more. Fahey filed a revised motion and Justice Joseph McKay presided over an evidentiary hearing in April 2009.

"At the hearing, Reed recanted his trial testimony. He said he was not at the scene, but driving back to Brooklyn from the Bronx at the time of the shooting. He said he learned about the shooting later that day from Dre, his cousin.

"Woodard died in 2005. The motion to vacate Wheeler-Whichard's convictions contained a 2007 affidavit from a friend of Woodard claiming she recanted to him, and that at the time, she was paid with drugs for her false testimony.

"Wheeler-Whichard testified that he was with friends in an elevator in the building when they heard the shots fired. Four witnesses who were with Wheeler-Whichard corroborated that testimony and two other witnesses corroborated parts of the alibi but not at the very moment of the shooting. These alibi witnesses testified to being on an elevator with Wheeler-Whichard when they heard shots fired as the elevator ascended to the fourth floor of that building. Wheeler-Whichard lived in apartment 4G with his family. Wheeler-Whichard and the witnesses testified that they had just left a nearby party celebrating the birthday of Wheeler-Whichard's two-year-old niece.

"Wheeler-Whichard's trial defense attorney testified and said he had no memory of the case. He insisted that neither the exhibits nor the trial testimony that was brought to his attention during the hearing refreshed his recollection.

"On July 30, 2009, Justice McKay granted the motion and vacated Wheeler-Whichard's convictions.

"Justice McKay credited the testimony of the alibi witnesses. 'Without any hint of rote adherence to a script, each of the witnesses testified credibly and consistently to essential facts of the alibi, the preceding family party, the shots heard in the ascending elevator or in the 4th-floor hallway, and gathering in apartment 4G,' Justice McKay wrote.

"'The overriding theme struck by the prosecutor on cross-examination of each defense hearing witness was their failure to take any decisive remedial action when defense counsel rested without calling any of them as witnesses at trial,' the Justice noted. 'They were repeatedly asked why they did not complain to the Court or more vociferously complain to the defense attorney, and why they remained inactive until the instigation of this. . .motion years later. While this may have been a legitimate avenue of inquiry, the challenging and repeated nature of the questioning along this line demonstrated to the Court a lack of appreciation for the palpable powerlessness felt by each of these witnesses, who were for the most part unsophisticated and unschooled in the ways of the criminal justice system. Their failure to do more was quite understandable under the circumstances, and in the eyes of the Court in no way damages the veracity of their testimony.'

"Justice McKay said that the defense attorney had given a late notice of alibi and then failed to call any of them -- a decision 'which was never adequately explained.'

"'[T]rial counsel's professed near-total memory failure makes it difficult, if not impossible, to determine the reasons for the many decisions and apparent mistakes he made, all of which proved disastrous for the defense at trial, the chief one being his failure to call the alibi witnesses,' Justice McKay said. '[Defense counsel's] many other mistakes and failures went similarly unexplained and in the Court's view cannot be justified. For example, there is no evidence that counsel ever hired an investigator or visited the scene and strong inferences which I accept that he did neither. These and other demonstrated failures by the defense at trial, recited in the post-hearing memoranda of both sides, made it easier for the Court and jury in 1997 to overlook the deficiencies in the prosecutor's case, thereby paving the way for the guilty verdicts which the Court now labels a miscarriage of justice.'

"Justice McKay noted that Fahey presented evidence pointing to Michael Kirkland as the person who 'ordered the hit on Foster' and that Reed's cousin, Dre, had been the actual gunman. In addition, Justice McKay said that Fahey had presented evidence that Kirkland 'orchestrated the frame-up of [Wheeler-Whichard]' for Foster's murder. 'It seems to this Court that the foregoing is a plausible and even likely scenario to explain all of these events, although it was not proven by anything close to admissible evidence sufficient to prosecute Kirkland,' said Justice McKay.

"'But the time to have begun an investigation into Kirkland's involvement and any other person's criminal responsibility for this murder was in April 1996, and those responsible for pursuing this investigation should have been the police and the [DA],' Justice McKay declared.

"Regarding Reed's recantation, Justice McKay said, 'While his recantation is more believable to the Court than his implausible trial testimony, he failed to give any credible reason why he lied at trial and why he was now recanting. However, despite this lack of candor, much of his hearing testimony was supported by other evidence and it also served to eliminate conflicts with Woodard's testimony. Standing alone, this recantation would be of dubious probative value. In the context of the trial and the hearing testimony, however, even this recantation undermines the case the [prosecution] presented at trial and tends to support [Wheeler-Whichard's] actual innocence claim.'

"Justice McKay criticized the failure of the police and prosecution to fully investigate the case from the beginning. 'I note a total failure to connect the evidentiary dots concerning the one and only true caller about this homicide to 911,' he said. 'There was sufficient documentary and audiotaped evidence available well before trial for the police and the prosecutor to have learned, as was clearly established at the hearing, that it was a female tenant in a second-floor apartment of the same building, Judy Gregory, who made that call. Once that was known other salient facts would have emerged, such as that Sandra Woodard must have been lying about calling 911.' Moreover, Justice McKay said, it would have been 'highly unlikely' for Reed to have encountered Wheeler-Whichard on the back stairs and in the second-floor hallway right afer the shooting.

"'Further, it now seems plain to the Court that virtually no police or prosecutor in-depth investigation was done into the character and credibility of the [prosecution's] main witnesses,' Justice McKay added.

"Justice McKay dismissed the charges altogether. '[I]t would be abhorrent to my sense of justice and fair play to do other than to vacate [Wheeler-Whichard's] convictions on both grounds and to declare that he is innocent of this horrible murder, and to ensure he does not continue to serve any more time in prison for these convictions,' Justice McKay said.

"Although the murder case was over, Wheeler-Whichard remained incarcerated until 2013 serving the remainder of the arson sentence as well as a 1-1/2 to three-year term he received for possession of illegal contraband in prison.

"In 2011, Wheeler-Whichard filed a claim with the New York Court of Claims seeking compensation for the time spent in prison on the wrongful murder conviction. However, the claim was denied. The Court of Claims ruled that he had suffered no harm because he was serving the sentence for the arson conviction."*

[* The notion that Wheeler-Whichard didn't suffer as a result of being convicted and sentenced (to 25 years to life) for a murder he did not commit is absurd.]

[All emphases added unless otherwise noted.]

Jabbar Washington - False Confession / False ID / Officer Misconduct

Sun, 25 Jan 2026 18:21:41 +0000

Washington, Jabbar; murder; NRE: false confession, perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, misconduct in interrogation of exoneree

Suggestibility issues

111 N.Y.S.3d 691; 2nd Dept. 11/20/19; media suit seeking disclosure of information

"[O]n July 12, 2017, as the result of an investigation by the CRU [Conviction Review Unit], the DA moved to vacate the 1997 murder conviction of Jabbar Washington. [His] conviction stemmed from a January 21, 1995 robbery inside an apartment in Brownsville, during which five people were wounded and one person was killed. Several defendants were charged and convicted in the case...In a July 12, 2017 press release announcing the decision to vacate the conviction, the DA stated that a CRU investigation had discovered that a crucial exculpatory document had not been turned over to Washington's defense counsel...Specifically, the prosecution had failed to disclose a jury synopsis sheet memorializing that an eyewitness, who had identified [Washington] in a lineup, recanted her identification two days after the lineup took place. The lineup was conducted by now-retired Detectives Louis Scarcella and Stephen Chmil. Scarcella also purportedly obtained Washington's confession to the crime, a fact that Washington sharply contested during the trial. While under cross-examination, Scarcella alluded to the fact that Washington had been 'Id'd,' which testimony was particularly misleading in light of the eyewitness's undisclosed recantation...The DA noted that it would not seek to retry Washington, and that the CRU found no basis to disturb the convictions of the other six persons convicted in connection with the robbery."

from NRE synopsis (by Maurice Possley):

"On January 1, 1995, several men invaded an apartment in a public housing development...in the Brownsville neighborhood of Brooklyn...looking for drugs and cash. Two of the invaders began shooting. Five of the occupants were wounded -- most of them shot several times -- and 40-year-old Ronald Ellis was killed.

"A year later, in February 1996, seven men were charged with murder, attempted murder, and robbery. Among those charged was 22-year-old Jabbar Washington, whom the other defendants named as being involved.

"[NYPD] Detective Louis Scarcella, whose conduct in a vast array of cases would later be called into question, arrested Washington and reported that he had confessed to being involved in the crime. When Scarcella appeared before a grand jury, he testified that 26-year-old Lisa Todd, who had been in the apartment at the time of the crime and survived nine gunshot wounds, had identified Washington in a live lineup.

"When Todd came to the grand jury later to testify, she told the prosecutor who was presenting witnesses that in fact she had told Scarcella that she only recognized Washington because he lived in the building where the crime occurred. The prosecutor made note of her comment.

"In March 1997, Washington went to trial in [Brooklyn]. Scarcella testified that Washington confessed to taking part in the crime. He also testified that Todd had identified Washington as being among those who raided the apartment.

"Todd testified and -- like other victims who testified as well -- said she could not identify any of the invaders because they all wore masks.

"The prosecution failed to disclose to the defense that Todd told the grand jury prosecutor that she had not identified Washington as taking part in the crime. As a result, Washington's lawyer did not have that evidence to confront Scarcella when he said Todd had identified Washington.

"In fact, during cross-examination, Washington's defense attorney asked Scarcella whether getting a confession was important in the case. Scarcella replied that if Washington 'didn't get ID'd, it would have been. . .'

"Washington testified and denied involvement in the crime. He told the jury that Scarcella had beaten him until he falsely confessed to taking part in the crime. He said that at the time of the crime, he was with his girlfriend, who testified to that as well.

"During closing argument to the jury, [Brooklyn] prosecutor Kyle Reeves hammered repeatedly that Todd had identified Washington.

"On March 19, 1997, the jury convicted Washington..."

"In 2011, [Brooklyn DA] Charles Hynes created a Conviction Integrity Unit, and invited defense attorneys to present cases in which innocent defendants may have been convicted."

"In late 2015, New York attorney Ron Kuby requested that the conviction review unit re-investigate Washington's case.

"On July 12, 2017, Acting Brooklyn [DA] Eric Gonzalez, who succeeded Thompson after his death in the fall of 2016, announced that the conviction review unit had filed a motion to vacate and dismiss Washington's case.

"'An analysis of the jury trial revealed that, despite the fact that an identifying witness recanted her identification within days, the jury was improperly given the strong impression that she did identify the defendant as a perpetrator, and a crucial document in which she disputed the identification was not turned over to the defense,' Gonzalez said in a statement.

"'Following a thorough and fair investigation by my Conviction Review Unit, it was determined that Mr. Washington did not receive a fair trial and crucial information that would have been useful to the defense was withheld,' Gonzalez said.

"Gonzalez noted that other issues resulted in an unfair trial. 'For example, when Washington took the stand, he was asked by the prosecutor if Detective Scarcella had told him that one of the co-defendants had named him as one of the shooters. He was similarly asked about other co-defendants who had been convicted -- all in apparent violation of the prohibition against guilt by association.'

"Gonzalez also noted that Todd was murdered in 2006, preventing investigators from interviewing her to clarify whether she identified Washington or not."

"Washington...later received $1.65 million in compensation from the New York Court of Claims and $5.75 million from the City of New York."

[All emphases added unless otherwise noted.]

James Walker - Perjury / False ID / Perjury / False Accusation

Sun, 25 Jan 2026 18:21:57 +0000

Walker, James; murder; NRE mistaken witness identification, perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, knowingly permitting perjury, prosecutor lied in court

N4 [25] "Mr. Walker was identified by a drug addict several months after the crime as the person who assaulted a guard at a check cashing store during a robbery in which another victim was killed. After the conviction of Walker for felony murder, Walker learned that the addict-informer had identified another person as one of the participants in the crime -- which had to have been a lie because that other person was in jail at the time of the robbery. The defense was never told that the informer had wrongly accused someone else. Further, Walker was not told that the man whom he was accused of beating had not identified him in a lineup, but rather selected a filler who was a police officer."

[43] "After a man was killed in the course of a robbery, rewards were offered for information. A drug addict came forward and implicated Walker. Based on this testimony alone, Walker was convicted. The prosecutor and the lead detective suppressed the fact that the informer had implicated a second man, a friend of Walker who was in jail at the time of the crime, and that a surviving victim had seen Walker in a line-up but selected someone else. Walker was exonerated after serving 19 years in prison."

"Damage Suit Against City Reinstated: $11 Million Demanded for Improper Conviction," Cerisse Anderson, New York Law Journal, 9/9/92

"Although the prosecution had documents showing that an informant who named Mr. Walker as a participant in the crime had lied about other details of the robbery and that a truck guard who had been assaulted failed to identify Mr. Walker in a lineup, the exculpatory evidence was never turned over to the defense. Mr. Walker only learned of the exculpatory documents years after his conviction.

"Also, the lead prosecutor of the case for then-[DA] Eugene Gold, J. Paul Zsuffa, appeared as a witness in a pretrial hearing and denied that the lineup with the truck guard had ever taken place."

from NRE synopsis (by Maurice Possley):

"On June 1, 1970, William Powell and an accomplice robbed an armored truck outside of a check-cashing business on Fulton Street in Brooklyn...Powell fatally shot the truck's driver, 40-year-old Edward Kargman. Powell's accomplice knocked a guard, Jose Ruiz, unconscious with a sawed-off shotgun.

"Powell was arrested not long after the crime and ultimately pled guilty to murder.

"Nearly a year after the murder, a drug addict and convicted felon named John Snider, in an apparent attempt to cash in on a reward offered by Kargman's widow, told authorities that Powell had two accomplices, both of whom he knew. Snider said the man with the shotgun was 30-year-old James Walker. The other accomplice, Snider said, was Melvin Givens.

"On April 23, 1971, Walker was arrested and put in a lineup where Ruiz not only failed to identify him, but selected a police officer who was acting as a filler in the lineup.

"The case took another hit when the lead detective, Robert Powell, and the prosecutor on the case, Paul Zsuffa, discovered that Givens was in jail on Rikers Island on the day of the crime.

"Nonetheless, in June 1971, Snider went before a grand jury, where he identified Walker and made no mention of Givens. Walker was then indicted.

"At a pre-trial hearing, Detective Powell and Zsuffa both testified. Powell said he could not recall if Walker was ever in a lineup, and Zsuffa denied there had ever been a lineup.

"Walker went on trial before a jury in [Brooklyn] in October 1971. The prosecution did not disclose the information about Givens, nor did they disclose that Ruiz had identified the wrong man in the lineup.

"Snider and Ruiz both testified and identified Walker as Powell's partner in the robbery and murder. Powell was called as a witness and testified that Walker was not with him during the crime, but he declined to identify his partner by name.

"On October 19, 1971, the jury convicted Walker..."

"While being held in the Brooklyn House of Detention before and during his trial, Walker met Susan Yankowitz, an award-winning playwright and novelist who was putting on a play behind bars with prisoners doing the acting. Walker played a part in the play (about a ghetto preacher) and afterward, he told Yankowitz he was innocent and asked if he could write to her. That led to a correspondence that lasted for the next two decades and ultimately to Walker's freedom. During his years in prison, Walker's wife, mother, father and brother all died.

"Seventeen years after they first met, Yankowitz went to visit Walker in prison for the first time since they had worked on the play together in the Brooklyn House of Detention. Yankowitz was so moved by seeing Walker again that she soon found herself describing his case over dinner to a friend's husband, attorney Douglas Liebhafsky.

"Liebhafsky spent the next two years working pro bono on Walker's case. He discovered how the prosecutor and detective had hidden exculpatory evidence and how Zsuffa had lied during the pre-trial hearing and allowed Ruiz and Snider to give false testimony at Walker's trial.

"In January 1990, Liebhafsky moved for an order vacating Walker's conviction. On June 27, 1990, the [Brooklyn DA's] Office agreed not to oppose the motion and the conviction was vacated. The case was dismissed and Walker was released.

"Liebhafsky later filed a federal wrongful conviction lawsuit against the city of New York on Walker's behalf. The lawsuit was settled in 1993 for $3.5 million."

[All emphases added unless otherwise noted.]

John Vera - Mistaken Witness Identification

Sun, 25 Jan 2026 18:22:19 +0000

Vera, John; robbery; NRE: mistaken witness identification

[653:360]; 2nd Dept. 1/21/97; affirmed

"[W]e are satisfied that the verdict of guilt was not against the weight of the evidence..."

[856:503]; Court of Claims 1/7/08; civil suit

[This was a gang robbery of a family-owned grocery store as well as the owner's residence. Vera, who lived in the neighborhood, was arrested shortly after stopping into a store to buy a snack about a month after the robbery. He was the only person who went to trial on this -- the others pled out. His conviction was vacated after he'd spent 5 years in jail. He had always maintained his innocence, and was at home at the time of the robbery. His sister said he never left the house that night. One of the actual from NRE synopsis (by Maurice Possley):

"Shortly before midnight on January 6, 1994, two men pushed their way into Bernardo Garcia's apartment on South Third Street in Brooklyn...They threatened Garcia, his wife and their daughters, ages nine and 14, and forced Garcia to give them the keys to his grocery store, Diana's Grocery, on Union Avenue a few blocks away.

"One more robber entered the apartment during the two hours the family was held at gunpoint and Bernardo Garcia was struck several times.

"Communicating by walkie-talkie, the robbers in the apartment took the keys out to others who got into the store and stole cash kept there.

"The man who struck Garcia was described as 5 feet, 8 inches tall with dark skin.

"On March 4, 1994, 20-year-old John Vera, who lived in the same neighborhood, decided to get a haircut at a barbershop next door to Garcia's grocery. At the time, Vera was working for an inventory services company in Queens, leaving for work at 4 a.m. each day and returning around 8 p.m.

"Before entering the barbershop, Vera stopped at the grocery to buy a soda and a bag of potato chips. He went to the barbershop and got a place in line and walked across the street to chat with some men he knew from the neighborhood.

"[O]ne of Garcia's daughters...summoned police after he left and said that she recognized Vera as one of the robbers. She later said she was suspicious of Vera because he asked how much a bag of chips cost.

"Police responded and arrested Vera as he stood talking to his friends. Vera is 5 feet, 4 inches tall with light skin.

"He went on trial in January 1995. Bernardo Garcia was called to testify and said that the robbers put a sheet over him. Asked if there was anyone in the courtroom that he recognized as one of the robbers, Garcia pointed to a spectator.

"[One of Garcia's daughters,] however, identified Vera as one of the robbers. She said he wore a scarf over his face and it slipped down. She said, 'I could see his face completely from his eyebrows to his chin.' She said she recognized him from the neighborhood and from him coming into the store.

"Vera was convicted..."

"The case aginst Vera began to collapse when two of the defendants who pled guilty, Antonio Cepeda and Antony Mann, came forward and said Vera was not involved.

"Cepeda said that Vera did not take part. Mann said that there were eight people involved in the robbery and that Vera was not involved. The men said they were part of a gang known as the 'Grand Street Posse' that committed numerous similar heists. A New York police officer had supplied them with guns and walkie-talkies, they said.

"[The Brooklyn DA's] office began re-investigating the case and assigned it to [ADA] Karen Bennett. Bennett showed a photograph of one of the gang members to Bernardo Garcia's wife and daughter and both were shaken by the similarity to Vera.

"At the request of the [DA's] office, a state petition for a writ of habeas corpus was filed for Vera and he was released from prison on January 27, 2000. On February 10, 2000, the convictions were vacated and the charges were dismissed.

"Vera filed suit in the New York Court of Claims and in 2008, he was awarded $640,000."

[All emphases added unless otherwise noted.]

Michael Vasquez - Perjury / False Confession

Mon, 26 Jan 2026 02:46:47 +0000

Vasquez, Michael; robbery; NRE: perjury/false accusation

Suggestibility issues [700:690]; 1st Dept. 1/6/00; affirmed

"The verdict was based on legally sufficient evidence and was not against the weight of the evidence."

