Young v. City of Providence Motion for Leave to File Brief and Amicus Curiae Brief

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

Nos. 04-1374, 04-1390, 04-1418

LEISA YOUNG, individually and in her capacity as 
Administratrix of the Estate of Cornell Young,

Appellant-Cross Appellee, 
v.

CITY OF PROVIDENCE, by and through its Treasurer, Stephen Napolitano; URBANO 
PRIGNANO, JR., individually and in his official capacity as Providence Chief of Police; 
RICHARD SULLIVAN, individually; JOHN RYAN, individually; KENNETH COHEN,

individually,
Appellees-Cross Appellants.

Nos. 04-1334, 04-1360

BARRY C. SCHECK; NICHOLAS BRUSTIN,
Appellants,

v.
CITY OF PROVIDENCE, by and through its Treasurer, Stephen Napolitano; URBANO 
PRIGNANO, JR., individually and in his official capacity as Providence Chief of Police; 
RICHARD SULLIVAN, individually; JOHN RYAN, individually; KENNETH COHEN,

individually,
Appellees.

Appeals from the United States District Court 
for the District of Rhode Island

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and 
BRIEF OF NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 
IN SUPPORT OF APPELLANTS LEISA YOUNG, BARRY C. SCHECK 

and NICHOLAS BRUSTIN and of REVERSAL
THEODORE M. SHAW 
Director-Counsel

NORMAN J. CHACHKIN 
Bar No. 50315 
MIRIAM GOHARA 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th fl.
New York, New York 10013

Attorneys for Amicus Curiae



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

Nos. 04-1374, 04-1390, 04-1418

LEISA YOUNG, individually and in her capacity as 
Administratrix of the Estate of Cornell Young,

Appellant-Cross Appellee, 
v.

CITY OF PROVIDENCE, by and through its Treasurer, Stephen Napolitano; URBANO 
PRIGNANO, JR., individually and in his official capacity as Providence Chief of Police; 
RICHARD SULLIVAN, individually; JOHN RYAN, individually; KENNETH COHEN,

individually,
Appellees-Cross Appellants.

Nos. 04-1334, 04-1360

BARRY C. SCHECK; NICHOLAS BRUSTIN,
Appellants,

v.
CITY OF PROVIDENCE, by and through its Treasurer, Stephen Napolitano; URBANO 
PRIGNANO, JR., individually and in his official capacity as Providence Chief of Police; 
RICHARD SULLIVAN, individually; JOHN RYAN, individually; KENNETH COHEN,

individually,
Appellees.

Appeals from the United States District Court 
for the District of Rhode Island

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
IN SUPPORT OF APPELLANTS LEISA YOUNG, BARRY C. SCHECK 

and NICHOLAS BRUSTIN and of REVERSAL

The NAACP Legal Defense & Educational Fund, Inc. (LDF), by undersigned 

counsel, respectfully moves, pursuant to Fed. R. App. P. 29, for leave to file the attached 

brief amicus curiae in support of Appellants Leisa Young, Barry C. Scheck, and Nicholas

1



Brustin, and in support of reversal of the judgments appealed from in the above-captioned 

appeals.

In support of this motion, proposed amicus curiae would respectfully show the 

Court as follows:

1. LDF is the nation’s oldest civil rights law firm and has over 60 years’ 

experience litigating civil rights cases throughout the United States.

2. The Supreme Court of the United States has recognized that LDF “has a 

corporate reputation for expertness in presenting and arguing the difficult questions of 

law that frequently arise in civil rights litigation,” NAACP v. Button, 371 U.S. 415, 422 

(1963).

3. LDF has appeared before this Court as amicus curiae in, e.g., Comfort v. Lynn 

School Committee, No. 03-2415 (pending); United States v. Sharpton, 252 F.3d 536 (1st 

Cir. 2001).

4. With its primary office in New York City, LDF has appeared in cases 

principally as counsel admitted pro hac vice, in association with local attorneys. For this 

reason, LDF has zealously sought to protect the right and opportunity of its staff lawyers 

to be admitted to practice pro hac vice in cases where litigants or their local counsel have 

requested LDF’s assistance.

5. LDF’s history and experience well situate the organization to offer the Court an 

important perspective on the district court’s withdrawal of the pro hac vice status of

2



Plaintiff Leisa Young’s out-of-state counsel — who were lead counsel throughout the 

proceedings below until they were removed (for counsel’s filing of a pleading that was 

subsequently made the basis for additional sanctions against counsel pursuant to Fed. R. 

Civ. P. 11) — in the midst of a jury trial, and the impact of such action on Plaintiffs right 

to be represented by counsel of her choice.

WHEREFORE, for the foregoing reasons, LDF respectfully moves for leave to file 

its amicus brief in support o f Appellants in these matters.

Dated: July 2, 2004

Respectfully submitted,

JLTHEODORE M. SHAW 
Director-Counsel

NORMAN J. CHACHKIN 
Bar No. 50315 
MIRIAM GOHARA 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th fl. 
New York, New York 10013

Attorneys for Amicus Curiae

3



STATEMENT OF CORPORATE DISCLOSURE

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus 

curiae files the following statement of disclosure:

The NAACP Legal Defense & Educational Fund, Inc. is a nonprofit 

corporation recognized by the Internal Revenue Service as exempt from federal 

taxation under 26 U.S.C. § 501(c)(3). It has no publicly held or other stock.

i



TABLE OF CONTENTS

Page

STATEMENT OF CORPORATE DISCLOSURE................................................  I

TABLE OF AUTHORITIES.................................................................................. nj

INTEREST OF AMICUS CURIAE .......................................................................... 1

ARGUMENT —

This Court Should Reverse The District Court’s Revocation Of 
Its Pro Hac Vice Admission Of Plaintiffs Counsel In This Case 
And Should Strictly Limit The Circumstances In Which Such 
Action May Be Taken As A Sanction For Misconduct By Counsel . . . .  3

CONCLUSION...................................................................................................... 11

CERTIFICATE OF COMPLIANCE...................................................................... 12

CERTIFICATE OF SERVICE .............................................................................. 13

APPENDIX A

Transcript of Proceedings, October 20, 2003, Excerpt 

APPENDIX B

Transcript of Proceedings, October 17, 2003, Excerpt 

APPENDIX C

Transcript of Proceedings, October 7, 2003, Excerpt



TABLE OF AUTHORITIES

Page

Cases'.

Cole v. U.S. Dist. Ct.,
2004 WL 944507 (9th Cir. May 4, 2004) ............................................  8, 1 In

Leis v. Flynt,
439 U.S. 438 (1979) ..................................................................................  8n

Mitchell v. Johnston,
701 F.2d 337 (5th Cir. 1983) ........................................................................ 8

NAACP v. Button,
371 U.S. 415 (1963) ..........................................................................  2, 3, 4n

Sanders v. Russell,
401 F.2d 241 (5th Cir. 1968) ........................................................  3, 4n, 8, 9n

United States v. Dinitz,
538 F.2d 1214 (5th Cir. 1976) ..............................................................  9n, 10

Young v. City of Providence,
301 F. Supp. 2d 187 (D.R.I. 2004)........................................................  5, 6n

Young v. City of Providence,
301 F. Supp. 2d 163 (D.R.I. 2004).............................................................. 3

Statutes and Rules:

42U.S.C. § 1983 .................................................................................................... 3

42U.S.C. § 1988 .................................................................................................... 8

Fed. R. Civ. P. 11........................................................................................ 6, 9, lOn

iii



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT

Nos. 04-1374, 04-1390, 04-1418

LEISA YOUNG, individually and in her capacity as 
Administratrix of the Estate o f Cornell Young,

Appellant-Cross Appellee, 
v.

CITY OF PROVIDENCE, by and through its Treasurer, Stephen Napolitano; URBANO 
PRIGNANO, JR., individually and in his official capacity as Providence Chief of Police; 
RICHARD SULLIVAN, individually; JOHN RYAN, individually; KENNETH COHEN,

individually,
Appellees-Cross Appellants.

Nos. 04-1334, 04-1360

BARRY C. SCHECK; NICHOLAS BRUSTIN,
Appellants,

v.
CITY OF PROVIDENCE, by and through its Treasurer, Stephen Napolitano; URBANO 
PRIGNANO, JR., individually and in his official capacity as Providence Chief of Police; 
RICHARD SULLIVAN, individually; JOHN RYAN, individually; KENNETH COHEN,

individually,
Appellees.

Appeals from the United States District Court 
for the District o f Rhode Island

BRIEF OF NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 
IN SUPPORT OF APPELLANTS LEISA YOUNG, BARRY C. SCHECK 

and NICHOLAS BRUSTIN and of REVERSAL

Interest of Amicus Curiae

The NAACP Legal Defense and Educational Fund, Inc. (LDF) files this 

brief amicus curiae because of its deep concern about the actions of the district

1



court in this case, summarily revoking — at a crucial point in the middle of trial 

proceedings, and for reasons other than egregiously disruptive behavior by 

counsel in open court — its authorization that plaintiffs’ primary counsel may 

appear and practice before the Court pro hac vice.

LDF is the nation’s oldest civil rights law firm, having been founded as an 

arm of the NAACP in 1939 by Charles Hamilton Houston and Thurgood Marshall. 

LDF was chartered by the Appellate Division of the Supreme Court of New York 

in 1940 as a non-profit legal aid society “to render legal aid gratuitously to such 

Negroes as may appear to be worthy thereof, who are suffering legal injustices by 

reason of race or color and unable to employ and engage legal aid and assistance 

on account of poverty.” The Supreme Court of the United States has recognized 

that LDF “has a corporate reputation for expertness in presenting and arguing the 

difficult questions of law that frequently arise in civil rights litigation,” NAACP v. 

Button, 371 U.S. 415, 422 (1963). Throughout its history, LDF has been involved 

in such litigation throughout the United States.

With its primary office in New York City, LDF has appeared in such cases 

principally as counsel admitted pro hac vice, in association with local attorneys. 

For this reason, LDF has zealously sought to protect the right and opportunity of 

its staff lawyers to be admitted to practice pro hac vice in cases where litigants or

2



their local counsel have requested LDF’s assistance. E.g., Button; Sanders v. 

Russell, 401 F.2d 241- (5th Cir. 1968) (successful challenge to Mississippi federal 

district court rule limiting out-of-state counsel to a single pro hac vice appearance 

per year). That concern motivates our amicus submission in this matter.

ARGUMENT

This Court Should Reverse The District Court’s 
Revocation Of Its Pro Hac Vice Admission Of Plaintiffs 

Counsel In This Case And Should Strictly Limit 
The Circumstances In Which Such Action May Be Taken 

As A Sanction For Misconduct By Counsel

Like many of the civil rights cases in which LDF has been involved, the 

instant matter is extremely controversial in the local community and State in which 

it was filed. It is a damages action brought, inter alia, pursuant to 42 U.S.C. §

1983 against police officers and officials of the City of Providence, Rhode Island, 

seeking recovery for the allegedly wrongful fatal shooting by the defendant 

officers of plaintiff s decedent, who was an African-American officer of the same 

police department, off-duty and in plainclothes at the time. Young v. City o f 

Providence, 301 F. Supp. 2d 163, 166 (D.R.I. 2004). It involves claims that the 

officers used unreasonable deadly force and that the police department failed

3



adequately to train the officers. Thus, the lawsuit involves charges and issues 

similar to those in “police brutality” controversies throughout the United States.

In such circumstances,1 and especially given the demands and complexity of 

the legal questions involved, the availability of counsel from outside the local 

jurisdiction is often essential.2 The Magistrate Judge in this action recognized the 

importance of out-of-state counsel’s participation in this matter3 in an Order 

entered January 4, 2002, stating:

There is no dispute that extensive discovery will be necessary in order 
to obtain information to present in this matter. As any seasoned trial 
attorney will admit, such discovery, to be completed with the time 
limits set by this court, will require the services of more than one 
counsel. Local counsel’s ] . . . expertise is well known and 
recognized in the criminal defense field. This court appoints him as

]Cf NAACP v. Button, 371 U.S. at 443 (“Lawsuits attacking racial 
discrimination, at least in Virginia, are neither very profitable nor very popular. 
They are not an object of general competition among Virginia lawyers; the 
problem is rather one of an apparent dearth of lawyers who are willing to 
undertake such litigation.”); Sanders v. Russell, 401 F.2d at 245 (“It is no 
overstatement that in Mississippi and the South generally negroes with civil rights 
claims or defenses have often found securing representation difficult.”).

2Local counsel in this matter represented to the trial court, supporting the 
application of out-of-state counsel for admission pro hac vice that he “has neither 
the funds nor the other resources necessary to prepare this kind of case for trial 
and would not have accepted this case without outside help, such as from Cochran, 
Neufeld & Scheck.”

3Pro hac vice counsel were lead counsel in this matter until the withdrawal 
of their admission to practice by the court below. See discussion in text infra.

4



CJA counsel in numerous matters, all of which must be discovered 
and handled expeditiously under the Speedy Trial Act. To expect 
local counsel to perform this extensive discovery task required here 
and to complete his obligations in the many criminal matters he 
handles in this court and the state court, within the short time period 
allowed, is expecting the impossible.

Indeed, in this case plaintiffs out-of-state counsel served as lead counsel

throughout the pre-trial proceedings and examined most of the witnesses presented

during trial up until the afternoon of October 17, 2003 when — in the middle of

the trial proceedings and on the eve of the appearance of a principal expert witness

for plaintiff— the court below summarily withdrew their pro hac vice admission,

Young v. City o f Providence, 301 F. Supp. 2d 187, 194-95 & n.9 (D.R.I. 2004),

although aware that they had served as lead counsel.4

The basis for the trial court’s action was its view that a memorandum filed

by plaintiffs’ counsel the day before contained “false assertions” about “certain

actions that Plaintiff maintained that the Court had taken, certain orders that the

Court had made and certain instructions that the Court had given.”5 Although the

4See Transcript of Proceedings, October 20, 2003, Excerpt [attached hereto 
as Appendix “A”] at 12 lines 13-15 (“[THE COURT:] Now, Mr. Mann, you’ve 
indicated that Mr. Scheck and Mr. Brustin were lead counsel in this case, and I 
understand that”).

5See Transcript of Proceedings, October 17, 2003, Excerpt [attached hereto 
as Appendix “B”] at 25 lines 14, 3-6.

5



Court indicated that it was revoking the pro hac vice admission of plaintiffs out- 

of-state counsel as a matter of its discretion,6 the Court also indicated its view that 

the filing of the memorandum was conduct sanctionable under Fed. R. Civ. P. 11 

and that at the conclusion of the case, it would issue a show cause order respecting 

sanctions to be assessed under that Rule.7 It thus seems clear to amicus that the 

revocation of the pro hac vice admission of Mr. Scheck and Mr. Brustin was, in 

fact, a sanction for the same conduct that was made the basis for the court’s later 

decision to censure Mr. Scheck and admonish Mr. Brustin — and it is that 

inescapable conclusion that sparks LDF’s concern.

In our view, revoking pro hac vice admission, especially in the middle of 

trial presentation and most particularly in a case being tried, as this one was, 

before a jury, could be justified only by the most egregious misconduct by counsel 

in open court. The damage to a party’s interests in representation by counsel of

6See id. at 26 lines 7-16 (“They appear in this Court at the discretion of the 
Court. There is no right for counsel who are not members of this bar to appear, 
and there is no right for parties who have matters before this Court to be 
represented by counsel who are not members of this bar. [Local] Rule 5(c) requires 
pro hac vice counsel to abide by not only the Rules of Civil Procedure but also the 
Rules of Professional Conduct; and under that rule, this Court may exercise its 
discretion to summarily revoke the grant of pro hac vice status.”)

7See id. at 25 lines 13-15, 21-25. The court subsequently issued such an 
order, conducted a hearing, and publicly censured Mr. Scheck and admonished 
Mr. Brustin. Young v. City o f Providence, 301 F. Supp. 2d at 198-99.

6



her choice, who have had an adequate opportunity to prepare to present the party’s 

case — as well as the damage to the institutional integrity of our judicial system, 

founded as it is upon adversarial presentation by skilled attorneys — when counsel 

are removed in the midst of trial proceedings, is both obvious and severe. In this 

matter, plaintiff s local counsel summarized the immensely difficult position in 

which he was placed when he requested that the court below reconsider its 

revocation of the pro hac vice admission of Messrs. Scheck and Brustin:

MR. MANN: . . .  I would just ask that for a 
number of reasons you reconsider it.

