Trial Transcripts

 

Trial Day One



Trial Transcript


(Annotations are in brackets and indicated with asterisks.)
 [Typographical/Syntax errors have been left uncorrected.]


Day One (May 17, 2001)

[3] (CLERK) County Court is now in session, Paul Czajka presiding.

( CZAJKA) Good morning. Note your appearances, please?

(TORNCELLO  [prosecutor]) For the People Peter Torncello.

(DEFENSE COUNSEL ['DC'*]), appearing for the defendant, Jeffrey R. Nickel.

[*We have elected not to refer to defense counsel by name herein.]

(CZAJKA) Who is personally present. People ready?

(TORNCELLO) Yes, we are.

(DC) Yes, Your Honor, with one preliminary.

(CZAJKA) Detective, would you get that door?

(DC) I'd ask the Court if I may be heard? Your Honor, if it please the Court, Jeffrey Nickel was arrested on the 7th of August, year 2000, and charged at that [4] time with a felony in violation of Section 130.80 of the Penal Law, a felony of Course of Sexual Conduct Against a Child.* Thereafter, it was almost a year after he was arraigned on that charge, preliminary hearings were set on that charge, bail applications made on that charge, and then on the 18th of August, I believe, he was indicted. Now, that 18th of August indictment is the one before the Court now and contains 7 counts, I believe five of those counts, Your Honor, involve a complainant by the name of [ 'Arthur']. Your Honor, as I would read Section 130.80 of the Penal Law, and more particularly, with respect to subdivision (b) of that statute, it says a person may not be subsequently prosecuted for any other sexual offense involving the same victim, unless the other charges or offense occurred outside the time period, charged under this section.

[*A superseding grand jury indictment dropped this 'Course' charge.]

(CZAJKA) You're reading from the Course of Conduct section?

(DC) Yes. [5]

(CZAJKA) That statute.

(DC) Yes, sir. I would therefore, respectfully suggest to this Court that the prosecution cannot proceed on any of the counts of this indictment, involving ['Arthur'] against Mr. Nickel at this time because they are prohibited by law from doing so.

(CZAJKA) Mr. Torncello, so you wish to respond?

(TORNCELLO) I think that the indictment supersedes any charge that the police may have filed in the local court. He's not been or being charged with that in this indictment so --

(CZAJKA) I don't know that -- strike that. That section of that statute is not applicable to the circumstances; your motion is denied.

(DC) Respectfully, I'll take exception, Your Honor.

(CZAJKA) Absolutely.

(DC) One other preliminary statement, Your Honor, before commencing. If I may, I noticed when you deal with the Penal [6] Law, with the section of sex offenses, when you take this 130.80, which is a class D felony, and it involves repeated acts of sexual contact, and then you look at Section 130.65, Sexual Abuse and you find that it apparently requires only one act, and also --

(CZAJKA) Well, he's not indicted at least in this indictment for a Course of Sexual Conduct.

(DC) That's correct, Your Honor, I guess the point I was trying to make --

(CZAJKA) There's another indictment charging him with that?

(DC) No, sir. There isn't. The Legislature, Your Honor, has I think there might be an equal protection issue in that. The charge with which the defendant is standing trial today is 130.65, requires apparently a single sexual contact. In the same statute this 130.80, which is (d) required several so that the Legislature in its wisdom or whatever, has equated the same penalty, for a singular act, as opposed to multiple, so as I think it might be an equal [7] protection issue that I would like to raise at this time in that regard. That was it.

(TORNCELLO) Nothing, Your Honor.

(CZAJKA) That motion too is denied.

(DC) Respectfully, I'll take exception.

(CZAJKA) Is defendant otherwise ready?

(DC) Yes, sir. Your Honor, except that I would like to move that any and all witnesses that are going to be called in the case I would like to respectfully ask that they remain outside during the testimony of any of the other witnesses. And --

(CZAJKA) So ordered.

(DC) And I have the mother of the defendant here, with family members, and she might be a witness so with the Court's permission, I'll ask that she step out. I don't see any other witnesses on behalf of the defense here, Your Honor.

(CZAJKA) You're both responsible for your own witnesses; make sure [8] they're out.

(TORNCELLO) Your Honor, I don't think that notice is applicable in a case involving an indictment that alleges a sexual crime, that's incumbent upon my making a -- 60.43 of the Rules of Evidence CPL, talks about the admissibility of the victim's prior sexual conduct and we'd make the appropriate motion that this be included.

(CZAJKA) I don't know that that's necessary, but I can't imagine that that would be an issue for (DC), but obviously I'll rule on the motions and objections as they're made. On my own motion, I'm directing the People before they file this indictment, in the Clerk's office, to file the indictment without an indication of the identity of the alleged victim.

(TORNCELLO) Okay.

(CZAJKA) Come up for a minute please.

[The transcript then says: "(Bench conference)." It's not clear if  both the prosecutor and defense counsel came up, or only the prosecutor (who had just spoken). If the latter, it would seem rather questionable for the judge to summon only the prosecutor, and thus leave defense counsel with no idea what was discussed. Later on, at a critical juncture in the trial, there is no question that Czajka does precisely that. (Moreover, the main, legitimate reason for having a bench conference is to have a brief colloquy outside the hearing of the jury. But there was no jury here.)]

(DC) Your Honor, if I can [9] address one more thing. Forgive me.

(CZAJKA) Certainly.

(DC) Count two of the indictment, Your Honor, which alleged a Class C felony, of Aggravated Sexual Abuse, second degree, I see a violation of Section 130.61, and then no further subdivisions. I have nothing but a blank, I would like to move --

(CZAJKA) 130.67 subdivision (1).

(DC) Yesl brackets and a blank without any further indication beyond that.

(CZAJKA) Those second set of brackets shouldn't be there, should they? Isn't it simply --

(TORNCELLO) No, it should be sub (C).

(CZAJKA) C?

(TORNCELLO) That's correct.

(CZAJKA) Can I see someone's Penal Law. When the other person is less than eleven-years-old.

(TORNCELLO) That's correct.

(CZAJKA) You're moving to [10] dismiss because, [DC], the (C) is left out?

(DC) That's correct, Your Honor, I would.

(CZAJKA) What do you say Mr. Torncello?

(TORNCELLO) I think that the body of the count is appropriate. I think that for instance right after that to wit clause adequately explains the charges. I would move to amend that typographical error. I think that the gist or the body of the indictment is appropriate. It does discuss the appropriate charge.

(CZAJKA) [DC] wish to respond?

(DC) Yes, Your Honor. As we stand here now we have no idea what the Grand Jury intended when they returned that second count of the indictment. There's no way for me to second guess what they had determined, and so, we would urge that you dismiss that count.

(CZAJKA) Judge Breslin reviewed the transcript of the Grand Jury, [11] dismissed or denied a motion to dismiss all of the counts, including Count two, and at this time, I grant the People's motion to amend to include the letter (C), and deny defendant's motion to dismiss.

(DC) Respectfully take exception.*

[*Both this, as well as DC's earlier 'digression' regarding a charge that had been superseded, seem quite pedantic; even pointless. DC was simply wasting everyone's time here, as well as suggesting that all the defense had to offer was sophistry. Moreover, DC knew (and told Nickel) that Czajka was a judge "who liked to move things along." It's a bit like the boy who cried wolf.]

(CZAJKA) Yes. Anything else [DC]?

(DC) No, sir. Your Honor, thank you.

(TORNCELLO) Yes, Your Honor. May I?

(CZAJKA) Go ahead.

(TORNCELLO) Judge where would you like me?

(CZAJKA) Actually, maybe during the break we can get someone to move the tables up. I'm having trouble hearing both attorneys.

(DC) Maybe we can move them, Your Honor. It's difficult to hear in here.*

[*One might have thought that, given that this was a courtroom, care would have been taken long ago to make sure that everyone could actually hear what was going on. Moreover, it is not clear that the tables ever were moved closer.] [12]

(CZAJKA) Go ahead Mr. Torncello.