[960:52]; N.Y. Cty. Ct. 6/13/12; motion to vacate granted, due to confession by true perpetrator

"The first count charged that...Vasquez forcibly stole property from Janette Andruiolo...and in the 'course of the commission of the crime...displayed what appeared to be a pistol.' The second count charged that Vasquez on such date 'forcibly stole a motor vehicle from' Janette.

"In the late afternoon of January 11, 1997, Raul [Gonzalez] drove his sister's car to Broadway and West 192nd Street in Manhattan and parked. He had three passengers in the car: Janette [Raul's girlfriend], Rigo Jr., and his father Rigoberto Gonzalez ('Rigo'). Raul and Rigo left the car to enter a building. Rigo Jr. remained in the car with Janette. At about 4:45 p.m., a man approached the car displaying what appeared to be a gun, ordered Janette and Rigo Jr. out of the car, and drove off with the car and Janette's purse which was in the car.

"While all parties agree that the events described above occurred, the parties present alternative narratives of what else took place at or around the time in question, especially as to the roles of the four passengers in the car and Vasquez.

"Vasquez's story was that...shortly before the day of the crime, [he] ran into an acquaintance...he then knew as 'Chase' whom he had befriended several years earlier...'Chase' visited Vasquez at Rigo's apartment and met Rigo who, independent of Vasquez, engaged 'Chase' to hijack the car where Rigo knew Paul would have left the $16,000 he was bringing to purchase a kilo of cocaine from Rigo...Although Vasquez...was not privy to such conversation, he suspected after the crime that Chase might have been involved.

"In 2011, about fourteen years after his conviction and upon having been transferred to Coxsackie state prison, Vasquez encountered his old friend 'Chase'...Only at that time did Vasquez learn that Charlemagne was 'Chase's' real name. When Charlemagne volunteered that he, Charlemagne, was the robber who displayed what appeared to have been a gun, forced Rigo Jr. and Janette out of the car, drove the car away and split certain proceeds of such robbery with Rigo, who had put him up to do the robbery."

[Charlemagne testified to the above at Vasquez's motion hearing.]

from NRE synopsis (by Maurice Possley):

"Police were called and Andruiolo gave a description of the robber. She said her purse, containing $700 from her just-cashed paycheck, was in the car. The following day, Andruiolo told a detective that the robber was Michael Vasquez. Although she did not know Vasquez (a fact which she hid from police), she identified him because her boyfriend, Raul, told her that Rigo had told him that Vasquez, 40, was the robber. Police pulled a booking photograph of Vasquez and, in February, prepared a photographic lineup. Andruiolo selected Vasquez's photograph and subsequently identified him in a live lineup."

"Vasquez went on trial in [Manhattan] in September 1997. The prosecution acknowledged that the purpose of the visit to 192nd Street was a drug deal. Andruiolo testified that she was not aware of the reason for the stop or that her boyfriend, Raul, was involved in the drug trade. She said she broke up with him when she found out he was a drug dealer. Andruiolo identified Vasquez as the robber in court."

"Although Vasquez did not testify at his trial, he maintained that he was innocent and suspected he had been set up. While in New York, Vasquez was staying with Rigo, who was engaged in the drug trade. Rigo Jr., a college student, lived with his father and occasionally helped out in his father's drug business by serving as a driver or making collections and deliveries."

"Vasquez's attorney, Herbert Moreira-Brown, then filed a post-conviction motion for a new trial, and in December 2011, a hearing commenced...Rigo was dead, but Rigo Jr., Raul, Andruiolo, and Charlemagne testified.

"Andruiolo testified that she was no longer sure of her identification and admitted that Raul gave her Vasquez's name. She continued to deny that she knew there was a drug transaction, but Raul testified that the $16,000 was in Andruiolo's purse. Raul testified that he gave a description to Andruiolo so she could identify Vasquez."

"None of the men involved faced any charges from their involvement because the statute of limitations for robbery had run out.

"On June 13, 2012, [Manhattan] Judge Lewis Bart Stone granted Vasquez's motion and vacated his convictions. Vasquez was released on bond on June 30, 2012. On December 21, 2012, the prosecution dismissed the charges."*

[* So, the prosecution left Vasquez 'hanging' for nearly six months, before finally dropping charges.]

"In 2013, Moreira-Brown filed a lawsuit on behalf of Vasquez in the New York Court of Claims, seeking compensation from the City of New York. As of October 2015, the lawsuit was pending. Vasquez also filed a federal civil rights lawsuit, but it was dismissed."

[All emphases added unless otherwise noted.]

Jerome Thagard - Perjury / False Confession / Officer Misconduct

Mon, 26 Jan 2026 02:46:26 +0000

Thagard, Jerome; murder; NRE: perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

317 F.Supp. 669; W.D.N.Y. 7/3/18; civil suit

"On the evening of April 29, 2009, sometime after 8:00 P.M., [Joseph] Northrup and his girlfriend, Suzanne Grover...engaged in a verbal altercation at their residence before Northrup fled the house and ran through the nearby housing projects...Grover pursued him on foot...Northrup ran through a 'big group of people' standing in the back of the housing projects, and then engaged in a conversation with another individual...Grover disengaged her pursuit and left the housing projects...She then entered a Jeep driven by her sister, Amanda Basile...Basile's friend, Christian Picone...and Grover's three-year-old son rode as passengers...Basile and Picone had followed Grover after she and Northrup fled from the residence.

"After Basile, Picone, and Grover drove away, they soon spotted Northrup again, at which time Grover left the Jeep and once again gave chase into an empty lot...Basile and Picone parked the Jeep in a nearby parking lot...Suddenly, a male individual (the 'shooter') ran up to the driver's side door, and asked Basile if everything was all right and whether he should 'go over there and shoot [Northrup].'...Basile and Picone both observed that the shooter was carrying a gun in his hands...Basile was confused by the shooter's question, and before she could fully react, the shooter began to run towards Grover and Northrup...Basile believed that she heard other people 'in the background screaming' the name 'Jerome.'

"As Grover and Northrup reengaged in their verbal dispute, the shooter appeared from behind Grover carrying a gun...The shooter declared that he had been told that Northrup was bothering the girls...Northrup approached the shooter and stated that 'he's not the only one with guns.'...The shooter then fired his gun several times at Northrup..."

"Basile provided an affidavit averring that [Buffalo Police Department Detective Mark Lauber] threatened to arrest her if she did not identify someone in the photo array as the shooter...Basile, who was 16 years old at the time...also averred that she had identified [Thagard] as the shooter, [and Lauber] told her that Grover had identified the same person...Although Basile had been unsure as to whether she correctly identified the shooter, learning that Grover selected the same individual 'convinced' her that she had done so...Grover also submitted a statement to the police indicating that [Lauber] told her that another eyewitness had already identified one of the six individuals presented in the photo array before she identified [Thagard] as the shooter...Instead, she explained that she believed the shooter was of Puerto Rican descent, and that she picked the individual who most closely resembled a Puerto Rican individual...[Thagard's] motion to vacate his conviction was granted on the consent of the [DA's] Office."

from NRE synopsis (by Maurice Possley):

"Police questioned two teenaged girls who were sitting in a car about 100 yards away* from the shooting. One was so traumatized by what she saw that she could not speak. When a detective asked her to write down what she saw, her writing included the word 'Philadelphia.' The detective assumed the girl was saying that the gunman was from Philadelphia Street, which was near the shooting."

[* Well, here we go again: Imagine standing at one end of a football field, and being able to tell who's doing what at the other end. That'd ridiculous: From that distance, you cannot discern one person's face from that of another.]

"Detectives determined that 16-year-old Jerome Thagard, who had a prior arrest on a shoplififting* charge that was later dismissed, lived on Philadelphia Street not far from the scene of the murder. Police said Northrup's girlfriend and the two girls all identified Thagard as the gunman in a photographic lineup."

[* So, this kid's supposedly gone from being a (aupposed) shoplifter, right to being a murderer?]

"The following day, police arrested Thagard...and charged him as an adult with second-degree murder. When Thagard's photograph was shown on television, a woman called police and said Thagard had robbed her at gunpoint the day before Northrup was killed.

"Thagard went on trial in Erie County...in January 2010. Northrup's girlfriend and the two girls who were in the car all identified Thagard as the man dressed in a dark hooded sweatshirt who shot Northrup. Northrup's girlfriend said the gunman asked her, 'Do you want me to shoot him?' and then began firing.

"Thagard did not testify or offer any alibi witnesses. On January 25, 2010, a jury convicted him of second-degree murder and he was sentenced to 25 years to life in prison.

"Thagard then went on trial on the armed robbery charge. The victim admitted that Thagard only looked like the man who robbed her. Thagard's attorney, John J. Molloy, presented evidence that the woman's cell phone had been stolen, along with her purse, and that two calls were made from the cell phone shortly after the woman was robbed. One was to a taxi company and the other was to a known member of the 10th Street Gang, a Hispanic street gang active in the area of Northrup's murder. Molloy tracked down the driver of the cab who responded to the call and the driver said that he picked up two Hispanic men. Thagard, who is African-American, was acquitted by a judge who heard the trial without a jury.

"In the summer of 2013, the U.S. Attorney's Office in Buffalo was conducting an investigation of the 10th Street Gang and learned that ballistics evidence showed that the bullets used in the shooting of Northrup and the bullets recovered from two other shootings were fired from the same gun. One of the shootings occurred after Northrup was killed and Thagard was in police custody. Moreover, the gun was tied to members of the 10th Street Gang. "The information was passed to Buffalo police detectives and the Erie County [DA's] Office, which conducted a reinvestigation of Northrup's murder. Molloy, Thagard's defense attorney, interviewed the three eyewitnesses and all recanted their identifications of Thagard as the gunman.

"Northrup's girlfriend told Molloy that she was shown a photographic lineup and told detectives the gunman was not in the lineup. She said the detectives yelled at her and said that one other witness had identified one of the men in the lineup as the gunman. She told Molloy that she then identified the person who most looked like the gunman, and that was Thagard. Molloy also learned that when one of the girls had written down 'Philadelphia' when she was questioned after the shooting, all she meant was that she and her girlfriend had driven on Philadelphia Street to get to the location where the shooting occurred -- not that the gunman lived on Philadelphia Street."*

[* So, to briefly re-cap this 'detective' work: 1) One witness writes down the word 'Philadelphia;' 2) a cop assumes this means the perp lives on nearby Philadelphia Street, and looks for arrestees who reside there; 3) having found a one-time arrest for Thagard for shoplifting, the authorities figure they must have their murderer.]

"The two girls who were in the car signed sworn statements saying they were pressured by detectives to select a photograph in similar lineups and they both selected Thagard because he looked most like the gunman.

"Thagard told authorities that he was at home watching television with his mother at the time of the shooting and that he was on the telephone. The prosecution determined the alibi was credible. In December 2013, Molloy filed a motion to vacate Thagard's conviction and on December 9, 2013, Thagard was released on bond.

"On January 13, 2014, the Erie County [DA's] Office joined in the motion to vacate Thagard's conviction and dismissed the murder charge against Thagard.

"Thagard subsequently filed a claim for compensation with the New York Court of Claims and settled for $825,000. In April 2016, he filed a federal civil rights lawsuit. In 2019, he settled part of the lawsuit with the city of Buffalo for $250,000."

[All emphases added unless otherwise noted.]

Frank Smith, Jr. - Perjury / False Confession

Thu, 23 Oct 2025 02:38:29 +0000

Smith, Jr., Frank; drug possession/sale; NRE:

perjury/false accusation

[762:90]; 1st Dept. 12/4/90; affirmed

"[Smith's] guilt flows naturally from the evidence, which established that he was an active, albeit furtive, participant in the sale of narcotics. [He] had no direct contact with police, and while there was no evidence that he physically possessed the drugs, his participation in the sale was established by strong circumstantial evidence, including the use of [his] apartment and proof that he profited from the transaction."

[984:634]; Court of Claims 12/2/13; civil suit

"[I]n 1991, it was alleged that a man named Frank Guerra told Frank Smith's mother that he, not her son, was the individual who conspired to sell drugs..."

"On June 19, 2003, Justice Leslie Crocker Snyder...vacated the judgment and dismissed the indictment..."

from NRE synopsis (by Maurice Possley):

"On May 1, 1987, 20-year-old Frank Smith Jr. was arrested in Brooklyn...on a charge of arranging a $4,500 cocaine deal with an undercover narcotics agent. Smith was accused of delivering cocaine to a middleman, who sold it to the undercover agent on April 7, 1987.

"On May 4, 1989, Smith was convicted..."

"In 1992, a man named Frank Guerra told Smith's mother that he -- not her son -- was the 'Frank' who had conspired to sell drugs. However, Guerra would not provide a sworn statement.

"In February 1999, Jerry Capeci of the New York Daily News reported that on September 5, 1988, federal authorities had tape-recorded a suspect in another investigation noting how Smith's arrest had devastated his mother.

"'She took it very bad. She's taking it worse and worse as time goes on, 'cause the. . .kid is innocent,' said Salvatore Fusco. Capeci said Fusco was a member of the Bypass gang, a burglary ring to which Smith also belonged. Capeci said gang members targeted banks and jewelry stores in Brooklyn, Queens, and Long Island.

"Moreover, Capeci reported that in late 1991 or early 1992, former Gambino underboss Salvatore 'Sammy the Bull' Gravano told federal authorities that Smith had been mistaken for 'another guy named Frank'* and was innocent."

[* So, it appears that someone in law enforcement confused Frank Smith for Frank Guerra, simply because of their shared first name. The fact that this actually resulted in conviction would seem to indicate a lack of proper investigation by the police and the defense.]

"Capeci also reported that in 1995, mobster Frank Gioia Jr., who was cooperating with the FBI, told authorities that mob associate Frank (B.F.) Guerra was a drug dealer for Theodore Persico Jr., a nephew of organized crime boss Carmine Persico.

"Capeci quoted FBI documents as saying Gioia told the Smith family that Guerra was the other Frank. During the summer of 1992, Guerra had considered turning himself in, but a mob superior ordered him not to, according to the documents.

"Capeci reported that after he began asking about the Smith case, federal authorities contacted the New York City Office of the Special Narcotics Prosecutor and an investigation was opened.

"In June 1999, an attorney for Smith moved to vacate Smith's conviction on the basis that Guerra's admission to Smith's mother was newly discovered evidence. On June 19, 2003, Kings County...Justice Leslie Crocker Snyder granted the motion and dismissed the case.

"In the meantime, Smith had begun cooperating with federal authorities. He had pled guilty in 1992 to a federal charge of conspiracy to burglarize a bank, and was sentenced to three years to be served consecutively to the sentence he was serving for the narcotics case. In 2001, the Brooklyn [DA] in conjunction with the U.S. Attorney's Office indicted Smith for killing two men, Carmine Variale and Frank Santora.

"On January 16, 2003, Smith signed a formal cooperation agreement. He pled guilty in federal court to a violation of the Racketeer-Influenced Corrupt Organizations Act, alleging his involvement in seven murders. Pursuant to that agreement, Smith pled guilty in Kings County...to manslaughter...for the Variale and Santora homicides. He was sentenced to six to 12 years in prison to run concurrently with his narcotics case sentence.

"By the time that his narcotics conviction was dismissed, Smith had served nearly all of the 15-year minimum sentence on that case. After receiving credits for three years of this time toward the bank burglary case and nearly 12 years toward the sentence in state court for the Variale and Santora homicide case, Smith was released and promptly entered the [U.S.] Federal Witness Protection Program.

"Smith later left the program after he was accused of stealing plasma televisions from a Walmart. He also sought compensation in the New York Court of Claims based on his wrongful narcotics conviction. That claim was denied."

[All emphases added unless otherwise noted.]

Eric Smokes - Perjury / Prosecutor and Police Misconduct.

Mon, 26 Jan 2026 02:47:38 +0000

Smokes, Eric murder NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant

[564:20] 1st Dept. 9/13/90 affirmed

"[Smokes'] conviction was supported by the weight of the evidence. Three acquaintances of [Smokes] identified him as the assailant who viciously knocked the 70-year-old victim to the ground, setting up the robbery...[Smokes] presented an alibi...The eyewitness version of the crime was supported by a fourth witness, who claimed that [Smokes], one day after the incident, implicated himself in a killing.

"We also find no merit to [Smokes'] contention that the proof of similar prior uncharged crimes committed by [him] as his accomplice were improperly admitted."

from NRE synopsis (by Ken Otterbourg):

"Just a few minutes after midnight, on New Year's Day 1987, Jean Casse was beaten and mugged on West 52nd Street in Manhattan...Casse was 71 years old, a tourist from France visiting the city with his wife. He died at 9 a.m. at St. Luke's-Roosevelt Hospital.

"The Casses had been on their way to Times Square, a few blocks south, when the attack occurred outside Ben Benson's, a popular steakhouse.

"James Head, a waiter at the restaurant, told police that he saw Casse being attacked as he lay on the ground. Head said he saw three or four young Black men surrounding Casse. One of the assailants he described as a 'tall skinny kid with a black ski parka and ski cap,' and a 'smaller kid' with a blue jacket straddled Casse and went through his pockets, taking his billfold.

"Dan Melkonian and Eloise Yellen, who were co-workers, told police they saw part of the attack as they walked down West 52nd Street. Yellen said she was about five feet away from Casse and saw him get hit in the jaw. She said she did not get a good look at the assailant's face but described him as a tall, skinny Black male with a short afro. She and Melkonian each estimated his height as about 6'1" or 6'2".

"Throughout New Year's Eve and into the next day, the police had fielded calls and complaints about large groups of young Black men attacking and robbing people in and around Times Square and elsewhere. In one incident, which took place on the subway around 1 a.m., a group of young men were said to have chanted 'Howard Beach,' an apparent reference to the racially motivated shooting death 12 days earlier of a young Black man in the Howard Beach neighborhood of Queens.

"Detective George Delgrosso, with the Midtown North Precinct of the [NYPD], led the investigation. He would later say that his first impression of the case was a 'loser,' with a lack of witnesses and a contaminated crime scene.

"On January 2, Delgrosso caught an apparent break. The police in Midtown...had arrested four young men -- including [16-year-old #1] -- during an attempted robbery on West 47th Street. [He] told Delgrosso that he had talked with an acquaintance named Eric Smokes earlier that day and asked Smokes, whom [he] initially referred to as 'Smokey,' if he was going into Manhattan. According to [16 y/o #1] Smokes said he wasn't because he 'had caught a body,' meaning that he thought he had killed someone. In the interview, according to Delgrosso, [he] described a method of robbery used by him and his friends that appeared to match the attack on Casse.

"[16 y/o #1] didn't provide police with an address for Smokes. Smokes had never been arrested, so the police had no photo for [16 y/o #1] to review. Instead, on January 3, Delgrosso had [him] look at photos of possible associates of Smokes, who was 19 years old. Among the people [16 y/o #1] identified was [16 y/o #2], who [he] said was Smokes's best friend. [He] said that he, Smokes, and [16 y/o #2] had committed robberies together, although he did not offer any specific instances.

"Later that day, the police received an anonymous tip that Casse's assailant was a man named Lee Koonce. The caller said that Koonce was at an apartment in the Bronx, and that he still had Casse's wallet. There is no indication in police records that officers followed up on this tip. Delgrosso would later testify the tip was discounted because the caller referred to a wallet, rather than a billfold."*

[* This contention is absurd, given that the words 'wallet' and 'billfold' are synonymous.]

"The police brought Smokes in for questioning at around 10 p.m. He was not read his Miranda rights.* Smokes, who lived in Brooklyn, said he had gone into Manhattan with [16 y/o #2], Niles Williams, Michael Barry, and Todd Carson at about 10:30 p.m. on New Year's Eve. He said they were at 47th Street when the ball dropped, and then began making their way south, toward Madison Square Garden."

[* This was also true for Nickel. ]

"Delgrosso asked Smokes whether he saw any robberies or rip-offs that night. Smokes said he saw 'a lot of craziness,' including a fight and a shooting. According to Delgrosso, Smokes agreed to have his photograph taken the detective told him 'he had nothing to worry about.'

"Around midnight, Delgrosso left Smokes with another officer and picked up [16 y/o #2] at the apartment where he lived with his mother. [He] said he was with Smokes and the other young men on New Year's Eve. Delgrosso received permission from [his] mother to bring her son in for questioning.