First, that they did function as lead counsel in this 
case; that they were admitted in this case based on their -  
the particular expertise of their firm in this case; that they 
have unquestionably played the lead role in this case 
with respect to the discovery, the preparation of 
witnesses, the preparation of everything in this case,
Judge;.. .

. . . And I would finally say, Judge, that, most 
significantly, this is an extraordinarily complex case with 
difficult legal issues in which they have particular 
expertise.

I have never tried a Monell type case, which is, in 
essence, what this case is, Judge. And even though 
you’ve bifurcated the trial, even this part of the case 
involves, for example, an expert whose deposition was 
taken on two different occasions. I didn’t attend either 
of those depositions. They were taken in New York, in 
fact, where out-of-state counsel was.

And the other reason I would just point out, Judge, 
is this: That throughout the course of the trial, the jury 
has become acquainted with Mr. Scheck as Miss

7



Young’s lead lawyer. I think that the only witness I’ve 
examined is Diaz, Judge, in front of the jury. So for all 
of those reasons, I would ask the Court to reconsider the 
decision.8

The interests of litigants in representation by counsel of their choice are 

vitally important. See, e.g., Sanders v. Russell, 401 F.2d at 246 (“The trial court 

cannot substitute its judgment for that of the litigant in the choice or number of 

counsel that the litigant may feel is required to properly represent his interests.”); 

Mitchell v. Johnston, 701 F.2d 337 (5th Cir. 1983) (reversing order conditioning 

pro hac vice admission upon agreement to waive any claim for award under 42 

U.S.C. § 1988); Cole v. U.S. Dist. Ct, 2004 WL 944507 (9th Cir. May 4, 2004), at 

7 (“Except for compelling reasons, such as necessary bar admissions, clients 

should be permitted to have the counsel of their choice. A lost choice of counsel 

at trial cannot be remedied on direct appeal.”).9 It is particularly inappropriate and 

wrong to use withdrawal of pro hac vice admission as a sanction for an attorney’s 

out-of-court conduct in fding a written submission, in light of the facts that other 

sanctions are obviously available that would not carry with them the same impact

8Tr. Excerpt, Oct. 20, 2003 (Appendix “A”) at 9-10.

9This case does not present any issue regarding a court’s obligation to have 
a pro hac vice admissions procedure. See, e.g., Leis v. Flynt, 439 U.S. 438 (1979). 
The United States District Court for the District of Rhode Island, like most (if not 
all) federal district courts, has a local rule providing for such practice.

8



upon the client’s right to representation of her choice, and that dismissal of 

counsel in the middle-of trial is not required to control courtroom proceedings.10 

Indeed, other sanctions were also imposed upon plaintiffs counsel by the court 

below after the case concluded, pursuant to the court’s interpretation of Fed. R. 

Civ. P. I I .11

10In United States v. Dinitz, 538 F.2d 1214 (5th Cir. 1976) (en banc), the 
Court distinguished its earlier ruling in Sanders v. Russell in a case in which an 
attorney’s repeated disruptive behavior in the courtroom was the basis for 
withdrawal of pro hac vice status. See 538 F.2d at 1221 (“The disruptive effect of 
Wagner’s conduct is evident when we consider that the court was forced to delay 
the beginning of the trial to hear testimony on a suppression motion that was 
utterly frivolous, to warn Wagner repeatedly about specific instances of 
misconduct, and to send the jury out of the courtroom no less than three times 
during the course of Wagner’s opening statement.”). The Fifth Circuit also noted 
that “Even after the district judge dismissed Wagner, Dinitz still had two lawyers 
(Mr. Meldon and Professor Baldwin) present; it was clear at the time that he 
would not be deprived of the advice of counsel as to what his available 
alternatives would be. Under these circumstances, it was no abuse of discretion 
for the district judge to order Wagner to remove himself.” Id. Wagner had 
apparently joined in the representation of the defendant Dinitz only days before 
the trial and had not been involved in prior preparations. 538 F.2d at 1217 n .l.
The impact (as here) of disqualifying, mid-trial, the attorneys who had borne the 
laboring oars throughout pretrial proceedings and up to that point in the trial, see 
supra pp. 5, 7, is far more severe.

"We do not mean to suggest that the imposition of Rule 11 sanctions was 
warranted in the circumstances of this case, for we do not think it was. We expect 
that counsel for plaintiff will comprehensively discuss the facts and the law on that 
question in their brief, and we do not think that there is much than an amicus could 
add. The thrust of our participation in this matter is that withdrawal of pro hac 
vice admission is an improper and inappropriate sanction for a Rule 11 violation 
except in the most extraordinary circumstances.

9



Postponing the determination and imposition of sanctions, if any, for an 

attorney’s conduct in-filing a paper until after trial proceedings that had 

commenced have been completed — especially where the trial is before a jury — 

rather than summarily revoking the attorney’s pro hac vice admission,12 has the 

added benefit of allowing some of the tensions that may develop between court 

and counsel to dissipate and for the court to make a dispassionate analysis of the 

question whether the attorney’s filing is properly sanctionable.13 See United States 

v. Dinitz, 538 F.2d at 1224 (“Although the court, in banishing him from the first 

trial, had told him that ‘you will leave this Courtroom immediately and you will 

never practice law in this Court again,’ the court may well have reconsidered its 

judgment under less emotional circumstances.”).

12We agree with plaintiff that since her counsel were not being removed for 
engaging in patently disruptive conduct in the courtroom, they were entitled to 
notice and an opportunity to be heard before the court withdrew their pro hac vice 
admission to practice, whether that step is viewed as one within the inherent 
authority of the court or as one authorized by Fed. R. Civ. P. 11.

l3Attomeys have an ethical obligation to advance their clients’ interests, 
within the limits of the law, vigorously and zealously. It is therefore not 
surprising that fulfilling that obligation may sometimes generate apparent conflicts 
between a court’s interest in moving proceedings forward expeditiously and 
counsel’s interest in assuring that there is an adequate record to protect the 
interests of the client. See, e.g., Tr. Excerpt October 7, 2003 (attached as 
Appendix “C”) at 8-10, 12 line 17-13 line 8, 38 line 17-39 line 1.

10



Conclusion

Summary withdrawal of pro hac vice admission that had been granted to a 

litigant’s counsel in the middle of an ongoing jury trial, not because of any 

disruptive conduct in the courtroom but on the basis of the filing of a written 

pleading, is a truly draconian sanction that should be condemned by this Court, in 

terms sufficiently forceful to put trial courts and judges in this Circuit on notice so 

that the events that occurred below are not duplicated anywhere in the Circuit in 

the future. Because “[a] lost choice of counsel at trial cannot be remedied on 

direct appeal”14 except by ordering a new trial in which unjustly disqualified 

counsel may participate fully, this Court should also grant that relief to plaintiff, 

reversing the judgments below as to claims on which the plaintiff did not prevail, 

and remanding the matter for a new trial on those claims with directions to 

reinstate the pro hac vice admission of Messrs. Scheck and Brustin.

14Co/e v. U.S. Dist. Ct., supra p. 8.

11



A/

NORMAN J. CHACHKIN 
Bar No. 50315 
MIRIAM GOHARA 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th fl. 
New York, New York 10013

Attorneys for Amicus Curiae

Respectfully submitted,

THEODORE M(SHAW 
Director-Counsel

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App. P. 

29(d) and 32(a)(7)(B) because it contains 2973 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has 

been prepared in a proportionally spaced typeface using WordPerfect 10.0 in 14 

point, Times New Roman font.

Dated: July 2, 2004
Attorney for Amicus Curiae NAACP 
Legal Defense & Educational Fund, Inc.

12



Certificate of Service

I hereby certify that on this 2nd day of July, 2004,1 served two copies of the 
foregoing Motion for Leave to File Brief Amicus Curiae and Brief of NAACP 
Legal Defense & Educational Fund, Inc. in Support of Appellants Leisa Young, 
Barry C. Scheck and Nicholas Brustin and of Reversal upon the following counsel 
for the parties to these appeals, by depositing the same in the United States mail, 
first-class postage prepaid, addressed as follows:

Robert B. Mann, Esq. Kevin F. McHugh, Esq.
Mann & Mitchell City of Providence Law Office
1 Turks Head Boulevard 275 Westminster Street
Suite 501 Providence, RJ 02903
Providence, RI 02903

[attorney for appellees City of
Barry Scheck, Esq. Providence, Urbano Prignano, Jr.,
Nicholas Brustin, Esq. & Richard J. Sullivan]
Cochran, Neufeld & Scheck
99 Hudson Street, 8th fl. Michael J. Colluci, Esq.
New York, NY 10013 Olenn & Penza

530 Greenwich Avenue
Stephen M. Prignano, Esq. Warwick, RI 02886
Edwards & Angell
2800 Financial Plaza [attorney for appellees John E.
Providence, RI 02903 Ryan & Kenneth Cohen

Lynette J. Labinger 
Roney & Labinger 
344 Wickenden Street 
Providence, RI 02903

[attorneys for appellants 
Leisa Young, Robert B. 
Mann, Barry C. Scheck 
& Nicholas Brustin]

13



APPENDIX A



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND

**************** c.A. NQ 01-288ML 
*

LEISA YOUNG, individually and * 
in her capacity as *

Administratrix of the Estate *
of Cornel Young, Jr. *

*
VS. * OCTOBER 20, 2003

* 9:30 A.M.
CITY OF PROVIDENCE, by and * 

through its Treasurer, *
Stephen Napolitano; MICHAEL *

SOLITRO, individually; *
CARLOS SARATVA. individually; *

URBANO PRJGNANO, JR., * 
individually and in his * 

official capacity as *
Providence Chief of Police; *

RICHARD SULLIVAN, * 
individually; JOHN RYAN, * 

individually; and KENNETH *
COHEN, individually *

*
* * * * * * * * * * * * * * * *  PROVIDENCE, ri

BEFORE THE HONORABLE MARY M. LISI,

DISTRICT JUDGE



21

22

23

24

25

20
(And a Jury)

e x c e r p t

2

1 APPEARANCES:

2 FOR THE PLAINTIFF: ROBERT B. MANN, ESQ.
Mann & Mitchell

3 501 Turks Head Building 
Providence, RI 02903

4

5 FOR THE DEFENDANT,
CITY OF PROVIDENCE,’

6 PRIGNANO & SULLIVAN: KEVIN F. McHUGH, ESQ. 
City of Providence 
Law Department

275 Westminster Street, Suite 200 
Providence, RI 02903

JOSEPH F. PENZA, JR., ESQ.
Olenn & Penza 
530 Greenwich Avenue 

Warwick, RI 02886
11



12 FOR THE DEFENDANTS,
RYAN & COHEN: MICHAEL J. COLUCCI. ESQ.

12 Olenn & Penza
530 Greenwich Avenue

14 Warwick. RI 02886

15
Court Reporter: Karen M. Zinni, RPR-RMR-CRR

16 One Exchange Terrace 
Providence, RI 02903

20

21 Proceeding reported and produced by computer-aided
stenography

22

23

24

25

3

1 BEGINNING OF EXCERPT

2 20 OCTOBER 2003 -  MORNING



(The jury is not present for the following)

THE COURT: Before we left on Friday, the Court 

had made certain rulings with respect to the testimony 

anticipated from Dr. Fyfe. I also indicated to counsel 

that there was an area of that anticipated testimony, 

that the Court would have to review the documents that 

were attached to Dr. Fyfe's report which were submitted 

to counsel for the defense in response to the 

deposition notice, a subject that we've talked about at 

considerable length before.

I have reviewed all of those documents, and in 

particular the area of concern was whether or not in 

those documents Dr. Fyfe had provided any references or 

written materials upon which he based his opinion that 

the senior officer in this case had a duty under 

minimally acceptable police practice to give certain 

direction to the junior officer in this case.

I’ve also searched the record and found that 

Dr. Fyfe indicated that his opinions were based in part 

on literature which he says does exist and that the 

standards to which he was making reference appear in 

that literature.

In reviewing the materials that were submitted



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in response to the deposition notice, I find that 

Dr. Fyfe provided absolutely nothing on this area, that 

is, on the responsibility of a senior officer providing 

direction and guidance to a junior officer under these 

circumstances.

And so because the Plaintiff has failed to 

provide to defense counsel the written materials that 

were requested and because Dr. Fyfe has indicated that 

there are, in fact, such written materials that set 

forth these minimally acceptable police practices upon 

which he bases this opinion, the Plaintiff will not be 

permitted in this case to introduce those opinions with 

respect to the direction to be given by a junior and 

senior officer as it relates to the reasonableness 

determination in this case.

To the extent that the Court has already ruled 

that Dr. Fyfe will be permitted to testify as to his



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opinion on the cover issue, which I think is a

technical area, and I do think he has provided some 

materials in his submission to defense counsel on this 

point, to the extent that his testimony may touch on 

the communication between the two police officers in 

this case with respect to the cover question, Dr. Fyfe 

certainly will be permitted to testily as to those 

facts; but generally his opinion, as I understand it,

5

in Plaintiffs proffer as it is based on those 

materials which were not provided will not be allowed.

Mr. Penza, I'm informed that there was something 

you wanted to place on the record this morning before 

we begin. And then I understand, Mr. Mann, you 

likewise have some things you wish to place on the 

record.

MR. MANN: Yes.

MR. PENZA: Yes, your Honor. And I know the



10 Court has already ruled on this, and because I think

11 we’ve taken it over a couple of days, maybe this is an

1 - attempt to package it and also to shorten Dr. Fvfe's

13 testimony without me continually objecting.

14 I guess between last Tuesdav and Friday, what

15 I'm suggesting is that -  I’m making a motion now, and

16 I guess the Court s already ruled on it, but then you

17 can officially rule on it, I'm making a Motion in

18 Limine to preclude Dr. Fyfe from testifying based on

19 the following grounds:

20 First, that we were not given the standards that

21 he testified to and upon which his opinion was based in

22 both his report and his deposition and soon to be trial

23 testimony.

^  Second, that his opinion is predicated on

25 national standards, not Providence Police Department

6

1 rules and regulations, policies and practices. And I



refer the Court to the case that you're well aware of,

3 and that’s Soller, S-O-L-L-E-R.

^ to the extent that there are any

5 deficiencies that Dr. Fyfe is going to testify, it's my

6 belief that that is Phase H of the trial.

Fourth, other than the warnings that are 

8 required by Tennessee v. Gamer, there is no

constitutional requirement regarding lights and sirens, 

instructions to junior officers, cover and police 

prefacing their commands by the word, quote, "police,"

close quote. And I refer the Court to St. Hilaire and 

Napier.

Fifth, there is no causal connection between the 

deficiencies that Dr. Fyfe is going to testify and the 

shooting, more specifically no causal connection 

between the failure to give instructions to the junior 

officer and the shooting, between leaving cover and the 

shooting. As I noted last week, the force in this case 

came from outside of where the threat was which was 

causing Officer Solitro to take cover; and there's no 

causal connection between the officers failing to use 

the word "police" before the commands and the shooting. 

Sixth, it's my belief that this is not a proper



subject matter in this phase of the case because the

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things that the Court has indicated that Dr. Fyfe can 

testify to is something that can be understood by a 

layperson and also by virtue of the Court's 

instructions. So on that grounds, it seems to invade 

the province of the Court's instructions, particularly 

with the word "police."

And quite frankly, Judge, I'm not clear on your 

ruling on that part of it, so maybe you can clarify it.

THE COURT: There was in some of the material 

that I reviewed last night a reference to what the 

warning must consist of, although I must tell you quite 

frankly the reference I found was not totally 

unequivocal.

So to the extent that it's there, I think on 

your first ground your motion is denied. To the extent 

that there may be some constitutional requirement, I



think that this may go to the reasonableness of the 

officers actions, and so he'll be permitted to testify 

to that.

MR. PENZA: Also with respect to cover, your 

Honor, he mentioned during his voir dire "Street 

Survival" by Caliber Press, model policies, training 

bulletins, police chiefs association bulletins, the 

.American Society, I think he said, of Law Enforcement 

Officers. None of those were received by us, and so

8

that is the basis for the motion.

And under Rule K)3(a), if you make a definitive 

ruling that he will be allowed to testify, that will 

obviate the need for me to get up and object to every 

single question. So that’s essentially what I'm asking 

for at this point.