(TORNCELLO) Thank you, Your Honor. May it please the Court.

(CZAJKA) Do you want your book back?

(TORNCELLO) Yes. Judge, by his own admission, and in his own words, Jeffrey Nickel is a boy lover. And over the next few hours, over the next day or so, we are going to learn to what extent a boy lover goes to satisfy --*

[*Note that, rather than starting his case with the classic 'the facts will show that the defendant clearly committed such-and-such,' the prosecutor begins with this ill-defined term, which is meant to urge conviction based on who Nickel (supposedly) is, rather than what he is alleged to have actually done. Torncello would continue this line of fact-free (and inadmissible) salaciousness throughout this brief trial.]

(DC) I hate to interrupt you, but I have to object, Your Honor to that term right from the outset here, as having, no legal significance.

(CZAJKA) It implies a course of conduct outside of that charge, so, refrain from use of that term.*

[*In other words, don't use that term. But because he lacks actual proof of criminal acts -- particularly vis-a-vis the two most serious ones charged -- Torncello will keep using this term -- 12 more times -- with no sanction or reproach whatsoever from the 'judge' who just told him to stop using it.]

(TORNCELLO) Over the course of the next few hours, we're going to learn to what extent Jeffrey Nickel went to satisfy --

(CZAJKA) I forgot to tell you something. Come up a minute please. [13]

[The transcript then indicates: "(Side bar)." So, this is apparently the second time -- just a few minutes into the trial -- that Czajka has called Torncello up for a sidebar, from which defense counsel was excluded. Why? What did Czajka say to the prosecutor?]

(CZAJKA) So we will take witnesses out of order, if need be; there's no jury.

(TORNCELLO) Sure.

(CZAJKA) Excuse the interruption, why don't you go ahead Mr. Torncello?

(TORNCELLO) Over the next few hours, over the next day, Your Honor, we will learn to what extent Jeff Nickel went to, to satisfy and gratify his sexual desire for young boys. Judge, on August 3, 2000, Claudette Scostak was working at the Albany County Jail in her capacity as a receptionist and a clerk and as part of her responsibilities and her duties, are to open mail and check for contraband in letters that come in to the inmates at the Albany County Jail. On August 3, 2000 she opened four letters addressed to an inmate at the jail [14] whose name was Matthew Peters and those letters were from, Jeffrey Nickel. They contained a return address that indicated J. Nickel, 36 Lansing Drive, Delmar, New York, 12054. They contained a signature of Jeffrey Nickel at the conclusion of it and they contained information, that is particular to Jeffrey Nickel and to only Jeff Nickel, about the children involved, who are the subject of this indictment, and about his love for the young boys, his romantic involvement with young boys. Judge, it also contained photographs, a number of photographs, of young boys, that Jeff Nickel sent to Matthew Peters in the Albany County Correctional Facility. A light bulb went off in Claudette Scostak's head and said something is not right here. Something's fishy. She called her superior and told him that the envelopes may contain contraband and through the proper channels, the Albany County Sheriff's Department contacted Investigator Ronald Bates. Ronald Bates arrived, he examined the four letters, he noticed that the contents of [15] the letters were sexual in nature, they they identified at least three individuals, a young boy by the name of ['Brendan'], a young boy by the name of ['Chris'] and a young boy by the name of [ 'Arthur' ].* He also recognized that Matthew Peters was an inmate in the Albany County Correctional Facility who had been convicted of sodomy in the second degree, for sexually abusing young boys. Judge, Investigator Bates examined the letters, he examined the photographs, he noticed the writing on the back of the photographs which were sexual in nature,** and he began his investigation. What he did was he contacted first of all of the three young boys and he interviewed [Arthur], the Sheriff's Department interviewed [Chris], and they interviewed [Brendan] and they found out that they all had contact with Jeffrey Nickel. Jeff Nickel at one time or another was a teacher's aid at [16] [ ], he was also a teacher's aid at [ ]. Also a "mentor," for lack of a better term, or a big brother, for a boy named ['Arthur'], at [ ], first in Rensselaer County and then at [ ] here in Albany County. He found out that [Arthur] had developed a relationship with this defendant, Jeff Nickel. Judge, all three children at that time of their contact with Jeff Nickel, were under the age of eleven. The contents of those letters, and the interviews with the young boys lead the Albany County Sheriff's Department to seek an interview with Jeff Nickel. In August, about three or four days later, they interviewed Jeff Nickel. Judge, they invited him to come down into this building at their office, they sat down, he sat down with an inspector named Mark DeFrancesco and over the course of several hours he gave a thoughtful, eloquent, six page statement, outlining his contact with the three young boys in question, and his life beginning at age twelve through the present as a boy lover. The term boy lover is a term Judge, that Jeffrey Nickel uses, not a term that the People use.

[*Torncello uses the full  names of all three here; by contrast, the letters used only  first names.]

[**No, the writing on the back of these photos was not sexual in nature; see below.]

(CZAJKA) Okay.*

[* "Okay?"  What do you mean, 'okay'? Just minutes earlier, you (the 'judge') instructed the prosecutor not to use that word. But he keeps using it anyway, and that's just fine with you? This is the beginning of Czajka truly starting to act as a de facto  second prosecutor. (See Judge Paul Czajka section for similar behavior in  other cases.) He's just signaled that the prosecutor can say whatever he wants, with no fear of repercussion.]

(TORNCELLO) He uses and he describes and he defines what a boy lover is, in that letter. Judge, at the conclusion of that statement, he was asked to sign a consent to search for his home at 36 Lansing Drive, Delmar, New York, which he did, voluntarily. *He also signed his statement after being duly warned of all his Miranda warnings** and voluntarily signed that statement. At the conclusion of the statement, together with the Albany County Sheriff's Department, Mr. Nickel went to his home at 36 Lansing Drive in Delmar and a search was conducted. Judge, what was found in that search, was like the Fort Knox of deviate sexual material judge. I mean there are pages and pages of erotica, there were hundreds and hundreds and stacks and stacks of photographs of young boys. They are --***

[*No, he did not  sign that consent form 'voluntarily.' He was extremely reluctant to do so. It was only when he was shown a search warrant  (signed by a judge), and realized that they were going to do the search anyway, that he went ahead and signed. (Detective Mark DeFrancesco had previously stated that if Nickel did not sign, the search would be far more invasive and destructive. Moreover, courts have consistently ruled that when a defendant is shown a search  warrant , any  'consent'  form he may (subsequently) sign is most certainly  not 'voluntary.')]

[**Nickel was never given any Miranda warnings. Regarding DeFrancesco engaging in this same practice in another  case (Rarick), see Detectives Mark DeFrancesco and Ronald Bates section.]

[***Beside the fact that none of these -- with the sole exception of a single  sexual photograph -- which will be discussed at length below -- have anything to do with the actual acts Nickel was on trial for, Torncello is grossly conflating  several  very different kinds  of materials, as well as painting an extremely misleading picture of their contents. The vast majority of what was 'found' were academic articles and books on the topic of child sexual abuse.]

(DC) Objection, Your Honor, that's not part --

(CZAJKA) You're not [18] introducing that, right? You're not -- you're just talking about that which you seek to introduce?* 

[*Whether or not Torncello intends to introduce some or all of this material into evidence isn't the point  (and also is not why defense Counsel objected). What Czajka fails to realize -- or is tacitly encouraging -- is Torncello's unquestionably unethical attempt to convict based not on action-related facts, but rather, on pure propensity evidence.]

(TORNCELLO) Photographs and photocopies which are the subject of this indictment.

(CZAJKA) We talked about it, you said there are some six to eight cartons. You're not bringing them all in?

(TORNCELLO) I was going to, or I intended to.

(CZAJKA) How many weeks are we going to be here? There's -- he's only charged with six or seven counts.*

[*Unfairness to the defendant is the least of Czajka's concerns here; he's just worried about how long the trial will take.]