"[16 y/o #2] was not read his Miranda rights and was questioned without a parent present. His account to Delgrosso lined up with the statement made by Smokes. Delgrosso then falsely told [him] that Smokes had admitted to hitting someone on New Year's Eve. [16 y/o #2] said it wasn't an old man, but a young guy on 41st Street.

"Delgrosso then returned to Smokes and told him about [16 y/o #2's] statement. According to Delgrosso, Smokes now admitted to hitting somebody, but he said he didn't rob that man or Casse.

"Delgrosso went back to [16 y/o #2] and tried to get him to cooperate with the investigation and admit to being on West 52nd Street. The interviews were not recorded.* During the interrogation, [he] wasn't placed under arrest, but he was also never told he was free to leave until the police drove him home."

[* Also true of the Nickel case.]

"While Delgrosso was interviewing [16 y/o #2], Smokes had told another officer that an acquaintance had said he had mugged someone and taken a lot of money. Smokes allegedly said he would ride around in a surveillance van and point this man out to the police. It's unclear whether this happened, but Smokes was released early on the morning of January 4.

"On the morning of January 8, police brought in [16 y/o #3] as a witness. The records disclosed by the prosecution at trial didn't indicate how [he] came to their attention.

"A detective told [16 y/o #3] that he was a possible suspect and falsely said that he had [16 y/o #3's] photograph, which he planned to show to other witnesses to see whether they could place him at the crime scene. According to the detective, [he] looked at about 25 photographs of possible suspects, and selected a picture of someone named 'Eric' that he had scene walking from the crime scene. He also was said to have picked a photo of [16 y/o #2] as being the young man he saw standing over Casse and taking the elderly man's money.

"[16 y/o #3] had said he had been at Times Square with his cousins, [16 y/o #4] and 18-year-old Andre Houston, and Tyrone Bess. Police brought those three in to look at photos, although the young men would later testify that officers said they themselves might also be considered suspects. Bess could not make an identification. The Houston brothers each identified Smokes and a young man named Robert Moore, who was already in custody on an unrelated robbery. Police arrested Smokes and [16 y/o #2] that day. The police then conducted live lineups with [16 y/o #2], Smokes, and Moore.

"Bass was unable to make any identifications. The Houston brothers now identified [16 y/o #2] from his lineup. So did [16 y/o #3], although he did not identify Moore in his lineup. Andre and [16 y/o #4] continued to claim Moore was present during the robbery.

"[The Houston brothers], and [16 y/o #3], each selected Smokes from his lineup. Yellen did not make an identification from the Smokes lineup.

"A grand jury indicted Smokes and [16 y/o #2] on January 12, 1987...Prosecutors did not ask the grand jury to vote on an indictment against Moore.

"The next day, police arrested 19-year-old Kevin Burns on a probation violation and also recovered several weapons. During an interview with the police, Burns claimed to have information about the Casse murder. Initially, he said that a man named 'Guy Tony' had hit Cass with a plastic bat or horn. But later, on June 30, 1987, Burns told Delgrosso that his previous statements were false, and he implicated Smokes and [16 y/o #2] in the robbery and murder.

"By then, the pre-trial hearings for Smokes and [16 y/o #2] were underway. They had moved to sever their trial, but Justice Clifford Scott of [Manhattan]...denied the motion, and the joint trial began on July 6, 1987.

"The state sought to introduce evidence of uncharged crimes allegedly involving Smokes and [16 y/o #2]. Attorneys for Smokes and [16 y/o #2] cried foul and moved to dismiss the case, arguing that prosecutors -- without permission from a judge -- had already presented [16 y/o #1's] testimony about this issue to the grand jury. Justice Scott denied the motion, and said that [16 y/o #1] could testify about these actions, because they went to motive and intent.

"There was no physical evidence connecting Smokes and [16 y/o #2] to the crime. In addition, Smokes did not match the description of the principal assailant given by several witnesses. He was 5'10" and 230 pounds, not 'tall and skinny.'

"[16 y/o #1] and the Houston brothers were all arrested and compelled to appear at trial as material witnesses.

"[16 y/o #4] testified that he saw 'Smokey,' whom he had seen hanging out at the Albee Square Mall in Brooklyn, hit Casse with a left-handed blow. He testified that he saw [16 y/o #2] leaning over Casse but said he couldn't see whether [16 y/o #2] was rummaging through his pockets.

"[16 y/o #4's] testimony had several holes. He said he was at 42nd Street when the ball dropped at midnight, and there was no explanation how he made it through more than 10 crowded city blocks to see Casse's attack at 12:03 a.m. He also testified that he saw Casse and his wife leave the restaurant just before the attack, but the couple hadn't been in the restaurant. They were simply walking down the street.

"[16 y/o #4] testified that he and his brother and their friends made it to Manhattan from Brooklyn at around 11 p.m. (His brother had testified they arrived around 8 p.m.) [16 y/o #4] said he saw Smokes hit Casse and then saw other people in the crowd, including Warren, go through Casse's pockets. He testified on direct examination that he and some of his friends ran and then returned to the crime scene to see Casse being loaded into an ambulance. On cross-examination, he said he came back alone.

"[16 y/o #4] testified that he saw Casse get hit and fall to the ground. He said that he saw Smokes walk away after Casse fell but that he did not see Smokes hit the man. [He] testified that he saw [16 y/o #2] take Casse's wallet. He said he recognized both Smokes and [16 y/o #2] from Albee Square.

"Melkonian testified for the state. He said he had not clearly seen the face of the man who hit Casse, but the man was taller than he was. Melkonian was 5'11". (Smokes was 5'10", and [16 y/o #2] was 5'8".)

"Melkonian also testified that the police never asked him to view a lineup. Similarly, Renee Casse testified that although she did not see her husband get hit, she saw a man going through his pockets. She said she pulled on that man's hair and tried to stop him. She testified that she didn't see his face and never viewed a lineup. In addition, Casse testified that her husband was bleeding badly as he lay on the sidewalk. There was no indication that the police examined the clothing worn by Smokes and [16 y/o #2] on New Year's Eve.

"[16 y/o #1] testified that he was around Times Square with a relative and several friends, including Edward Samuels, when he ran into Smokes sometime before midnight. He said he was at 43rd Street or 44th Street from 11:45 p.m. to 12:10 a.m., but was near the restaurant just a few minutes later and saw Smokes again, now with [16 y/o #2]. [16 y/o #1] said he watched Smokes hit Casse in the face. He also said that Smokes had stolen Casse's wallet before he and [16 y/o #2] fled through a nearby passageway. Burns also said that he had spoken with Smokes 'quite a few times' since New Year's Eve and that Smokes had made vague threats against [16 y/o #1] if he testified.

"Delgrosso, the lead detective, testified about the investigation. He said that [16 y/o #1], despite being arrested for a similar crime, was never considered a suspect. He also said he hadn't followed up on the initial statements from [16 y/o #1] until more than five months after they were made and that [his] accounts often contradicted each other.

"Detective Richard Chartrand, who had received the tip about Lee Koonce, testified about his role in the investigation.

"Attorneys for Smokes and [16 y/o #2] had wanted to ask Chartrand about the timing of the tip, to show that the police had ignored a solid lead at the beginning of the investigation. But Justice Scott barred that line of inquiry. 'I'm not going to let him tell you about every little rumor or every little thing he heard, no way,' he said.

"[16 y/o #1] testified about his conversation with Smokes on January 2 and said another man named Edward Williams was also present at the time. [He] said that he and Smokes and [16 y/o #2] had committed 12 or so similar robberies. During cross-examination, [he] was unable to provide any specifics on these alleged crimes. Although [he] was under a cooperation agreement with prosecutors, he said he was still committing robberies at the time of the trial.

"The jury began deliberations on July 14, 1987. On July 16, it told Justice Scott that 'We would like the court to know that we did not come to a decision lightly but with great emotional turmoil.'

"The jury convicted both Smokes and [16 y/o #2]..."

"Both men appealed their convictions, which were upheld in 1990. [16 y/o #2] filed a petition for a writ of habeas corpus...in 1997. It was denied in 1999.

"In 2005, [16 y/o #1] wrote to Smokes in prison and said he had testified falsely against him and [16 y/o #2] because of his addiction to cocaine and pressure from police and prosecutors. [He] followed up with an affidavit in 2007, and in 2016.

"[16 y/o #2] was released on parole on December 19, 2007. Smokes was paroled on July 5, 2011.

"On July 17, 2017, Smokes and [16 y/o #2] moved to vacate their convictions based on newly-discovered evidence, actual innocence, and prosecutorial misconduct. Both men were now represented by James Henning.

"The motion was based on numerous affidavits by witnesses and others about the testimony at trial and the investigation into the crime. They included:

"Edward Williams said in an affidavit that [16 y/o #1], whom he had once considered to be his best friend, had testified falsely about the day after the robbery-murder. Williams said he was with [16 y/o #1] the entire day and that they never ran into or spoke with Smokes.

"[16 y/o #1] said in his own new affidavit that he falsely testified at the trial. He said police and prosecutors fed him information about the crime and told him he would never have to testify. [He] said that because he wasn't close to either Smokes or [16 y/o #2], he didn't feel bad about falsely implicating them.

"Barry Hall said in an affidavit that he was with Smokes and [16 y/o #2] on New Year's Eve and vouched for his friends' whereabouts that night. The police listened to his statement but tried to intimidate him.

"Moore said that an [ADA] approached after the grand jury failed to indict him and said she could help him clear his name on the other charges he was facing if he testified against Smokes and [16 y/o #2]. Moore said he told the prosecutor that he hadn't been present and didn't know either man.

"Burns said in an affidavit that he had testified falsely and never saw Smokes and [16 y/o #2] attack Casse. Burns said he was actually in Brooklyn at the time of the crime. Burns said he implicated Smokes because of a longstanding dispute between the two men and a chance to help his own legal problems. He also said that police and prosecutors fed him information about the case and that he was given cigarettes in exchange for his testimony.

"[16 y/o #4] recanted his testimony as well. He said that he and his cousins didn't witness the crime they came upon Casse after he was already lying on the street. He also said that neither he nor his cousins knew Smokes or [16 y/o #2].

"The [Manhattan DA's] Office opposed the motion. Justice Stephen Antignani held hearings in 2018 and 2019, receiving testimony from the witnesses and others who said they had falsely testified about the evens of New Year's Eve. [16 y/o #3] had died in 2017.

"The state said the affidavits and testimony were unreliable. It ridiculed Burns's claim that someone had bought him cigarettes after he testified as 'bad fiction.' Jennifer Gonnerman, a reporter for the New Yorker magazine, found a receipt from the prosecutor for cigarettes on the day that Burns testified in the city's municipal archives.

"Neither Smokes nor [16 y/o #2] had testified at their trial. At the hearing, [16 y/o #2] said he lied to the parole board and falsely said that he committed the crime because he believed he would otherwise not be released.

"Smokes testified that he also had made false statements to the parole board in order to be released from prison. He said that after his release, he had reached out to [16 y/o #1] and others involved in his conviction to find out the truth. Smokes noted that while in prison, he had received a bachelor's degree from Mercy College and a master's degree from New York Theological Seminary.

"On cross-examination, Smokes said that if he was successful in vacating his conviction, he planned to sue the city for damages. He said he was aware of the awards received by members of the Exonerated Five, who had been wrongfully convicted in 1990 and exonerated in 2002. During his testimony at the hearing about the investigation, Delgrosso said that nine years before the Casse murder, he had assaulted a fellow officer in a bar in Brooklyn. To avoid arrest, he and others made up a story about being attacked by neighborhood kids. When the truth finally came out, Delgrosso received a five-day suspension.

"On January 14, 2020, Justice Antignani denied the motion for a new trial. In a 123-page ruling, he said that the testimony from the recanting witnesses was 'misleading and evasive' and that the statements by Wiliams and others were filled with holes. He said that Delgrosso's misconduct related to the bar fight would have had little bearing on how the jury weighed his truthfulness about the murder investigation. Moreover, Justice Antignani said, the defense could have asked for information about the detective's work history.

"The ruling also said that the police had not coerced witnesses into making false statements and that the prosecutors had not pressured witnesses to testify falsely.

"Finally, the ruling said that Smokes and [16 y/o #2] had not met their burden of proving actual innocence. The ruling noted the testimony of the Houston brothers that placed Smokes and [16 y/o #2] at the crime scene. It also said their statements to the parole board were strong evidence of guilt, and he noted their financial incentive to have their convictions vacated.

"Smokes and [16 y/o #2] moved for permission to appeal the ruling. Their filing said that the state had withheld information about [16 y/o #4]. He had recanted to investigators with the [DA's] office in early June 2018, then quickly repudiated his recantation a few days later. The state did not disclose these conversations to the defense, and Houston was never called as a witness at the hearing for a new trial.

"On June 25, 2020, the...First Department...granted a request by Smokes and [16 y/o #2] to appeal the ruling. On April 4, 2022, prior to the filing of the appeal itself, the [DA's] office, now headed by Alvin Bragg, and Henning entered into a collaborative agreement to re-investigate the case, based in part on other documents disclosed by the state in this latest round of appeals.

"On October 6, 2023, the [DA's] Post-Conviction Justice Unit (PCJU) filed a letter with Justice Antignani that said it would consent to an expedited defense motion to vacate the convictions. '[We] do not take the decision. . .lightly, and come to this court with significant deference to both the jury verdict and the prior litigation,' the letter said. 'However, based on the newly discovered evidence, [we] believe that the only legally correct and just outcome is to move to vacate these convictions.'

"The letter outlined the results of the investigation, which included the discovery of undisclosed evidence and additional witness interviews.

"The defense motion, filed on November 15, 2023, gave additional details and said the state's actions had led to two wrongful convictions.

"During the hearings on the motion for a new trial in 2018-2019, the state had produced previously undisclosed documents indicating that the police had twice interviewed a man named George Samuels, who Burns had said was with him on New Year's Eve. Delgrosso testified at trial that he showed Samuels some photos but couldn't recall the substance of the interviews. The police records contained no notes of these interactions.

"In a joint interview with the defense and prosecutors in 2022, Samuels said he was with Burns most of the night and knew Smokes and [16 y/o #2]. He said that he and Burns never made it up to West 52nd Street. Samuels said he told the police that Burns's account was false. Samuels had previously told a defense investigator that the police threatened to implicate him in the murder.

"The defense motion said that the state had failed to tell attorneys for Smokes and [16 y/o #2] about the interviews with Samuels, and that prosecutors failed to correct false testimony by Burns about who he was with on the night of the murder. Justice Antignani had discredited [16 y/o #4's] recantation, but the new review said additional documents gave the recantation more weight. [16 y/o #4] said he was made to feel like a suspect, not a witness, and that he named Smokes and [16 y/o #2] to avoid getting arrested himself. Newly discovered police notes show that [16 y/o #2] gave detectives names of the people who could corroborate his statement that he was not involved in the crime. They also appeared to support [16 y/o #4's] statement that he was told [16 y/o #2's] name and shown his picture bfore making an identification.

"The re-investigation also revealed how police found [16 y/o #3]. His mother called a police officer she was dating after finding newspaper clippings about the Casse murder in her son's bedroom. That officer then got in touch with Delgrosso.

"This information was not included in Delgrosso's records, although the boyfriend had submitted a separate report. At trial, [16 y/o #3] testified falsely that he didn't know about this chain of events, and the prosecutor failed to correct this testimony, the motion said

"The motion and letter also said that [16 y/o #4] had reasserted his recantation. [He] said in an interview with Henning and members of the PCJU team that the police told him when he was questioned that 16 y/o #1 had already made an identification, and that if [16 y/o #4] didn't get on board he could be charged in the murder. Significantly, [he] said in the interview that he didn't know Smokes or [16 y/o #2] and had never seen them before going to the police station.

"'A central aspect of the [prosecution's] case was the identification witnesses' supposed familiarity with the defendants,' the motion said, claiming that these false relationships were the result of coercive police interviews, supported by incomplete record-keeping and dissembling of the officers during their trial testimony. 'As [16 y/os # 3 and 4] have both acknowledged, this familiarity was a fabrication.'

"The re-investigation also found that prosecutors failed to disclose their efforts to investigate an alternate suspect known as J.S. Burns had mentioned this man in an early interview with police but had later retracted that accusation. It also found that the state failed to disclose other evidence: a transcript of a controlled call that [16 y/o #1] made to [16 y/o #2] on January 3, 1987, and assistance he received with an unrelated charge [he] received after testifying before the grand jury. Separately, the re-investigation found that Burns had testified falsely about his criminal record.

"In a response, the state said it did not agree with everything in the defense motion but that it still supported vacating the convictions and dismissing the charges against Smokes and [16 y/o #2].

"On January 31, 2024, Justice Antignani granted the motion for a new trial and dismissed their charges. In the order, he said that the new information about Samuels, the coercive tactics used on [16 y/o #4], and an alternate suspect warranted a new trial, four years after he denied their previous motion.

"'Thirty-something years later, you are still fighting for your right, for a court to say to you that those convictions were not warranted, and so today to you I am going to grant that,' he said.

"In a statement, Bragg said: 'Eric Smokes and [16 y/o #2] lost decades of their life to an unjust conviction. I am inspired by the unyielding advocacy of Mr. Smokes and [16 y/o #2] and hope that today's decision can finally bring them a measure of comfort and justice.'

"Speaking at a news conference later that day, Smokes said the convictions had been the result of 'tunnel vision.'

"'You don't try to pressure young people,' he said. 'If you just follow the basic steps of police work, you'd get the job done.'

"In February 2024, Smokes filed a claim in the New York Court of Claims seeking compensation for his wrongful conviction."

[All emphases added unless otherwise noted.]

Wayne Oxley, Jr. - Perjury / Prosecutor Misconduct

Mon, 26 Jan 2026 02:47:56 +0000

Oxley, Wayne, Jr.; murder; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, misconduct in interrogation of exoneree, perjury by official, prosecutor lied in court

Suggestibility issues

[883:385]; 3rd Dept. 7/30/09; reversed, due to evidentiary error

"Following a lengthy trial, [Oxley] was convicted of intentional murder in the second degree for beating the victim to death with a baseball bat.

"The evidence was legally sufficient to support the conclusion and the verdict was not against the weight of the evidence...Hours after the victim's death, the police found a baseball bat in [Oxley's] basement. The bat had the victim's hair and blood on it, as well as forensic evidence that was consistent with [Oxley's] DNA. A neighbor testified that she saw [Oxley] walking toward the victim's house on the night the victim died. Other witnesses testified that [Oxley] was suffering from personal problems and a crack cocaine addiction, and he was upset with the victim for cheating him on recent drug transactions. An inmate testified that [Oxley] made a jailhouse admission to the crime.

"County Court [Jerome J. Richards] erred in excluding evidence of third-party culpability.

"One witness would [have testified] that she saw a man called Chase at the scene of the crime and threatening the victim only a few hours before the murder. Less than 48 hours prior to the murder, Chase had threatened that he would kill the victim. Six months after the murder, she heard Chase admit that he committed the murder, stating that he made good on his previous threat to beat the victim's brains in with a bat. An inmate incarcerated with Chase was prepared to testify that Chase told him that he, and not [Oxley], committed the murder. Another inmate who overheard the conversation was also willing to testify. A woman who was apparently living with Chase would testify that a few nights prior to the murder she went to the victim's house to get away from Chase. When Chase appeared at the victim's house, the victim refused to let Chase in and threatened Chase with a baseball bat, prompting Chase's response that the victim would be sorry he got involved and that he was going to get hurt. This occurrence was corroborated by an independent witness, a local cab driver, who testified that he picked up a man fitting Chase's description at the home where Chase was apparently living, drove him to the victim's house and waited outside, where the cab driver heard yelling between his fare and an occupant of the house. The fare yelled that the victim needed to pay the money he owed or he was going to 'get beat.'"