One other point, Judge, after you make that 

ruling, and that is you've had the opportunity to see



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Dr. Fyfe in count with respect to the voir dire. I had 

the benefit of seeing him in his deposition. I would 

ask the Court before he even testifies to admonish him 

to limit his answers to just the answers, especially in 

light of the fact that the Court has narrowed his scope 

of testimony.

I am just very concerned that we’re just going 

to hear all sons of extraneous material, references to 

stuff that is not relevant based on your rulings.

Thank you, your Honor.

THE COURT: Mr. Mann, did you want to address 

what Mr. Penza has stated this morning and then we'll 

get into the areas that you wanted to put on the 

record?

MR. MANN: That's fine. Judge, with an 

understanding that one of the issues I'm going to be 

raising is the fact that I'm here without other

9



counsel, and I want to make it clear that I'll respond 

to Mr. Penza first, but ~

THE COURT: If you want to do the other first, 

that's fine.

MR. MANN: Thank you. I would first ask your 

Honor to reconsider the decision with respect to the 

ruling revoking the pro hac vice admission of 

Mr. Scheck and Mr. Brustin. Very briefly, I would just 

ask that for a number of reasons you reconsider it.

First, that they did function as lead counsel in 

this case, that they were admitted in this case based 

on their -  the particular expertise of their firm in 

this case; that they have unquestionably played the 

lead role in this case with respect to the discovery, 

the preparation of witnesses, the preparation of 

everything in this case, Judge; that I think that they 

were not -  that they were not given the notice under 

local Rule 5(c)(3) that is required and that I think is 

also constitutionally required before their admission 

can be revoked.

And I would finally say, Judge -  and they 

haven't been given a hearing prior to the revocation of 

their status. And I would finally say, Judge, that,



most significantly, this is an extraordinarily complex 

case with difficult legal issues in which they have

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particular expertise.

I have never tried a Monell type case, which is, 

in essence, what this case is. Judge. And even though 

you've bifurcated the trial, even this part of the case 

involves, for example, an expert whose deposition was 

taken on two different occasions. I didn't attend 

either of those depositions. They were taken in 

New York, in fact, where out-of-state counsel was.

And the other reason I would just point out,

Judge, is this: That throughout this course of the 

trial, the jury has become acquainted with Mr. Scheck 

as Miss Young’s lead lawyer. I think that the only 

witness I've examined is Diaz, Judge, in front of the 

jury. So for all of those reasons, I would ask the 

Court to reconsider the decision.



I have other motions to make. Do you want me 

to -  how do you want me to do this. Judge?

THE COURT: Go ahead with your other motions. 

MR. MANN: Well, depending upon how you rule on 

that motion, Judge, that would affect the other 

motions. And so I wonder as a matter of -  I mean, if

you grant that motion, that changes the complexion than 

if you don't, Judge.

THE COURT: I understand. Mr. Penza, did you 

wish to be heard on Mr. Mann's motion for

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1 reconsideration?

2 MR. PENZA: No, your Honor. I would just point

3 out to the Court that I think Judge Lagueux in the

4 Obert case made notice -  made mention of the fact that 

sometimes in the middle of a trial the requirements of

6 giving the attorneys an opportunity to respond in

writing obviously cannot be had, and I think there were

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a couple of cases that Judge Lagueux referred to in 

that Obert case. Other than that, Judge, the 

Defendants have no position.

THE COURT: Okay. This Court, as Mr. Mann has 

pointed out, summarily revoked the admission of 

Messrs. Srustin and Scheck based upon Mr. Scheck's 

admission here in court that papers filed with the 

Court on not one but two occasions contained false 

assertions as to this Court’s prior rulings and 

statements to counsel.

Such transgressions are the most serious that 

face any Court and clearly are the most serious that 

any lawyer knows he or she must not violate, and the 

reason for that is really quite simple. Lawyers are 

officers of the Court. The Court and all the 

participants in the action, as well as the public, have 

a right to expect, arid do expect, that the statements 

and the assertions by counsel are true.

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When it is demonstrated that counsel have failed 

to abide by that cardinal principle of our legal 

system, it compromises the integrity of the entire 

proceeding for all concerned.

For that reason, this Court revoked the 

admission of the two out-of-state counsel in this case. 

This Court has also indicated that sanctions will be 

taken up at the conclusion of this case because this 

Court does not wish to have this case, the integrity of 

this case and its proceedings compromised by counsels' 

misconduct. This Court cannot permit counsel who 

engage in mendacious behavior to appear before it.

Now, Mr. Mann, you’ve indicated that Mr. Scheck 

and Mr. Brustin were lead counsel in this case, and I 

understand that; but our local rule also requires that 

so-called lead counsel or out-of-state counsel have an 

obligation, and it's a serious obligation which is set 

forth in our local rule, to keep local counsel fully 

informed for precisely these kinds of situations.

You've indicated as well that the Court is 

somehow constitutionally required to provide a hearing. 

I disagree with you on that. The admission of counsel



23 on a pro hac vice basis is at the discretion of the

24 Court, and the rule clearly provides that the Court may

25 exercise its discretion to remove counsel when counsel

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1 fail to abide by the Rules of Civil Procedure, the

2 Rules of Professional Conduct and the local rules of

j this Court. And as I’ve said, Mr. Scheck in this case

4 has already admitted that the document he filed and

5 signed contained a false assertion.

6 As to the other reasons that you have advanced 

for the motion to reconsider, I find that they are not

8 a sound basis for this Court to permit Messrs. Scheck

9 and Brustin from appearing. I know you tell me that

10 you ve not tried a Monel 1 case, and I have no reason to

11 disbelieve you.

12 I also know, however, that you are an extremely

13 talented and gifted trial attorney. I've had you

14 appear before me on many occasions. And I think I



15 speak as well for other judges in this Court as well as

16 the state, you're held in extremely high regard because

17 of your ability and your talent.

18 With respect to the fact that you weren’t there

19 for the deposition of Dr. Fyfe, you were certainly here

20 for the voir dire, and I would imagine that you've had

21 access to his deposition transcript. And so if you

22 need more time to prepare, and I suspect that that’s

23 motion number two, I’ll address that; but with respect

24 to the motion for this Court to reconsider the

25 revocation of the pro hac vice status of Messrs. Scheck

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1 and Brustin, as I said, to permit attorneys who engage 

in misconduct of that sort to continue to appear in 

this or any other action compromises the integrity of 

4 the entire proceeding.

For this Court to permit them to continue to 

appear would give the appearance to all that this Court6



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condones such behavior, and clearly no Court in this 

country' would condone counsel violating the cardinal 

rule of practice, and that is that counsel be honest 

and truthful in its representation. And so the motion 

to reconsider is denied, and the Court's ruling stands.

MR. MANN: I understand just because -  I don't 

want a nonresponse to subsequently be interpreted as -  

I dont want silence to be interpreted as an admission.

I simply want to place on the record that I accept the 

fact that this is not the time or the place for me to 

respond to the Court’s statements with respect to the 

issues of the show cause order.

I ve said before, and I would simply say, that 1 

just think that is better responded to at another time.

I've made another statement. I don't want my 

nonresponding to be interpreted as necessarily agreeing 

in any way with anything the Court has necessarily 

said.

THE COURT: I understand, Mr. Mann.



15

MR. MANN: All right. The next motion, Judge,

2 the next motion is to ask you to give us a new trial,

3 in effect to declare a mistrial, so that we can start

4 from scratch. It may make -  I'm also going to make a

5 motion to ask that the jury' be voir dired because of

6 the extensive publicity this case received over the 

weekend; and the motion for mistrial might be, as I

8 think about it, better heard after we do the voir dire 

of the jury, Judge, because that may inform -  provide

10 information as to that.

11 1 do have a motion that the jury be voir dired,

12 Judge. I do have a motion about a continuance, but I

13 have an almost insoluble problem there, at least with

14 respect to one person. I am asking the Court for a

15 continuance. I have spent the weekend working as much

16 as I could, but I have a dilemma with respect to

17 Mr. Fyfe.

18 He is here this morning ready to testify. I

19 anticipate that my examination and Mr. Penza's

20 cross-examination will take a good part of the day. I



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am told Mr. Fyfe - - 1 know the Court's not sitting 

Tuesday and Wednesday. I'm told Mr. Fyfe is simply 

unavailable for some period of time thereafter.

He has been up here, I would note, on at least a 

few other days before today. I know he would have to

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return in Phase II, and he understands that, Judge. So 

I'm almost in a position where I can’t ask the Court to 

continue the case with respect to putting on Mr. Fyfe 

because he’s just not available after today, and I'm 

very conflicted about even the voir dire of the jury 

before or after Mr. Fyfe because I think the jury voir 

dire could take a few hours, Judge, and I'm worried 

about Mr. Fyfe's — not getting done with Mr. Fyfe 

today, frankly.

So that's the situation we’re in. So I'm, A, 

moving for a continuance, but not with respect to 

Mr. Fyfe because I can't get him back here.



13 THE COURT: Okay. Well I want to make sure I

14 understand it. Mr. Penza, did you have something you

15 wanted to say?

16 MR. PENZA: When you're through, Judge, I want

17 to respond to that last motion, or do you want me to do

18 it now?

19 THE COURT: About Mr. Fyfe?

20 MR. PENZA: Yes.

^ ̂  THE COURT: Go ahead.

22 MR. PENZA: I understand Mr. Mann intends to ask

23 for a motion for a continuance, and I guess he has.

24 I'm not going to address that at this moment, but all I

25 want to -  if the Court decides that Dr. Fyfe can

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1 testify and then you’ll consider the motion for a

2 continuance, I don't want at a later date for us to be 

faced with a contention that they w-ere in a position

4 that they had to put Dr. Fyfe on, that the Plaintiff



was not prepared and another potential appealable 

issue.

So if he's asking for a continuance. I will 

address that. If he wants to put Fyfe on first and 

then ask for a continuance, that's fine with me. I 

just want to make sure that at the end of the day I 

don t get whip sorted to a position where the Plaintiff 

is arguing, Vv ell, we had to put Fyfe on because he 

wasn't available and we weren't really prepared to put 

him on. So that's the only caution I have at this 

point.

THE COURT: That was a question I had for you, 

Mr. Mann, and I understand your dilemma. Dr. Fyfe -  

and, again, this was a matter that the Court addressed 

long ago in pretrial conferences with counsel. 

Particularly where an expert is involved in a case, the 

Court admonishes counsel to make sure that we have a 

schedule, we'll accommodate that expert to the extent 

that we may, but that the expert is essentially within 

the control of the party that intends to put him on.

And so we accommodated Dr. Fyfe's schedule last



18

1 week. We scheduled him for testimony today. I

2 appreciate and understand your dilemma. Mr. Mann, but I

3 think that Mr. Penza raises the point here that you

4 essentially have to make up your mind. Ifyouwantto

put Dr. Fyfe on today because that's the only day he

6 tells you he can come here, that’s a choice that you

7 will have to make; and it should not be the basis later

8 on for appeal that you were forced into the situation 

because, as I say, the expert isn't like another

10 witness over whom you have no control. This is an

11 expert over whom you have some control. And so that's

12 a choice I think you have to make.

13 If your request ttrthe Court is that because of

14 the circumstances of the removal of out-of-state

15 counsel you require some additional time in order to

16 meet with the expert and prepare your own direct

17 examination of him in accordance with the Court's

18 rulings, then I have no problem giving you that time,

19 and I think Mr. Penza has indicated he has no problem



20 with a continuance for that reason.

21 But I think we have to be clear on the record

22 here today as to what you want to do. And if you want

2o to take a minute to think about that and confer with

24 your client, go ahead and do that. Mrs. Young is

-5 nodding in the affirmative. So I think if you want to

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1 talk with her, go ahead.

MR. MANN: I'd also like permission to step out

3 of the courtroom for a second to speak to Dr. Fyfe.

4 THE COURT: Oh, sure. Go ahead.

5 (Pause)

6 MR. MANN: Dr. Fyfe, Judge, as I understand it, 

is a deputy commissioner of the police, New York City

8 Police Department. I think he has the equivalent of

9 about a three-star rank. He tells me that he would not

10 be available at any time in the next two weeks. He

11 tells me that he has commitments with respect to the



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Republican National Convention, money that they've 

received with respect to terrorism and the ferry 

disaster. There was a big ferry disaster in New York.

This was obviously a quick conversation, 

although I will tell you that I did ask Dr. Fyfe before 

court started today about his availability, and he had 

communicated to me that he had — it was today or it 

was going to be a while, and he understands that 

there’s Phase II.

THE COURT: As I understand it, Mr. Mann, I 

think that Dr. Fyfe assumed that position of deputy 

commissioner about 18 months ago. Is that right?

MR. MANN: I will defer to the Court's judgment. 

I know it was some time after this case started, but it

20

has been a while, Judge. I don’t know the exact date. 

I think the sequence is that he was retained by us. 

After he was retained and received $5,000, at some



point after that he became the deputy commissioner.

THE COURT: Right. That's right.

MR. MANN: So under those circumstances, I'm 

asking to call him this morning, Judge. I am not -  I 

don't think I can wait. I think that -  I'm not going 

to waive any issues. I'm going to call him this 

morning for the reasons I’ve set forth, Judge. I’ve 

done the best I can since Friday afternoon to prepare 

him. Judge.

I will say on the record that, and it's not a 

matter of being self-effacing or anything, I don't 

think that I can be or am as prepared as Mr. Scheck was 

to present him as a witness, Judge. So that I am 

asking to present him now. After we get done with him, 

I will ask for a continuance. After we get done with 

his testimony, I would ask for a continuance of a week 

to get ready for the other witnesses, Judge.

I have one other witness that I was prepared to 

put on. That's Warren Hurlbut.

THE COURT: Were you prepared to present him 

today?

MR. MANN: I have him actually -  in fact, I



21

1 would appreciate the Corn's guidance. I have him

2 coming I’m sure way too early today. I have him coming

3 at the morning break, Judge.

4 THE COURT: I think you can probably call him.

5 That's an hour from now. So if you're going to start

6 with Dr. Fyfe, i doubt you'd be finished with Dr. Fyfe 

by 11. Mr. Hurlbut's a state employee?

8 MR. MANN; He is a state employee, and he’s

9 about 20 minutes away. If you give me permission, I'll

10 ask the woman who is assisting me to call him and tell

11 him not to come until lunchtime.

12 THE COURT: That’s fine.

13 ^ANN-' Can I give her my phone, then?

14 THE COURT: Yes.

15 (Pause)

16 THE COURT: So in terms of Dr. Fyfe, as I

17 understand it, you have elected to present him today -

18 MR. MANN: Right.



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19 THE COURT: -  because of his claim of his

20 unavailability for the next two weeks.

21 MR. MANN: That’s correct, Judge.

22 THE COURT: Okay. Mr. Penza?

MR. PENZA: A couple of comments, your Honor.

24 First, the Court has already noted at the scheduling

25 conference in September we were given that Dr. Fyfe was

22

1 available and was going to testify towards the end of

2 the trial. Then at the beginning of the trial because 

of his availability' he was switched to the second or

4 third witness.

When he finally appears, and it was my position

6 then at a bench conference that experts of this type

7 have to know that they're going to be in court for more

8 than one day, and we were all -  at least we were

9 shocked to find out that he wasn't going to be back the

10 next day, and the Court accommodated his schedule and



had him come back on Friday.

So I think the Plaintiffs, even when Mr. Scheck 

and Mr. Brustin were in the case, created a problem 

which I thought was resolved back in September at the 

pretrial conference.

Secondly, I don't think that the Plaintiff — I 

can appreciate the situation that Mr. Mann is in, but 

he can t have it both ways. He either asks for a 

continuance and the Court rules on that continuance or 

he presents Dr. Fyfe. And I don't think he can say, 

Well, I m not going to waive my right because I’m not 

prepared. He either asks for the continuance and gets 

it or he goes forward with the case.

THE COURT: I think Mr. Mann understands that. 

And as 1 understand it, Mr. Mann, at least with respect

23

to Dr. Fyfe, you are not requesting a continuance. 

MR. MANN: I am not requesting a continuance.



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What I think — I am not requesting a continuance 

because of his scheduling, Judge. I am not in a 

position right now, obviously, to spell out what the 

grounds for an appeal would be if we lose this case. 