(TORNCELLO) That's right, that's right.

(CZAJKA) So just refer to that which you hope to introduce.* [* In a  non-jury trial like this, given that the judge is both the person who decides what evidence is admissible and  what weight is to be given to it, whether any given thing is 'officially' admitted into evidence is -- essentially -- meaningless.]

(TORNCELLO) Okay, Well, there are photographs which were taken on a 35 millimeter camera that depict young boys.* Also magazines, that depict erotica and young boys. ** There's cartons and --***

[*All of these are fully clothed.]

[**None of these depict sexual activity.

[***What Torncello lacks in the way of actual proof of unlawful acts, he is clearly seeking to make up for by way of a large volume of clearly lawful materials. (And again, Czajka's concern is clearly not potential prejudice to the defendant, but rather, the Court potentially being inundated by tone of material it might have to sift through.)]

(CZAJKA) Give me -- excuse me for a minute. Count, count three, refers to [19] one discrete photograph, correct?

(TORNCELLO) That's correct.

(CZAJKA) All right. It's not all of these others?

(TORNCELLO) Correct.

(CZAJKA) Go ahead.

(TORNCELLO) I lost my train of thought. There are stacks of material which are -- which are described and annotated as research material judge, that discuss all sorts of sexual conduct and contact between adult males, sexual contact between adult males and young boys. That is among many, many other things that were recovered as evidence. The Albany County Sheriff's Office also recovered a computer, in fact, two computers were recovered, a lap top computer and a regular personal computer. Those computers were turned over to the Colonies Town Police, their computer force department, and the contents of the computer, and the disks and the zip drives, were examined. We're going to hear from Officer or Investigator Steve Tanski from the Colonie Police who examined the [20] contents of the computer, and the contents of the disks. One of the things that he found in the disks is the subject of count three. There's also further proof, of counts one and two, Your Honor, it's a photograph of this defendant engaged in an act of oral sodomy with ['Arthur,],* a young boy who was under eleven at the time. Judge, the indictment alleges acts that occurred for the most part, between June and July, of 2000. In addition, the indictment contains an allegation of sexual conduct from the Summer before, of 1999 with a young boy name ['Chris'], that talks about sexual touching, and sexual conduct, for the defendant's sexual gratification. You're going to hear from three young boys as well Judge from ['Arthur'], who is going to describe the touching that took place and the time that he was touched over the Summer of 2000, by Jeffrey Nickel. He's going to describe an act of oral sodomy, that he engaged in with this defendant, Jeff Nickel and himself. You're also going to hear from ['Brendan'] to describe sexual [21] touching and ['Chris'] to talk about his sexual touching. Judge at the conclusion of the proof, we believe it will show overwhelmingly that the defendant is guilty behind a reasonable doubt, of each and every count of this indictment. Thank you very much.
[* No, it is not. The photography expert retained by the defense, whom Czajka would not allow to testify as an expert, established conclusively that the older person depicted in that photo was not Nickel. Moreover, it also does not depict 'Arthur,' given, among other things, that whereas the boy in the photo has brown  eyes, 'Arthur's' eyes are  blue.]

(DC) If it please the Court, Mr. Torncello. Your Honor, if I may be permitted a few moments to open and respectfully point out to the Court, that obviously the Court is aware that anything that I say now is not evidence in the case. My opening cannot be regarded as evidence as cannot that of my learned opponent in this case. If I can be permitted, I would respectfully point out to the Court, what I believe the proof will show in the case when the trial commences with the calling of witnesses. I believe the proof will be that this case originated and had its birth on August the 3rd at about 1:30 in the afternoon on that date, out at the Albany County Jail [22] and there was a lady by the name of Claudette Scostak who I believe will testify that she is employed as a switchboard operator, and as a receptionist in addition to those primary duties, she does open mail that's coming into the jail. And that on that date about that time, she would say she opened letters that contained photographs. The letters were addressed to an inmate in the jail by the name of Peeters. I think the proof will be, Your Honor, that in all of those photographs, that depicted boys, they were all clothed, there were not what we would call obvious scenes, photographs as we all know of them, disrobed or anything like that. There was nothing of any sexual nature written on the back of any photographs. I believe on one the word side or something like that, whatever that means, was a
character in a movie I think one of the kids movies, but it was nothing of a sexual nature reported there. There was no contraband obtained. I think she will testify that she turned the photographs over to see if there might by anything attached to them and she [23] found no contraband. There was absolutely nothing illegal about what was before her. She then took those photographs, and letters, and went to her superior, with instructions as to what to do. I think the proof will probably be that, an investigator by the name of DeFrancesco was called, he talked to this Miss Scostak and obtained a statement from her which sets forth exactly when I just said, and armed with that statement, he went before a judge here in Albany, and secured a search warrant. A search warrant was secured and after the search had been conducted, and there was no -- no showing to that Court, that anything illegal had taken place or should not even be an issuing of a search warrant. Your Honor, as a result of Mr. DeFrancesco's investigation, I believe the proof will show that he approached one or more of the boys mentioned in this indictment, and unfortunately, the interviews that took place of these three boys that are mentioned in this indictment, were respectfully conducted very poorly. The [24] young children were subject to all sorts of intimidation and things of that nature, were not interviewed with any social worker present, or any medical people there, or anyone that really had an understanding about children, and what they're prone to say, and their ability to deal with their imagination, but rather, interviewed by this investigator from the Sheriff's Department and maybe one of the other Sheriff's Department employees. Judge, the proof is going to show we don't know what questions they asked the boys. We don't know how they even began it. There will be sought to be introduced into the record of this Court of various notations that describe answers, but unfortunately we are never given the questions that were asked of the boys before these alleged answers were given. And this was done in each and every circumstance with the three here involved. As a matter of fact, at one point, this photograph which is the issue, I believe, of the third count of this indictment, was shown by the officer to this boy and presumably, said is that he, is that the defendant in it? [25] And that is the kind of interview, Your Honor, that was run. And we can -- I think the proof will be its highly suspect. There will be proof, Your Honor, that some computers were taken from the residence as a result of another search warrant. And that on one of those computers, they pulled this photograph that we're talking about which, Your Honor, the proof is going to show, show it depicts a sexual act. It is a sexual act that is not with my client, it is not his photograph, in that picture, and we hope to bring in expert testimony, Your Honor, and in that regard to show it is not and cannot be he. Your Honor, I respectfully think that at the end of the case when all the actual witnesses have testified, and the Court is able to examine and look into just how the birth of this case occurred, and just how this whole matter was conducted, that the Court will find that certainly one, if not all of these counts should be dismissed. Thank you, Your Honor.

(CZAJKA) Go ahead. [26]

(TORNCELLO) The People call Claudette Scostak. Good morning. Can you state your name for the record, please?

(SCOSTAK) Good morning. My name is Claudette Scostak.

(TORNCELLO) Okay. What is your occupation?

(SCOSTAK) I am a switchboard operator at the Albany County Correctional Facility.

(TORNCELLO) Okay. And Mrs. Scostak, how long have you worked with the Albany Correctional Facility?

(SCOSTAK) Since August 7, 1998.

(TORNCELLO) Okay. Can you give us an idea of some of your duties and responsibilities, at the correctional facility?

(SCOSTAK) Uh-huh. I am also a mail clerk at the facility, I'm responsible for tearing the [27] mail and searching inmate mail.

(TORNCELLO) Okay. That's the incoming mail to the inmates?

(SCOSTAK) Yes.

(TORNCELLO) All right. And do you have any training in that or?

(SCOSTAK) Yes.

(TORNCELLO) Did someone teach you to do that?

(SCOSTAK) Yes.

(TORNCELLO) Who? Who taught you to do that? Do you recall?

(SCOSTAK) A person by the name of Margaret, I don't recall her last name. She is no longer employed there.

(TORNCELLO) Why do you look at incoming mail?

(SCOSTAK) For contraband.

(TORNCELLO) When you say contraband, what do you mean by contraband?