[That 'Judge' Jerome J. Richards actually excluded all of this powerfully exculpatory evidence is astonishing. One can only guess that he was a lot like Judge Paul Czajka, a former prosecutor who simply was not going to let the facts get in the way of a conviction. It is also highly suspicious that the police apparently failed to follow the many leads pointing to Chase's guilt.]

from Records and Briefs:

[ Judge Richards closed the courtroom -- had it cleared of spectators and media -- for an entire morning. Also, 8 days after it rested, prosecution was permitted to re-open its case -- in the middle of the defense case, apparently so that it could present more inculpatory evidence.]

[114] [At a post-trial hearing, Oxley's defense counsel testified:] "'Every time I looked at [Judge Jerome J. Richards] while I was [questioning] Mr. Oxley, [Richards] had a look on his face, like [he] was not believing anything the man was saying. . .[S]everal other people in the courtroom commented on that.'"

"[T]he bias of the Court [Richards] in favor of the prosecution was clearly evident early on. This display of such bias was not the first time the Court clearly evidenced bias against [Oxley]. During discovery proceedings counsel's complaint that the [prosecution] had not fulfilled one of its discovery requirements was met sua sponte with the Court unfoundedly accusing counsel of trying to set up a false contradiction of the [prosecution's] expert for cross-examination purposes."

"Alas, there was more of this type of behavior on the Court's part. Counsel was trying to elicit testimony concerning the bat and Shannon's connection with it on the eve of the murder. There was a break in the proceedings. The Court excused the jury. There was legal argument. Counsel motioned for a recess. The following ensued outside the presence of the jury as Oxley was walked to a holding cell on his way to the bathroom:

'The witness: I don't know what the sense of me testifying is.

The Court: Mr. Manning, hold it up. Mr. Oxley.

Mr. Manning: Yes, your honor.

The Court: Just a second. Bring him back in here, Deputy Duquette. . . .

The Court: There are rules. You don't --

The witness: The rules -- I'm trying to defend myself. You will not let [115] me defend myself.

The Court: You want to testify, you are going to have to behave the way you are expected to behave. I'm not going to put up with you making a scene in this courtroom.

Mr. Manning: Be quiet, Wayne, please. The Court: There is nothing for you to say. If you don't do what you are supposed to do, I have the right to prevent you from taking the stand. And you want that to happen you keep on going on the path that you are on. Mr. Manning is here. He is doing the job he is supposed to do. You don't understand the rules. You are not expected to understand the rules. He doesn't have to like the rules. But he respects the Court. So you take your lead after him. When I make a ruling, you don't like it, you don't say anything. Understood? Understood? [Emphasis original.]

The defendant: Not really, no. I don't understand. You just told me I don't understand.

Mr. Manning: Judge, could I talk to him for a couple of minutes?

The Court: He is warned, Mr. Manning.

Mr. Manning: Could I talk to him?

The Court: You can, but he is warned.'"

"Criminal contempt in the immediate view and presence of the Court only attends an actual disruption of the Court's proceedings, a clear and present danger of disruption, or an undermining of the Court's authority and ability to conduct its proceeding...No such conduct occurred here. Oxley passed an opinion as he was being led to a holding cell with no one but the lawyers and a court officer or two present in the courtroom. However unwelcome to Judge Richards' ears, Oxley was privileged to express an opinion. It is called free speech. He obstructed nothing, threatened to obstruct [116] nothing and undermine[d] nothing. He was not on the witness stand...No jury was present...[T]his was witness tampering and intimidation. Exactly what or whose 'rule' did Oxley break? In custody, almost in a cell, Oxley disrupted nothing. Instead of calming him down and pointing out his best interest, Judge Richards called him back into the courtroom to beat him around the ears...[A] trial judge is not supposed to vent his personal spleen by confusing disagreeable comment with offense to law and further conflate both with obtruction to the trial process. Men who make their way to the bench are afflicted with all the weaknesses to which human flesh is heir. But they are supposed to be temperate and not act like an activist seeking combat...Testifying for one's life is an experience that only the wretch in the dock can appreciate. If Oxley had one transcendent right, it was...the right to take the stand with a reasonably clear head...[O]ur system of justice needs judges capable of controlling the litigants and then capable of controlling themselves.

"At the end of his testimony, counsel asked Oxley a question about Jennifer Ritchie's information regarding Shannon. The record shows an objection followed by Oxley's 'Yes.' Instead of merely striking the question and answer as he did throughout the trial with other witnesses, Judge Richards sent the jury out. Evidently not forgetting Oxley's first 'transgression,' the [117] Court said, 'you are going to tell me now he didn't hear that objection.' Retorted counsel, 'No, I am not going to say anything. He is not the only one who answers questions after objections' . . .Judge Richards said, 'You tell him this is his last warning.'...The fixation on Oxley was misplaced. Occasionally counsel himself did not hear an objection...But [he] suffered no indignity. Judge Richards made miscues, as did the [DA]...The Record clearly shows that [Oxley] behaved himself not only during his testimony, but also throughout the entire trial."

"Judge Richards told counsel that 'I caught him staring down Mr. Webb when we were on the break the other day when Mr. Webb was sitting on the stand.'...Counsel calmly replied that 'he is blind in his left eye and he's got a lazy eye. He's had two operations on one eye. . .' 'I think it's very unfair that he is being -- he has a disability with his eyes.'...Judge Richards' justification was that he wanted to make sure the courtroom was safe. 'I believe I'm entitled to that.'...Staring is in the eyes of the beholder. Where is a defendant supposed to look at his own trial?'

[118] "Earlier, Judge Richards said that he had 'received a couple of reports concerned about [Oxley's] behavior.' Counsel asked, 'reports about -- from whom?, about what?' The judge said, 'just the way he is reacting to the testimony. And he did stare down on Miss [DA Nichole M.] Duve. So, all I'm asking is that he have access to one pen and that's it. I don't want any other pens on the table.'* ...Later, defense counsel expressed concern that Haggart ([prosecution] witness) was looking at the prosecutor for answers while being cross-examined. The Court dismissed him with 'he can look wherever he wants.'...The Court also vouched for the prosecutor that she was not signaling O'Marah on cross-examination...after which it insulted counsel saying, 'you are performing for the jury. It's not going to happen.'...These curious outbursts were not isolated. During its secret session, Judge Richards unfoundedly threatened counsel."

[* What in the world do pens have to do with alleged staring? This has crossed over from biased to bizarre.]

[119] "The Court abused its discretion in permitting the People to reopen their case."

"On November 2nd Oxley was about to testify when Chief [ADA] Lesyk ...interrupted. He had information [that] 'just literally, happened this moment.'...Lesyk never explained why he was seeking a letter whose contents he had never seen, but the existence of which had been disclosed to him by Meacham 10 days before he made the application to the Court. Indeed, Lesyk did not know what was in any of the letters that Amy Jo Meacham had given to her lawyer, but he and Atty. Collins 'spoke in tandem to Amy Jo and requested that. . .if you can give us anything that is in writing, that would reduce the need to call you as a witness in rebuttal...'...The [prosecution] originally declined to call Meacham. Realizing that their case was [120] reduced to a twig, they decided to grasp at a straw. Lesyk wanted to reopen the [prosecution's] case to have 'someone saying that they heard Mr. Oxley confess to this crime.'...The [prosecution], alas, combined with Judge Richards to get more evidence to throw at Oxley...[T]he record contains no credible justification for the [DA] not to have brought Haggart and Meacham forth on her first direct case, nor does it evince any excuse for Judge Richards, who was supposed to preside impartially...This was not a request to reopen based on existing newly-discovered evidence. It was the enlistment of a judge to act as a co-prosecutor and grand jury and judge in quest for additional evidence against Oxley."

[122] "Judge Richards directed everything. He ordered Lesyk to telephone Ducharme [Meacham's lawyer] and 'go prepare a subpoena. . .duces tecum.' He then ejected the press and the public from the courtroom...The subpoena whose issuance Judge Richards directed was tantamount to an illegal grand jury subpoena issued for the sole purpose of bolstering the proof supporting an indictment filed a year earlier. It was also tantamount [123] to an illegal trial subpoena because it was not seeking existing evidence...It sought to ascertain if a witness with evidence existed and whether he would reveal it, and, 'whether or not it's something that they believe is useful.'...[This was a] 'fishing expedition.'...The [prosecution's] license to fish ended with the grand jury's indictment." [Emphasis original.]

[127] "Judge Richards acted as a 'one-man grand jury.' He used his power to ferret out 'additional evidence' against Oxley. He violated a prisoner's attorney-client privilege. He summoned attorneys to the courtroom. After he read the letter aloud, he ordered Attorney Ducharme to obtain a waiver of the privilege. He launched a bizarre attack on counsel, saying he had to 'lower his attitude.'...He put a sentenced inmate on the stand without a lawyer and told her she had no Fifth Amendment privilege...A transcript cannot adequately capture something on the order of a secret 'show-trial' where defense lawyers are treated like obstructionist nuisances."

[131] "Trickey's [the murder victim's] head was virtually knocked off. The murder scene was helter-skelter. However, Oxley's socks, sneakers and shorts bore no trace of Trickey...Shannon, not Oxley, told Jennifer Ritchie that he was going to kill Trickey...[132] Contrary to Haggart's say-so, and the [prosecutor's] opening, there was no evidence of any attempt to clean up anything. Indeed, Haggart's testimony about Shannon running away, too scared to help Oxley clean up after he viewed the murdered Trickey, is not only directly contradictory to Shannon's testimony, but also in disagreement with the [prosecution's] theory of the case..."

[134] "A 'drunk-as-a-skunk' Oxley...would have to have been something of a drunken Houdini to stagger up the street, kill Trickey, stagger back to his house, plant the bat and the towel in his cellar, rid himself and his clothing of blood, jump into bed, feign annoyance at Howe and his girlfriend, and hours later welcome the police to search his house...No murderer invites police and prosecutor into his house when he has put the murder weapon in his basement with a blood-stained paper towel marking its partially-exposed hiding place three feet away. There was never any sign of guilt on Oxley's part. The prosecution even emphasized his cooperativeness.

[135] "The night of the murder Shannon told Oxley and Howe that he was a police informant...Oxley would have to have been a [136] raving lunatic to walk up to a man who had told him he was a police informant and tell him to get anything out of his basement, much less a murder weapon, with police up and down the block swarming in and out of his house like flies -- as he is about to take a ride downtown."

[137] "Covertly testing an object seized from the accused for the presence of inculpatory DNA evidence, while ignoring or resisting his attorney's written request to test the same object for DNA evidence which he and his attorney state would exculpate him is at war with...due process of law...Police and prosecutors will have an 'impact on the test results' when they seize the DNA's host object from a suspect-defendant who tells them the object was borrowed by another person on the night of the murder, ignore a prompt written request from counsel to test its DNA for that other person, promptly test it for the suspect's DNA, and then, only pursuant to Court order, test it for the other person's DNA seven months later -- with the results being that the defendant's DNA is well presented, but the other person's is but an inconclusive shadow of its former self."

[Outgoing DA Gary Miles; incoming DA Nichole M. Duve. Dets. Harry McCarthy, Steven Fisher, Andrew Kennedy, Mark Finley and BCI Investigator Kurt Taylor. ]

[167] "The [prosecution]...permitted Robert Webb a/k/a Chase to testify falsely." [Emphasis original.]

"'No, I don't sell drugs,' swore Chase ...Chase also testified that he was not selling drugs, was not involved in drug trafficking in Ogdensburg, that he never brought any cocaine at all to Ogdensburg, never helped anybody else bring cocaine to the [168] City of Ogdensburg, did not give drugs to anybody else to sell, didn't front drugs to anybody, was not supplying people with drugs on consignment...All that testimony was false and the [prosecution] knew it...As of the day of his testimony outside the presence of the jury (October 31, 2006) Chase had been arrested, charged (soon indicted) for selling cocaine in Ogdensburg...On February 13, 2007 Chase pled guilty to selling cocaine in Ogdensburg on March 1, 2006 and August 28, 2006...Notwithstanding Chase's arrest and incarceration on the two charges prior to his testimony in County Court, the [DA] said nothing when Chase lied about selling/trafficking drugs, and even made sustained objections* to defense counsel's questions about what Chase was charged with."

[* Thus, Judge Richards would not allow Oxley's defense counsel to ask what the prosecution's last-minute, star witness had been charged with -- likely because it would have revealed him to be a pathological liar.] [169] "Wrongful judicial interference with defense counsel cross-examination of Investigator Finley." [Emphasis original.]

"Investigator [Mark] Finley, on cross-examination, said that Oxley yelled out a number of times, but he did not remember what [it] was he yelled... Sua sponte, as in many such instances throughout the trial...the Hon. Jerome J. Richards interrupted. Since Oxley 'was not in custody, you don't get to have the jury decide whether his statements were voluntary,' ruled Judge Richards...Nor, 'was he in custody when he went to the police station.'...The Judge had not yet read People v. Cefaro, 23 N.Y.2d 284 (1968)... Provided with a copy overnight he reversed himself...The Court gave no curative instruction...Recalled after the passing of a full week's time, Finley admitted discussing 'Oxley yelling out of the window' with fellow police investigators who had been [170] involved in the investigation and who had already testified or were on the witness list...He testified that someone pulled up outside and Oxley yelled a few times...but not to anyone directly...When he was looking at Oxley...he heard Oxley's words, but did not know what he said. He couldn't recall Oxley saying 'I need a lawyer in here.'...He was there 'to observe and take notes,' but he wrote down nothing Oxley said 'because I didn't hear what he said'...although he was 'definitely' yelling it. Finley was not interested in what this murder suspect was yelling...Oxley was 'saying a lot of things.' Some Finley determined to be 'pertinent,' a lot was 'not pertinent.'...Finley did not know the words Oxley yelled because he never heard them, at least not that he recalled."

"Finley's testimony was patently absurd, conspicuously unbelievable, and...[171] patently tailored to avoid constitutional objection...Whatever the spontaneity of cross-examination might have revealed was forever lost due to court interference. A reading of Finley's testimony shows him prepared, and perhaps, confident, that he could testify as he did and get away with it."

[173] "[T]he cross-examination of Jamin Haggart -- the [DA's] star, 13th-hour witness who provided 'additional evidence' -- was unreasonably curtailed."

"Cross-examination of Haggart was interrupted by empty 'objections' sustained, or, objections sustained with a summons to the bench for counsel to justify his questions only to have the judge fill in the blanks for the [DA]."

[175] "Using Haggart's words...counsel sought to show a prurient nexus between him and Meacham rivaling Oxley's intentions, as in, 'a motive to lie.' Questioning was stopped as 'irrelevant.'...The inquiry pertained to bias. Its wrongful preclusion is a ground for reversal long recognized by this Court [the 3rd Dept.]...Siring one woman's child but writing a love letter to another reflects on credibility. Questions as to whether he wrote that 'the niggers killed the one in the fire after Wayne was already in jail' and was 'the same nigger Michelle Disotell was sucking dick for crack' were precluded...[A] potty mouth reflects a toilet brain which, in turn, informs credibility."

[176] "Counsel's offer to respectfully explain his differences with the Court were met with the Court saying, 'Mr. Gray, I don't want to hear anything. . .Mr. Gray, I don't want to hear it.'"

"Preemptively invading the province of the jury, the judge was breathtakingly in error. Morality informs credibility... Haggart's depravity and viciousness, if spread before the jury, would have painted him as he is, thus allowing the jury to take what he swore to from whence it came."

[178] "Having listened to Oxley's alleged admissions two or three weeks prior to his June 6 sentencing, Haggart at that sentencing had a prosecutor and a defense counsel within earshot. They were in a position to evaluate what he might say about Oxley at a time when his saying it could have reduced or negated his 5-year prison sentence...Inquiry was precluded...A thief with violent propensities and a sexually manipulative interest in women is not adverse to buying off prison time by falsely selling another person into prison... Judge Richards was the sentencing judge...These were facts from which a jury could infer that Haggart's 'story' was a recent fabrication. A scoundrel does not stand mute at a time when the advantage is to open his mouth. Identifying the judge and the prosecutor was not 'nonsense' any more than Judge Richards' rulings that, 'no, this is cross-examination, you don't need to lay a foundation'...and his advice that jurors were 'starting to get pissed off'...were appropriate."

[185] "[Defense witness] Jennifer Ritchie met Hector Tobarras (ph) [denotes phonetic spelling by stenographer] in Watertown and married him. Without good faith, the [DA] asked Ritchie, 'He pay you to marry him?'...This bigoted, xenophobic ethnic slur suggesting that the two gamed the immigration laws was deliberate. But it got [DA Nichole M.] Duve's message across."

[188] "The record is replete with Judge Richards initiating acrimonious exchanges with both defense lawyers and interrupting cross-examination for his own legally-incorrect reasons, with no acknowledgement of error or remediation in front of a jury that must have become perplexed."

[191] "When later called by the defense, Judge Richards denied their application to examine [Acting DA] [Gary] Miles as a hostile witness. The defense had argued that he was hostile per se because of his actions on the day of Oxley's arrest, his selective selection of evidence to be tested and [192] the rush to indict Oxley with a view towards electing himself as a [DA] several days after the grand jury presentment."

[199] "On Monday, November 6, 2006, ten days before the verdict, Judge Richards received a 4-page letter from a prisoner named Jon Sawyer. On Wednesday, November 8, 2006, without showing the letter to either Attorney Manning or Attorney Gray,* he sent it back to Sawyer... The letter essentially told Judge Richards that there was a witness to the Trickey murder, inferring that Oxley was not there, and that two witnesses at Oxley's trial had lied under oath." [Emphasis original.]

[* However, a copy was sent to the DA's office.]

from NRE synopsis (by Maurice Possley):

"On August 30, 2005, 38-year-old Bernard A. Trickey, Jr., a reputed drug dealer, was beaten to death in his home in Ogdensburg..."

"The following day, acting on a tip from John Shannon, an acquaintance of Trickey's, police went to the home of a neighbor, 39-year-old Wayne Oxley, Jr., and after a consensual search, found a baseball bat in Oxley's basement. Police claimed it was the murder weapon and Oxley was charged with murder.

"In 2006, Oxley went on trial in St. Lawrence County..."

"At a preliminary hearing before the trial, Shannon testified that on the night Trickey was killed, he saw Oxley 'with that big long stick in his hand walking toward Bernie's.'

"Shannon, who was later unmasked as a police informant, was killed in a house fire two weeks later, so his preliminary hearing testimony was read to the jury at Oxley's trial."

"Oxley testified that on the night Trickey was murdered, he was taking drugs and drinking alcohol with Shannon and another man. Oxley said Shannon kept asking for the bat and left the house and returned during the night."

[The jury found Oxley guilty on December 18, 2006. But on July 30, 2009, the Third Dept. reversed.]

"In October 2010, Oxley went on trial a second time.

"At this trial, a new witness, Michelle Disotell, testified that she met Robert 'Chase' Webb, Shannon and another man, Dana Chubb, in the months before Trickey was killed. She said she drove Webb to various cities...to buy crack cocaine.

"Disotell was barred from testifying that she heard Webb say that Trickey was ripping him off and that he was going to kill him, because she could not provide a date for the conversation.

"Two months later, on December 15, 2010, after seven days of deliberation, the jury reported it was deadocked, with eight jurors voting to convict and four voting to acquit.

"The judge declared a mistrial.

"In January 2012, Oxley went on trial for the third time and for the third time took the witness stand to deny he was the killer. He said he was home taking pills and drinking wine and passed out. He said he knew nothing about what happened until he saw police cars at Trickey's home the following morning.

"He said Shannon was the killer.

"The defense also presented the evidence pointing to Robert 'Chase' Webb, who was then called by the prosecution. Webb denied involvement in the murder, saying he was in New York City with his grandmother on the night of the crime.

"On February 23, 2012, after two hours of deliberation, the jury acquitted Oxley.

"In May 2012, Oxley filed a notice of claim with the city of Ogdensburg and the police department seeking $23 million in damages and a separate claim with the State of New York seeking $13 million in damages. The lawsuit against the city and police department was dismissed in November 2013."

[All emphases added unless otherwise noted.]