Judge. So I'm not waiving any appellate claims that I 

can't even —

THE COURT: But the problem is this. As 

Mr. Penza points out, you really can't have it both 

ways. If you are asking for a continuance because of 

your needing more time to prepare Dr. Fyfe’s testimony, 

then I think you need to ask for that. If you are -- 

and allow me to rule on it.

If you are not requesting the continuance 

because you have made an election to present him today 

given all the circumstances that you've set forth on 

the record, then I think at a later date you can't come 

in and say, Well, I really needed more time for Fyfe.

That's the dilemma. I appreciate it, I 

understand it, but I think Mr. Penza is correct that we 

have to have the record accurately reflect what you're 

asking for and what you’re not asking for so that he 

doesn't have to or some other Court doesn't have to

deal with this issue.



24

1 MR. MANN: One thing is that the record is clear

2 that what I've really asked for and you've already

3 denied is that Mr. Scheck be allowed to do this.

4 THE COURT: Right.

5 MR. MANN: And clearly one of the ways in which

6 I think Miss Young is prejudiced is by not having

7 Mr. Scheck conduct this examination, Judge. That's

8 clear. You've ruled on that.

9 Given that, and that's clearly not waived, given

10 that ruling and given that I'm going to have to do the

11 examination and given Dr. Fyfe’s schedule, I elect on

12 the record because of his schedule to go forward today,

13 Judge.

14 THE COURT: And that's what I understood you to

15 do. I just wanted to make sure that we had that clear.

16 MR. MANN: Now, the next question I think really

is the voir dire of the jury, Judge, and here I'm just17



18 frankly tom. I'm just afraid the voir dire of the

19 jury could take so long that we could end up in a

20 situation where we didn't finish Dr. Fyfe today.

21 THE COURT: Not if we start right away, and I

22 can tell you we can go late today if you want to try to

23 finish Dr. Fyfe.

24 MR. MANN: Then I think that would be the

25 preferable course, to begin with voir dire of the jurv,

25

1 Judge.

THE COURT: Let me find out from Mr. Penza what

3 his position is on a voir dire with the jury, as I

4 understand it, Mr. Mann, with respect to the recent

5 publicity surrounding this case over the weekend.

6 MR. MANN: Right, Judge. And I'm obviously 

specifically concerned with, and the record should

8 reflect, that the right-hand lead story in the

9 Providence Journal on Saturday morning, and I don't



10 know if we've got our copy of it yet. was about -

THE COURT: We can supplement the record in this

12 case with a copy of that. I think that's something we

13 should do.

14 MR. MANN: I would ask that that article, which

15 I think we can all agree was the right-hand lead in the

16 Providence Journal, be made an exhibit for puiposes of

17 this voir dire. And that's the reason -  and also

18 there was a lot of other publicity. I'm just citing

19 that written media.

20 THE COURT: What I would suggest. Mr. Mann, in

21 case I forget, is that you make sure that you get a

22 copy of that article -

23 MR. MANN: We will ensure a copy —

24 THE COURT: -  marked and in the record.

25 Mr. Penza?

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MR. PENZA: I have a suggestion, and that is



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here's my concern if we proceed with the voir dire.

.And I don’t know what the Court intends to do. but you 

may have to do an individual voir dire because you 

taint the jury panel if you do it as a group.

THE COURT: This may not come as a surprise to 

you, Mr. Penza. This is not the first time this issue 

has arisen in the middle of a trial.

MR. PENZA: But here’s my real concern, that 

Dr. Fyfe takes the stand and no matter how late we stay 

today w'e don’t finish his testimony. So my suggestion 

would be, why don’t we do Dr. Fyfe and then do the voir 

dire. That’s a suggestion because I’m really 

concerned -

THE COURT: That’s really a logistics question. 

Why don’t you talk to Mr. Mann about that. "Why don’t 

the two of you talk about that. If you agree, then 

it’s not a problem. ~

(Pause)

MR. MANN: I think we’re - - 1 absolutely agree 

with Mr. Penza. I’m not waiving my claim to voir dire 

the jury; but because of Dr. Fyfe’s scheduling problem,

I think that’s the way to go, Judge.

THE COURT: Okay. That’s fine. As long as the



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two of you are in agreement, that's fine. And what

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we’ll do, then, is voir dire the jury at the end of the 

day if we have the time; if not, on Thursday morning.

MR. MANN: Judge, I also have a motion for a 

mistrial based on a combination of factors, the removal 

of Mr. Scheck and Mr. Brustin and the excessive 

publicity. I can argue that now, but it frankly seems 

to me to be more productive to argue that after the 

jury voir dire because I'm going to have to reargue it 

after the jury voir dire. Is that acceptable to the 

Court?

THE COURT: That’s fine.

MR. MANN: I have one other motion, oral motion 

I'd like to make whenever the Court wants to hear it.

It's very brief, Judge.

THE COURT: Go ahead.

MR. MANN: I'm asking permission for Major Young



17 to come into the courtroom. He's sequestered as a

18 witness, Judge.

19 THE COURT: Who's that, please?

20 MR. MANN: Major Young.

21 THE COURT: To be sequestered as a witness?

22 MR. MANN: No, he is sequestered, and I'm asking

23 his permission to be allowed to attend the court

24 proceedings even though he's a sequestered witness,

25 Judge, because of his relationship. He's the father of

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1 the decedent. The city's listed him as a witness for

2 Phase II.

THE COURT: He's not a percipient witness with

4 respect to this part of the case anyway, is he?

5 MR. MANN: Not from my perspective, Judge.

6 MR. PENZA: No.

THE COURT: He would be a Phase II witness, if

8 at all.



9 MR. PENZA: Right, but there was a Phase II

10 witness in the courtroom last week, and the Court

11 instructed us to make sure that he left, and he did.

12 THE COURT: Right, but I think Major Young has a

13 particular relationship here that's different. Do you

14 have a problem with Major Young sitting in on the

15 proceeding?

16 MR. PENZA: No.

17 THE COURT: Just to observe, Mr. Mann?

18 MR. MANN: He called and said he wanted to come.

19 THE COURT: You don’t have a problem with that?

20 MR. PENZA: No, your Honor.

21 MR. MANN: Thank you, Judge.

22 THE COURT: I think, Mr. Penza, with respect to

23 your request for a 103 ruling, I think you got that.

24 Are you satisfied with that?

25 MR. PENZA: Well, as long as you say that you

29



1 rule against me conststent with your prior rulings. I

2 think that just wraps it up in a neat package, and that

3 Wi"  bC fine- 1 •iust ■» make sure the record is
4 clear.

5 THE COURT: Particularly as I said the other

6 day, and I may not have been able at that point to

7 fUlly artiCUla,e reasons, especially on the

8 lights and sirens testimony, it is clear from

9 Dr' Fyfe's tesI‘mony that there are some written

10 national standards out there that are contained in

11 literature to which he alluded in his testimony upon

12 which he based his opinion which was not turned over. 

12 It is also clear that that is so with respect to

14 the business of junior and senior officers, his opinion

15 that a senior officer has an obligation to provide

16 direction. That was not provided.

17 With respect to the*Court's ruling on lights and

18 Sirens, there are additional reasons why I believe that

19 that whole line of testimony is not admissible in this

20 case, and that is that one which I addressed with

21 Mr. Scheck last week; that this evidence, according to

22 Plaintiffs papers, would be used to argue that the use 

of lights and sirens in this particular action could23



24 have stopped Aldrin Diaz from introducing the gun into

25 the melee, and that is clearly an invitation to the

30

1 jury to engage in speculation.

2 I further find that although preconfrontation

3 conduct as to the reasonableness of the officers'

4 actions is generally admissible and is to be considered

5 by the jury under the line of cases that we've been

6 talking about for the past two weeks, that we have to

7 look at what confrontation it is that we're talking

8 about. And that's where I think Hegerty and

9 St. Hilaire are instructive in their segmentation of

10 that preconfrontation conduct.

11 Really what we're talking about in terms of the

12 use of lights and sirens is what was the nature of the

13 call to which Solitro and Saraiva were responding. It

14 was a call for a disturbance. There was no indication

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not until they actually arrived on the scene that there 

was a confrontation with Cornel Young. Jr.

And so although it may be argued that lights and 

sirens at least as it relates to the confrontation with 

Officer Young is part of the reasonableness calculus, I 

think it's far too attenuated in this case, it is 

preconfrontation conduct, but it's preconfrontation 

with Diaz, and so I think it is irrelevant for those 

reasons. And, therefore, Dr. Fyfe’s opinion in this 

case would really only serve to confuse the jury on a

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point that is not relevant in these proceedings.

And so that covers lights and sirens. With 

respect to Mr. Penza's argument today, I think that 

I’ve addressed all of those issues that he has set 

forth on the record, if not this morning, at least on 

other occasions. And so it is the Court's ruling that 

Dr. Fvfe will not be permitted to testify as to lights



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8 and sirens. He will not be pemutted ,o testify with 

respect to these standards that he referred to with 

respect to the direction of a senior officer to a 

junior officer.

I did indicate, and I know, Mr. Penza, you take 

exception to the Court's ruling as to the question of 

cover. I think I have said that this is a matter that 

is of a technical nature, the sort of evidence that 

jurors would find helpful in understanding acceptable 

police practices. I think that some of the information 

that Dr. Fyfe relied on was provided to counsel in that 

mch-and-a-half thick packet of materials that he 

submitted in response to the deposition notice.

With respect to use of the term "police" and a 

specific term, that is referenced in the materials, 

although, as I said, what I saw, and it was a very, 

very slight reference, was not entirely an unequivocal 

statement; but I think that this goes to weight, and I

32



think this is germane for the jury's consideration.

Ajid so he'll be permitted to testify at least as to 

that.

And so that s my ruling, Mr. Penza, and what 

that means is that you won't have to jump up and down

MR. PENZA: Thank you, your Honor.

MR. MANN: Did the Court anticipate -  the way 

this began was I was supposed to respond to Mr. Penza'

arguments, and the Court has now in effect ruled on 

them.

THE COURT: Did you want to respond to — I 

thought I had ruled on lights and sirens last week.

The only thing that was outstanding, Mr. Mann, was 

whether or not there was any basis for introduction of 

expert opinion on guidance from a senior officer to a 

junior officer. That was left open on Friday after 

Mr. Scheck had already argued it.

MR. MANN: Right.

THE COURT: So I really wasn't anticipating that 

there was more to say. I indicated I would give a 

ruling this morning. So areas of fair game are

cover —



MR. MANN: As I understand it, they are cover.

24 THE COURT: -  and the substance of the warning.

23 MR. MANN: And direction within the purview of

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1 cover.

THE COURT: Correct.

3 MR. MANN: And my exception to the Court's

4 ruling is clear.

3 THE COURT: Oh, I understand.

6 MR- MANN: There was one other piece o f

7 unfinished business from Friday. Wha, I would ask the

8 Court's permission to do is do it at a later time so we

9 don't delay Dr. Fyfe. There was some discussion at the

10 end of the Friday about Exhibit CC, which was the

11 videotape, Judge; but rather than delay Dr. Fyfe

12 gening on the stand, I'd just ask -  not.ce the Court

13 now that I want to argue the potential admissibility of

14 that b«  ask permission to do that after we're done



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with Dr. Fvfe.

THE COURT: That's fine. As I understand it. CC 

is the video from which X and Y. the still photos, were 

made.

MR. MANN: Yes. that's my understanding.

MR. PENZA: Yes.

THE COURT: Are you all ready for Dr. Fyfe? 

MR. MANN: Yes, Judge. I'll get him.

THE COURT: Let's get the jury in, then.

END OF EXCERPT

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C E R T I F I C A T I O N

I, Karen M. Zinni, RPR-RMR-CRR, do hereby 

certify that the foregoing pages are a true and 

accurate transcription of my stenographic notes in the



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above-entitled case.

Karen M. Zinni, RPR-RMR-CRR

Date



APPENDIX B



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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND

* * * * * * * * * * * * * * * *
* C.A. NO. 01-288ML

LEISA YOUNG, individually and * 
in her capacity as *

Administratrix of the Estate * 
of Cornel Young, Jr. *

*

v s - * OCTOBER 17,2003
* 9:30 A.M.

CITY OF PROVIDENCE, by and * 
through its Treasurer, *

Stephen Napolitano; MICHAEL *
SOLITRO, individually; *
CARLOS SARAIVA, individually; *

URBANO PRIGNANO, JR., * 
individually and in his * 

official capacity as *
Providence Chief of Police; *

RICHARD SULLIVAN, * 
individually; JOHN RYAN, * 

individually; and KENNETH *
COHEN, individually *

*
* * * * * * * * * * * * * * * *  PROVIDENCE, RI

BEFORE THE HONORABLE MARY M. LISI,

DISTRICT JUDGE



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(And a Jury)

E X C E R P T

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1 APPEARANCES:

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FOR THE PLAINTIFF: ROBERT B. MANN, ESQ. 
Mann & Mitchell 
501 Turks Head Building 

Providence, RI 02903

5 FOR THE DEFENDANT,
CITY OF PROVIDENCE,

6 PRIGNANO & SULLIVAN: KEVIN F. McHUGH, ESQ.
City of Providence

7 Law Department
275 Westminster Street, Suite 200

8 Providence, RI 02903

9 JOSEPH F. PENZA, JR., ESQ.
Olenn & Penza

10 530 Greenwich Avenue 
Warwick, RI 02886

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FOR THE DEFENDANTS,
RYAN & COHEN: MICHAEL J. COLUCCI, ESQ.

Olenn & Penza 
530 Greenwich Avenue 

Warwick, RI 02886

Court Reporter: Karen M. Zinni, RPR-RMR-CRR
One Exchange Terrace 

Providence, RI 02903

Proceeding reported and produced by computer-aided 
stenography

3

17 OCTOBER 2003 -  MORNING SESSION

BEGINNING OF EXCERPT



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(The jury is not present for the following)

THE COURT: Before we bring the jury in, there 

was a matter that was raised yesterday in a filing by 

Plaintiffs counsel with respect to the stipulation the 

parties entered into with respect to Exhibits 18 and 

18A.

Mr. Penza, have you had an opportunity to review 

the — I guess it's a motion to be relieved from the 

stipulation?

MR. PENZA: I have, and I'm prepared to address 

it when the Court wants to hear it.

THE COURT: Mr. Scheck, is there anything you 

wish to say beyond that which is contained in the 

written memorandum? I have received a corrected 

memorandum yesterday afternoon.

MR. SCHECK: Yes, your Honor. Did you receive a 

copy of the grand jury testimony of Mr. Donnelly?

THE COURT: I did.

MR. SCHECK: And I want to emphasize again as we 

put in the letter to the Court --

THE COURT: Could you explain something to me?

MR. SCHECK: Of course.

THE COURT: The grand jury testimony of



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Mr. Donnelly, was that in your possession prior to 

October 2 of this year?

MR. SCHECK: Yes.

THE COURT: Okay.

MR. SCHECK: And let me confess to the Court, 

and I’m sure that it was a confusion that Mr. Penza had 

as well, I'm sure he wasn't aware of it and we weren’t 

aware of it, and as I indicated in the letter to the 

Court, this is a confusion among counsel. And I can 

appreciate how the Court, sitting in your position, can 

feel ill-served that on something as basic as a diagram 

of the scene that the parties are not completely clear 

on exactly what happened, but --

THE COURT: I understand that there is a dispute 

or that there now is an apparent dispute, and perhaps 

there was an apparent dispute, between the parties 

which, as I recall, was addressed in a conference with



18 counsel on October 2 when the Court inquired as to

19 whether counsel had. consistent with the Court's

20 standard trial scheduling order, entered into any fact 

-1 stipulations and, perhaps more pertinent to this

question, whether counsel had at that point agreed to 

2-> the admissibility of certain exhibits.

24 I do recall counsel for the defense at that time

advising the Court, and I believe you were present at

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1 that meeting, that there was a problem, I think as he

2 put it, with respect to Exhibit 18. That was on

3 October 2.

4 MR. SCHECK: We had a conference on

5 September 19th.

6 THE COURT: Oh, I understand that. I'm talking 

about the one we had on October 2 after the Court

8 addressed certain motions that had been filed.

9 MR. SCHECK: May I consult with counsel?



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(Pause)

MR. SCHECK: I've just consulted with mv 

co-counsel, and I honestly don't recall -

THE COURT: Ido.

