Date: Tue, 24 Jun 1997 18:55:33 Subject: in defense Today, first the first time in a 26 year LEO career, when they said "will the defendant please rise", it was me standing up. Today I started trial in Federal Court for damages connected to an arrest for which I am charged with using excessive force, r acial animus, and infliction of intentional emotional distress. On 5/24/95, while riding my bike from one office to another on a very empty highway, I was cut off by a slow moving car enteri ng the parkway and proceeding directly into the middle lane at 30 mph. I swung around him in the left lane at about 60 mph, c utting back into the middle lane after making the pass, giving him "a look" over my shoulder as I passed. A mile or two down the road the car caught up to me, pulling along side, giving me a view of three young males laughing and gesturing as they pac ed me on my left. Then the car swerved into my lane. I was ready for them, having already moved to the far side of my lane, and ready to brake. I braked hard and the car slid into my lane directly in front of me. Guess what happens next. He hits his brakes but I'm already moving right, into the right lane. He starts to move right also, but I swing to the left. At this point, a car catches up to us from the rear, and comes between us. With witnesses around the car now breaks off and takes off. I give him a chance to get a lead then go after him at approx. 80 mph for approx. 7 miles. At that point he exited the parkway and got caught in traffic stopped at a light at the end of the ramp. I stopped the bike, got off, drew my service pistol, walked up to the driver wondow, aimed my Glock at his head and pla ced him under arrest. He seemed just a bit surprised to be looking into that 9MM. hole along side some nice shiny brass. Now, two years later here I am in Federal Court. The complainant testifies first, and gives a disjointed confused and untruth ful account of the incident. My attorney, the NYS Attorney General (Deputy), cross examines, and trips him up on several inco nsistencies, eventually getting him to admit that the information contained in the complaint is not correct, and the Sworn Aff idavit submitted in support is not truthful. And yet, here I am, still on trial. Anybody can haul anybody into court, any time they want. Day two tomorrow. If anyone's interested I'll post a summary. Bob '82 Aspencade '78 750F\SS '78 550K Long Island, NY R.Cuttler@Juno.com Date: Wed, 25 Jun 1997 23:03:36 Subject: in defense Day Two is now complete. The plaintiff's two witnesses, his friends and companions in the car during the incident, testified. It was not difficult for my attorney, NYS Attorney General (Deputy), to get them both talking circles trying to say they did n't say what they just said. He got them both to admit (as with the complainant yesterday) that the Sworn Affidavit they had submitted was not truthful. Furthermore, they continually contradicted their own prior sworn testimony in earlier depositions . One of witnesses even said he told the plaintiff's attorney that his Sworn Affidavit was not truthful, and the attorney fil ed it anyway. The plaintiff's attorney then tried to be smart and called me as a defense witness. This gives him an opportun ity to try and control how the jury first hears my story. However, I had been forewarned of this possibility and was not take n by surprise. I spent an hour on the stand just talking about my LEO background and training, and have not yet gotten into t he events at question. That will be tomorrow. All in all, things are going pretty well. So why am I not smiling? After testimony was completed for the day and the jury di smissed, the Judge advised the State to settle. This is before he has even heard our defense. The "System" always operates s moother with settlements rather than jury verdicts. Quicker also. So there is a real possibility the State will give this gu y a few Thousand to go away. I'm steaming at the possibility. Tomorrow I will forcefully argue against it. If there is a se ttlement I'm afraid it will preclude any possibility of counter suit or complaint to the Bar Association. I have been asked what happened to the original charges resulting from the arrest I made. The now plaintiff was charged with Reckless Driving as a Criminal Misdemeanor. The case was "adjudicated" with an "Adjournment in Contemplation of Dismissal", a s the then defendant had no prior criminal record, and no traffic record. An ACOD is a situation wherein the case is adjourne d for six months to a year, and if the defendant gets into no further trouble it is then dismissed. This is neither a convic tion nor a statement of innocence. On the lighter side, during direct testimony, the complainant state the reason he resisted arrest (not vey effectively BTW) wa s that he "didn't know he was a cop, I just though he was a crazy old man on a motorcycle." Well I was taken aback! I was sh ocked! I was flabbergasted (what does that mean)! I want to say today, for the record, so the world will know, THAT I AM NOT ........... that is to say IT IS UNTRUE TO CLAIM............. I mean it is a GROSS DISTORTION OF FACT TO SAY.......... Well O.K., so th ey got me on that one. Bob '82 Aspencade '78 750F\SS '78 550K Long Island, NY R.Cuttler@Juno.com "COMOAM" P.S. If I win this I intend to have "COMOAM" embroidered on my riding jacket. As soon as I heard taht description, I told the AG that I claim that name. Some of the jury members heard me say it, and were giving me a funny look. Date: Thu, 26 Jun 1997 22:34:07 Subject: in defense The AG tells me last night that the Judge has "ordered" him to offer the the guy $10,000. This, apparently, because the Judge soesn't want to be bothered by this "petty" stuff any more. AG told the judge he needed an OK from Albany. 