(CZAJKA) I think I know what contraband is. Go ahead.*

[*As will soon become clear, Scostak did not, in fact, find  any actual contraband in any of these letters. But, here, Czajka interjects, cutting Scostak  off before she could  define  the kind(s) of contraband she was supposed to be looking for in the incoming mail. Whether intentional or not, this action by Czajka was helpful to the prosecution, because it -- for the moment at least -- was spared being placed in the rather uncomfortable position of having to (tacitly) acknowledge that these letters contained  no contraband; and thus, this 'investigation' should never have begun. (Also note that Czajka was successful in 'directing' Torncello on this issue, as evidenced by the fact that he does immediately drop the matter.)]

(TORNCELLO) Okay. Let me direct your attention now to August 3, 2000, were you working that day?

(SCOSTAK) Yes, I was. [28]

(TORNCELLO) Did you open mail that day?

(SCOSTAK) Yes, I did.

(TORNCELLO) Okay. Did you have a chance to open mail for an inmate by the name of Matthew Peeters?

(SCOSTAK) Yes, I did.

(TORNCELLO) Okay. I want to show you something that has been marked as People's Exhibits "1" through "4," marked for identification. Okay. I'll hand you what's been marked as People's one for identification; can you tell us what that is?

(CZAJKA) Show her all four.

(TORNCELLO) Here's one through four, and I'll ask you to look inside of them?

(SCOSTAK) Okay.

(TORNCELLO) Can you tell me what they are?

(CZAJKA) Keep them separate.

(SCOSTAK) These are incoming mail, envelopes addressed to Matthew Peeters, at the Albany County Correctional Facility. [29]

(TORNCELLO) Okay. Do they look familiar to you?

(SCOSTAK) Yes.

(TORNCELLO) Have you seen them before?

(SCOSTAK) Yes.

(TORNCELLO) Right. Did you see them on August 3, 2000?

(SCOSTAK) Uh-huh.

(TORNCELLO) Are those --

(CZAJKA) Say yes or no in words.

(SCOSTAK) Yes, I have, seen these before.

(TORNCELLO) And are those the letters that you opened?

(SCOSTAK) Yes, they are.

(TORNCELLO) Okay. Do they appear in the same condition or a similar condition, as to when you opened them on August 3, 2000?

(SCOSTAK) Yes, they do.

(DC) Object, unless there's a foundation that can be laid that they have been continually in her possession, for the purpose of answering that.

(CZAJKA) Overruled. Give the witness a minute to look through all four. Those are the originals, [30], they aren't photocopies of anything?

(SCOSTAK) No, they are not.

(TORNCELLO) At this time I would offer People's Exhibits one through four and show them to [DC].

(CZAJKA) While [DC] is looking at those, do you have other exhibits to mark Mr. Torncello?

(TORNCELLO) Yes, one.

(DC) Your Honor, if it please the Court, I am going to object to the introduction of these letters. On the basis that there is no proper foundation laid for the receipt of these letters in this case, involving this defendant at this time. Foundation to the extent --

(CZAJKA) That it connect up with the defendant you mean?

(DC) That's correct.

(CZAJKA) Okay. Sustained.

(TORNCELLO) Okay. Now, when you opened the four letters, [31], right, was there anything of note or anything remarkable, that you noticed?

(DC) I am going to object.

(CZAJKA) Sustained, they speak for themselves and they're not in evidence. Sustained.

(TORNCELLO) What did you do after you opened the mail?

(DC) Objection, irrelevant, and immaterial because we're not speaking about something -- it's not in evidence and it's conduct performed which has nothing to do with the evidence in this case.

(CZAJKA) Overruled.

(TORNCELLO) What did you do?

(SCOSTAK) After those envelopes were opened I then had to search them, as I do, all of the other incoming inmate mail, and as I was going through them, I felt very uncomfortable.

(CZAJKA) You've answered the question. Go ahead Mr. Torncello.*

[*It's unclear why Czajka chose to interject at this point. Perhaps he made some non-verbal gesture which caused Scostak to stop talking. In any event, Scostak feeling 'uncomfortable' is neither here nor there; either she found 'contraband,' or she did not.]

(TORNCELLO) Yes. Now, after you opened them, did you look at them?

(SCOSTAK) Yes. [32]

(TORNCELLO) Okay. After you looked at them what did you do?

(SCOSTAK) I just -- went through the envelopes searching them, and as I stated earlier I felt uncomfortable.

(DC) Objection as to the sense.

(CZAJKA) It's not responsive.

(TORNCELLO) Did you notify anybody?

(SCOSTAK) Yes, I contacted the Lieutenant and the Captain at the facility.

(TORNCELLO) Okay. And you told them that -- did you show them these letters?

(SCOSTAK) Yes, I did.

(TORNCELLO) Okay. And at some point later on, did you meet Investigator Ron Bates?

(SCOSTAK) Yes, I did.

(TORNCELLO) And did you give a statement to Ron Bates?

(CZAJKA) Mr. Torncello, I don't mean to try your case for you,* but what does any of this have to do with anything?

[* Actually, when one scrutinizes Czajka's subsequent behavior in this case, as well as many of his actions in other cases (see the Judge Paul Czajka section of this site, Czajka quite often ends up functioning as a  due facto second prosecutor -- a position which he officially held previously, and would later return to once again.]

(TORNCELLO) Did you meet?

(CZAJKA) Why are you even calling this witness? [33]

(TORNCELLO) I want her to put the letter in; I also want her to tell the story how the case started, judge.

(CZAJKA) But there's not, those letters are not the subject of any count of the indictment.

(TORNCELLO) Well judge, they're proof of crimes that are committed that are the subject of the indictment.* The contents of the letter -- I have a motion to make as soon as this witness leaves the stand on why they should be allowed into evidence but that's --

[*No they're  not. They may be 'proof' of how Nickel thinks and feels, but they are not proof of any unlawful actions.]

[In the very next line in the transcript, the stenographer has: "Q. Okay. Anyway, you did turn..." That would seem to denote (as is the case elsewhere) that Torncello  was asking the question. However, that makes no sense, given that Torncello was clearly being cut off by someone -- clearly, by Czajka himself. Therefore, we denote him as being the one asking the following question:]

(CZAJKA) Okay. Anyway, you did turn them over to a superior?

(SCOSTAK) Yes, I had.

(TORNCELLO) Thank you. No further questions, Your Honor.

(CZAJKA) Mr. __________ [DC]?

(DC) I just have a few questions. Good morning, ma'am. [34]

(SCOSTAK) Good morning.

(DC) You described some pictures that were contained in these letters?

(SCOSTAK) That's correct.

(DC) And all of those pictures, is it not a fact that everyone was fully clothed?

(SCOSTAK) That's correct.

(DC) There was no depiction of any sexual content in any of the pictures?

(SCOSTAK) No, there was not.

(DC) I have no further questions.

(TORNCELLO) [DC] just asked you about the photographs contained in the letter, that is remarkable* to you, so that you called your superior?

[*At the top of trans. pg. 31, Torncello asked a virtually identical question re: what was 'remarkable.' DC's objection  to that was sustained; but Torncello persists in this anyway.]

(DC) Objection as to --

(CZAJKA) Sustained.

(TORNCELLO) Did you notice anything about the pictures that [DC] was talking about?

(SCOSTAK) Yes, what I found unusual, was that [35] all of the photos --

(DC) Objection.

(CZAJKA) Sustained..

(TORNCELLO) Not unusual, what did you see, in the pictures?

(SCOSTAK) I saw pictures of little boys, they were all of young boys.

(TORNCELLO) Okay. [DC] also asked you about anything sexual of nature, in the pictures on the back of the pictures, was there anything of note, that was sexual?

(SCOSTAK) In my opinion, yes.

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Well, without your opinion, what do you think?*

[*Yet again, Torncello is persisting with a question, an objection regarding which was sustained.]

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) You know what judge, no further questions.