MR. SCHECK: If the Court could tell us.

THE COURT: But W'e can move ahead because you 

have said some things in your papers, Mr. Scheck and 

Mr. Brustin and Mr. Mann, that I consider to be, at 

best, a reckless disregard for the truth of what this 

Court suggested or, at W'orst, a deliberate misstatement 

of what this Court suggested with respect to 

Exhibit 18.

MR. SCHECK: Please tell me because we have no 

intention of doing that.

THE COURT: I'm not going to get into that now.

MR. SCHECK: If the Court could just tell us —

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THE COURT: What I will get into now is whether



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or not. as a legal matter, you are entitled to the 

relief that you seek in this motion. And so there's no 

confusion as to the statements I've just referred to, 

in your corrected version, page 1 spilling over to 

page 2, "Plaintiff, moments before her opening, was 

informed by the Court she had to agree to Defendants' 

stipulation."

That, Mr. Scheck, is - - 1 won't characterize it 

as a lie, but it is clearly a misrepresentation, as I 

said, based either on a reckless disregard for the 

truth of the facts.

Read ahead, and I'll cite the next one. Again, 

in that corrected memo, page 3 at the bottom, "The 

Court instructed Plaintiff again that the exhibit could 

only be used under stipulation." That part is true. 

"Plaintiff again attempted to explain the confusion but 

was instructed," presumably, again, by the Court, "she 

had to stipulate. Facing no choice but to agree to 

whatever stipulation Defendant insisted upon and 

literally facing a last-minute choice, also fearing the 

jury would be utterly confused by any description of 

the events of January 28th without reference to some 

easy," and I guess you missed a typo there, "to



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understand diagram of the scene, Plaintiff signed what

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Defendant provided."

The reference to the Court instructing you that 

you had to stipulate is, again, a misrepresentation. I 

have looked at the record, Mr. Scheck; and although my 

memory as I get older is perhaps not as good as it was 

when I was younger, the one area that is not in 

decline, and it serves me well, is an almost verbatim 

recall of what I hear here in the courtroom.

But not content to rely on my memory,

Mr. Scheck, I looked at the record in this case; and 

this is what I have you saying on October 7th. You 

make reference to Exhibit 18 and 18A and say, "It is 

indispensable to my opening statement. I have planned 

the whole thing around it. I'm willing to engage in 

any stipulation that my colleagues want with respect to 

a comparison of the photographs and the diagram. I



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will do anything they want in regard to this, but I 

must use it for the opening."

Anything more you want to say about this motion. 

Mr. Scheck? Make it quick. We've got a jury waiting.

MR. SCHECK: Your Honor, I quite agree with the 

Court, and I apologize. I now understand the issue.

You did not say that we had to agree. Those were 

choices that we made out of uncertainty and confusion, 

and you did not in any way order us to go along with

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the stipulation. Your recollection and 

characterization of the record is absolutely accurate 

on that point, and I did not --

THE COURT: Amd so your papers, filed twice -- 

MR. SCHECK: I understand.

THE COURT: -- are a misrepresentation, in my 

judgment, Mr. Scheck, of the events as they unfolded. 

Now let's deal with the substantive legal question as



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to whether you are entitled to be relieved from a 

stipulation of fact. You agree this is a stipulation 

of fact, not a stipulation as to law?

MR. SCHECK: Yes.

THE COURT: Okay.

MR. SCHECK: Now, we have proffered to the Court 

the testimony of Detective Donnelly; and I would point 

out that in the stipulation, I'm sure that my 

colleague, Mr. Penza, must have been confused as well 

because actually in the stipulation, just to show you, 

it says that the diagram was prepared by an agency, a

law enforcement agency other than the Providence Police 

Department.

And we believe this because, unfortunately, 

quite late in discovery, I'm informed by my colleague.

Mr. Mann, the Attorney General's Office provided the 

photographs that I think are 137 or 136 through 140 and

9



the diagram.

So I guess throughout the depositions and 

throughout the discovery, this diagram which everybody 

was saying in their testimony was a true and accurate 

representation of the scene at the time and drawn to 

scale we even believed had been prepared by the 

Attorney General's Office.

It turns out, of course, from Mr. Donnelly's 

testimony that he prepared it, and he is a Providence 

police officer; and I think his testimony is clear 

that —

THE COURT: You had that, did you not, early in 

the game?

MR. SCHECK: No. The reason —

THE COURT: Just answer this question. Did you 

have the grand jury transcript of Donnelly?

MR. SCHECK: Yes, but-

THE COURT: And how long have you had it?

MR. SCHECK: We've had it for quite some time, 

your Honor, but the reason —

THE COURT: Put a time on it, Mr. Scheck. If 

you don't know, ask Mr. Brustin.

MR. BRUSTIN: Years.



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MR. SCHECK: We probably had it for years. Your

Honor, the only point that I'm trying to make here is

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that nobody focused on his testimony at all because we 

had been using the diagram and the overlay with the 

assumption that was clear between the parties up 

through September 19th when we had our pretrial 

conference that this was a true and accurate 

representation. Everybody said that, so nobody was 

thinking that this was even an issue.

THE COURT: But at some point between 

September 19 and at least October 2, counsel for the 

defense became aware of other evidence in the case that 

seemed to suggest that the diagram as drawn contained 

an inaccuracy, and that was called to your attention, 

as it was called to the Court's attention.

MR. SCHECK: But what happened was, is that I 

think Mr. Penza indicated to me this morning that on



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September 25th he obtained outtakes, tapes of -  from a 

local television station of the scene. And there's a 

camera angle from, you know, across the street at an 

angle; and when you look — I was reviewing the tape 

even as late as last night.

THE COURT: Well, wait a minute. When was it 

that Mr. Penza told you that?

MR. SCHECK: Mr. Penza told me he got the tape 

on September 25th.

THE COURT: When did he tell you that?

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MR. SCHECK: This morning.

MR. MANN: Barry.

MR. SCHECK: Sorry. One second.

(Pause)

MR. SCHECK: And as is pointed out in our 

footnote, that there was a conversation with him 

indicating that he had looked at these tapes.



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THE COURT: When?

MR. SCHECK: On September 25th, 26th.

THE COURT: So you did talk to Mr. Penza on the 

25th or 26th?

MR. SCHECK: Well, I didn't, but counsel for -- 

Mr. Mann did, I believe.

THE COURT: All right. I mean, when I say you, 

Mr. Scheck --

MR. SCHECK: I understand you’re referring to 

all of us.

THE COURT: --1 mean Plaintiffs counsel 

because, as you know, all three of you, what one knows 

is imputed to all three.

MR. SCHECK: I don't disagree.

THE COURT: So you knew' September 25 —

MR. SCHECK: Our team knew, absolutely.

THE COURT: — or 26 that there was some 

additional pictorial evidence that seemed to suggest

12



MR. SCHECK: That he had some pictures about 

that, yes.

THE COURT: Okay.

MR. SCHECK: And as I recall, the day of jury 

selection, as recounted in the memo, the issue then 

arose to the point where it became clear that we could 

not enter into this stipulation.

THE COURT: As a matter of fact, that's become 

clear throughout this trial. I even joked, I think, 

with Mr. Mann at one point who indicated that he was 

trying very hard to come up with such a list; but as 

often happens in the course of litigation, counsel is 

simply not focused enough or not able to arrive at an 

agreement. And so I have to accept that, that there's 

no agreement with respect to exhibits; but with respect 

to Exhibit 18, that was something that you were, 

indeed, focused on on October 7, which was the day of 

jury selection, because, as you put it to me, you had 

based your entire opening on the exhibit.

MR. SCHECK: Right. And the point was that, as 

you can tell, I based my opening on the path that

that there was a problem with the diagram.



2o Officer Solitro drew during the deposition when he said

24 it was a true and accurate representation of the scene

25 as he had in the April 14th proceeding.

13

1 THE COURT: Let me ask you this, Mr. Scheck.

2 You ve been a lawyer for how many years?

3 MR. SCHECK: Since 1975.

4 THE COURT: I assume you took evidence somewhere

5 along the way.

6 MR. SCHECK: I've taught it.

THE COURT: Well, you teach it. You know that

8 unless an item of evidence has been admitted as a full

9 exhibit in the record, you can’t show it to the jury.

10 That's fundamental. You know that.

11 MR. SCHECK: Well, your Honor —

12 THE COURT. Do you or don't you? Of course you

13 do.

14 MR. SCHECK: Your Honor, but in an opening



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statement, it's what we intend to prove. Now. I 

appreciate the Court's —

THE COURT: Well, now, wait a minute. That begs 

the question, Mr. Scheck, the fundamental rule of 

evidence, if it's not admitted in the record, the jury 

doesn't get to see it. So September 25th you know 

there's a problem with Exhibit 18. You forge ahead and 

write your opening hoping or anticipating that 

Exhibit 18 can be shown to the jury.

MR. SCHECK: Your Honor, I —

THE COURT: Now let's move ahead to October 7.

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MR. SCHECK: Your Honor, I had a strong 

evidentiary basis for believing that notwithstanding 

any photographs that Mr. Penza had -

THE COURT: The problem is, Mr. Scheck, before 

the trial begins, the Court can't receive evidence.

You know that.



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1 7 MR. SCHECK: No, that's not true, your Honor. I

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8 don't believe.

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9 THE COURT: And you didn't move to have it

a 10 admitted —

n 11 MR. SCHECK: Your Honor, I think that --

H 12 THE COURT: -- into evidence.
n 13 MR. SCHECK: I think that what I could have

1 14 done, if we didn't believe that it wouldn't be an issue

H 15 because wre did have this agreement on September 19th,

16 and notwithstanding the picture that Mr. Penza had

17 indicated he had from the videotape, we thought that

18 that would go to weight, not admissibility, given that

19 all the other witnesses had testified previously --

20 THE COURT: Then, Mr. Scheck —

21 MR. SCHECK: — wre could have made an offer of

22 proof to the Court of all of this, and —

23 THE COURT: Mr. Scheck, you thought wrong, and

24 here's the choices you had. You knew you had a problem

25 with using that exhibit in your opening. You had a



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couple of choices. The Court suggested to you either 

don't use it and, as any good trial lawyer can do, you 

adjust or, as I suggested to you and Mr. Penza, since 

both of you seemed to indicate that at some point 

during the trial it was going to come in but was going 

to require some explanation based on these new facts 

that Mr. Penza had uncovered, that you enter into a 

stipulation that would cure the inaccuracy, and that 

was a stipulation of fact.

Frankly, the third alternative I didn’t suggest, 

but you could as well have asked for a continuance 

since you now claim that you were thrown off by this 

and you had to use that exhibit in your opening 

statement. You didn't ask for a continuance but rather 

took option number two, met with Mr. Penza,

October 8th the jury's been sworn, we're ready to start 

trial, and counsel tell me we have a stipulation. I 

read it into the record. You acquiesced in the Court's 

reading it into the record. I read it to the jury, and 

you made your opening statement.



21 Now tell me as a matter of -  as I said, let's

22 get to the legal question. We've got a jury waiting.

23 Tell me how, under First Circuit law. and you've cited

24 to me DelBonis, you’ve cited to me Honda and Teeter.

25 I ve read all of those, tell me how and why the Court

16

1 should relieve you of your stipulation of fact in this

2 case.

3 MR. SCHECK: Your Honor, as the record should be

4 clear, at the time we were confused as to the true

5 state of the facts because when we were shown this

6 picture by Mr. Penza »

THE COURT: Then I guess, Mr. Scheck, you don't

8 stipulate. If you're confused by the facts, you're not

9 in a position to agree that certain facts exist. That,

10 Mr. Scheck, is not the sort of mistake the First

11 Circuit contemplated in ruling that a party may be

12 relieved of a stipulation, particularly a stipulation



13 of fact.

14 That may border on negligence on your part, but

15 it is certainly not a legal basis for this Court to

16 relieve you of the stipulation. That is my ruling.

^  MR-- SCHECK: Your Honor, may I just put in the

18 record, then, that what we would like to elicit from

19 Officer Wajda, and your objections were sustained on

20 this point, but we want to establish that nobody moved

21 the Camaro from the time that she arrived at the scene

22 for some period of time thereafter.

23 Then we would seek to call Mr. Donnelly to the

24 witness stand in order that he would be able to testify

25 as to how the diagram was prepared and establish --

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1 THE COURT: Well, as I understand it,

2 Mr. Donnelly didn't get there until five minutes after 

two, according to his testimony. So unless he can tell

4 us what was going on between 1:45 and five minutes to



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two, he's irrelevant.

MR. SCHECK: Well, that's why w'e want to elicit 

from Officer Wajda, we tried to yesterday, the fact -

THE COURT: I don’t think you asked her that 

question.

MR. SCHECK: Mr. Brustin was asking her 

questions. Objections were sustained on relevance 

grounds.

THE COURT: As to post-shooting, as to her 

actions post-shooting, which are irrelevant.

MR. SCHECK: Well, they're not irrelevant on 

this point. We want to establish through her, as is 

clear, that she secured the car, took people out of the 

car. The videotape even shows this, and she can 

establish that the Camaro wasn't moved.

Then through Mr. Donnelly we would be able to 

connect this up and show that the Camaro wasn't moved 

by the time that he got there and that his measurements 

as to where the Camaro was are true and accurate.

THE COURT: I think, Mr. Scheck, that is an 

attempt to be relieved from your stipulation, and so



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your request is denied.

MR. SCHECK: Right, but -

THE COURT: Let's bring the jury in and proceed 

with Mr. Solitro's testimony. Mr. Penza, I take it you 

were about to object. I'm sorry, I may have stepped on 

your feet.

MR. PENZA: Judge, the only thing is, and I 

don't know if it will be necessary and I know the 

jury's waiting, but maybe at a break, there was some 

factual representations that were made that were 

inaccurate, and I want to make sure --

THE COURT: Put them on the record now. Dottie, 

just tell them to hold the jury for a couple of 

minutes. I'm not going to let this case get 

sidetracked by counsels' inattention to details and 

counsels' misrepresentations.

MR. PENZA: First of all, the record should be 

clear that when I got the tape, I got the tape at the 

same time as Mr. Mann got the tape. Mr. Mann and I met



with Attorney General Michael Stone on the 24th, got 

21 the tape. I then-

THE COURT: On the 24th of September?

23 MR. PENZA: The 24th of September. On the 25th

24 or 26th, and I don't know the exact date, it was either

25 the day after, but I received a call from Mr. Mann. I

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1 remember exactly where I was in my office. He was 

traveling in a car with Mr. Brustin. I was asked if I

3 saw the videotape. I said I had. I said based on

4 that, I had a problem with Exhibit 18.

5 Mr. Mann gave the phone to Mr. Brustin. He

6 said, Why don't you speak to Nick about this. And 

Mr. Brustin said. Have you seen the tape? And I said,

8 Yes, I have. I said, We've got a problem now because

9 of the location of the cars. And he said, Well, it is

10 problematic. I said, Well, I am going to have

11 photographs made from the video; and he said something



1- along the lines. You’re one step ahead of us or you're

13 thinking along the same lines. And I said, When I make

14 them, Nick, I will make you a full set.

15 I did that. They were picked up the following

16 day, and that's why I think the conversation was the

17 25th. They were picked up in my office the following

18 day on the 26th, and it was from that first

19 conversation that I had with Mr. Brustin that I

20 indicated that there was a problem.

~ ̂  And the Court has already indicated the

22 Plaintiff had a choice. I didn't force him into

23 anything. I got that stipulation. It was faxed to me

24 at 6:56 p.m. the night before. I didn't see it, quite

25 frankly, until we got to court.

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1 With respect to Donnelly, by the way, Judge, I

don’t think -  and I was just looking through the grand 

3 jury. He made the measurements. As I sit here now



4 and I haven't gone through all of the grand jury 

- testimony, as I sit here now, I still believe that

6 someone other than Donnelly made what is now

7 Exhibit 18A.

8 I think they took his measurements and made the

9 exhibit, but ~ and as the Court pointed out, the case

10 cited by -  and I only got the Federal Credit v.

11 DelBonis case and then my computer went on the fritz,

12 but that was a stipulation with respect to law and not

13 fact.