Rodolfo Taylor - Mistaken ID / Prosecutor Misconduct

Mon, 26 Jan 2026 02:48:06 +0000

Taylor, Rodolfo robbery NRE: mistaken witness identification, prosecutor misconduct, withheld exculpatory evidence

[520:49] 2nd Dept. 10/26/87 affirmed

"[W]e find that the witness Bailey's selection of [Taylor's] photograph from a photographic array two days before he picked [him] out of the lineup did not taint the lineup identification since there is no argument that the photographic array was in any fashion unduly suggestive and we conclude that the lineup itself was not unduly suggestive."

36 F.Supp.2d 534 E.D.N.Y. 2/22/99 writ denied

"Prior to July 1984, Detective Robert Anderson of the Third Precinct of the Suffolk County Police Department had been assigned to investigate a series of gas station robberies including the robbery of a Texaco station located at Motor Parkway and the Long Island Expressway in Brentwood...which occurred on February 22, 1984, and two robberies of a Shell gas station located at Route 111 and Spur Drive in Central Islip...which occurred on June 2nd and again on June 10, 1984...Harold Bailey had been working as an attendant at the Shell station on June 10th and had witnessed that robbery...On July 1, 1984, Detective Anderson asked Bailey to come to the Third Precinct to view a photo spread...Bailey was shown a photo spread and identified the petitionerRodolfoTayloras the person who committed the June 10th robbery."

"On July 3, 1984, Taylor was asked to accompany Officer Houlan and two Suffolk County police officers to the Third precinct where he appeared in a series of ten lineups...Five witnessesDennis Ford, Daniel Farrell, and Kathleen Young (the eye-witnesses of the June 2nd Shell robbery), Gary Meenahan (the victim of the February 22nd Texaco robbery) and Baileyeach viewed two separate lineups in which they all positively identified Taylor as the individual who had committed the robbery he or she had witnessed...Taylor was 23 years old, 6' 2-1/2" tall and weighed approximately 160 pounds."

[At trial]: "Meenahan...testified that...he had not seen any scars or moles on the perpetrator's face."

"Ford, Farrell and Young all gave similar descriptions of the robber of the Shell station. Ford claimed that he had observed Taylor for at least three minutes during the robbery...He described him as a black male, approximately 2023 years old, about 60 tall, with a thin build, short Afro, a thin mustache and hair in the center of his chin...According to Farrell, he had observed the robber for about five minutes...and described him [as having] a small mustache and goatee..."

"BeverlyWoods...testified that she had known [Taylor] for the last five years and that in February 1984, [he] had had a scar approximately 22-1/2 inches long on his left brow over his left eye...Richard Froberg,...testified that [Taylor] had been employed by his company on February 22nd and June 2, 1984 and during that time [Taylor] was clean shaven...Froberg also testified that on July 3, 1984, [Taylor] did not have a beard."

"Jaqueline Davis, the driver of the white car [which was at the station at the time]...testified that Taylor was not the man she had observed."

[984:414] 2nd Dept. 4/30/14 reversal of denial of post-trial motion without a hearing (by Judge Stephen L. Braslow ) without a hearing hearing ordered

"In December 2009, [Taylor]...moved to vacate the judgments of conviction, arguing that two supplementary reports from the Suffolk County Police Department and four sworn witness statements provided to him pursuant to his...FOIL [Freedom of Information] request had not been disclosed to the defense at his criminal trials..."

from NRE synopsis (by Maurice Possley):

"Taylor filed a [public records] request with the Suffolk County Police Department, which sent him numerous documents -- none of which had been disclosed by the prosecution at the time of Taylor's trials.

"These documents included reports showing that: ... -- On June 12, Farrell selected Lawrence Caudle from a photographic lineup. He said, 'I picked out #1 with no hesitation and state without doubt this is the same subject that robbed me on May 29th and again on June 2, 1984. I know this subject to be Lawrence Caudle.' ... -- On June 12, 1984, Young viewed a photographic lineup. She said that Lawrence Caudle 'looked much like the man who I saw commit the Robbery on June 2, 1984.'

-- On June 14, 1984, Ford...selected Forlando Carlton. He said, 'The reason I picked this one is because I am almost positive that this is the Black male that had robbed me, and if he had a little bit of facial hair I would say that he is definitely the one.'"

"On December 22, 2009, based on the discovery of these reports, Taylor, acting without a lawyer, filed a post-conviction motion to vacate his convictions. On February 12, 2010, Taylor was released on parole. He had spent 24 years, months, and 17 days in prison since the date of his first conviction.

"In November 2011, Judge Stephen [L.] Braslow denied Taylor's motion for a new trial. In April 2014, the [Second Dept.] overturned Judge Braslow's ruling, and ordered a hearing to determine whether evidence had been withheld and if so, whether it had an impact on Taylor's right to a fair trial. At a hearing in July 2014 Taylor's trial defense lawyer, Martha Palmer Rodgers, who was at the time of the trial a staff attorney for the Suffolk County Legal Aid Society, testified that she never saw the reports. She said she would have used them if she had them.

"The trial prosecutor testified that she listed on the outside of a folder the dates of documents that she had provided to the defense. None of the dates corresponded to the dates of the six reports that Taylor had received pursuant to his public records request. Still, Judge Braslow denied the motion for a new trial.

"In 2016, the Suffolk County [DA's] office agreed to revisit the case at the request of the Legal Aid Society. The [DA's] office assigned a senior-level prosecutor to review the case. Subsequently, the office concluded there was a 'substantial likelihood' that the reports had not been disclosed to Taylor's defense lawyer at the time of his trials and may have had an adverse impact.

"While this review was in progress, Timothy Sini, the newly-elected [DA] , created a Conviction Integrity Bureau (CIB). In April 2018, Kirk Brandt, attorney in the appeals bureau of the Legal Aid Society, sent a seven-page letter outlining the evidence that had been withheld and how, as a result, Taylor's trial had been unfair. He asked the CIB to review the case.

"'It is evident that the failure to provide Mr. Taylor's trial counsel with the aforementioned exculpatory documents undermined the integrity of his convictions and allowed an injustice to take place,' Brandt said.

"On December 2, 2021, [ADA] Craig McElwee filed a 25-page affirmation in support of a motion to vacate Taylor's convictions. While the prosecution said there was 'insufficient evidence for exoneration,' it had reached a 'secure conclusion' that Taylor did not get a fair trial because of the failure to disclose the reports.

"'It is the position of the CIB that the facts as detailed herein clearly established that the ideals of justice and fundamental fairness have been violated in this instance and vacatur of the convictions is appropriate,' McElwee wrote. Witnesses are either dead or unable to remember details, he said. 'Therefore, the indictments must be dismissed because the cases could not be reprosecuted at this time.'

"On January 27, 2022, the convictions were vacated, and the charges were dismissed.

"After the hearing, Taylor, surrounded by family members and friends, declared, 'It's very rewarding. It took patience, perseverance and good family.'

"Louis Mazzola, an attorney with the Legal Aid Society who wored with fellow Legal Aid lawyer Kirk Brandt on Taylor's case for a decade, said, 'He has never once wavered in his claim of innocence.'

"On July 18, 2022, Taylor filed a federal civil-rights lawsuit against Suffolk County and several officers, seeking payment for his wrongful conviction. The lawsuit was settled in 2023 for $12.8 million. In 2023, he also filed a claim for state compensation. He settled that claim in 2024 for $1 million."

[All emphases added unless otherwise noted.]

Natacha Tiger - False Confession / Misleading Forensic Evidence

Mon, 26 Jan 2026 02:48:17 +0000

Tiger, Natascha endangering the welfare of a disabled person NRE: false confession, plea, no crime, false/misleading forensic evidence

Suggestibility issues

48 N.Y.S.3d 685 2nd Dept. 3/1/17 denial of motion to vacate without hearing (by Judge Jeffrey G. Berry ) reversed hearing ordered re: actual innocence and ineffective assistance of counsel

"On November 23, 2011, a severely disabled child was admitted to Westchester Medical Center suffering from what appeared to be scald burns. [Tiger], a licensed practical nurse who had given the child a bath earlier that day, was subsequently charged with several crimes on the theory that she had burned the child with hot water. [She] thereafter pleaded guilty to endangering the welfare of a...physically disabled person...admitting that she had recklessly causedserious physical injury tothe child. Nearly two years later, [Tiger] moved...to vacate her conviction, primarily alleging that she was actually innocent because medical evidence established that the child's injuries had been caused by an adverse reaction to medications."

"Alejandra A....was born in May 2001. She had profound disabilities. As of November 2011, the child had a permanent tracheostomy and feeding tube, was completely immobile, was blind, and was dependent on others for all activities of daily living."

"On November 30, 2011, [Tiger]...made a statement to an investigator in which she stated, in part, regarding the date of the incident:

'I was working in the. . . home with [the child]...I...turned on thewater and started rinsing her body...[T]he water hit my hand and I could feel that the water was very hot. I then turned the cold water on to try to adjust it so it wasn't so hot...I wrapped [the child] in a towel and took her to her bed and when I pulled the towel down to put lotion on her arms and help her stretch and when I opened the towel more I noticed redness and peeling on her legs. I knew then that I had burned [the child] because the water was too hot when I was bathing her...I knew that I had burned [the child] with the hot water when I called [the child's mother] earlier but was afraid to tell her about what happened when I was bathing her earlier in the day.'"

"Accordingto [Tiger], the investigator started to ask [her] general questions about the child's bath on November 23, 2011, and [she] gave her account. After a time, it became apparent to [her] that the investigator did not believe her. The investigator confronted [her] with 'terrible, shocking photographs of [the child's] condition -- much, much worse than it appeared when [she] had last seen her -- which seemed to [her] to depict serious burn injuries. [She] was stunned and upset, and started gently crying. The investigator, in a stern voice, accused her of boiling water and throwing it on the child. [She] denied the accusation and again explained what had occurred. The investigator, looking angry and agitated, raised his voice and said that no one would believe [her]. He then said that he was going to give the [her] time to think and left the room."

"[She] asserted that when the investigator returned to the room, he sat down, held [her] hand, and said that he was trying to help her. He said that the [she] would be going to jail for a very long time, but that it would be 'safer' for her if she admitted to burning the child, even accidentally. He reminded her that she was the last person with the child and asked how it could be that the child was being treated at WMC's burnunit and getting skin grafting for scald burns if she had not burned the child. [She] asserted, 'I was afraid and confused because I could not explain any of these things, yet did not understand how it was that I could possibly have scalded [the child].'

"[She] claimed that, by that time, she had been at the CPS office for hours. She asked about the Interim manager who had accompanied her and was told that the manager hadleft. Although Interim sent a text message to [her] during the interview, the investigator would not allow her to send a text message in response. When [she] told the investigator that she needed to call her family, the investigator made her turn off her cell phone. She explained, 'Isolated, tired, and confused, I was eventually convinced by [the investigator] that I must have burned [the child] because I could not otherwise explain the photographs, her treatment in the burn unit, or her need for skin grafting.'"

"According to [her], her attorney advised her that if she were to plead guilty, she might, in view of her background, reasonably hope for a sentence of probation and community service, and avoid the risk of a lengthy term of imprisonment. Based on her attorney's advice and her inability to afford medical experts, [she] agreed to plead guilty."

"In his supporting affirmation, physician Bruce F. Farber noted that he had been involved in the practice of internal medicine and infectious diseases from 1980 to the present. He had specialty training in infectious diseases and had treated burn patients and patients diagnosed with toxic epidermal necrolysis (hereinafter TEN). He had reviewed, among other things, the child's medical records and photographs of the child.

"Farber gave a narrative of events leading up to and including the child's hospitalization. He noted that on November 16, 2011, a week before the incident in question, the child was evaluated by her pediatrician, who diagnosed pneumonia and prescribed the antibiotic Biaxin."

"Farber opined, based on his review of medical records, photographs, and [Tiger's] statements, as well as his education and experience in treating patients with TEN and burns, that the child's injuries were caused not by a thermal scald burn from bathing but by TEN.

"According to Farber, the family pediatrician and all WMC physicians -- emergency room, burn, pediatric, dermatologic, and infectious disease -- who evaluated the child on November 23 and 24, 2011, found, based on clinical presentation, that her condition was consistent with TEN, StevensJohnson syndrome (hereinafter SJS), or staphylococcus scalded skin syndrome (hereinafter SSSS). The biopsy results ultimately confirmed a diagnosis of TEN. Despite the history that the child had been bathed shortly before the onset of her condition, none of those physicians diagnosed or even considered a diagnosis of scald burns.

"Farber explained that TEN and SJS are life-threatening dermatological conditions thought to be an adverse reaction to medications. While their exact cause is unknown, they are thought to involve an autoimmune process characterized by exfoliation of the skin, i.e., blistering. They often are associated with certain medications and bacterial infections. Drugsfrequently found to be associated with TEN and SJS include antibiotics and antiseizure medications. The child was taking the antibiotic Biaxin as well as an antiseizure medication..."

[In both TEN and STS:] "The top layer of the skin, the epidermis, separates from the lower layer, the dermis, giving an appearance that is very similar to a scald burn...The loss of epidermis results in a high risk of infection, loss of fluids, and death. Prompt treatment is required and does not appreciably differ from the treatment burn patients receive."

[However, the Court of Appeals subsequently partially reversed the above finding that Tiger was not entitled to a hearing on the actual innocence claim.]

71 N.Y.S.3d 169 2nd Dept. 7/13/22 County Court's [ Robert H. Freehill ] denial of ineffective assistance of counsel claim reversed, plea vacated

"[D]espitereferencesin the hospital records indicating that a skin biopsy was ordered, [Tiger's] former counsel failed to obtain the skin biopsy pathology report, which would have supported the conclusion that the child's skin condition was caused, not by thermal burns, but by toxic epidermal necrolysis (hereinafter TEN), a condition associated with an allergic reaction to a medication that the child had been taking." "[Tiger] also demonstrated that her former counsel failed to consult a medical expert, or take steps to either seek the services of a court-appointed medical expert, or find a source of funding to secure the services of a medical expert before counseling [Tiger] to plead guilty. At the hearing, [Tiger] offered the expert testimony of Bruce Farber, a physician board-certified in the fields of internal medicine and infectious diseases, who reviewed all the medical records, including the subject pathology report. He opined that, based upon his review of medical records, as well as the pathology report, the child's skin condition was caused by TEN, and not thermal burns. He testified that the medical records, including the hospital chart, showed that the various medical providers, including a pediatrician, emergency room physician, dermatologist, infectious disease expert, and a burn fellow formulateddifferential diagnoses including SJS, TEN, or staphylococcal scalded skin syndrome, none of which included thermal burns.

"Notably, Farber testified that a board-certified dermatologist who treated the child documented a positive 'Nikolsky sign,' which was a finding seen with immunological skin reactions, and not thermal burns. He also testified that, based upon his review of the photographs of the child, the child's wounds appeared to grow and spread for days after her hospital admission, which was inconsistent with a diagnosis of thermal burns. "[Tiger] testified that the reason that she pleaded guilty was based upon her counsel's advice that nothing in the medical records supported her defense."

"Contrary to the County Court's determination, the evidence adduced at the hearing sufficiently established that there is a reasonable probability that, but for her attorney's errors in failing to obtain the pathology report and seek an expert consultation, [she would not have pled guilty]."

from NRE synopsis (by Ken Otterbourg):

"On July 13, 2022, the [Second Dept.]...ordered a new trial." "The state dismissed the charge in August 2023."*

[* Thus, the prosecution left Tiger 'hanging' for over a year before finally doing the right thing. That would appear to be something of a record.]

[All emphases added unless otherwise noted.]

David Ranta - Mistaken ID / False Confession / Perjury

Mon, 26 Jan 2026 02:49:33 +0000

Ranta, David; murder; NRE: mistaken witness identification, false confession, perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant; "OVERWHELMING"

Suggestibility issues

K18 "In 1991, David Ranta was convicted for the shooting death of Rabbi Chaskel Werzberger in a botched diamond heist..."

"In the early morning of Feb. 8, 1990, Chaim Weinberger, a diamond courier, left his Brooklyn apartment..."

"He was approached by a gunman but escaped unharmed. The gunman then crossed the street to the car where Werzberger was sitting...The gunman shot the rabbi once in the head, pulled his body from the vehicle and sped off.

"Two New York City detectives, Louis Scarcella and Steven Chmil, were put on the case.

"Shortly after the crime, police got an anonymous call that a man named Joseph Astin was the killer. Astin died in a car crash two months after the shooting. Astin was fleeing officers pursuing him in connection with the shooting.

"Scarcella brought Weinberger, the courier, to the morgue to see if he could identify Astin's body, and when Weinberger could not, Scarcella stopped chasing leads on Astin.

"Intead, the detectives were informed that two inmates awaiting trial on unrelated robbery charges, Dmitry Drikman and Alan Bloom, could have useful information on the crime.

"Bloom, who has since died, fingered Ranta as the shooter, and Ranta was arrested in 1990.

"Weinberger, the courier, could not identify anyone at the first of two line-ups and three other witnesses pointed to stand-ins, not Ranta.

"At a second line-up, three youths, including Menachem Lieberman, who said they saw the shooter waiting in a car before the crime occurred, identified Ranta.

"Bloom, who was granted immunity, acted as the government's chief witness at trial..."

"Scarcella admitted he had not taken any notes during interviews of Bloom and Drikman. At one point, the presiding judge...expressed concern about his mistrust of the detectives to the defense and the prosecution, but never charged the jury [i.e., told them about] the issue.

"Astin's wife, Teresa, later came forward saying Astin had confessed to the crime.

"Lieberman, the witness who expressed discomfort at his identification of Ranta, told [subsequent Conviction Integrity Unit] investigators that just before entering the line-up room, a detective told him to 'pick the guy with the big nose' and he acted accordingly."

K17 "After spending some 23 years in prison for a murder he says he did not commit, David Ranta walked out of a courtroon a free man yesterday after prosecutors conceded the evidence against him had 'degraded' to the point that they could no longer prove his guilt beyond a reasonable doubt.

"Ranta was convicted in 1991 for the high-profile shooting of a prominent ultra-Orthodox religious leader, Rabbi Chaskel Werzberger. But a fresh look at the case by the Brooklyn [DA's] Conviction Integrity Unit disclosed that a man who had once identified Ranta as the killer now felt 'discomfort' about his testimony, and others admitted they had fabricated statements fingering Ranta..."

[610:283]; 2nd Dept. 4/4/94; affirmed

"Although the police admittedly violated certain court orders, the police conduct challenged by [Ranta] was not so egregious as to 'manifest a disregard for cherished principles of law and order'...Given the overwhelming evidence of [Ranta's] guilt..."

[The Second Department 'justices' who signed off on this were Albert M. Rosenblatt, David S. Ritter, Vincent Pizzuto, and Myrian J. Altman. ]

from Records and Briefs:

[1] "Drikman gave Detective Scarcella information leading him to believe Mr. Ranta was involved in the case...However, he had no indication why Drikman would have such information or if Drikman was present at the scene of the crime ...Detective Scarcella claimed that Drikman picked out photos of Mr. Ranta and an individual named Steven Shakur and indicated these individuals were involved in the shooting..."

[3] "On July 13, 1990, [when Scarcella and Chmil first interviewed Bloom ], Bloom did not state that he witnessed the attempted robbery, saw anyone being dragged from a car, heard shots fired, or that he was present when the Rabbi was shot..."

"After receiving this information, Detective Scarcella spoke with members of Shakur's family who maintained Shakur was in Yugoslavia on [the day of the murder]... Despite the family's claim that Shakur was not in the country, they possessed Shakur's passport...Detective Scarcella did not attempt to verify the family's claims by examining the passport to see if it was stamped, thereby denoting entry into Yugoslavia on or near the dates in question...The detective also failed to show Shakur's photograph to any of the eyewitnesses ...The detectives' actions troubled the court...After hearing this testimony, the court raised the issue of selective prosecution on the part of the detectives..."

"Bloom's version of the events was not always consistent...Although Bloom gave consistent versions of the events on June 28, 1990, and July 13, 1990, at which time he implicated Shakur, four days later, on July 17, 1990, he told a different story."