(CZAJKA) Okay. Step down. [36]

(TORNCELLO) Can I make my motion now? I have something that normally if there was a jury I would have done in limine, but I want to talk about the admissibility and the authenticity.

(CZAJKA) Within the document is there anything, is there anything within the document that deals with [DC's] objection?

(TORNCELLO) Yes.

(CZAJKA) Then I'll reserve and I'll look at them later. Call another witness.

(TORNCELLO) Okay. That's my point, thank you very much.

(CZAJKA) I'll give you both an opportunity to argue in support of your respective positions after I look at the evidence.

(TORNCELLO) Just so I am sure, I want -- I was going to put them in through Ron Bates. Do you want me to hold off on that until we have a break and argue about it?

(CZAJKA) Do whatever you want. [37]

(TORNCELLO) Okay.

(CZAJKA) It's your case.

(DC) Could I respectfully request that that witness be available in case -- for further questions of her.

(CZAJKA) The witness that was just here?

(TORNCELLO) Do you want her to stay around for the day?

(CZAJKA) She's at the jail.

(TORNCELLO) Yes.

(CZAJKA) Okay.

(TORNCELLO) Good morning. Can you state your name for the Court, please?

(BATES) Ronald J. Bates.

(TORNCELLO) What's your occupation?

(BATES) Law enforcement. [38]

(TORNCELLO) Who do you work for?

(BATES) Albany County Sheriff's Department.

(TORNCELLO) How long have you worked for the Albany County Sheriff's Department?

(BATES) 11 years.

(TORNCELLO) Can you give us an idea of some of your duties and responsibilities, as an investigator with the Sheriff's Department?

(BATES) I am currently assigned to the Criminal Investigations Unit as an investigator which we oversee and handle most felony cases that we respond to.

(TORNCELLO) Okay. Okay. And I take it you have some training in that field?

(BATES) Yes.

(TORNCELLO) Now, I want to bring your attention back to August 3, 2000, did you become involved in an investigation, of Jeffrey Nickel?

(BATES) Yes.

(TORNCELLO) How did you become involved in that investigation?

(BATES) I was notified through the chain of command, that there was approximately four letters received. [39]

(DC) I'm going to object to this, there has been no identification.

(CZAJKA) What was the question? You were assigned?*

[* Note that Czajka issues no ruling -- 'effective' or otherwise -- on this DC objection.]

(BATES) Yes.

(TORNCELLO) Okay. What did you do, when you became involved in the investigation?

(BATES) I conducted an interview, of Claudette Scostak at the Albany County Correctional Facility.

(TORNCELLO) Did she turn over to you any items of evidence?

(BATES) Not at that time, no.

(TORNCELLO) Okay. Did you see any items of evidence at that time?

(BATES) Yes.

(TORNCELLO) What did you see?

(BATES) I saw four letters.

(TORNCELLO) Okay. Did you look in the envelopes? Did you see them?

(BATES) No.

(TORNCELLO) Okay. Did you look at any of the photographs?

(BATES) No. [40]

(TORNCELLO) Okay. At any time, did you look at envelopes or see any photographs?

(BATES) Yes.

(TORNCELLO) All right. Now, when you read them, did you identify some children, that were mentioned in the letters?

(BATES) Yes.

(DC) Objection.

(CZAJKA) I don't know what you mean by that. I don't know -- did you identify?

(TORNCELLO) Did you learn the names or identity of the People, that were talked about or written about in the letters?

(DC) Your Honor, he just said that he didn't read the letters at that time.

(CZAJKA) Sustained.

(TORNCELLO) I am asking him, I don't know.*

[*The objection was just sustained; but Torncello persists in this anyway, with little or no rebuke from Czajka.]

(TORNCELLO) Okay. At some point in time did you identify, or did you locate, some young boys? [41]

(BATES) Yes.

(TORNCELLO) How did you do that?

(BATES) Through an investigation based on those letters.

(DC) Objection.

(CZAJKA) Sustained.

(BATES) Names in the letters.

(CZAJKA) Sustained.

(TORNCELLO) You located some young boys, right?

(BATES) Yes.

(TORNCELLO) Did you interview the young boys?

(BATES) Yes.

(TORNCELLO) Who did you interview?

(BATES) The first young boy I interviewed was a boy by the name of [ 'Arthur' ].

(TORNCELLO) If you recall, where did you meet ['Arthur']?

(BATES) At [names group home].

(TORNCELLO) What's [ ]?

(BATES) It's a group home for children, I believe.

(TORNCELLO) And do you recall the day you met ['Arthur']?

(BATES) August 7th.

(TORNCELLO) How did you learn, ['Arthur's'] name? [42]

(DC) Objection.

(CZAJKA) Sustained, hearsay. It would require reference to hearsay. Objection sustained.

(TORNCELLO) Without regard to how, you learned ['Arthur's'] name, right?

(BATES) Yes.

(TORNCELLO) You found out where he lives?

(BATES) Yes.

(TORNCELLO) And you went to interview him?

(BATES) Yes.

(TORNCELLO) Okay. Did you get some informtation from ['Arthur']?

(BATES) Yes.

(TORNCELLO) Now, what information did you get from ['Arthur']?

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Was there any other individuals, any other boys, that you interviewed?

(BATES) I was present during one other interview of a boy.

(TORNCELLO) Who was that?

(BATES ) ['Chris'].

(TORNCELLO) ['Chris']? And where and when did [43] you meet ['Chris']?

(BATES) It was after August 7th; I don't recall the contact date. It was at the patrol station in Voorheesville.

(TORNCELLO) You were present for that interview?

(BATES) Yes, I was present.

(TORNCELLO) Do you know how old ['Chris'] is?

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Do you know how old ['Arthur'] is?*

[*This too flouts Czajka's above ruling: If Torncello can't ask if Bates knows how old 'Chris' is, he obviously cannot ask the exact same question re: 'Arthur.']

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Do you know how old Jeffrey Nickel is?

(BATES) Not exactly.

(DC) Objection.

(TORNCELLO) Okay. At some point in time -- I've got to show he's over eighteen judge.

(CZAJKA) All right. Is there a stipulation to that effect?

(DC) No, sir.

(CZAJKA) In any event, your witness already answered the question. He didn't know any way. Go ahead.

(TORNCELLO) All right. Did you ever know how old [44] Mr. Nickel was?

(BATES) Yes.

(TORNCELLO) Will looking at some notes refresh your memory about the age of Jeff Nickel?

(BATES) An arrest report, would.

(TORNCELLO) Okay. Okay. I will hand you what's been marked as People's "6" for identification. Does looking at that document help refresh your memory, about the age of Jeff Nickel?

(BATES) Thirty-two.

(TORNCELLO) Now?

(CZAJKA) What was the source of your information, Investigator?

(BATES) The arrest report.

(CZAJKA) Well, the arrest report helped you remember what it is, what's the source of your information as to how old defendant is? [45]

(BATES) Based upon independent information.

(CZAJKA) Who told you?

(BATES) I don't recall.

(TORNCELLO) Did the defendant tell you?

(DC) Move to strike, leading.

(CZAJKA) It is stricken.

(TORNCELLO) You don't remember?

(BATES) No.

(TORNCELLO) Okay. Now, did you ever meet, excuse me, when did you meet Jeff Nickel?

(BATES) August 7th.

(TORNCELLO) All right. 2000?

(BATES) Yes.

(TORNCELLO) And where did you first see Jeffrey Nickel?

(BATES) At his residence in the Town of Bethlehem.

(TORNCELLO) What's the address, do you recall?

(BATES) I believe 26 Lansing Drive.

(TORNCELLO) Okay. And that's in the Town of Bethlehem, correct?

(BATES) Yes.

(TORNCELLO) Is that also Delmar?

(BATES) Yes. [46]

(TORNCELLO) That's in Albany County, New York State?

(BATES) Yes.

(TORNCELLO) Now, about when did you see him? What time of day?

(BATES) Late afternoon.