14 The Plaintiffs certainly had a choice in this

15 matter. They didn’t need to use the exhibit. And,

16 quite frankly, if I wanted to make things difficult,

17 Judge, I would have said I don’t agree to anything.

18 And then they would have had to try to get that exhibit

19 before the Court, and I think they would have had

20 serious problems witfT it; but to be fair, and I

21 appreciate the pressures that trial counsel are under,

22 I said, Fine, as long as the stipulation is there.

23 THE COURT: Don, bring in the jury, please.

24 END OF EXCERPT

25



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* * * * * *

BEGINNING OF EXCERPT

(In chambers. Attorneys Mann, McHugh and 

Colucci present)

THE COURT: Go ahead.

MR. MANN: I was just personally very — I want 

to apologize, and I was personally very troubled. I 

have been practicing in this court for a long time. I 

am very troubled by it, and I wanted to apologize to 

the Court, and I want — I'm very bothered, and I'm 

frankly worried. And I think in fairness, everybody on 

my side is, too; but 1 thought since I am local counsel 

that I should come in, and I really want to really 

assure you that it wasn't anything but things that were 

done too quickly.

THE COURT: I take it that you're referring to 

the memorandum in support of the motion to be relieved 

from the stipulation.



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MR. MANN: Right, and I'm not -

THE COURT: And in particular to the two 

statements that are attributed to the Court.

MR. MANN: I'm simply speaking to your comments 

to counsel, Judge. That’s the only thing I’m 

addressing. This bothered me a great deal. I'm a 

decent lawyer, and I don't want to —

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THE COURT: I'm not disagreeing with you,

Mr. Mann. I have known you since I was a baby lawyer; 

and, frankly, I was disappointed to see your name on 

that document because I know your work and I think you 

know that you enjoy the high regard of this Court and 

the respect not only of members of the bar but of this 

Court.

But I think you also understand that those 

statements as attributed to the Court are absolutely 

inaccurate, incorrect and extremely troublesome; and



11 that's what I referred to yesterday afternoon.

12 MR. MANN: And the only thing -  I thought about

13 even sending a second corrected version. I just

14 physically couldn't get a second corrected version, and

15 that was why we sent the letter instead. Judge; and I

16 signed my name to it. but I wanted to express to you my

17 sorry -  I'm just very' sorry about it, and I also -  I

18 think that’s true for everybody on my side, but I

19 thought I should come in here as the local person.

20 THE COURT: I appreciate you doing that. As I

21 said, I have known you. When I started practicing law,

22 you were one of the people that all of us young lawyers

2j looked up to, and so you and I have a long history.

24 As I said, I found that document to be

25 completely out of character for you. I do not know

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1 your colleagues; but I simply could not, and will not,

2 let stand that sort of a paper filed in the Court. So



I appreciate your coming in, and I appreciate the 

apology; and if there's anything else you want to say 

now, I'm willing to sit and listen.

MR. MANN. No. I just wanted to try and resolve 

it, but I didn't want it to fester.

THE COURT: I don't know, I will tell you quite 

frankly, whether and what next step I will take. It is 

something I have to give some thought to.

MR. MANN: I would simply say that it is - - 1 

guess I truly personally am unabashedly very troubled, 

and I guess I am — on a truly personal level, I would 

like to know as soon as possible. I do think it's 

something that can become all-consuming.

THE COURT: Oh, I understand, and I appreciate 

that as well, and that’s why I am trying to deal with 

this in a very measured and deliberate way. And so, as 

you know, I got the initial filing yesterday morning at 

about 9:00, got the second corrected version at around 

3:30 or 4:00 yesterday afternoon and took some time to 

review the record. And now I need to take a look at 

the law.

So as soon as I feel comfortable with taking a 

course of conduct, I will inform you, as well as



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Mr. Erustin and Mr. Scheck, as to whether and what the 

next step is. I appreciate you coming in. Did you 

gentlemen want to say anything?

MR. COLUCCI: I only know Bob as a gentleman. I 

agree with what the Court has said about Bob.

(End of chambers conference)

END OF EXCERPT

* * * * * *

BEGINNING OF EXCERPT

(The jury is not present for the following)

THE COURT: Have a seat, Mr. Scheck. I will 

preface my comments now by saying that I find that what 

I am about to say and what I am about to do is perhaps 

the most distasteful action I have had to take since I

assumed the bench.



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Earlier this morning, in ruling on the 

Plaintiffs motion to be relieved from the stipulation 

with respect to Exhibit 18 and 18A. this Court 

identified certain statements that were made in the 

Plaintiffs pleadings that were filed with the Court 

twice yesterday, once at about 9:00 yesterday morning 

and then in the form of a corrected version filed 

sometime in the late afternoon.

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In particular, the Court addressed statements 

that appeared in that memorandum which were attributed 

to the Court and to certain actions that Plaintiff 

maintained that the Court had taken, certain orders 

that the Court had made and certain instructions that 

the Court had given.

This Court expressed deep concern at the end of 

the day yesterday and earlier today with respect to 

those statements. I said it before, and I will say it



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again, and I believe that Mr. Scheck acknowledged that 

those statements as attributed to the Court were false, 

that Mr. Scheck may have used the word "inaccurate."

In my judgment, the filing of a document 

containing those kinds of false assertions falls within 

the purview of Rule 11; and it is my intention at an 

appropriate time after the conclusion of this trial 

because I do not wish to engage in a sideshow that will 

detract from the exceedingly significant and difficult 

issues posed by this trial by dealing with what I say 

is a violation of Rule 11.

And so at the conclusion of this case, I will 

issue a show' cause order to counsel for the Plaintiff,

Mr. Scheck, Mr. Brustin and Mr. Mann, with respect to 

the Court's consideration that those statements as made 

and as filed were made in violation of Rule 11.

26

That having been said, this Court is aware that



counsel for Mrs. Young, that is, Mr. Brustin and 

Mr. Scheck. appear in this court pursuant to local 

Rule 5(c) as amended in January of 1997. As such, they 

have been admitted pro hac vice to represent 

Mrs. Young's interests in this matter.

They appear in this Court at the discretion of 

the Court. There is no right for counsel who are not 

members of this bar to appear, and there is no right 

for parties who have matters before this Court to be 

represented by counsel who are not members of this bar.

Rule 5(c) requires pro hac vice counsel to abide 

by not only the Rules of Civil Procedure but also the 

Rules of Professional Conduct; and under that rule, 

this Court may exercise its discretion to summarily 

revoke the grant of pro hac vice status.

I have purposefully waited until this moment to 

make that order in an~effort to minimize for Mrs. Young 

any prejudice that may lie with her case by the removal 

of out-of-state counsel.

We are now at a point in this trial where 

Dr. Fyfe has been qualified in certain areas, and 

Mr. Mann will have the benefit of the weekend to 

prepare his direct examination. I have already



25 explained to the jury that the Court will not be in

27

1 session on Tuesday and Wednesday of next week. And so

2 under the rules, Mr. Mann will have an additional

3 opportunity to prepare whatever he needs to do in order

4 to pick up full responsibility for the trial, which is

5 his responsibility pursuant to the local rule.

6 And so, Mr. Scheck, Mr. Brustin, I hereby revoke

7 your permission to appear in this matter pursuant to

8 Rule 5(c) of our local rules. Let me suggest to both

9 of you, don't ever come back in one of my cases.

10 (Adjourned)

11 END OF EXCERPT

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C E R T I F I C A T I O N

I, Karen M. Zinni, RPR-RMR-CRR, do hereby

certify that the foregoing pages are a true and 

accurate transcription of my stenographic notes in the 

above-entitled case.



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Karen M. Zinni, RPR-RMR-CRR

Date



APPENDIX C



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1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND

* * * * * * * * * * * * * * * *  C.A. NO. 01-288ML 
*

LEISA YOUNG, individually and * 
in her capacity as *

Administratrix of the Estate *
of Cornel Young, Jr. *

*
VS. * OCTOBER 7,2003

* 9:30 A.M.
CITY OF PROVIDENCE, by and * 

through its Treasurer, *
STEPHEN NAPOLITANO; MICHAEL * 

SOLITRO, individually; *
CARLOS SARAIVA. individually; *

URBANO PRIGNANO, JR., * 
individually and in his * 

official capacity as *
Providence Chief of Police; *

RICHARD SULLIVAN, *
individually; JOHN RYAN, *

individually; and KENNETH *
COHEN, individually *

*
* * * * * * * * * * * * * * * *  PROVIDENCE, ri

BEFORE THE HONORABLE MARY M. LISI,

DISTRICT JUDGE



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(Jury Impanelment)

e x c e r p t

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1 APPEARANCES:

2 FOR THE PLAINTIFF: ROBERT B. MANN, ESQ.
Mann & Mitchell

3 501 Turks Head Building 
Providence, RI 02903

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5 FOR THE DEFENDANT,
CITY OF PROVIDENCE,

6 PRIGNANO & SULLIVAN: KEVIN F. McHUGH, ESQ. 
City of Providence 
Law Department

275 Westminster Street, Suite 200 
Providence, RI 02903

JOSEPH F. PENZA, JR., ESQ.
Olenn & Penza 
530 Greenwich Avenue 

Warwick, RI 02886
11



12 FOR THE DEFENDANTS,
RYAN & COHEN: MICHAEL J. COLUCCI, ESQ.

I-5 Olenn & Penza
- 530 Greenwich Avenue

14 Warwick, RI 02886

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Court Reporter: Karen M. Zinni, RPR-RMR-CRR

16 One Exchange Terrace 
Providence, RI 02903

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21 Proceeding reported and produced by computer-aided
stenography

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2

7 OCTOBER 2003 -  AFTERNOON SESSION 

(The jury is not present for the following)



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THE COURT: I had asked counsel last week to 

provide further briefing. In particular, I had asked 

Plaintiff to provide further briefing on her response 

to the Defendants' Motion in Limine regarding certain 

information or testimony that the Plaintiff wished to 

introduce as impeachment material.

I had asked Plaintiff to provide the Court with 

that additional briefing by Friday, but it did not come 

to me until Monday, for some reason. I now have the 

benefit of Plaintiffs memorandum regarding the 

evidence she seeks to introduce with respect to the 

credibility of witnesses Solitro and Saraiva. And as I 

understand it, Plaintiff is moving pursuant to 608(b) 

for the introduction of certain evidence which she 

claims is impeachment material.

Now, so that we don't have problems in the 

future in this case, what I'm going to ask counsel to 

do and to abide by throughout the trial is that if one 

of you from Plaintiffs side is going to address an 

issue, that that attorney address all of the merits of 

that particular issue so that I don't have you bouncing 

back and forth. And so I need to know which of you is 

going to address this issue.



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MR. SCHECK: I will, your Honor.

THE COURT: Okay. Actually, I don't need any 

further argument on it. 1 may have some questions.

And. Mr. Penza, I got a response filed by you. I'm not 

sure if Mr. Colucci and Mr. McHugh joined in that. 

Actually, I got the response before I got the 

Plaintiffs memo. I don't know how that happened, 

but -

MR. McHUGH: We join in, your Honor.

MR. PENZA: I faxed mine on Sunday.

THE COURT: Mr. Brustin, have you had an 

opportunity to look at the Defendants' memo and then 

the addendum that came afterwards? I'm sorry,

Mr. Scheck.

MR. SCHECK: Yes.

THE COURT: Have you had an opportunity to look

at those?



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MR. SCHECK: I think I did briefly, yes, your

Honor.

THE COURT: As I understand it, the Defendants 

in this case are moving in limine for the exclusion of 

certain evidence. As I said, I asked counsel for 

Plaintiff to further brief this issue because the 

earlier memorandum submitted in response to the 

Defendants' motion was, I think I may have said, like a

5

moving target. It was unclear to the Court as to 

precisely what it was that counsel for Plaintiff 

intended to do.

The memorandum I received from counsel has now 

zeroed in on Federal Rule of Evidence 608(b), and 

Plaintiff is arguing that certain testimony that has 

been preserved either at grand jury or in deposition 

should now be considered admissible in this case 

pursuant to 608(b), which provides that specific



10 instances of the conduct of a witness for the purpose

11 of supporting or attacking that witness's credibility,

12 other than conviction of a crime, and we have none of

13 that here, may not be proved by extrinsic evidence.

14 They may, however, in the discretion of the

15 Court, if probative of truthfulness or untruthfulness,

16 be inquired into on cross-examination of the witness

17 concerning the witness's character for truthfulness or

18 untruthfulness. And I think that's the provision that

19 Plaintiff is relying on.

20 I asked Plaintiff to set forth for me in her

21 response to the motion precisely what evidence it is

22 that she seeks to introduce. And I now have a series

23 of excerpts from, as I say, grand jury testimony,

-4 deposition testimony and as well it appears certain 

25 snippets from police reports that were generated by

6

Mr. Solitro and Saraiva shortly after the incident in1



question.

Mr. Scheck, you did not sign this pleading; but 

I take it that since you're arguing it, you join in 

that pleading.

MR. SCHECK: Yes.

THE COURT: As I understand it -  and as I say,

I may have some questions for you. So bear with me, 

Mr. Scheck. As I understand it, the statements that" 

are referenced at page 3 of your memo which are 

attributed to Solitro and Saraiva were prepared by them 

after the shooting. Is that correct?

MR. SCHECK: Yes. After the shooting, both 

officers were interviewed that night or in the early 

morning hours, I think one at 8:30, one at around 9.

THE COURT: All I want to know is, are these 

written statements?

MR. SCHECK: These are written statements.

THE COURT: Is there a time at which they were 

generated?

MR. SCHECK: Yes. When I say they're written 

statements, what I mean to say is that they gave these 

statements to police officials. They're under an 

obligation to state truthfully what's going on.



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THE COURT: I understand that.

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MR. SCHECK: And signed them.

THE COURT: I only want to set the time for when 

they did that.

MR. SCHECK: All right. Carlos Saraiva gives a 

statement at 8:09 on January 28, 2000. I believe — 

well, it says Sergeant Springer, but he also recalls it

as —

THE COURT: Wait a minute. Mr. Brustin, I 

understand the issue. I just want to get a few facts 

from you. 8:09 a.m.?

MR. SCHECK: 8:09 a.m.

THE COURT: And what about Solitro?

MR. SCHECK: Solitro's statement, I have the 

actual statements here if you want to look at them.

THE COURT: Just tell me the time.

MR. SCHECK: His is at 9:15.



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THE COURT: And are these narrative statements?

MR. SCHECK: Yes. They're asked questions. The 

question is, "Did there come a point," to Saraiva,

"that you responded" --

THE COURT: Wait a minute. Wait a minute. Do 

you have the statements there?

MR. SCHECK: Yes. Let me hand them up.

THE COURT: Would you hand them up so I~can look 

at them?

8

MR. SCHECK: Yes. of course.

THE COURT: Mr. Penza, you don't have a problem 

with my looking at these?

MR. PENZA: No.

(Pause)

THE COURT: I have scanned over those reports, 

and as I see the — what I was calling a narrative

portion, there is an initial question that's posed and



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then a narrative within which the statements that 

appear in your memo have been extracted.

What I don't see is a direct question on the 

point that you're attempting to impeach this witness 

on, and I think that that's the fallacy of your 

argument.

The assumption that the Plaintiff makes in her 

papers is that the statements that were generated that 

day answer a question which apparently was never posed 

at that time, or if it was, it's not contained in these 

documents and, thus, those statements, and that's the 

question as to whether or not the race of the 

individual who we later now know is Mr. Young.

The problem, as I say, with Plaintiffs position 

on this is that Plaintiff is assuming that the 

statements when given were false statements, and the 

w'ay she's attempting to prove that is to use testimony

9



generated at a later time. Well, I guess -- you're 

shaking your head.

MR. SCHECK: That's completely wrong. That's 

not our contention.

THE COURT: What you're saying is that the later 

statements are false statements.

MR. SCHECK: That's correct.

THE COURT: But the problem is that the 

questions that are put to the witnesses at a later time 

which you now are attempting to use to impeach the 

earlier statement were never, so far as I can see, put 

to the witness at the first statement.

MR. SCHECK: But, your Honor —

THE COURT: So that the factual basis for your 

contention here under 608, it seems to me, is simply 

not there. There's an assumption there.

Now, when you have an opportunity later on to 

depose these individuals, that's when the question is 

generated, but it seems to me that this is not proper 

impeachment material, and that is my ruling on that 

one.

MR. SCHECK: May I respond?