2:00 A.M. last n ight I was literally pacing circles in my darkened bedroom. I was so angry at the possibility of the State settling the case I couldn't sleep. Kept tripping over my boots every revolution. Dog thinks I'm nuts. He went and hid. Got to Court an hour early and called the Attorney General's Office, and told them not to call Albany (the Capital) unless I was there too. Lega l Assistant tells me they already have, and I'm about to go thermonuclear. But she says Albany says tell them to stuff it. I take my first unrestricted breath of the last 12 hours. Day starts with me in the witness stand again, where I remain until about 3:00 P.M. I didn't have too much trouble as the pla intiff's atty is not distinguishing himself. I feel more relaxed at the witness stand than at the "Defense" table. I've test ified before once or twice . P's Atty actually makes me try and estimate how many arrests I've made, and how many times I 've testified under oath. After some reflection I tell him many hundreds of times. I don't think he expected that answer, an d now he looks nervous. He tries all the regular shyster lawyer tricks, trying to get me to say what he wants me to say. You know the type of thing: answer yes or no, did you do this, did you say that? This stuff don't work with me. We have some t esty exchanges, and the Judge cautions me. During a break the AG says it doesn't look good for the Jury to see the Judge do t hat. One of the main points of the complaint is that I didn't identify myself when I stuck a gun in the guy's face. I state the Glock was in my left hand and my shield in my right, both extended. the atty asks to see my shield. I take out the case, and its on a chain, clipped to my belt. He goes "ah hah" you couldn't have done what you claim. I extend and point my left h and, simulating a weapon, and extend my right hand under the left, simulating supporting the weapon, and the chain reaches tha t length. I point out that the chain length was determined just to be able to accomplish this act. Atty not happy. The Plaintiff now rests his case, with his own witnesses not only contradicting each other, but also themselves. They present no evidence of injury and no damages. Their claim that I was acting illegally is contradicted by the Judge, who tells the ju ry that I was legally empowered to make the arrest, and had probable cause to do so. So why am I still not smiling? With the jury out of the room, and my defense not yet begun, the Judge says I was wrong to handcuff the plaintiff. He says what happe ned was just an every day traffic dispute, and the plaintiff should have been given a Court Appearance Summons, telling him to appear in court on a particular day at which time an arrest would be processed. Drawing my weapon, and placing him in cuffs was by itself excessive force. He says this was just an "ordinary" traffic incident. Then he looks at me and says "I bet the Officer feels differently." I say I'm sitting here "biting my tongue". He is talking casually and with curtesy and I respon d in kind. Things are bad enough without getting him pissed at me. Although the actual decision on excessive force is the ju ry's, he can have a great influence by the wording of his charge to the jury before deliberations. But first my defense. We started this afternoon, and adjourned to Monday. Testimony probably will be completed then, with su mmations on tuesday. Well, at least Federal Court has comfortable chairs and good air conditioning. Bob '82 Aspencade, '78 750F\SS, '78 550K Long Island, NY "COMOAM" Date: Mon, 30 Jun 1997 17:48:03 In defense: Today testimony ended and the Defense (me) rested. And I certainly could use the rest. We presented a couple of character wi tnesses and one significant witness. The plaintiff, it turns out, has a family friend that knows me. He approached her follo wing his arrest, and asked her to testify for him, against me. He apparently told his attorney that she would say that I reg ularly use racial slurs, and the attorney put her on his witness list. She testified today to something quite different. She stated that he admitted trying to force me off the road, expecting to then lose himself in traffic, but it didn't quite work that way. She testified that he said to her, in effect, that if she says the right thing there was money in it for her. She refused. She also told this whole story to the plaintiff's attorney, saying she would not make a good witness for him. He su bsequently left her off his witness list, but allowed the plaintiff to testify that she made to him the very statements she ha d refused to make. She was now setting the record straight. She had never heard me make racial slurs, and did not believe me to be a racist. She flew in from Maryland for the morning just to set the record straight. Good start for the morning. The judge, now that he has heard my defense, has not made any more comments (out of hearing of the jury) of a negative nature reg arding my actions. So why am I still not smiling? My attorney makes a motion to dismiss several of the actions for not havin g been proved by the testimony. The judge refuses, says everything is going to the jury (did someone say O.J.). In actualit y, I think about 28 counts of various malfeasances (is that a word?) have already been dismissed, leaving only (?) about 4. S ummation and jury charge