(TORNCELLO) And what was the purpose of going there to see him?

(BATES) I wanted to speak with him about the investigation, of possible abuse of children.

(TORNCELLO) Okay. What happened? Did you talk to him there?

(BATES) Yes.

(TORNCELLO) What if anything did he say?

(BATES) I asked him if he could accompany us and meet us at one of our stations, and talk about a complaint that had been made against him concerning children.

(TORNCELLO) Okay. Did he agree to that?

(BATES) Yes.

(TORNCELLO) And?

(DC) Objection.

(CZAJKA) Leading, leading.

(TORNCELLO) Leading? What happened next?

(BATES) He agreed to follow us down to the [47] Albany County Courthouse,* here, where we have a station, where we can discuss the complaint.

[*This implies Nickel knew where he was following them to -- he did not.]

(TORNCELLO) Was he under arrest at that time?

(BATES) No.

(DC) Objection.

(CZAJKA) Are you withdrawing the question? Well, [DC] made an objection, you started asking a new question so I don't know if you want me to rule or --

(TORNCELLO) You can rule.

(CZAJKA) Sustained.

(TORNCELLO) How did he get from his home to your office here in this building?

(BATES) He drove himself.

(TORNCELLO) In whose car?

(BATES) I believe it was his own car?

(TORNCELLO) How did you get from his house to your office here?

(BATES) In my car.

(TORNCELLO) Did anyone accompany Mr. Nickel?

(BATES) No.

(TORNCELLO) Okay. Now, when you arrived here, what happened?

(BATES) We arrived here, met with at that time [48] the Senior Investigator, Mark DeFrancesco.

(TORNCELLO) Who is he?

(BATES) He's an inspector currently with our department. At that time, he was a Senior Investigator with the Criminal Investigations Unit and the supervisor, who I work for.

(TORNCELLO) Okay. Where did you meet?

(BATES) Downstairs in the basement level, chief's office.

(TORNCELLO) Did Mr. Nickel, did he show up that day?

(BATES) Yes.

(TORNCELLO) Okay. And was he introduced* to Investigator DeFrancesco?
[*The use of this word is extremely misleading. Nickel was never told any of these peoples' names -- or even that they were from the Sheriff's office -- until much later.]

(BATES) Yes.

(TORNCELLO) Inspector. And did they -- where did they go?

(BATES) The chief's office.

(TORNCELLO) Okay. And can you describe the chief's office, what is that?

(BATES) It's on the basement level, you walk in and there's currently three secretary’s desks, as you walk in the main door of the chief's office within that, through two doors to the chief's office outside and then [49] there's the three secretary's desks.

(TORNCELLO) And did he sit down? Do you know what happened between the defendant, and Inspector DeFrancesco?

(BATES) Yes.

(TORNCELLO) What happened?

(BATES) (No response).

(TORNCELLO) What happened, if you know?

(BATES) They introduced themselves, * sat down, next to one of the desks, Senior Investigator DeFrancesco and himself, Mr. Nickel, they began a conversation, and at that time, I believe I may have stepped out.

[*At no point did DeFrancesco either say his name, or that he was with the Sheriff's office.]

(TORNCELLO) Were you present, the entire time that they were together?

(BATES) No.

(TORNCELLO) Were you present some of the time that they were together?

(BATES) Yes.

(TORNCELLO) And what role did you play, if any, in that I guess interview?

(BATES) I wasn't asking any questions. I was basically coming in and out. If the Senior Investigator had a question about one of the children, he could come and ask me for things [50] of that nature.

(TORNCELLO) Do you recall what day this was?

(BATES) August 7th.

(TORNCELLO) Okay. Now, let me mark something else judge. Investigator Bates, I am handing you People's number "7," can you tell us, tell the Court what that is?

(BATES) It's a standardized form that we use, it's a search and seizure waiver.

(TORNCELLO) Is that an original or is this a photocopy?

(BATES) It appears to be the original.

(TORNCELLO) Okay. And tell me what that -- what did that contain?

(BATES) It contains the name Jeff Nickel, consenting to the search of his residence.*

[*'Consenting' is not nearly as accurate as 'capitulating'. DeFrancesco had told Nickel that if he did not sign, they would 'tear the house apart,' which might cause his mother 'to have a heart attack.' Moreover, DeFrancesco showed Nickel the search warrant they had anyway. (The reason law enforcement would still prefer a signed consent to search is just in case they don't abide by the letter of the warrant restrictions -- such as when the search is to be conducted, and what items may be taken. In fact, the warrant said the search must be completed by 9pm; as it turned out, it went a bit beyond that.)]

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Okay. Was that document signed by Jeff Nickel? [51]

(BATES) Yes.

(TORNCELLO) All right. And do you recognize any other signatures signed by your or another member of the Albany County Sheriff's Department?

(BATES) It is signed by two other members of our department, Mark J. DeFrancesco and William Riley.

(TORNCELLO) And pursuant to that document, did you search his house?

(BATES) Yes.

(TORNCELLO) When did you do that?

(BATES) August 7th.

(TORNCELLO) Let me interrupt and just say that's the original, right?

(BATES) Yes.

(TORNCELLO) Does it appear to be in similar condition as when it was completed in August of 2000?

(BATES) Yes.

(TORNCELLO) I'd offer it, judge.

(DC) Objection, no proper foundation laid.

(CZAJKA) What's the relevance [52] of it?

(TORNCELLO) Judge, I just want to make a record, that there was a consent to search, and that, there was --

(CZAJKA) That's for the trier of fact as well.

(TORNCELLO) I want to do it just for the record so that -- that shows that the People didn't barge into his house and start taking things all --

(CZAJKA) Okay. Sustained.

(TORNCELLO) Now, at some point in time did you leave this building, and go to Mr. Nickel's house?

(BATES) Yes.

(TORNCELLO) You said that was 36 Lansing Drive?

(BATES) Yes.

(TORNCELLO) When you got there, what did you do and what did other members of the department do?

(BATES) We conducted a search of the residence.

(TORNCELLO) Okay. Did you find anything?

(BATES) Yes.

(TORNCELLO) All right. Let [53] me judge if I can have a second? There's some evidence out in the hallway and of the investigator can step down for a minute, please?

(CZAJKA) Attorneys come see me up in 201 and we'll take a break for a few minutes.

---

(TORNCELLO) Inspector were you present, when the search was executed at Jeffrey Nickel's home?

(BATES) Yes.

(TORNCELLO) Okay. And were some items recovered at that place?

(BATES) Yes.

(TORNCELLO) And were they well where were they kept? What did you do with the evidence that you recovered?

(DC) Objection to the term recovered.

(CZAJKA) Overruled. [54]

(BATES) We secured it and we have a large area patrol station which is designated for evidence, a majority of that -- they have a small safe which we keep in the CIU office that was kept locked.

(TORNCELLO) Were you in contact with the Colonie Police Department?

(BATES) Yes.

(TORNCELLO) And with whom were you in contact at the Colonie Police Department?

(BATES) Detective Steve Tanski.

(TORNCELLO) Why were you in contact with Steve Tanski?

(BATES) For an examination to be conducted on a -- for examination of a personal computer.

(TORNCELLO) Was a computer one of the items that was seized as evidence?

(BATES) Yes.

(TORNCELLO) Okay. Was that turned over to Detective Tanski?

(BATES) Yes, that as well as several computer disks, and all the components attached to the computer. [55]

(TORNCELLO) Thanks. I'll show you some items that I had previously marked and tell us what they are? This is People's number "8" for identification, can you tell us what that is please?

(BATES) These are several magazines titled, YX magazine.*

[*Actually, they were XY magazines -- 100% legal (and not even pornographic) gay magazines, which had nothing  to do with the charges Nickel was on trial for.]

(TORNCELLO) Okay. Where were they found?

(BATES) At the residence of Jeff Nickel.

(TORNCELLO) Okay. Judge, do you want to sort all at once or one at a time?