THE COURT: No. I'm making a ruling now,



Mr. Scheck. That's why I asked you to put it in 

writing, so that I wouldn't be dealing with a moving

10

target. Last week you were talking about 404(b) and 

some other things and some other witnesses, and that's 

why I w'anted to know exactly what it is that I'm 

dealing with. Now let me get to this other business 

about the Small testimony.

MR. SCHECK: No. Your Honor, I must stop you 

right here and make a record.

THE COURT: Mr. Scheck.

MR. SCHECK: Your Honor, I have to -

THE COURT: Mr. Scheck, sit down.

MR. SCHECK: Your Honor —

THE COURT: You have had an opportunity to make 

a record in this case.

MR. SCHECK: No, I haven't. Your Honor, most 

respectfully, the last time that we addressed this



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issue --

MR. SCHECK: — you told me to sit down before I 

could explain it. Now you have asked me to turn up -  

THE COURT: Mr. Scheck, you are in contempt.

Sit down or leave.

MR. SCHECK: I will sit down, your Honor.

THE COURT: This Court was very, very clear when 

I attempted to address this matter last week that 

Plaintiffs submission was absolutely inarticulate.

THE COURT: Take him out.

11

The Court couldn't discern exactly what it was that she 

was attempting to put in. I had a mishmash, a moving 

target; and I asked Plaintiff specifically to set forth 

what statements you contend are admissible and under 

what rule of evidence.

That’s the record, Mr. Scheck. It was filed on 

Monday, a day later than the Court had asked you to



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file it. Now that I have the record and you have made 

your record, my finding is this, that the premise for 

your contention that these statements generated in the 

course of the grand jury and in the course of 

deposition testimony are not impeachment material under 

the rule. My ruling here today is — and they’re not 

permissible under 608 because they don't go to 

impeachment, and so the ruling today is that the 

Defendants' motion with respect to those statements is 

granted.

There is an additional statement in here that 

Plaintiff seeks to introduce, and this regards the 

Small matter. That, I believe, is inadmissible for 

another reason, and that is that its probative value is 

so attenuated in this case when measured against the 

prejudicial value, particularly where Plaintiff in this 

case has stated over and over again that there's no 

claim of racial discrimination in this case; but,

12



rather, this is an attempt, I believe, to unfairly and 

unduly prejudice these proceedings. The Court grants 

the motion with respect to the Small testimony.

We will convene at 9:30 tomorrow morning at 

which time I will provide the jury with preliminary 

instructions, very' bare-bones preliminary instructions. 

Mr. Mann?

MR. MANN: I just have a housekeeping detail 

about getting witnesses in, Judge. Do you want me to 

address your clerk or could we approach?

THE COURT: Before you do that, Mr. Penza, 

what's your —

MR. PENZA: I have the same problem with the 

witnesses again.

THE COURT: Okay. Come on up.

(Bench conference held on the record)

THE COURT: Mr. Scheck, when I've ruled in a 

case, that s it. It s not an invitation for further 

argument.

MR. SCHECK: Your Honor, I mean no disrespect. 

I've never appeared in front of you. I would just ask 

you to assume that I've been teaching trial practice



for 26 >ears. I have appeared in courts all across 

this country, federal courts, state courts. I am a 

competent lawyer, and I am respectful to judges, and I

13

have never been held in contempt.

THE COURT: It's going to happen, Mr. Scheck, if 

you don't sit down when I tell you to sit down. I told 

you, when I make a ruling, it’s not an invitation; and 

you have consistently -

MR. SCHECK: No, I haven't.

THE COURT: Mr. Scheck, you've been warned. 

Step back. Tell me what your problem is.

MR. PENZA: W ell, Judge, after getting the 

second and third list of witnesses, I'm now advised 

that Mr. Fyfe is not going to be the second or third 

witness on board. I'm advised now that Mr. Hayman is 

not going to be —

THE COURT: Just a minute. Let me get my list.



‘ 15 (Pause)

16 THE COURT: Are you talking about the latest

17 list that we got Friday?

18 MR. PENZA: \  es, and now it's changed again. I'm

19 told. And I have -  let alone the extra work I'm doing

20 because I'm preparing witnesses out of order, but the

21 practical problem is now yesterday -  tomorrow we’re 

supposed to do a view and then openings, and I knew the

23 Court was not going to sit until two. So I figured

24 that since we were sitting going until three, I thought

25 it was three, quite frankly --

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1 THE COURT: Most days it's 3:30 because I have a

2 judges’ meeting that goes 12:30 to 2.

3 MR. PENZA: That's partly my error, but -  that

4 is my error. But we had — Ms. Young was supposed to

5 go first, and I knew she was going to be brief.

6 THE COURT: Right.



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MR. PENZA: We had Mr. Hayman who was supposed 

to be second and then Saraiva.

THE COURT: I thought Fyfe was. Saraiva and 

then Jiminian if Fyfe is not available.

MR. PENZA: Right. What happened is that 

Saraiva is in the pharmacy program at URL One of his 

classes is a lab that he has to take on Wednesday. He 

could have rescheduled it; but I sat down with the  ̂

figures and said, No, take it Wednesday because you’re 

going to be on the stand all day Thursday.

Now I'm told that they want to do him right 

after Miss Young and not have Hayman in. So now I've 

told Saraiva not to be here until Thursday morning.

THE COURT: You know, I will tell you that I was 

quite disturbed to get this list on Friday. I thought 

I made it very clear back in August when I explained to 

you, both sides, that at a final pretrial conference I 

expected you prepared to tell me not only the order of 

witnesses but how long so that each side could prepare.



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We went through that exercise, I think, on the 

19th. I always anticipate that there may be some 

movement because of the unavailability of witnesses or 

whatever; but when I got this list on Friday, I was 

quite concerned because, again, we're dealing with a 

moving target.

Now', as I understand it -- what's the latest?

Now you're telling me that you're going to put 

Miss Young on first or not?

MR. MANN: Which one of us do you want to speak? 

I’m just doing some of the housekeeping.

THE COURT: Mr. Scheck, who is your first 

witness tomorrow?

MR. SCHECK: Leisa Young.

THE COURT: Leisa Young?

MR. SCHECK: Yes.

THE COURT: Does that take care of your concern?

MR. PENZA: I'm not concerned with that. I want 

to know who his next witness is because now I’m going 

to have a concern when he tells me he wants Saraiva



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here when I told Saraiva not to make arrangements to 

change his lab and now it's Tuesday at —

THE COURT: When's his lab?

MR. PENZA: His lab is one to four on 

Wednesdays.

16

THE COURT: W ell, he's not going to be here 

tomorrow.

MR. PENZA: He hasn't planned on being, but now 

I don't know what the Court is going to do.

THE COURT: You're going to have to take someone 

out of time because he's already made a commitment. So 

if Saraiva was your second witness, you better have 

someone else here.

MR. SCHECK: Well, we’re looking for Mr. Hayman. 

The problem that we have that we wanted to bring to the 

Court's attention -

12 THE COURT: Is this one o f the guys at the



■**' 13 scene?

14 MR. SCHECK: Yes. and we're looking for him.

15 THE COURT: You can't find him?

16 MR. SCHECK: We had him subpoenaed to be here.

17 We expect he'll be here.

18 THE COURT: You have him under subpoena?

19 MR. MANN: As a procedural matter, Judge, are

20 you continuing all subpoenas in full force and effect?

21 THE COURT: The problem is, Bob, I have to tell

22 them that when they're in the courtroom.

23 MR. MANN: We want to just be able to represent

24 to these people the subpoena's been continued, Judge.

25 Frankly, we told m o of them to come here this morning.

17

1 THE COURT: I think I scare them more than you

2 do, though, Bob.

3 MR. MANN: I’m positive of that, but I didn’t

4 scare them enough to get them here either, Judge.



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MR. SCHECK: That's what we tried to do. We

tried to get them here to make sure that they would be 

produced. I understand your concern.

THE COURT: Will they be here tomorrow?

MR. MANN: I really believe they will be. Judge, 

if we ask them to be here, Judge. They were both 

served quite some time ago.

THE COURT: Get him here tomorrow. And-even if 

you don’t reach him, I will tell him that all the 

subpoenas are in effect.

MR. MANN: You want us to get him here at 1:30

or 2:00?

THE COURT: I would say 2:00 because you're 

going to go take the view. First we have to do 

preliminaries. It's 20 minutes to a half hour. You're 

going to go take the view. You all know you're going 

out the back door to do that, to catch the bus. That 

ought to take 45 minutes to an hour.

When we come back, the jurors will have coffee 

and pastries. So we give them a break, bathroom break. 

That brings us to 11:30 maybe, so you're going to have



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one hour for one opening. So Plaintiffs opening, one 

hour, lunch, come back, defense opening, and then we'll 

get through Ms. Young maybe; but if Hayman's here, I 

will just tell him that he's got to come back the 

following day.

MR. MANN: We'll try to get him and Jiminian 

here tomorrow.

MR. PENZA: Who is the other one you have coming 

in tomorrow, Hayman?

THE COURT: But remind me because I'll forget.

I've got a few other things on my mind.

MR. MANN: Judge, this is one of the things I'm 

trying to do.

MR. PENZA: Just want to know the order. We 

have Young, Hayman. Who’s next?

MR. SCHECK: Saraiva.

MR. PENZA: So Saraiva is Thursday.

MR. SCHECK: We wanted to put Saraiva on second.

THE COURT: Well, it doesn't matter because if



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Hayman doesn't testify before Saraiva —

MR. PENZA: I want to prepare for Friday because 

now I thought Fyfe was coming in on Friday, and now I'm 

told he’s not coming in until Tuesday.

MR. SCHECK: I got a call on my cell phone from 

Mr. Fyfe. He had an emergency meeting with the

19

Southern District of New York concerning CCOD matters, 

other lawsuits, other official duties; and he asked 

me — the cell phone message was, Can you put me to 

Tuesday? I planned to put him on Friday.

THE COURT: So what are you going to do? Are 

you going to put him to Tuesday?

MR. SCHECK: I can only get him when I can get

him.

THE COURT: That’s what I'm asking you. Are you 

going to put him to Tuesday?

MR. SCHECK: I will call him.



THE COURT: All I want to know is, are you going

13 to put him to Tuesday? That's all he needs to know so

14 that you know how to spend your weekend.

15 MR. SCHECK: We were expecting him Friday. My

16 point is simply this, if I can get him Friday, I want

17 to put you on notice if we can't get him Friday, we're

18 just going to have to proceed with the rest of the

19 witnesses in this case.

20 THE COURT: Which is the way you had it set up

21 the first time. He was last.

22 MR. SCHECK: I understand that. We didn’t want

23 that, but the only reason I'm raising this now is that

24 1 think we may have to bring in Mr. Diaz, and we should

25 probably do that.

20

THE COURT: Diaz is coming on -  what date did

2 we put him on for? Diaz is the 15th, I think. John,

3 do you have the habe for Diaz’ Do you know what day



he's coming?

THE CLERK: We had the 15th. Is that what you 

asked?

THE COURT: So Diaz is the 15th. You're not 

going to finish Fyfe. If you start him Tuesday, you'll 

probably ~

MR. SCHECK: I'm worried about having enough 

witnesses to get through Friday. «-

MR. PENZA: Who are we doing Friday? This last 

weekend was ruined. I already had Fyfe prepared.

MR. SCHECK: See, we thought Fyfe was Friday. 

Now that he's canceling —

MR. PENZA: I have to prepare for Friday.

THE COURT: I understand. Tell me the order.

You have Mrs. Young -

MR. SCHECK: The order that we would like?

THE COURT. I don t want to know the order you 

like. I want to know the order you have. Young. 

Hayman second?

MR. SCHECK: Yeah. Saraiva.

THE COURT: So not Hayman second.

MR. SCHECK: We would like Young, Saraiva, but



21

1 he can't come in tomorrow.

2 THE COURT: Thursday. You’re not going to get

3 to him until Thursday anyway. *-

4 MR. PENZA: We're going to have a big gap, and

5 it doesn't matter to me as long as I know. In other

6 words, if Hayman is not going to testify tomorrow,

7 that's fine as long as I know. Assuming we do that, I

8 give my opening at 2 and we're done at 20 of 3 and

9 Ms. Young gets on the stand and she's done by 3, we

f 0 still have a half hour.

U THE COURT: We'll finish. I mean, I'll send

12 them home because that’s a lot for them to absorb, but

13 you were concerned about Saraiva not being here

14 tomorrow. I mean, if you have one of these other guys

15 that you could just fit in as a short witness, we could

16 do that tomorrow; but if we’re short, we’re short. So

17 Saraiva will be on Thursday, probably all day.

18 MR. PENZA: He said initially three to four



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hours.

THE COURT: It's a four-and-a-half hour trial 

day. so that's probably all day for him.

MR. PENZA: .And who do you have on Friday? 

THE COURT: So who's Friday? That's what I need 

to know.

MR. SCHECK: Friday will be Hayman, Jiminian.

22

THE COURT: You're calling Wajda?

MR. SCHECK: We're leaning towards calling her, 

but our preference would be to start — either start 

Solitro or to bring in Diaz, if that's possible. I 

think that would make the most sense because we're 

beginning the scene witnesses.

MR. PENZA: So after Jiminian, it would be Diaz?

THE COURT: You can't have Diaz. He's not habed 

in until Tuesday.

MR. SCHECK: Could we advance him?



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THE COURT: No. You know, that was the whole

point of going through this. So if you want to put 

Solitro on right after -- Hayman and Jiminian I didn't 

think were very long. Can Solitro come in on Friday?

MR. PENZA: Yes, he's a lot more accessible, but 

he baby-sits. As long as I let him know a day in 

advance, that's not a problem.

THE COURT: But I can't go messing up these 

habes.

MR. PENZA: You have Fyfe on Tuesday.

MR. SCHECK: So the only question really is 

whether we would get to Wajda before we got to Solitro. 

That's the question we have to answer for you.

THE COURT: And how long is she going to be? 

You told me short. She was 30 minutes.

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MR. SCHECK: Yeah.

THE COURT: All right. Does that answer your



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question?

MR. PENZA: Yeah, except the problem this 

creates, and 1 know it's not your problem, it’s mine, 

these people I'm figuring next week. Now I've got to 

spend hours just preparing because they're out of 

order, but I'll handle it. I'll deal with it.

MR. McHUGH: I have no problem. Until 

yesterday, Prignano and Partington were never on-this 

list.

THE COURT: I know.

MR. McHUGH: So I called Mr. Brustin yesterday, 

and he said they're going to testify as to the 

reasonableness of the shooting. I already have a 

Motion in Limine pending as to Partington's testimony.

THE COURT: When it gets to that point. I'll 

deal with it. They're not on until next week. Are you 

calling them as expert witnesses?

MR. McHUGH: I still have that Motion in Limine.

MR. PENZA: Can we finish the order now? After 

Wajda, do you want Solitro?

MR. SCHECK: Uh-huh.

MR. PENZA: If you don't finish Solitro on 

Friday, we come back Tuesday, are we going to take



24

1 Fyfe?

2 THE COURT: Take Fyfe out of turn, and let’s *"

3 finish him. and then you can finish Solitro after him,

4 either Tuesday afternoon or Wednesday morning.

5 MR. PENZA: And then after Solitro?

6 THE COURT: Because you have Diaz and Dantzler

7 coming in on Wednesday.

8 MR. PENZA: Well, now they told me that they may

9 not have Dantzler.

10 THE COURT: If you're not going to call him,

11 tell me so that I can cancel the habe.

1- MR. PENZA: I’m going to want him in my case.

13 TFIE COURT: But I'll issue another habe for a

14 different day. If you don't want him, tell me now.

MR. MANN. Can we tell you tomorrow morning?

16 THE COURT: Tell me tomorrow. I’ll get you Diaz

17 here, but he's already got the habe out; but if you



18 don't want this guy, I don't want him hanging around.

19 MR. MANN: 1 understand.

20 THE C-OURT: Okay. And Pemberton?

21 MR. MANN: Nobody can find him.

-- THE COURT: Has he been deposed?

MR. PENZA: No. Nobody could find him then.

14 MR. MANN: He's a turtle. He may show up.

15 THE COURT: So he's questionable. So is ~

25

1 Dantzler. What about Terry and Hurlbut?

2 MR. SCHECK: Yes, we're calling them.

3 THE COURT: When?

4 MR. SCHECK: We want to call them -  we spoke to

5 him. but we can try to arrange to have him on Friday

6 before Solitro or after Solitro. It depends on whether

7 you care.