[6] "After the detectives told Bloom they could not find Shakur, Bloom changed his story. The actions he attributed to Shakur four days earlier...he now attributed to Mr. Ranta* ...Bloom now alleged he sat double-parked...and smoked crack while he watched the events unfold. Bloom remained on the opposite side of the street two hundred feet away from where the crimes occurred. Yet, he claimed he was able to see the events transpire through his rearview mirror. ** "

[* It seems quite obvious that it was Scarcella who changed Bloom's story, when this 'detective' was greatly inconvenienced by the fact that (surprise, surprise) the alleged killer couldn't be found. ] [** That's preposterous, and would be laughable but for the fact it led to Ranta wrongfully spending decades in prison. No one can identify anyone via a rearview mirror from 200 feet away.] [7] "Bloom claimed he then heard two shots...However, Rabbi Werzberger was only shot once. There was absolutely no evidence of a second shot."

[8] "Drikman said he knew the identity of the individuals involved in the crime and the location of the murder weapon. Yet Bloom and the detectives claimed Drikman took no part in the crimes. Nothing was done to corroborate Drikman's non-involvement or to rule him out as the killer."

from NRE synopsis (by Maurice Possley):

"At about 5:30 a.m. on February 8, 1990, 38-year-old Chaim Weinberger, a jewelry courier, left his apartment building in the Williamsburg section of Brooklyn...carrying a 50-pound suitcase full of diamonds and other valuables he was taking to the Dominican Republic. Weinberger noticed a tall blond man eyeing him as he left his apartment building and when he got near his car, he saw the man following him. He tossed the suitcase into the trunk and got into his car to get away.

"The blond man put a handkerchief over his face and drew a pistol as he approached. Weinberger drove in reverse, knocked the robber down and sped off.

"The robber then noticed Chaskel Werzberger, a 56-year-old rabbi, warming up his car nearby. The gunman walked over, shot Werzberger in the head, yanked him out of the vehicle and drove off. Werzberger died three days later. His car was found in another Brooklyn neighborhood a day after the shooting, splashed with paint in an apparent attempt to cover fingerprints.

"The murder of the esteemed rabbi shocked a city accustomed to murders and a $10,000 reward was offered for information.

"A number of witnesses told police that they saw the events in full or in part. Weinberger described the gunman as being between 5'11" and 6'0" tall, clean-shaven and with blonde hair. Several other witnesses recalled that prior to the crime they saw two men in a station wagon parked nearby, one in the driver's seat and the other in the front passenger's seat.

"More than one hundred names surfaced as potential suspects, including Thomas Joseph Astin, who police learned of through an anonymous telephone call. But Astin died in a car crash while being pursued by police on April 2, 1990. After his death, detectives brought Weinberger to the morgue to view Astin's body, but Weinberger was unable to identify him as the robber.

"Beginning in June 1990, Detective Louis Scarcella interviewed Dmitry Drikman, a convicted rapist facing robbery charges. Drikman pointed the detective to Allan Bloom, a convicted robber and drug addict, who was in jail facing charges that could send him to prison for life. After several conversations with Bloom, the detective said that Bloom had admitted that he attempted to rob Weinberger with 35-year-old David Ranta, an unemployed house painter with more than a dozen arrests for theft, robbery and drug possession.

"Drikman and Bloom were then housed in the same cell together and subsequently, Drikman also implicated Ranta in the crime. Drikman's girlfriend was then interviewed and she told police she had seen Ranta and Bloom plotting how to cover up the attempted robbery and murder.

"Bloom would ultimately testify against Ranta after being granted immunity for his involvement in the robbery and murder and a promise for a reduced sentence on his outstanding robbery charges. He told the police that he had helped to plan the robbery of Weinberger and said Ranta, whom he had known for a few years, was an accomplice, as was another man named Steven Shakir.* Bloom said he left before anything happened and did not know who the gunman was, but he said that Shakir had a gun."

[* The Records and Briefs above spell this surname 'Shakur.' It's not clear which is correct.]

"After he failed a polygraph test, Bloom changed his story to say that not only did he see the crimes, but that Ranta was the gunman. Bloom would later say that he lied about Shakir's involvement. He also said that on the night before the crimes he had been with Drikman.

"Bloom said that he had stolen the station wagon that several witnesses had observed at the crime scene prior to the crimes, and that he had used the station wagon to drive himself and Ranta to the crime scene. He said Ranta approached Weinberger, pointed a gun at him and attempted to rob him. Bloom told police that he was supposed to be the getaway driver, but that after Ranta left the car, a police car drove by so he moved the car about 10 feet further away. As a result, Bloom said, Ranta didn't immediately spot the car after the botched robbery attempt and apparently decided to steal Werzberger's car.

"Bloom said Ranta ran across the sreet, fired his gun twice, pulled the rabbi from his car and fled.

"Bloom said he met Ranta later that day, took Werzberger's car and abandoned it in the Midwood section of Brooklyn. Bloom said that later, he and Drikman returned to Werzberger's car and splashed white paint on the interior to obscure any fingerprints. Bloom passed the polygraph test administered after his second statement.

"Two others corroborated Bloom. Cheryl Herbert told the police that she had been in a relationship with Ranta and that prior to her birthday in February, he told her he was expecting to come into possession of some nice jewelry. Herbert told police Ranta later told her that he was in a lot of trouble because he had participated in a robbery with two others and that they had abandoned him and as a result, he had to kill someone.

"Alison Picciano told the police that Ranta had admitted to her that he had pulled Werzberger from his car and shot him while he was on the ground.

"Ranta was arrested on August 13, 1990 and taken to a police station where detectives said that after initial denials, Ranta eventually admitted that he had been at the crime scene with Bloom and Drikman in a station wagon, which he believed Bloom had stolen. Police said Ranta said that he had known about a plan to rob a Jewish jewel courier and that he was to have been the 'lookout' during the robbery. The detectives said Ranta said he saw Bloom and Drikman exchange a gun in the station wagon and that, before any of the crimes occurred, he had left the scene when Bloom and Drikman began arguing about which one of them was going to commit the actual robbery.

"Ranta was placed in a lineup the following day. Scarcella reached out to a rabbi who came to the station with six witnesses. The first witness, Weinberger -- who had been the initial target of the robbery -- didn't recognize anyone. The next two witnesses identified someone other than Ranta.

"The fourth witness, who spoke only Yiddish and required an interpreter, initially said he didn't recognize anyone. The witness was then escorted to a nearby room with Detective Scarcella, a prosecutor and the interpreter. A tape recorder which was recording the lineup conversation was turned off and then turned back on as the witness said that, in fact, he had identified the man in position six -- which was Ranta.

"The fifth witness identified Ranta and the sixth witness identified another man in the lineup.

"A second lineup was held later that day. Three more witnesses came in and all three identified Ranta.

"Despite what police said Ranta had admitted, Ranta took and passed a polygraph examination.

"Ranta went on trial in [Manhattan] in May 1991.

"Bloom testified, as did Herbert and Picciano, portraying Ranta as the gunman. Bloom told the jury that when he and Ranta met later in the day after the crime, Ranta said, 'Why did you leave me? I had to kill someone.'

"Picciano testified that Ranta told her, 'I had to do what I had to do. I shot him.'

"Ranta's statement to the police was presented to the jury as well -- though it portrayed him as an accomplice instead of the gunman. The trial judge was critical of Detective Scarcella for failing to tape record Ranta's statement or take any notes and for failing to take any notes of his conversations with Drikman and Bloom. "The defense tried to suggest that Drikman was the gunman and that Ranta was innocent. Weinberger testified that Ranta was not the gunman.

"On May 22, 1991, Ranta was convicted by a jury. He was sentenced to 37-1/2 years to life in prison.

"His initial appeal was denied, but in 1996, Astin's wife signed a sworn affidavit saying that her husband, before he was killed in a car crash, had admitted that he killed Werzberger. She said that Astin left their home at 4 a.m. on the day of the crime and returned later in tears, saying he had robbed someone carrying jewelry and that someone had been hurt.

"Despite this affidavit, Ranta's motion for a new trial was denied. The judge said that Astin's wife's credibility was damaged because she was facing a drug charge* at the time she made the claim."

[* Recall that " Allan Bloom, a convicted robber and drug addict, who was in jail facing charges that could send him to prison for life," was nevertheless deemed sufficiently 'credible' to base this entire investigation on. Moreover, whereas Bloom stood to benefit immensely from testifying as he did, Astin's wife had absolutely nothing to gain by coming forward.]

"In 2011, Kings County [DA] Charles Hynes created a Conviction Integrity Unit and invited defense lawyers to present cases where they believed innocent defendants had been convicted. One of the cases proffered was Ranta's.

"The Integrity Unit began re-investigating. One of the witnesses who identified Ranta in the lineup said the lead police detective, Louis Scarcella, told him to pick 'the guy with the big nose,' so he picked Ranta because he had the biggest nose.

"The prosecution investigators discovered that during the weeks when police were interrogating Bloom and Drikman, both were allowed to leave jail, smoke crack cocaine and have sex with prostitutes in return for implicating Ranta.

"Drikman and his girlfriend recanted their accounts that implicated Bloom and Ranta. Bloom had since died.

"Ranta's lawyer, armed with the new evidence, filed a motion to vacate Ranta's conviction. The motion was not opposed by Kings County [DA] Charles Hynes, who was the [DA] when Ranta was arrested 23 years earlier.

"On March 21, 2013, Ranta was flown from his prison to a Brooklyn courtroom where his convictions were vacated and the charges were dismissed. He was then released.

"In May 2013, Ranta filed a $150 million wrongful conviction claim against the city of New York. In February 2014, the city settled the claim for $6.4 million. He also received $2 million in compensation from the New York Court of Claims."

[All emphases added unless otherwise noted.]

Derrick Redd - Perjury / Prosecutor Misconduct

Thu, 03 Jul 2025 02:10:50 +0000

Redd, Derrick; murder; NRE: perjury/false accusation, inadequate legal defense, prosecutor misconduct, misconduct that is not withholding evidence, prosecutor lied in court

35 N.Y.S.3d 546; 2nd Dept. 7/6/16; reversed, due to prosecutor misconduct

"[O]n October 25, 2008, at approximately 7:40 p.m., the police were called to an apartment on Leffert's Boulevard in Queens where they found the body of 25-year-old Niasha Delain. Delain, who was nine months pregnant, had been stabbed to death. Her mother and [Redd], who was the victim's boyfriend, were both at the apartment when the police arrived.

"The police searched the victim's apartment, [Redd's] two cars, and the residences of [Redd's] mother, father, and grandparents, but did not find a weapon or other physical evidence connecting [Redd] to the murder. [Redd] told the police that he was asleep at his mother's home in Queens, approximately 3-1/2 miles from the victim's apartment, during the early morning hours of October 25, 2008. However a search of cellphone service records related to [Redd's] cellphone indicated that, during that time, several calls placed or received by his cellphone were processed by a cellphone tower approximately one block from the victim's apartment. An expert testified at trial that cellphones signal to the nearest available cellphone tower and that, in Queens, at the time of the murder, the cellphone towers of [Redd's] cellphone service provider were located approximately four to five blocks apart.

"Eight days after the murder, Jinette Gerve, a neighbor who resided in the apartment above the victim's apartment, reported to the police that between 5:30 a.m. and 6:00 a.m. October 25, 2008, she heard a woman in the apartment below hers screaming ['Derrick!'], along with the words, 'Stop,' 'No,' and 'Don't do that.' This neighbor testified that she had not come forward earlier due to fear and uncertainty concerning the significance of this information. She admitted that she received assistance from the [DA's] office with regard to her residence, employment, and immigration status."

"[T]he judgment of conviction must be reversed and a new trial ordered as a result of pervasive prosecutorial misconduct. During opening statements as well as on summation, the prosecutor repeatedly engaged in improper conduct, including misstating the evidence, vouching for the credibility of witnesses with regard to significant aspects of the [prosecution's] case, calling for speculation by the jury, seeking to inflame the jury and arouse its sympathy, and improperly denigrating the defense."

[In the Nickel case, Prosecutor Peter Torncello certainly also 'engaged in improper conduct, including misstating the evidence' and 'seeking to inflame the [judge] and arouse [ his ] sympathy.' (In particular, see Propensity/Who Cares? , as well as Day Two of annotated trial transcript.)]

[As is almost always the case, despite the fact that this conviction was reversed due to prosecutor misconduct, this appellate decision does not actually name the prosecutor. However, a review of other decisions in this matter revealed that this person was Eugene Reibstein. ]

from NRE synopsis by Maurice Possley):

"The crime was discovered when Delain's boyfriend, 35-year-old Derrick Redd, and her mother came to the apartment because Delain had not responded to calls or text messages.

"Redd agreed to go to the police station for questioning. Although police later said that Redd made several statements that were suspicious -- 'I either avoid the problem or I eliminate it' and 'we argued about an abortion' -- he was released without being charged after 27 hours.

"However, on November 17, he was arrested and charged with murder, causing an abortion, and criminal possession of a weapon.

"In October 2011, Redd went on trial in Queens...The prosecution's primary evidence came from Jinette Gerve, who lived in the apartment above the one where Delain was killed. Gerve said that early in the morning of the day Delain was found dead, she heard Delain shouting Redd's first name and 'stop,' 'no,' and 'don't do that.'

"Gerve admitted that on the day the murder was discovered, she told police that she heard nothing. She further admitted that the second time police spoke to her, she again denied hearing anything. It was not until about two weeks later that Gerve gave a statement saying she had heard Delain calling Redd's name. She denied during cross-examination that she had been provided any benefits in return for her testimony."

"However, after Gerve finished testifying, the prosecution turned over records showing that in fact she had been paid $4,500 to relocate and that the prosecution was helping her with an immigration matter. Redd's defense attorney agreed to present the evidence in [a] statement to the jury, but did not re-open cross-examination to confront Gerve directly about her denial of receiving any benefits.

"The prosecution presented records that allegedly showed that Redd's cell phone had pinged off a cell tower a block from Delain's apartment in the early morning hours of October 25, 2008. At the time, Redd was living about three miles away.

"The prosecution also presented evidence of Redd's statements to police during his initial interrogation, and argued that those statements indicated he committed the murder because Delain had not gotten an abortion. In addition, the jury heard evidence that when arrested, Redd had three small cuts on his hand. The prosecution contended that this was proof that he had stabbed her and cut himself when the knife struck a bone in Delain's body, causing his hand, which was bloody, to slide forward and cut him.

"A medical examiner testified that she 'found nothing' in the autopsy that would be consistent with the time of death of 6 a.m. -- the time that Gerve said she heard Delain screaming.

"On November 3, 2011, the jury convicted Redd..."

"In July 2016 the [2nd Dept.] reversed the convictions...[It] found that the prosecutor, Eugene Reibstein, had engaged in egregious prosecutorial misconduct.

"Reibstein, the court said, had 'flatly misstated' the medical examiner's testimony, quoting her to the jury as saying, 'I found nothing in my autopsy that would be inconsistent with the time of death of 6 a.m.' And then, Reibstein went on to say, 'Can we get more clear than this, ladies and gentlemen?'

Reibstein told the jury that Redd suffered the cuts on his hands when he stabbed Delain more than 20 times. 'During this repeated stabbing, you may get yourself a little cut there, a little cut there and a little cut there,' particularly '(i)f the blade stabs something hard, like a baby.'

"The court said, 'Not only was the remark needlessly inflammatory, it also improperly cast the prosecutor as an unsworn witness in his own case.'

"The defense attorney repeatedly objected to Reibstein's comments, the court noted. Some of the objections were overruled and in a few instances, the judge cautioned Reibstein about making improper comments. In some instances, the judge didn't rule on defense objections at all."*

[* This also happened with Judge Paul Czajka in the Nickel case. (See Objection Analysis as well as Day One and Day Two of the annotated trial transcripts.]

"At one point, the judge warned Reibstein that 'if you keep inflaming the jury you will come to regret it.' Reibstein nevertheless continued.

"'Soon thereafter,' the appeals court said, Reibstein 'continued his string of inflammatory remarks by stating, "It happens, when you can't get somebody to (get) an abortion. . .you have to take care of them the last day yourself."'

"Redd went to trial a second time in March 2018 with a new defense attorney, Wynton Sharpe, who presented text messages between Delain and Redd from June 2008 -- six months before the crime. In one message, Delain said she was willing to perform sex acts for money so that she could pay for an abortion. In another, Redd said that he would go back to court to seek custody of the child after he was born.

"Sharpe also cross-examined Gerve with the records showing she had implicated Redd only after she received numerous benefits from the prosecution.

"Sharpe also introduced evidence showing that there were other cell phone towers further away from Delain's apartment where Redd's cell phone was picked up -- not a tower just a block away.

"On April 4, 2018, the jury acquitted Redd and he was released.

"Ih May 2019, Redd filed a federal civil rights lawsuit seeking damages from the city of New York. In October 2019, he filed a claim for compensation in the New York Court of Claims. He settled the claim for $30,000 in 2023."

[All emphases added unless otherwise noted.]

Filipe Rodriguez - Mistaken Witness ID / False Accusation

Tue, 01 Jul 2025 22:52:19 +0000

Rodriguez, Felipe; murder; NRE: mistaken witness identification, perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, perjury by official

[620:966]; 2nd Dept. 12/12/94; earlier denial of motion to vacate conviction affirmed

"[Rodriguez's] contention that his judgment should be vacated because the [prosecution] failed to disclose certain material at trial...is without merit. The record supports the hearing court's determination that the material in question was turned over to the defense."

[And yet, the NRE lists 'withheld exculpatory evidence.' ]

[620:832]; 2nd Dept. 12/12/94; affirmed

"[W]e are satisfied that the verdict of guilt is not against the weight of the evidence..."

from Records and Briefs (civil):

[3] "Detectives engaged in a litany of misconduct that violated Felipe's Fourth Amendment, due process and fair trial rights, directly causing his wrongful conviction and incarceration. Eager to close a homicide investigation that was entering its [4] second year detectives from the [NYPD] and Long Island Railroad Police Department ('LIRRPD') fabricated police reports, withheld exculpatory information from prosecutors and the defense, and coerced [Javier] Ramos into implicating Felipe. In the course of the investigation, detectives drove Mr. Ramos to a cemetery and threatened to kill him if he did not implicate Felipe in the murder. [ADAs] withheld crucial exculpatory information from the defense, including a tape recording in which Mr. Ramos -- unaware that he was being recorded -- admitted to a co-worker that he knew nothing about the murder."

"NYPD Detectives John Beisel, John Califano, John Wilde, Jerry Fennell, NYPD Sgt. George Zaroogian, and LIRRPD Detectives Thomas Sullivan and Charles Wendel are named defendants in this lawsuit."

[6] "Prior to this wrongful conviction, Rodriguez had no criminal record." [That was also true of Nickel. ]

"On the morning of November 26, 1987, which was Thanksgiving Day, the body of 35-year-old Maureen Fernandez...was found in a remote industrial lot in Glendale, Queens...The lot was located behind Dubofsky's wholesale warehouse...Ms. Fernandez's body had 35 stab wounds to the neck, back, and pelvic area...Tire impressions were found in close proximity to Ms. Fernandez's body, leading police to believe that Ms. Fernandez [7] had been transported to the scene in a car driven by her killer...No physical evidence collected from the crime scene proved useful in identifying the vehicle or its driver...No murder weapon was ever found."

"Ms. Fernandez spent much of Thanksgiving Eve...at Wyckoff Heights Hospital...in Brooklyn, where her young daughter was being treated...A witness who was in the hospital that day told police they observed Ms. Fernandez drinking from a liquor bottle...At around 1:00 a.m., Ms. Fernandez used a hospital phone to call her husband, Carney Fernandez...The couple began arguing over the fact that Ms. Fernandez was drinking while watching the baby, and Ms. Fernandez hung up on her husband...Ms. Fernandez left the hospital shortly after that phone call and traveled to the Little Liva Bar...in Brooklyn...No witnesses actually saw Ms. Hernandez leave the hospital, so detectives did not know whether she left on foot or by car...The Little Liva Bar was located approximately one mile from Wyckoff Heights Hospital and approximately two miles from where Ms. Fernandez's body would be found hours later...According to bar patrons, Ms. Fernandez arrived at the Little Liva Bar between 2:00 and 2:30 a.m. in the company of an unknown male...Bar patrons told police that they believed that Ms. Fernandez and the unknown male arrived in a black, late-1970s model Chevrolet Monte Carlo...Detectives believed that Ms. Fernandez and the man likely departed together in the black Monte Carlo. Accordingly, for the next several months, detectives focused on locating the black Monte Carlo and its driver...Carney Fernandez, Ms. Fernandez's husband, was also considered a suspect."