(DC) I would like to object to this, on the basis the item itself has not even been admitted into evidence yet. The material offered here, item number "8", as I understand it, would not have any bearing, on any of the counts in this indictment.

(CZAJKA) Well, he hasn't moved them into evidence yet, he's just identifying them now. Why don't we show the witness, [56] the group of exhibits, collectively, if he could identify them collectively and then make your motion, and I'll hear from both of you.

(TORNCELLO) Okay. That's People's "8", put it on the floor. This is People's number "9", can you tell me just generally what that?

(BATES) Black and white photographs.

(CZAJKA) As I said, without telling me what they are, 8, 9, whatever.

(TORNCELLO) Ten.

(CZAJKA) Where if anywhere did these exhibits come from?

(BATES) The residence of Jeff Nickel, as well item ten.

(TORNCELLO) Okay? [57]

(CZAJKA) As I said collectively, show them all. Hand them all over to him to identify them by number.

(BATES) Item 11 as well, twelve item twelve, item 13, fourteen, fifteen, 17, eighteen, and sixteen.

(CZAJKA) These all were seized from the home of the defendant?

(BATES) Yes, sir.

(CZAJKA) Go ahead Mr. Torncello.

(TORNCELLO) Thank You. They were secured as evidence?

(BATES) Yes.

(TORNCELLO) And I guess they were kept at your barracks in Voorheesville, is that right?

(BATES) Right.

(TORNCELLO) Judge, I would offer those items, into evidence.

(CZAJKA) You're going to offer them now? [58]

(TORNCELLO) I am going to offer them now.

(CZAJKA) I misunderstood. I thought you were going to put them all in later. Well, for the record, we'll have him identify what exhibit one is and I'll hear your respective arguments.

(TORNCELLO) Go forward and identify what each item of those items is.

(BATES) Item sixteen.

(CZAJKA) Start with 8 for chronological order please, chronological order. Item 8 is the XY magazines.

(DC) Your Honor, I would object to those being offered into evidence.

(CZAJKA) I'll hear your objections all together, or all at once if you have different arguments or different exhibit, you can make the arguments one after another. Go ahead.

(BATES) Item 9 is photographs and pictures depicting young boys, item 10 is photographs pictures and white envelopes, item 11 is a photo collage of young boys on the back of a [59] large map, item twelve is a green camera case, 35 millimeter camera inside, as well as a telephoto lens, 13 are personal letters, several about the topic of a sexual preference.*

[* None of these items are unlawful; nor do they relate to any of the actual charged acts in this case.]

(TORNCELLO) Identify the -- can you identify the letters, or not?

(DC) Object to any testimony being given about the letters; they are not in evidence.

(TORNCELLO) Just so we know what --

(DC) He only identified them as letters.

(CZAJKA) Letters are enough for purposes of the record so we can tell what they are. That -- was that was 13?

(BATES) Yes.

(CZAJKA) What's fourteen investigator?

(BATES) Fourteen is, three male pornographic magazines.*

[*Yeah -- 100% legal gay porn magazines.]

(CZAJKA) Without -- I don't want you to describe the different items just [60] tell me what they are, please?

(BATES) Fifteen is several papers and pamphlets.

(CZAJKA) In a grocery bag?

(BATES) Yes.

(CZAJKA) All right.

(BATES) Item sixteen is a book titled curiosity book, 17 are several photographs and photocopies of young boys of a sexual nature swimming.*

[* What the heck does that  mean? If the boys are just swimming, how is that 'of a sexual nature'? In any event, again, these items are 100% legal, and do not relate -- in any way -- to any of the actual acts Nickel was charged with.]

(DC) Objection.

(CZAJKA) Investigator, please do what I asked.*

[*Note that Czajka did not actually rule  on defense counsel's objection.]

(BATES) Item eighteen, two NAMBLA magazines and E-mail.*

[*Again, 100% lawful; nothing to do with alleged criminal acts.]

(CZAJKA) Okay.

(BATES) And two written letters.

(CZAJKA) Go ahead Mr. Torncello.

(TORNCELLO) Thank you. Well under several theories, judge, at this time I would offer those, into evidence, for the People if you would like me to make argument on each and every one, I will. If not, just on a whole, I'd offer those as evidence. [61]

(CZAJKA) [DC]?

(DC) Objection, Your Honor, to any one and certainly to all of them. Within the 7 counts of this indictment, none of this would have any relevance to the charges of which the defendant is accused here, There is, by separate indictment in another Court, by separate count, an issue where --

(CZAJKA) None of these exhibits are contraband or the subject of another indictment, are they?

(TORNCELLO) No.

(CZAJKA) I'm going to reserve; you want them in evidence to prove sexual gratification?

(TORNCELLO) Yes.

(CZAJKA) I'm going to reserve.

(TORNCELLO) Okay. Not entirely. There's a camera, that is in there, Your Honor, that's the subject of count one and count three, which is a photograph.*

[* Count one alleges oral sex; count 3 is allegedly a photo of  that. And yet, no actual negative or print of this photo was ever found, for the simple reason that Nickel did not take such a photo -- nor did he engage in oral sex with 'Arthur'  (or any other boy). Moreover, the adult depicted in the photo is not Nickel (see photography expert); nor is the child depicted in the photo 'Arthur' (see sexual photograph).]

(CZAJKA) That's exhibit number 12? [62]

(TORNCELLO) In addition there are letters from Matthew Peeters to Jeff Nickel, and that is sort of a tie up.

(CZAJKA) Who is Matthew Peeters?

(TORNCELLO) The inmate at the Albany County Jail.

(CZAJKA) All right.

(TORNCELLO) To tie up and authenticate one through four which has been identified, those letters.

(CZAJKA) All right.

(TORNCELLO) Other than that the sexual gratification.

(CZAJKA) Did you wish to be heard further [DC]?

(DC) No, I don't believe so Your Honor.

(CZAJKA) Okay. I'll reserve.

(TORNCELLO) Okay. I have a few more items, are they marked yet or not? I'm showing you [63] what's been marked as People's 19, 20, and 21, can you just identify each of those please?

(BATES) Item 19 is a cannon printer fax, and scanner combination, all in one.

(TORNCELLO) Can you tell the Court where you found that?

(BATES) At the residence of Jeff Nickel.

(TORNCELLO) Okay. 20?

(BATES) Is a CPU home computer, which is taken from the residence of Jeffrey Nickel.

(TORNCELLO) 21?

(BATES) 21 is a box of diskettes, keyboard, a security device hook up to that computer, and a computer camera mount to your computer.

(TORNCELLO) Okay. Thank you very much. I'll offer those as evidence.

(CZAJKA) [DC]?

(DC) Again a similar objection, Your Honor, that I had to the other items marked for identification. Items 8 through eighteen, same objection to these three items.

(CZAJKA) Why is it that you think these are relevant? [64]

(TORNCELLO) Again judge, to sort of paint the story, there are computer images.

(CZAJKA) It's apparent from the indictment; but why are they relevant? Explain? For the record?

(TORNCELLO) Count three, in this indictment, and count 1 of this indictment, alleges a photo and image of the defendant engaged in the act of sodomy, that was found on his computer. I wanted to inform the Court, that he has a computer, that he has scanner, that he has disks, that he has the technology and capability of taking such a photo, with the camera, that's why I put the camera in, scanning it on to his computer and saving it on a disk, that's my point judge.

(CZAJKA) You say in the indictment, number 3?

(TORNCELLO) I believe it's count three.

(CZAJKA) The photograph that came from the computer was that photograph, which is marked? [65]

(TORNCELLO) As People's number five for identification, only.

(CZAJKA) Was that photograph -- will there be a witness that testifies that that photograph was actually seized in the form it is now or some other form?

(TORNCELLO) Seized in some other form on a disk or the hard drive and then printed out on a piece of paper.

(CZAJKA) Well, no witness testified to that as of yet.

(TORNCELLO) That is correct.

(CZAJKA) I'll reserve on those three exhibits as well.