8 THE COURT: I think you're jamming it up too

9 much. So put them over to next week at some time.



10 They're relatively short witnesses. They both work for

11 the state. You can get them in and out.

12 MR. PENZA: Are they both going to testify?

13 MR. SCHECK: Certainly Hurlbut.

14 MR. MANN: Maybe Terry. Mr. Terry' is sick. I

15 spoke to Mr. Terry's wife yesterday. There's a problem

16 with his health. That’s largely the problem. We have

17 to speak to him again; but, for example, one of the-'

18 difficulties in even speaking to him is his health

19 status. And sometimes he’s fine, and sometimes he's

20 not.

21 THE COURT: Has he been deposed?

22 MR. MANN: Yes.

23 THE COURT: All right. Put Hurlbut and Terry

24 over to next week sometime.

25 MR. PENZA: Will they know by Friday whether

26

1 Terry' is going to testify?



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THE COURT: They're going to know by tomorrow, 

won't you?

MR. MANN: Judge, with Hurlbut, yes. With 

Terry', the only reason I don't want to absolutely 

commit is his wife is incredibly cooperative. She 

works for the state. She gave me her home number, her 

pager and her work number. And her husband tried to 

call us, but the question was when would wre get toliim 

because he's sick. Judge. So we'll do our very best to 

let the Court know tomorrow.

THE COURT: Frankly, it's more important that 

you let Mr. Penza know.

MR. MANN: I'll let Mr. Penza know as soon as --

THE COURT: As soon as you know, let him know.

MR. PENZA: As long as I know by Friday, that’s 

all 1 really care about because that's my weekend.

THE COURT: What about Prignano and Partington, 

at what point w'ould you be calling them?

MR. BRUSTIN: At the end.

THE COURT: They w'ould be last?

MR. BRUSTIN: Yes.

THE COURT: I got a letter from Mr. Mann

regarding the view.



MR. MANN: That was asking about a police car.

27

You have that letter.

MR. PENZA: Yes.

MR. MANN: It was short.

THE COURT: I give you points for creativity, 

but I really -  I think that goes beyond the view, and 

so I'm going to deny your request that the Providence 

Police cruiser be at the scene with the lights and the 

siren going.

MR. PENZA: On that same issue -  well, not the 

same issue, but Plaintiffs have given me what they 

intend to use as demonstrative evidence during the 

opening statement. They asked me if I have a problem 

with it, and I do.

THE COURT: Well, I haven’t seen it.

MR. PENZA: I’m just bringing it to your 

attention. I don’t know if you want to address it now.



17 THE COURT: I said I wanted a copy of it before

18 you do anything with it. You're not going to show the

19 jury anything I haven't seen. I want you to leave it

20 here so I can see it. I don't know what it is that

21 you've got. Is there anything else we have to deal

22 with?

23 MR. PENZA: That's the only issue, and it's

24 important because it's the opening.

25 THE COURT: Be here at 9:15 so I can deal with

28

1 it.

MR. MANN: Judge, we have our original exhibits

3 there. Can we give you a copy tomorrow, or do you want

4 it tonight?

5 THE COURT: Tomorrow's fine. Tomorrow's fine.

6 MR. SCHECK: I have a question about vour 

ruling, I just need to understand so I have guidance in

8 the opening, and that is you indicated that we can't



9 impeach Solitro or Saraiva with the fact that between

10 the time that they were questioned on January 28th.

11 2000, and the time of their grand jury testimony and

12 their depositions that this whole Small story came out;

13 but would I not be able to inquire of them, Weren't you

14 questioned on January- 28th, 2000? Were you asked the

15 question, read the question, and during the course of

16 that, did you not say, "I saw a black male subject

17 leave"? And then in the subsequent proceeding on

18 April 14th, you now said that, in the case of Solitro,

19 that you couldn't tell whether that individual was

20 black. I'm not allowed to impeach him?

21 MR. SCHECK: No, because I don't think you

22 established the tense of the statement. That statement

23 was generated some seven or eight hours after the

24 incident, and it is written in the past tense. It is

25 not written as at the time I shot, I saw. That's the

29



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problem. It's the wrong question. Well, the question 

was never asked. So that's the problem you have ■with 

it. It's past tense.

MR. SCHECK: Your Honor, he says, "At this time 

I saw a black male subject walking towards us by the 

side of the Camaro. Now I yell at the black male 

subject to drop his gun," and he's referring to having 

seen a black male subject.

I'm not suggesting, as is done later in the 

deposition, when he now -- when Saraiva, for example, 

subsequently says, Oh, I didn't mean -  I was only 

referring to him as being black when I was questioned 

because I subsequently learned that the man who I shot 

was black, but I couldn't see that he was black from 

that distance, all that I'm requesting, your Honor, is 

that I be allowed to bring out the facts and 

circumstances of how the questioning was done, what he 

said in his subsequent statements, and let the jury 

decide whether there's an inconsistency because there's 

an additional problem.

And the additional problem is, on the issue of 

credibility, not only is there an apparent 

inconsistency here between the initial statement given



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and the subsequent statement in the grand jury; but 

also when you go to the scene and you see what a short

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distance it is, there’s a significant issue of 

credibility as to whether he could not see the race of 

the individual.

So all that I'm requesting is the opportunity to 

at least suggest that this is an inconsistency. That's 

all.

THE COURT: It may well be, but even under 403 I 

think that it's highly prejudicial and doesn’t have the 

probative value that I think you're looking for. So 

we're not going to revisit that one.

MR. PENZA: Just for the record, I’ve handed you 

what the Plaintiff intends to use as demonstrative 

evidence during his opening.

MR. SCHECK: May I explain what it is? This is 

a -- Jim Fyfe is going to give an explanation as to



16 what he believes were the accepted police practices

17 that were not followed in this case, and they involve

18 the lights and sirens.

19 THE COURT: Just a minute. Would our

20 spectators, if you wish to confer, please do so outside

21 the courtroom. You're distracting to us up here.

22 MR. SCHECK: These involve failure to use lights

23 and sirens.

24 THE COURT: So you'll know, I read most o f  his

25 depo. You sent me that.

31

1 MR. PENZA: Oh, I sent all the depos to you that

2 I might use.

3 THE COURT: And so he's going to testify—

4 MR. SCHECK: He's going to testify to those

5 facts.

6 MR. PENZA: Here's the problem. I don't think 

Fyfe is going to be able to testify in this phase of



8 the case. Lights and sirens -- and that's why I'm

9 asking for voir dire. The lights and sirens issue, he

10 talks about a national standard that is in none of the

11 material that he's ever given us. He just throws out

12 there's a national standard.

13 THE COURT: Doesn't that go to the weight o f  his

14 testimony?

15 MR. PENZA: Even if it is, it is not consistent ~

16 with the rules and regulations of the Providence Police

17 Department that doesn't mandate that; and I have cases

18 that indicate that. In fact, Soller - 1 have the

19 case. It indicates that an expen was not allowed to

20 testify on the International Association of Chiefs of

21 Police guidelines because that isn’t what the state in 

question utilized, and the Court precluded the expert

23 from testifying. And that's essentially I think the 

-4 problem the Plaintiff is going to have.

And so to throw this before the jury now when I

32



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think there's a serious question, especially -  the 

lights and sirens, I have a general law right on point 

that tells you what you have to do when you're 

approaching a scene Code 2 and what you have to do 

approaching a scene Code 1. They do not have to use 

their lights and sirens in Providence.

Now, maybe Fyfe can say that the rules and “ 

regulations of the City of Providence is all wet and 

that it's —

THE COURT: Not in this phase.

MR. PENZA: That's exactly right. That's 

Phase II. I think all of his testimony is going to 

relate to Phase II.

MR. McHUGH: And I've got a Motion in Limine 

pending on a lot of Fyfe testimony.

THE COURT: Well, I understand that, but we’ve 

got enough to deal with today. What else do you have?

MR. BRUSTIN: That's it for tomorrow.

THE COURT: So are these going to be shown 

tomorrow?

MR. BRUSTIN: No. And the only switch is the

order between this and this.



MR. PENZA: Let me see the rest of them because 

I have problems with others. Senior officer in charge, 

again, the rules and regulations of the Providence

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Police Department that mandates that -

THE COURT: But I don't think that that's the 

testimony here. He's being presented as an expert 

witness. Granted, I haven't ruled on the extent to 

which, A, he'll qualify and, B, he'll be permitted to 

testify; but I think in terms of an opening statement 

at least, it's arguable that this may come in.

So I'm going to permit it, but I want to make 

sure, is this the only demonstrative that you're 

intending to use?

MR. BRUSTIN: The picture that we've -- 

MR. PENZA. I thought you were going to use it. 

I didn t know you w'ere going to use it in opening, but 

I guess it's going to be an exhibit, so it’s fine.



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MR. BRUSTIN: One picture.

THE COURT: It's one of the ones that have been 

admitted?

MR. BRUSTIN: Yes.

THE COURT: And where you've agreed to its 

admission. Anything that you’ve agreed to the 

admission of is fair game. You can use that.

MR. BRUSTIN: And the diagram of the scene.

MR. PENZA: Well, no, no, no. Last week I 

mentioned that I have a problem with the diagram at the 

scene because after I agreed to it, we all got the

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photographs, and it showed that the diagram is not 

accurate. Now, I don’t know how -

MR. SCHECK: I’ll tell you how I'm going to 

handle it to alleviate those concerns, and that is that

if we had it here, as I understand it, and you correct 

me if I'm wrong, Joe, that it's his contention that the



Camaro and the cruiser were both off to the right a 

8 little bit more than depicted in the diagram.

Now, the problem is that in the grand jurv this

10 diagram was prepared by the Attorney General, and

11 everything was marked off in terms of where it was.

12 It's the only record we had throughout the depositions

13 m this case. The witnesses have been marking things.

14 So the only way that I can present what is the

15 testimony of Solitro and Saraiva is based on what they

16 marked. So I have to use it. I will even

17 acknowledge —

18 THE COURT: Why don't you guys do this because

19 that is something that is going to have to be addressed

20 to the jury because they're going to see this stuff and

21 they're going to be confused by the testimony, why

22 don't you guys, I know it's a novel idea, but talk to

23 each other and come up with a stipulation that goes

24 with the exhibit so that the inaccuracy is pointed up

25 and the jury will understand it because apparently this



35

1 is going to come in. You guys have to use this.

MR. PENZA: I've been struggling. I've actually

3 tried to cut out Fidas and move it to the left, and it

4 just doesn't work.

5 THE COURT: I don't know if you can do an

6 overlay or something like that. You may want to think

about taking it and actually doing an overlav to show

8 actual location, if you can agree to those things; but

9 I think for tomorrow's purposes -  and I’ve really got

10 to go, so I'm going to cut you off very quickly. Be

11 quiet for one minute, Mr. Brustin, and let Mr. Scheck

12 talk. \  ou want to use it in vour opening?

13 MR. SCHECK: Yes.

14 THE COURT: It's an exhibit that you guys had

15 agreed to the admission of, as I understand it, and

16 you've been using it for depos.

17 MR. SCHECK: Yes.

18 THE COURT: So here's what I suggest you do.

19 Tonight, work on a stipulation which I’ll read to the

20 jury even before you open so that they’ll understand



21 that you're going to see a diagram, that the parties

22 have agreed X, Y and Z, and I think that takes care of

23 it.

24 MR. SCHECK: Maybe this will help. My intention

25 is only to say here is the diagram that was used during

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1 the course of the trial. It may be that the cars were

2 a little off to the left. If s hard to figure, but

3 that won't matter. What we're talking about is the

4 general direction. I’m only going to talk about what

5 happened.

6 THE COURT. I understand; but if you're going to 

show them the diagram, I think what you need to do is

8 be very up front with the jury.

9 MR. SCHECK: Yes.

10 THE COURT: But I think what you do is you say

11 that the parties agree that the diagram itself may

12 be -  is off by X number of feet.



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MR. PENZA: Not maybe. It is.

THE COURT: It is off by X number of feet, 

because that's a fact that they need to be aware of.

MR. SCHECK: I’d like to talk with Joe. He can 

show me exactly how that works.

THE COURT: The two of you, get together with 

that. If you can’t agree to a stipulation on that, 

then I'm going to have to tell you to stay away from it 

because you're going to need testimony to explain it to 

the jury'.

MR. SCHECK: I can't -

THE COURT: Then draw one that looks the right 

way.

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MR. SCHECK: No, no. The problem is, I have to 

be able to present to the jury, and I think I should be 

entitled to, this is the diagram that Michael Solitro 

had. This is what he drew. This is where he drew he



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was at various different points in time. It's 

indispensable for me to do that. As to whether or not 

ultimately --

THE COURT: That may be so; but if you agree 

that the diagram itself is inaccurate, you have an 

obligation to put before the jury an accurate 

portrayal. And you can do that in the form of a
imr-

stipulation before you show it to them.

If you can't put together a stip, you won't be 

able to show it because it's not a full exhibit. It’s 

as simple as that.

MR. BRUSTIN: Very briefly, and I raise this 

because it sounds like Mr. Penza may raise this in the 

opening. At this phase of the trial, the policy that 

the department had on lights and sirens is absolutely 

irrelevant. It doesn't matter what the policy —

THE COURT: Mr. Brustin, you're arguing 

something to me that we'll deal with later on.

MR. SCHECK: I think you said that I could 

address this and you would address —

THE COURT: You can address that in the form of



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what Fyfe is going to talk about. What I said is that 

the policy here, you know', don't be opening doors that 

shouldn't be opened.

MR. SCHECK: One last question for your Honor, 

and that has to do with the ~

THE COURT: Hold that thought. I want to tell 

you something before I forget it. For each side, 

whichever of you ~  well, you guys present more 

problems for me. This side, there are three lawyers 

representing one party. When one of you takes a 

witness, that one is responsible for direct, 

objections, cross, whatever it happens to be. I don't 

want three heads jumping up and down.

This side, to the extent that you can eliminate 

the three heads jumping up and down, please do. Okay. 

I'm sorry, go ahead.

MR. SCHECK: And I think the Court has indicated 

rulings on this; but I want guidance because, your 

Honor, I am a respectful lawyer. I want to know what



20 the guidelines are. That's why I want the rulings. I

21 don't want to be caught up, stopped, told to shut up

22 and sit down or anything like that. I want to make

23 that clear.

24 THE COURT: As a guide, Mr. Scheck, when I tell

25 you to sit down, sit down. You may think I'm a damn

39

1 fool, but you've made your record. So that's one rule.

2 Tell me what your question is.

3 MR. SCHECK: My question is this. It was my

4 impression that you had ruled, and this was the whole

5 purpose for the bifurcation, that the issue as to

6 whether Cornel Young acted as a reasonably trained 

officer and his state of mind was irrelevant to the

8 first phase of this.

9 THE COURT: That's my ruling. His state of mind

10 is not relevant.

11 MR. SCHECK: If I say that to the jury, I am



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accurately summarizing the way this Phase I is going to

go.

MR. McHUGH: Reasonably trained. You said 

reasonably trained.

MR. SCHECK: That he acted as an objectively 

reasonable officer.

THE COURT: Young? What's that got to do with 

this?

MR. SCHECK: Nothing. That's my point.

THE COURT: But wait a minute, if you're going 

to say it, why are you saying it?

MR. SCHECK: I want to say that that's not 

relevant in this phase of the proceedings.

THE COURT: Well, that's not an opening

40

statement. Your opening statement is this is what 

we're going to prove.

MR. SCHECK: My request, then, is this. I am



4 very concerned because I believe that through the back

5 door the Defendants are going to try to make that their

6 defense.

THE COURT: Make your objection at the

8 appropriate time if they do.

9 MR. SCHECK: I would request that in opening

10 instructions, in explaining it, that the Court tell

11 that to the jury. That is your ruling.

12 THE COURT: I don't need to do that. You know

13 what my ruling is. Don't make it part of your opening,

14 don’t make it part of your opening. If he opens the

15 door, object. See you tomorrow at quarter past nine.

16 (Adjourned)

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C E R T I F I C A T I O N

I, Karen M. Zinni, RPR-RMR-CRR, do hereby 

certify that the foregoing pages are a true and 

accurate transcription of my stenographic notes in the 

above-entitled case.

Karen M. Zinni, RPR-RMR-CRR

Date



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