[8] "In the days following the murder, detectives interviewed witnesses who interacted with Ms. Fernandez and the unknown man at the Little Liva Bar shortly before she was murdered...Detectives obtained detailed descriptions of the unknown man from bartender Joseph Castillo and bar patrons Robert Thompson and William Perry...All three witnesses described the unknown man as approximately 30-years-old, between 5'7" and 5'9", with no mustache and no eyeglasses...Thompson added that the man had 'reddish brown' hair, was 'bow-legged,' and was wearing a 'multicolored sweater,' 'beige pants,' and a gold ring...In a second interview in February, 1988, bar patron William Perry told Det. [Charles] Wendel and Det. [Thomas] Sullivan that the man with Ms. Fernandez on Thanksgiving morning 1987 was Italian or Irish, 'not Hispanic,' and had 'hazel or green' eyes...The February interview... was not documented... The February interview was not disclosed in any way to Mr. Rodriguez or his attorneys prior to his trial."

"More than four months after the murder, on March 17, 1988, Dets. Sullivan and Wendel conducted a videotape-recorded interview of Robert Thompson...Thompson added several details to his earlier description...Thompson said the man called himself a 'plumber's helper'...Thompson said that the man did not speak with an accent...Thompson said that the man looked Italian, not Hispanic ...Thompson added one further detail to his description of the man seen with Ms. Fernandez at the bar: he claimed that the man had a tatoo between his palm and index finger and four letters tatooed across his fingers, which appeared to read, 'LOVE'... The descriptions did not resemble Felipe Rodriguez, who had a thick mustache, wore eyeglasses, was 22 years old, stood approximately 6'1" tall, never had any tattoos, and never wrote the word 'LOVE' on his hands. ...Felipe never drove or had access to a Monte Carlo, the car driven by the suspected killer...Felipe is Hispanic and has brown eyes...In November 1987, Felipe was a mechanic. Felipe never identified himself as a 'plumber's helper'...[and] spoke with a Puerto-Rican-inflected Spanish accent."

"From the beginning, detectives working on the Maureen Fernandez homicide had information pointing to a number of potential suspects other than Felipe...One suspect was Ms. Fernandez's husband, Carney Fernandez... [9] Carney had no alibi for the time of his wife's murder*...Ms. Fernandez's friends and family told detectives that Carney physically abused Ms. Fernandez, had threatened to kill her, had a violent temper when drinking, was jealous of her, and that she wanted to leave him...Ms. Fernandez's friend Liz Velez told police that Ms. Fernandez was so afraid of Carney that she asked Liz for a gun to defend herself."

[* According to the NRE synopsis below, Carney actually did have an alibi.]

"Police also had information pointing to a suspect named Jose Perez Rivera...Less than a month after the murder, detectives received an anonymous call that the male in the [police] sketch. . .lives across the street from the Emergency Room of Wyckoff Hospital. . . [and] has an older model Monte Carlo in good condition.'...Detectives learned that this man was Rivera, who lived across from Wyckoff Hospital and owned a black 1978 Monte Carlo, just like the one bar patrons said Ms. Fernandez arrived and departed in on Thanksgiving morning...Records showed that Rivera was 5'7" tall, within the 5'7 to 5'9 range of the man seen with Ms. Fernandez at the Little Liva Bar...In August 1988, police characterized Rivera as 'a person of interest,' but appear to have abandoned their investigation [10] of Rivera after encountering difficulty locating him."

"Detectives identified another man, Eddie Ruiz, as a suspect who fit the description of the man seen at the bar: 5'7 or 5'8, thin build, wore gold jewelry, and drove a black car...According to police reports, Eddie Ruiz was believed to have known Ms. Hernandez, and on one occasion he assaulted Ms. Fernandez's female relative...In February 1988, bartender Joseph Castillo identified Ruiz out of a photo array as the person who was with Ms. Fernandez the morning she was murdered... Castillo's identification of an alternative suspect was not documented...Castillo's identification of an alternative suspect was not disclosed to the defense before the trial.

"Additionally, in April of 1988, detectives received a tip that a person named Edward Denning fit the composite sketch of the man seen with Ms. Fernandez the morning she was murdered...The tipster stated that Denning 'has a very violent temper and is known to frequent bars.'...Denning, a 28-year-old white man, was a police officer with the NYPD's 60th Precinct...All three bar witnesses -- Joseph Castillo, William Perry, and Robert Thompson -- described the man with Ms. Fernandez as being white, between ages 28 and 32...In May 1988, detectives interviewed the tipster, who described Denning as a 'crazy whacko' who used drugs, 'beat up his sister' and 'was not very stable.'...In July 1988, detectives contacted the NYPD's Internal Affairs Division and learned that Denning was 'on sick report' from November 23 to November 25, 1987 (Thanksgiving Eve), and that Denning also did not work on November 26 (when the murder took place) or November 27, 1987...Despite this information, detectives failed to pursue Denning as a suspect in Ms. Fernandez's murder."*

[* Perhaps because he was a cop? ]

"In April 1988, Det. [John] Beisel was assigned by the NYPD to lead the investigation into Ms. Fernandez's murder...Struggling to track down the black Monte Carlo or its owner, Det. Beisel shifted the investigaton's focus to the white Cadillac that watchman Robert Solonay had seen leaving the lot where Ms. Fernandez's body was found...Detectives learned about a white car owned by Pete Sierra, a security guard at Wyckoff Heights Hospital, where Ms. Hernandez spent time on Thanksgiving Eve 1987 before going to the Little Liva Bar...In August 1988, detectives located Sierra's car near Wyckoff Heights Hospital. Sierra's car was different from the car Solonay described as leaving the lot on Thanksgiving morning of 1987...First, Sierra's car was an Oldsmobile, but Solonay described a Cadillac. Second, Sierra's Oldsmobile had a red roof, but Solonay described an all-white car...Despite these differences, Det. Beisel obtained permisson from Sierra to voucher the red-and-white Oldsmobile as evidence...Sierra had purchased the Oldsmobile in early 1988 from a fellow Wyckoff Heights security guard named Javier Ramos...Ramos, not Sierra, owned the car at the time of the murder in November 1987...On or about September 9, 1988, Ramos visited the 104th Precinct to inquire why his former car, the white-and-red Oldsmobile, had been taken by the police...When Ramos entered the precinct, he was unaware that detectives were trying to connect his former car to a homicide."

"At the 104th Precinct, Det. Beisel took Ramos into an interrogation room...Led by Detective Beisel, detectives interrogated Ramos for approximately 13 hours ...Detectives used coercive tactics to get Ramos to either confess to the murder or lead them to another suspect...Det. Beisel was assisted in the interrogation by NYPD Sergeant [George] Zaroogian, NYPD Detective John Califano, John Wilde, and Jerry Fennell, and LIRRPD detectives Thomas Sullivan and Charles Wendel. ...The detectives told Ramos, falsely, that they 'knew' his former car was used in a murder, and that either he committed the murder or knew who did it...Detectives threatened to prosecute Ramos for the murder... Det. Beisel pushed Ramos, threatened to maim or kill him, called him a 'spic' and a 'Hispanic prick,' denied him food, water, and the use of a bathroom, and refused his request to leave...Ramos told the detectives that, in the past, he had loaned his car to two friends, Richard Pereira and Felipe Rodriguez, but did not indicate that he had done so at the time of the murder...Det. Beisel demanded that Ramos take him to Felipe's residence...Det. Beisel, Det. John Califano, and Det. John Wilde put Ramos in an unmarked police car and directed Ramos to lead them to Felipe's residence...On the way, the detectives stopped at Cypress Hill Cemetery in Brooklyn and threatened to kill Ramos if he did not either admit to the murder or implicate Felipe. Ramos gave the detectives what they demanded: he told them that he loaned the car to both Felipe and Pereira at the time of the murder... [12] This information was false...The detectives proceeded to [Pereira's address] with Ramos, but [he] was not home...[13] [D]etectives [subsequently] arrested Richard Pereira...At the precinct, Det. Beisel handcuffed Pereira to a chair and interrogated him in an effort to force him to confess...During this interrogation, Beisel smacked Pereira so hard that Pereira and the chair fell to the [floor] ...However, three witnesses then failed to identify Pereira at a lineup...Detectives then were compelled to void Pereira's arrest and let him go home."

"In late September 1988, Det. Beisel, Det. Fennell, and Det. Wendel placed a Nagra recording device on Richard Pereira and sent him to confront Javier Ramos at Wyckoff Heights Hospital, where they both worked...During the recorded conversation, Pereira asked Ramos where his car was on Thanksgiving 1987...Ramos responded: 'My car was parked in front of my mother-in-law's house, because my battery [] was dead. . .I told them all of this. And yet they didn't, they didn't want to hear that. . .They wanted me to confess to something.'...During the taped conversation both men discussed the abusive interrogation tactics used against them...Pereira described being 'smacked' by police 'all night long.'"

[14] "For approximately six months following the interviews and lineups in September 1988, Det. Beisel visited Javier Ramos multiple times each week at Wyckoff Heights Hospital...[15] During these visits, Det. Beisel threatened and pressured Ramos to implicate Felipe in the murder...On March 27, 1989, having failed to solve the Fernandez murder for 16 months, Det. Beisel and Detective Sullivan picked up Javier Ramos and drove him to the 104th Precinct...Det. Beisel and Det. Sullivan brought Ramos into an interrogation room, where Sgt. Zaroogian, Det. Fennell and Det. Wendel were also present...Ramos was facing the same detectives who, six months earlier, coerced his statement falsely accusing Pereira of the murder...This time, Ramos was interrogated for approximately seven hours...To induce Ramos to accuse Felipe, Det. Beisel falsely told Ramos that Felipe had accused Ramos of the murder...Beisel then falsely stated that Felipe's DNA had been found in Ramos's Oldsmobile and that Felipe's clothing matched the eyewitness description of the apparent murderer...When Ramos succumbed to the coercive tactics and agreed to provide a statement implicating Felipe, the detectives called ADA David Dinkman in order to prepare an affidavit for Ramos falsely accusing Felipe of committing the murder."

[So, to recap, the detectives quickly give up pursuing one promising suspect because he proves too difficult to locate. Another who fits witness descriptions is a cop, and they drop him like a hot potato. A third suspect who fits witness descriptions also is not pursued. A fourth guy shows up at the precinct wanting to know why his former car (even though it did not match witness descriptions) was impounded, and he's coerced into naming others who borrowed it lest he be charged with murder himself. One of the two guys he names is arrested for murder (based on essentially nothing), but then has to be let go when no witnesses pick him out of lineups. That just leaves the second guy whose name the former-car-owner coughs up under police coercion: Felipe Rodriguez, who does not match any witness descriptions, and has never owned or even had access to any of the cars described by witnesses. Great job, 'detectives.']

from NRE synopsis (by Maurice Possley):

"Police determined that Fernandez [the murder victim] spent the earlier part of the previous evening in the pediatric ward at Wyckoff Hospital, visiting her two-year-old daughter, who was a patient there. Late that evening, she went to a bar on Gates Avenue known variously as Little Liva, Live a Little, and La Fiesta. Witnesses who knew her said she was accompanied by an unidentified man whom she seemed to know. Another customer at the bar, Robert Thompson, told police that he tried to sell them a watch. Thompson and other witnesses would later describe the man she was with as 'white,' 'Italian,' or 'Hispanic,' clean-shaven or clean cut, stocky -- weighing between 175 and 200 pounds -- and about 5 feet 8 inches tall.

"Thompson, who was intoxicated on both drugs and alcohol that night, decribed the man as having reddish-brown hair."

"The pediatric ward at Wyckoff Hospital was rumored to be a place where male staff and visitors tried to pick up mothers of young patients. Detectives therefore began looking at the staff. Eventually, police determined that hospital security guard Javier Ramos had owned a white Oldsmobile and had worked from 4 p.m. until midnight at the hospital on the night Fernandez was last seen. They learned that Ramos had thereafter sold the car to another employee, Pedro Sierra, in February or March of 1988."

"[O]n September 25, 1988, police asked 23-year-old Felipe Rodriguez, who was a friend of Ramos, to come in for a voluntary interview with Detective Beisel. Rodriguez said he had on several occasions borrowed Ramos's car and sometimes visited Ramos while he was working at the hospital. Rodriguez also mentioned that he worked part-time as an auxiliary police officer. After the interview, Rodriguez went home.

"On March 27, 1989, Ramos was again taken into custody. This time, he was released after he signed a new affidavit claiming he 'wanted to put an end to this and just tell the truth.' In this account, he said it was Rodriguez -- not Pereira -- who borrowed his car on November 25, 1987. Ramos added a few additional inflammatory details. Now, he also quoted Rodriguez as saying he 'had to stab her to show that she was dealing with a man, not some boy.'

"According to the police report of Ramos's statement, he 'did not tell the complete truth about what had happened because I didn't want to tell on Felipe,' and that he falsely named Pereira because he 'was the only other person I ever loaned [the car] to at the time.' Ramos allegedly insisted that 'what I did say in my other statement was true if you substitute Felipe' for Pereira."

"Later that day, police arrested Rodriguez and placed him in a lineup. La Fiesta bartender Castillo as well as bar customer William Perry and bartender Ceznaukas did not identify Rodriguez. Only one witness, Thompson, selected Rodriguez, although his initial description from nearly a year earlier was of a clean-shaven man of Italian descent, about 5 feet 8 inches tall with reddish-brown hair. Rodriguez had a large moustache, jet-black hair, and was 5 feet 11 inches tall.

"Based on the second Ramos statement and Thompson's lineup identification, Rodriguez was indicted for the murder. After he took a police-administered polygraph examination and his denials of involvement in the crime showed no deception, Rodriguez was released on bail pending trial.

"In April 1990, Rodriguez went on trial in Queens..."

"Ramos claimed that he had failed to come forward for months and then falsely accused Pereira because Rodriguez was 'like a brother' to him. During cross-examination, Ramos denied that his true motivation in naming first Pereira and then Rodriguez was to protect himself from suspicion. He asserted that the only lie he told the police was to use Pereira's name in his initial statement. He said, 'I didn't want to give up my friend.'

"Thompson testified and identified Rodriguez as the man with Fernandez in La Fiesta. Thompson testified that he shook the man's hand at the bar, and observed that they were 'large hands' with 'no calluses.' He also testified that the man had letters written on the 'outside of the four knuckles' of his left hand, spelling 'L-O-V-E.' Rodriguez had no tatoos or birthmarks and the police had not noticed any markings when he was interviewed. Thompson admitted that he did not mention the marking on the suspect's hands until the last of his half-dozen police interviews and more than five months into the investigation, even though his earlier statements had described rings on the man's hands. He also admitted that he did not actually remember seeing the word 'L-O-V-E,' but only 'figured' that was what the writing spelled out, adding that he 'was pretty intoxicated' and 'it's 20 months later.'

"Thompson admitted that during the eight hours prior to his arrival at La Fiesta, he smoked five marijuana joints and consumed a half of a fifth of rum. At La Fiesta, he said he had at least three 'double-rum' and cola drinks. He said that when he left the bar at 4:30 a.m., Fernandez and the man were still there.

"Castillo, the bartender at La Fiesta, did not see any such markings on the suspect's hands nor did any other witness from either bar.

"Thompson's testimony was further contradicted by Castillo, who said he closed at 4 a.m., and by the warehouse security guard, Solonay, who said he saw the white car leaving the warehouse between 3 and 4 a.m. Solonay testified and did not identify Rodriguez as the man he saw in the white car."

"On May 2, 1990, the jury convicted Rodriguez..."

"In reviewing the record, Rodriguez's appellate lawyer, Martin Lucente from the Legal Aid Society, noticed in Rodriguez's pre-sentence report a reference to a taped conversation between Ramos and Pereira. There was no reference to the tape in the trial and Rodriguez's trial defense attorney, Jennifer Maiolo, had not noted it either.

"Lucente requested a copy of the tape from the Queens County [DA's] office. By that time, the trial prosecutor, Alan Safran, had left the office for private practice. Safran said he had disclosed the tape to Maiolo, but had not made a transcript of it because it was largely 'unintelligible' and in Spanish.

"Lucente had the tape translated and transcribed. On the tape, Pereira was heard confronting Ramos about why he falsely told police that Pereira had borrowed Ramos's car the night before Thanksgiving. At Rodriguez's trial, he testified that he had named Pereira because he was covering for Rodriguez, and Pereira's was the first name that came to mind since he was 'the only other person' to whom he had loaned his car. On the tape, however, Ramos told Pereira something different. Ramos said his false accusation was in direct response to the police's claim that Pereira had falsely accused Ramos of the crime first. Ramos was heard saying, 'I'm under the impression you pointed the finger at me.' Ramos said he sought to protect himself by pointing the finger back at Pereira, whom he thought was his accuser. Additionally, Ramos assured Pereira that not only did he know nothing about the crime, but that he had not loaned his car to anyone that night and lied to the police when he said he had. In fact, Ramos said, he did not even use the car to drive himself to his relatives in New Jersey on Thanksgiving Day because it was on the street with a dead battery. On the tape, Ramos was heard telling Pereira he told police 'all of this. And yet they didn't want to hear that.'"

"In October 1992, Lucente filed a motion to set aside Rodriguez's convictions on the ground that the tape had not been disclosed to Rodriguez's trial defense attorney.

"At a hearing in March 1993, the prosecution disclosed two police reports that referenced the tape. Maiolo claimed she had never seen them. Maiolo said that had she received the tape, she would have had it transcribed and translated, and then used it to cross-examine Ramos.

"Attorney Kenneth Litwack represented Rodriguez from April to November 1989, before Maiolo replaced him. Litwack testified that he knew something about the existence of an audio recording of a conversation between Pereira and Ramos, but was confident that he had never heard the tape or been given a copy. He did not specifically recall discussing the tape's existence with Maiolo, but he said it would have been his practice to relate 'every detail of the case' that he thought was important when transferring his file.

"Safran, the trial prosecutor, contended he had turned the tape over to Maiolo at the beginning of the trial. He also maintained that the recording was 'completely uninteresting,' 'gibberish,' and 'nonbelievable.'* He said he already knew that Ramos was a liar** after Ramos falsely implicated Pereira. Safran admitted that he had not asked for the recording to be translated or transcribed. He said that since he knew a little Spanish, he had listened to it with the aid of a paralegal. He admitted he had never played the tape for Ramos or asked Ramos about its contents before Ramos testified at the trial."

[* Recall that Safran had also claimed the tape was 'largely unintelligible.' But, how can 'gibberish' be 'nonbelievable'? If it were indeed the case that what was said was 'unintelligible,' then it could be neither believable nor nonbelievable, because, one would not be able to discern what was actually said. But as we now know, that tape was crystal clear -- and immensely exculpatory.] [** If that is so, why did Safran call him as a prosecution witness?]

"On July 30, 1993, the trial judge denied the motion to vacate the convictions. Although the judge indicated that the tape directly impeached Ramos and was favorable to the defense, he held that the defense had failed to show that the tape was not turned over."*

[* As a matter of logic, it's essentially impossible to 'prove a negative.' Thus, this judge was holding the defense to a standard no one could have met.]

"In 2001, after his appeal had been rejected, Rodriguez wrote to the Innocence Project requesting help. In 2007, his case was accepted. Unfortunately, most of the physical evidence from the victim's body and clothing had been destroyed pursuant to the medical examiner's protocols at the time. Ultimately, extracts from the car fabric cuttings were found, as were hairs from the victim's clothing. However, the extracts yielded no DNA and the hairs revealed only female DNA.