tomorrow. I'm steaming that the Judge didn't throw throw the whole thing out. My liability here is o nly with "punitive" damages. Compensatory damages would be covered by the State, as they have already determined that I had a cted properly. But punitive damages are set by the Judge, and he has already said he thought my actions constituted excessive force. Because he is allowing this farce to go forward I'm afraid he has already decided on what he is going to do. The Ori ginal claim was for $180,000 in damages. Punitive award is soley in the Judges discretion. Bob '82 Aspencade, '78 750F\SS, '78 550K Long Island, NY R.Cuttler@Juno.com "COMOAM" Date: Tue, 1 Jul 1997 23:59:56 Subject: Verdict My Federal trial was completed today. Attorneys gave summation in the morning and after lunch the Judge gave his charge to th e jury. Judge seems much more fair to me today. His instructions included a long section on the need to evaluate the credibi lity of witnesses, and how to do so. This is very important as credibility is the most important issue for the jury to decide . By the time he finishes I am feeling very confident. Jury begins deliberation around 3:30. My attorney says if they go o ver an hour we have a problem. Half hour later they request the judge to repeat the definition of "excessive use of force" in an arrest. Now I start getting a real nervous. My Attorney is getting positively agitated. I tell him someone would think it was his money on the line. Seriously though, his competency is being tested. Jury is scheduled to finish for the day at 6 :00. At 5:45 they ask by note for the testimony of a Plaintiff's witness to be read back. Judge informs them by note that i t will take an hour to get the testimony transcribed for read back, and do they want to wait or go home and continue tomorrow ? No answer for 15 minutes, then another note. They have a unanimous verdict. Jury brought in and foreman hands over "Verdi ct Sheet", a 7 page questionnaire. Jury is to answer questions, and follow instructions (if you answer yes to #1 go to #3, if you answer no to #1 go to #2 etc.). Judge reads the Verdict sheet page by page, and now I'm really nervous. Jury wouldn't g et to page #5 unless setting compensatory damages. Page #6 is punitive damages (by the way, the plaintiff's attorney asked fo r $100,000 compensatory award this morning). Then Judge closes Verdict sheet and starts again from page one. When he finishe s again he say to the foreman the instructions were not followed. #2 is answered NO but #3 was not then addressed. He gives the sheet back to the foreman and tells him to take the jury back to the conference room. What's going on here. No one knows . The judge gives no explanation. Ten minutes later another note from the jury. They have a unanimous verdict, and have cor rected a "clerical error". The judge calls them in and collects the verdict sheet again. This time he returns it to the fore man and tells him to read it. QUESTION #1- Has the plaintiff proved by a preponderance of the evidence that the defendant used excessive force during the conduct of the arrest in question. ANSWER-----------NO QUESTION #2- WAs the defendant acting within the scope of his employment when effecting the arrest in question. ANSWER-----------YES Therefore the jury finds for the defendant! The case is over. I have no liability. I am cleared. My actions deemed appropriate. My character no longer in question. So why am I still not smiling? My attorney speaks in private to the jury after the judge does. They tell him the first vote was 6 to 3 for the defendant (me) strictly along racial lines. After some deliberation the next vote was 8 to 1. The hold ou t is told that she would have to return tomorrow to continue deliberations. She changes her vote. What would happen if she h ad nothing to do tomorrow? Or if she lived closer? Or more importantly, if the plaintiff and his witnesses had rehearsed the ir testimony better and did a better job of lying? Or the racial makeup of the jury was different? This is all very disturbi ng. I've said all along that it was too easy to haul someone into federal court with no evidence at all. The plaintiff cl aimed injuries from excessive force, yet presented no testimony of injury, and still demanded money. The problem is, I don't know of a better way to do things. Deny access to courts? Not if you're the one with the complaint. Maybe the problem is my lack of confidence in the "system." Maybe the correct verdict was inevitable, and the road to reach it irrelevant? Why am I being so philosophical? Maybe because I haven't gotten a good nights sleep for 8 days now. I call my boss and tell him the news. I tell him I'm going to sleep all day tomorrow and I'll see him thursday (having now missed ten days of work). He says fine. I call my partner, and give her the news. Tell her I'm taking tomorrow off. She says "the hell you are! Get your as s in here tomorrow!" Well, at least she said I could sleep late. A little late. Somewhat late. I want to thank everyone who wished me well. I won't mention names because there were so many I could never not end up leavin g out some. So thanks for the support. It is very much appreciated. For those who didn't wish me well, and there were some, tough. Oh, "COMOAM" gets embroidered on my jacket as soon as I get a chance. Can't wait to be asked to explain. Just a cowboy at he art I guess, even after all this aggravation. Probably why I've been riding bikes and busting perps for 30 years. Bob '82 Aspencade, '78 750F\SS, '78 550K Long Island, NY R.Cuttler@Juno.com "COMOAM"