"After the search for biological evidence was exhausted, the Innocence Project recruited private attorney Zachary Margulis-Ohnuma to assist with non-DNA aspects of the case. In November 2016, Nina Morrison, senior staff attorney at the Innocence Project, and Margulis-Ohnuma filed a petition asking New York Governor Andrew Cuomo to grant clemency. The petition said that Rodriguez was not only 'innocent of the crime of conviction, but, more importantly, is an exceptionally worthy candidate for clemency because of his remarkable record of redemption, responsibility and generosity in prison.'

"In addition to citing Rodriguez's exemplary record while in prison, the petition noted that it was 'difficult to imagine' that if Safran had given the tape to the defense, 'he would not have made sure to prepare his own chief witness for the all-but-inevitable cross-examination that any defense attorney who listened to the tape would likely raise, by sitting down with Ramos to review the tape in detail and asking him to explain the contradictions, and obtaining a full transcription and translation of the tape, so he himself could at least be prepared to anticipate any questions the tape might raise in the jurors' minds.'"

"In December 2016, Gov. Cuomo granted the petition, commuting Rodriguez's sentence to time served. On January 26, 2017, Rodriguez was released. Subsequently, at the request of Rodriguez's lawyers, Queens County...[ADA] Robert Masters commenced a re-investigation of the case.

"As a result, additional reports and notes from the detectives' files were discovered that had never been disclosed to Rodriguez's defense. According to a report in the New York Daily News, these included a report saying that Perry, one of the witnesses at La Fiesta, affirmatively said that Fernandez and the man with her arrived at the bar in the black Monte Carlo. Such a report could have been used to discredit the theory that the white car seen by the security guard belonged to the killer. Perry's statement and other reports in the police file also directly contradicted testimony from the detectives and arguments by the prosecutor that the investigation had yielded no evidence indicating that the black car was connected to the victim or her murder.

"Also undisclosed were reports that Fernandez's husband, Carney Fernandez, was a suspect because of numerous witness accounts that he had a violent temper and was known to assault female companions. In addition, witnesses said that Fernandez wanted to leave him and that Carney did not like her going out without him. At the time, Carney had presented an alibi* and was found to be truthful when he denied involvement during a police-administered polygraph examination."

[* According to the Records and Briefs above, Carney did not have an alibi.]

"Most critically and 'decisive' in the [DA's] agreement to grant relief was the discovery of handwritten notes by a Long Island Railroad detective. The notes indicated that Ramos described Rodriguez as showing up at his house with a black man he had never mentioned before. The notes were dated March 27, 1989 -- the same day Ramos gave a sworn affidavit implicating Rodriguez, which made no mention of such a companion.

"And according to other reports, eight days before Ramos accused Rodriguez, Beisel obtained approval to arrest Rodriguez and put him in a lineup, while also trying to compel Ramos to testify as a material witness. The newspaper said this 'account differed sharply from (Detective) Beisel's memo closing the investigation. There, he wrote that, in a period of hours on March 29, 1989, Ramos implicated Rodriguez; detectives summoned an [ADA] who formalized the statement; detectives placed Rodriguez in the lineup and the (prosecutor) drew up an affidavit starting the prosecution.'

"In addition, in 2017, after being contacted by an Innocence Project Investigator, Ramos recanted his accusation against Rodriguez and said his statements to the police were false and the result of police pressure. He stood by his recantation in a lengthy, voluntary interview with Masters in December 2019, although the prosecution ultimately did not credit his recantation.

"On December 30, 2019, at a hearing in Queens...Masters said that the notes from the Long Island Railroad detective that were not turned over could have 'impeached the entire investigation.'

"Queens County...Justice Joseph Zayas granted a motion filed by the defense lawyers Morrison and Margulis-Ohnuma to vacate the convictions. The [DA's] Office joined the motion, agreeing that evidence favorable to Rodriguez had not been disclosed to the defense. Masters then dismissed the indictment.

"Justice Zayas said the case was a miscarriage of justice that 'took too long to correct.' He added, 'Mr. Rodriguez, you deserve better than that, but you never lost faith.'

"In March 2020, Rodriguez filed a compensation claim in the New York Court of Claims. In March 2021, Rodiguez filed a federal civil rights lawsuit. In April 2022, Rodriguez settled the compensation claim for $5 million. A year later, Rodriguez settled his lawsuit against the City of New York for $10 million."

[Due to the complexity of this case, some 'summing up' on key points would seem to be in order: 1) Cars. The white Cadillac or Oldsmobile seen by Solonay would appear to be a red herring -- albeit one which, via a circuitous and tortuous route, was integral to this wrongful conviction. But it does not appear to have had anything to do with the actual crime here. On the other hand, the black Chevy Monte Carlo may well have. One suspect, Rivera, was said to own such a car. (Ruiz also had a black car, though the make and model was not stated.)

2) Perpetrator Description. None of the witnesses said the perpetrator was Hispanic; and two specifically said he was not Hispanic. (Not only is Felipe Rodriguez Hispanic, but he also has a thick, Puerto-Rican Spanish accent.) Neither did any of the witnesses say the perpetrator wore eyeglasses; four specifically said he did not wear eyeglasses. (But Rodriguez did.)

3) Lineup Selection. Two of the three bar witnesses did not select Rodriguez. The only one who did -- Thompson -- was high on marijuana and drunk. Moreover, Rodriguez did not match the description Thompson originally provided.]

[All emphases added unless otherwise noted.]

Jose Rodriguez - Mistaken Witness ID / Prosecutor Misconduct

Tue, 01 Jul 2025 22:28:13 +0000

Rodriguez, Jose; robbery; NRE: mistaken witness identification, prosecutor misconduct, withheld exculpatory evidence

2013 WL 3939160; S.D.N.Y. 7/23/13; civil suit

"During his interview with Detective [Gerald] Heanue [on 2/21/06], [robbery victim Francisco] Baez said that at approximately 11:30 p.m. the prior evening, two individuals approached from behind as he was walking on the street...[and] that one...was a black male who...was aged sixteen to eighteen years old, wore a black fur jacket with the hood up, and was armed with a black 'semi-auto' gun during the robbery. Baez stated that the other individual was a Hispanic male, aged sixteen to eighteen years old, approximately 5'6" and 200 pounds, and wore a white jacket with patches and diamond studs in both ears.

"After the interview ended, Baez looked through a book containing photographs of individuals who had previously been arrested for robbery or grand larceny within the precinct, but did not see a photograph of either individual who had robbed him...Then Detective Heanue showed Baez photographs selected by a computer program that compiles six-person photo arrays of individuals based on variables entered by police...Based on the physical description that Baez provided of his assailants, Heanue compiled two photo arrays using the software, one for each perpetrator. When Baez viewed the fist array, [he] selected a mug shot of Rodriguez in which he appeared with diamond earrings in both ears...When he viewed the second, Baez selected Vynell Simmons as the other perpetrator.

"Rodriguez [later told a second officer] that at the time of the robbery, he was sleeping at his girlfriend's house...[At a lineup the following day, Baez] 'immediately' identified Rodriguez as one of the individuals who robbed him.

"[In a lineup the following day,] Baez identified Simmons as the second perpetrator.

"[An ADA assigned to the case] became aware that Simmons had been arrested but not indicted, though he did not know the reason why there was no indictment of Simmons.

"At the sentencing hearing, Rodriguez's trial counsel, referring to the fact that Simmons had not been prosecuted, stated that 'you have to ask yourself if it's the same witness, the same facts, then why are they dismissing against one person and not dismissing against my client...'

"Once he began serving his sentence, Rodriguez requested documents relating to his conviction. Eventually, on March 24, 2010, Rodriguez's appellate counsel, David Klem...sent a letter to ADA Joseph Ferdanzi, the Chief of the Appeals Bureau, requesting that his office disclose 'the basis for the dismissal of the charges against Vynell Simmons.' On April 29, 2010, Klem and ADA Ferdanzi appeared before Judge Newman and moved to vacate Rodriguez's conviction. Ferdanzi stated that a Brady violation had occurred as a result of the failure of the Bronx DA's office to disclose that Baez had 'wrongly' identified Simmons as one of the men who robbed him, and Judge Newman thereafter endorsed an order vacating [Rodriguez's] conviction and directing his immediate release from prison."

from NRE synopsis (by Maurice Possley):

"On February 20, 2006, at 11:35 p.m....Francisco Baez, a taxi driver, was robbed at gunpoint by two men as he walked down the street on his way home after having parked his cab for the night.

"Baez told police that the robbers took his wallet, containing more than $300 and his identification cards. Baez told police the gunman was a black man wearing a black hoody and black pants and a light-skinned Hispanic man with a ponytail and wearing either a red jacket or a white jacket with patches.

"The following day, Baez met with a detective assigned to the case and provided slightly more detailed descriptions. He described the gunman as a black man, 18 to 19 years old, 5'8" tall and weighing 150 pounds. The second robber was a Hispanic man, 16 to 18 years old, 5'6" tall, weighing 200 pounds, with 'Chinese-looking eyes' and wearing blue jeans and a white jacket with patches.

"Baez viewed photo books at the precinct that day, but after 15 to 20 minutes gave up and made no identification. A detective then put the description into the police information management system, which generated mugshots of possible matches.

"After viewing just 12 photos, Baez identified 19-year-old Jose Rodriguez as one of the perpetrators.

"Upon resetting the computer with the other description, Baez then identified Vynell Simmons as the perpetrator who displayed the gun.

"A week later, police arrested Rodriguez, who, at 5'6" tall and 180 pounds, was shorter and heavier than the description of the gunman Baez gave: 5 feet, 8 inches tall and 150 pounds. The following day, police arrested Simmons.

"Baez identified both Rodriguez and Simmons as the perpetrators in separate lineups. Rodriguez was indicted by a grand jury after Baez testified that he was one of the perpetrators. The prosecutors did not pursue an indictment against Simmons because Baez informed them just prior to entering the grand jury hearing Simmons' case, that his identification of Simmons was wrong.* Simmons' case was then dismissed."

[* We are not told how and why Baez came to this conclusion..]

"The prosecutors did not tell Rodriguez's attorney that Baez had recanted his identification of Simmons; nor did they explain why the case against Simmons was dismissed.

"On November 10, 2007, Rodriguez was convicted solely on the basis of Baez's testimony that he was the gunman."

"Rodriguez's appellate lawyers reinvestigated the matter, determining that Simmons and Rodriguez did not know each other, and that Simmons might have had an alibi...His appellate lawyers then made a post-conviction request for exculatory evidence from the Bronx [DA's] office, seeking the reasons why the charges against Simmons were dismissed.

"In the letter they argued that any questions about the accuracy of Baez's identification of Simmons as the perpetrator would be exculpatory for Rodriguez, since his conviction rested entirely on Baez's uncorroboated identification. In response, the prosecution agreed that the conviction be vacated. The charges were dismissed on March 25, 2011.

"Rodriguez later filed a federal civil rights lawsuit seeking compensation, but the lawsuit was dismissed."

[All emphases added unless otherwise noted.]

Wildon Rodriguez - Perjury / withheld evidence / witness tampering

Tue, 01 Jul 2025 22:07:30 +0000

Rodriguez, Wildon; murder; NRE: perjury/false accusation, prosecutor misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant, prosecutor lied in court

[735:811]; 2nd Dept. 12/31/01; affirmed

"[W]e are satisfied that the verdict of guilt was not against the weight of the evidence..."

131 N.Y.S.3d 380; 2nd Dept. 9/30/20; grant of previous motion to vacate affirmed

"At trial, the [prosecution's] sole eyewitness, Althemease Cort, testified that she saw [Rodriguez] shoot the victim. In 2015, [Rodriguez] moved to vacate the...conviction on the ground that the [prosecution] had failed to disclose the relationship between Cort and law enforcement agencies..."

"Here, [Rodriguez] was not provided with material regarding Cort's participation as a witness in two unrelated homicide trials, along with prior agreements between Cort and law enforcement, including her use as a confidential informant by police and her placement in a witness relocation program following her participation in one of the unrelated homicide trials, during which her rent was paid by the Office of the Kings County [DA] for approximately one year. This material contradicted Cort's trial testimony that she did not have any 'deals' with law enforcement and had not been in touch with the [DA's] Office 'for a long period of time,' as well as the prosecutor's arguments during summation that Cort 'never took a deal' and 'never asked for anything in return.' Significantly, Cort's credibility was critical as she was the [prosecution's] only witness to testify that it was [Rodriguez] who shot the victim, and there was no other trial evidence directly linking [Rodriguez] to the crime..."

from Records and Briefs:

[2] "[T]he only alleged eyewitness viewed the shooting from a distance, at night, and did not come forward until she herself was incarcerated, and...one defense witness completely contradicted the [prosecution's] version of events, and another placed [Rodriguez] elsewhere at the time of the shooting."

from NRE synopsis (by Ken Otterbourg):

"Just after midnight on November 28, 1993, 21-year-old Craig Jolly was shot in the leg and back in a parking lot at the Wyckoff Gardens apartments in Brooklyn..."

"Jolly was unconscious when police arrived, and he died later that day at Methodist Hospital without saying who shot him. Police canvassed the neighborhood but didn't get any hard leads on suspects.

"A few months later, a witness named Althemease Cort came forward and said she had seen 18-year-old Wildon Rodriguez shoot Jolly after an argument. She knew Rodriguez from the neighborhood and picked him out of a photo array on March 1, 1994 and then from a live lineup on April 1, 1994.

"Due to a booking error by police, Rodriguez was not arrested after the live lineup, and he left the police station without incident. It wasn't until November 23, 1998* that Rodriguez was arrested, while he was at Rikers Island jail on an unrelated charge."*

[* That's over 4-1/2 years after Cort picked him out in a line-up. This wasn't just a 'bookng error': It was an astonishing dereliction of duty by the police in a murder case.]

"There was no forensic or physical evidence connecting Rodriguez to the murder. The state's case relied on Cort's testimony. Prior to the start of the trial, Rodriguez's attorney, Paul Madden, and [Brooklyn ADA] Kyle Reeves battled over what evidence prosecutors needed to disclose. This included potentially exculpatory information about the state's witnesses, such as their criminal conduct or any favorable treatment they had received from the state. Eventually, they reached an agreement, and in the disclosure documents provided to Madden, prosecutors noted Cort's extensive criminal record, including two convictions in April 1994 for possession of stolen property and possession of a controlled substance. For those convictions, she received two separate six-month sentences that ran concurrently.

"Rodriguez's first trial...began on April 27, 1999. A mistrial was declared on May 6 due to juror illness. The second trial began on October 12, 1999.

"At trial, Cort testified about seeing Rodriguez shoot Jolly. She had been one of the persons police interviewed in the immediate aftermath of the shooting and initially told officers then that she didn't see anything.

"Reeves asked Cort a series of questions aimed at vouching for her independence and credibility as a witness. Each time, she answered 'no' and said prosecutors had not offered her any deals or given her special treatment.

"Rodriguez did not testify, but he presented two witnesses. Azizi Moore, a former girlfriend who was the mother of his child, testified that she was with Cort and two other people driving back from McDonald's when they heard shots but did not see the shooting. They waited a few minutes, then ran and found Jolly's body. Moore said several minutes later she saw Rodriguez outside, along with many others, at the crime scene. A woman named Maria Cardona also testified that she saw Rodriguez just before hearing the gunshots. But she didn't see Rodriguez with a weapon and he was headed in the opposite direction from where Jolly was found.

"In his opening statement, Reeves told jurors that Cort 'didn't receive anything for coming forward. No one cut her any deals. No one gave her any breaks.' In his closing argument, he returned to this point and said Cort was the only person who could be believed. He said, 'She had to sit here and tell you, "Yeah, you know what, at one point in time I did stuff that I am not proud of, I stole, I sold drugs back in '86, '87. I got caught, and when I got caught, I pled guilty. I pled guilty because I did those crimes. I never took a deal."'

"The jury convicted Rodriguez of second-degree murder on October 20, 1999."

"Rodriguez appealed his conviction in 2001, arguing insufficient evidence. The Appellate Division...rejected his appeal on December 31, 2001. He also filed an unsuccessful petition for a writ of habeas corpus..."

"On December 15, 2015, Rodriguez filed a pro se motion in Kings County...to vacate his conviction based on the prosecution's failure to disclose exculpatory evidence and to correct false testimony. While in prison, Rodriguez had spent years filing extensive public-records requests related to his case. These documents undermined the state's claim that Cort had received nothing for her testimony.

"He tracked down the court transcript from a February 10, 1994 hearing, where a judge told Cort that she was a 'predicate felon' and looking at between 18 and 36 months in a state prison for the stolen property and possession charges she was facing. The stolen property charge was the most recent, occurring in January 1994. 'What was offered you was the minimum plea that can be offered and that's the minimum sentence that can be imposed,' the judge said.

"But Cort's plea and final sentencing were continued [i.e., postponed] several times until April 15, 1994. In the interim, Cort picked Rodriguez out of two lineups and testified before a grand jury. It was only then that she received that more lenient sentence, which she served in a city facility, rather than in an upstate New York prison.

"Separately, Rodriguez also uncovered evidence that Cort had received more than $35,000 in cash, housing and food allowances as part of a witness-protection program tied to her testimony against Louis Charriez, a defendant in a separate murder case. This assistance began on May 14, 1997 and continued until April 12, 1999, just prior to the start of Rodriguez's first trial. (Charriez was also unaware of the payments, and his conviction was vacated on February 25, 2021.) In its response to Rodriguez's motion, the state said that Rodriguez couldn't point to any specific agreement between Cort and prosecutors. It also said the witness-protection payments didn't need to be disclosed to Rodriguez, because they were unrelated to his case.

"On April 22, 2019, Justice Guy Mangano Jr. of Kings County...vacated Rodriguez's conviction and ordered a new trial. He sharply criticized Reeves for his 'blatantly intentional misstatements to the jury' and for not correcting Cort's false testimony about her deals with prosecutors. He also said prosecutors should have disclosed the substantial assistance and other benefits Cort received for her testimony in the Charriez case.

"Rodriguez was released from prison that day. The state appealed Mangano's ruling.

"Rodriguez's response to the state's appeal was aided by additional documents released by prosecutors that highlighted the relationship between Cort and Detective Joseph Yates, the lead investigator in the Jolly case. Cort, who died in 2007, was a confidential informant for Yates, and she reached out to him after her January 1994 arrest. There was an unsuccessful effort to void that arrest, and then Yates visited Cort at Rikers Island. Then, on March 1, 1994, they traveled to Brooklyn, where she picked Rodriguez out of a photo lineup.

"In its appeal, the state suggested these events were unrelated. Rodriguez's appellate attorney said that made no sense. 'The People seem to think,' he wrote, 'this Court is credulous enough to believe police just happened to stop by Cort's jail cell on a whim, that Cort closed their murder case for them while expecting nothing in return, and that she escaped certain upstate prison time on two open felonies as a result of good fortune.'

"On September 30, 2020, the Appellate Division...upheld Mangano's ruling. It said the records that the state failed to turn over were material to Rodriguez's defense because they undercut Cort's testimony that she didn't have any deals with prosecutors and because they contradicted Reeves's summation that Cort never 'took a deal' or 'asked for anything in return.'

"A spokesman for the [DA's] office said it disagreed with the court's ruling, but Cort's death made it impossible to retry Rodriguez. Prosecutors made a motion to dismiss the charge, which was granted on January 8, 2021."

"On February 25, 2021, Kings County...Justice Jane Tully vacated Charriez's conviction and ordered a new trial. Justice Tully declared, 'The People's failure to disclose the moneys paid, promises made, and benefits conferred upon every single witness who testified against [Charriez], failure to correct misstatements, and conduct in bolstering the credibility and misstatements of the witnesses, constituted a denial of [Charriez's] rights and a pattern of breach of the People's constitutional duty.'

"Justice Tully ordered Charriez released from custody that same day.

"In April 2021, Rodriguez filed a federal civil-rights lawsuit against the City of New York and other parties, which was settled later that year for $7 million.

"On January 27, 2023, the prosecution dismissed the case against Charriez."*

[* Note that the DA kept Charriez 'hanging' for nearly two years before finally dropping the charges against him.]

[All emphases added unless otherwise noted.]