(TORNCELLO) Okay. Judge I don't think I have any further questions; can I check my notes for a second?

(CZAJKA) Yes.

(TORNCELLO) At some point in time that day, was Mr. Nickel arrested?

(BATES) Yes.

(TORNCELLO) Okay. Was he handcuffed?

(BATES) No.

(TORNCELLO) Why?

(BATES) He had a cast on. [66]

(TORNCELLO) Do you see Jeffrey Nickel in the courtroom today?

(BATES) Yes.

(TORNCELLO) Could you point to Jeff Nickel?

(BATES) Sitting next to [DC]. (Indicating).

(TORNCELLO) Your Honor, if the record could reflect that the witness identified the defendant?

(BATES) Yes.

(TORNCELLO) Thank you. No further questions. Thank you.

(DC) Good morning Investigator Bates.

(BATES) Good morning.

(DC) I would like to take you back in time, if I may, to the 3rd of August, of last year, and ask you if there came a time when you met on that day with a Miss Scostak of the Albany County Jail?

(BATES) Yes.

(DC) And she advised you that she had four letters, I believe you said, and some [67] photographs at that time?

(BATES) Yes.

(DC) And I believe you testified that you did not look at the photographs and did you not look at the letters, is that correct?

(BATES) Correct.

(DC) And after she made that advisement of you that she had that, did you inquire with her, whether she had looked at the letters or the photographs?

(BATES) Yes.

(DC) Did you ask her as to whether or not there was anything in the photographs, that were, illegal?

(BATES) Yes.

(DC) And did she respond to you?

(BATES) Yes.

(DC) What did she say?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) You chose not to look at them yourself?

(BATES) Correct.

(DC) Either at the letters or the photographs? [68]

(BATES) Correct.

(DC) Did there come a time then that you proceeded to secure a search warrant?

(BATES) Yes.

(DC) And did you go before a judge requesting a search warrant?

(BATES) Yes.

(TORNCELLO) Object to this line judge.

(CZAJKA) Sustained, well, unless I can imagine there might be some reference to some inconsistent statement in the application or I'll allow it subject to connection. Objection overruled. * Did you apply for a search warrant investigator?


[* As we see in several other trials presided over by Judge Paul Czajka, his instinctive reflex is to rule in favor of the prosecution; but then he has to backtrack, because he realizes he's made a mistake that could help the defendant on appeal.]

(BATES) Yes.

(DC) At the time you applied for the search warrant, had you looked at letters or the photographs?

(BATES) No.

(DC) When did you apply for the search warrant?

(BATES) August 4th. [69]

(DC) And in that search warrant did you secure an affidavit from Mrs. Scostak?

(BATES) Yes.

(DC) When you went before the Court for a search warrant, was it to search those four letters and photographs?

(BATES) Yes, including those.

(DC) But they had already been looked at, hadn't they?

(TORNCELLO) Objection judge.

(CZAJKA) Sustained.

(DC) I believe you told us that you went to interview a boy named ['Arthur'], is that correct?

(BATES) Correct.

(DC) When did you do that?

(BATES) August 7th.

(DC) And did that interview take place at [a certain group home]?

(BATES) Yes.

(DC) And did you take certain notes of that interview, Investigator Bates?

(BATES) Yes.

(DC) And do you have those notes today? [70]

(BATES) No, I don't.

(DC) Would it be correct to say in the taking of those notes there was never any questions indicated of what you asked, only answers, is that correct?

(BATES) It could be, I don't recall.

(DC) Well, would you like to look at them maybe to review those notes?

(BATES) If I can?

(CZAJKA) Is that your only copy?

(TORNCELLO) (Nod nod).

(DC) Excuse me, the notes that were taken on the interview of ['Arthur'], they were taken by you, were they?

(BATES) I believe so.

(DC) I'd just like to mark these for identification. Mr. Bates, I am going to hand you to Defendant's "A", and just ask you to examine that for the purpose of refreshing your [71] recollection. Have you had enough time to look at that have you?

(BATES) Yes.

(DC) I would like to ask you in that notation of that interview with ['Arthur'], there were no questions posed in your notes, are there? They're just a scattering of answers or presumed answers, is that correct?

(BATES) Correct.

(DC) Now, when you went up there to visit with this ['Arthur'], was there another investigator with you?

(BATES) Yes.

(DC) From the Sheriff's Department?

(BATES) Yes.

(DC) Did you have any social worker, any staff members from the school, any medical personnel, anyone like that with you?

(BATES) Not during the interview itself, no.

(DC) All right. Now when you got there for the interview, you identified yourselves, I'm sure to this ['Arthur']?

(BATES) Yes.

(DC) And did he respond to you when you got [72] there that he believed that you were there because of a slapping incident?

(TORNCELLO) Objection.

(DC) That was his early and first response to you?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) I don't remember.

(DC) Do you remember that at all coming up in that interview?

(BATES) It may have.

(DC) Do you recall it?

(BATES) No.

(DC) Nothing about a slap?

(BATES) It may have come up; I just don't remember any particulars about it.

(DC) Well, isn't it a fact, that when you got there, and you first started to speak with ['Arthur'], that he thought you were there because of a slapping incident that he had reported?

(TORNCELLO) Objection.

(DC) Isn't that correct?

(CZAJKA) Overruled.

(BATES) It could be; I simply just don't [73] remember.

(DC) Wouldn't that be something that you should have made some memory or note about?

(BATES) Well, if it's not in the notes, I didn't make a note of it.

(DC) Did you have a picture with you that day?

(BATES) I believe so, I believe so.

(DC) And is that a picture the one that is or has been marked for identification, here, as number five?*

[*This would appear to be the sexual photograph  that was central to the case.]

(TORNCELLO) Five is not in evidence, I have not introduced it. I just pre-marked it. Would you like me to show it?

(CZAJKA) Give it to Mr. Bates please.

(DC) I'm just going to show you number five, marked for identification, but by the People, and ask you if that's refreshing your recollection, as to the photographs that you had with you?

(BATES) No, I didn't have this photograph with me.

(DC) At any time, Officer Bates, did you or [74] did anyone else, any other officer in your presence, ever show this photograph, to ['Arthur'], that's been identified as number five?

(BATES) Yes.

(DC) And when and where did you show this photograph to ['Arthur']?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) It was here at the Albany County Court House, myself, Assistant D.A. Ronnie Dumas the day of the Grand Jury, the first Grand Jury.

(DC) The photograph that you showed to ['Arthur'] back on the 6th of August what was that photograph if you recall?

(CZAJKA) I don't understand. What's the date of the Grand Jury presentation?

(DC) The 18th, I believe.

(CZAJKA) You're talking about a different date?

(DC) Yes, sir.

(CZAJKA) Well, did you show a photograph to the boy on the 7th?

(BATES) Not that I can remember, Your Honor.

(CZAJKA) All right. [75]

(DC) Now, had you had any specialized training, Mr. Bates, in conducting an interview of a young child?

(BATES) Yes.

(DC) Where did you receive that training?

(BATES) It was a brief overview of a training seminar conducted at the New York State Police Academy, titled sex offense seminar.

(DC) It was a brief one did you say?

(BATES) It covered several topics. It didn't focus in on conducting an interview. It touched on several topics.

(DC) Did they alert you at that session, not to ask, for example, direct questions of the child?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did they talk about blind interviews?

(BATES) No.

(DC) Are you familiar with the term, blind interview, in dealing with a young child?

(BATES) No.

(TORNCELLO) Objection Judge. I don't know what that -- I don't know.

(CZAJKA) I didn't hear the [76] question.

(The preceding question was read back.)

(TORNCELLO) Thank you.

(DC) Are you familiar with that term?

(BATES) No.

(DC) By the time -- isn't it a fact that by the time you went to visit with this ['Arthur'] at [the group home], you had already been on this investigation, at least four days, had you not?

(BATES) Correct.

(DC) And can I assume within that four day period you had developed a mind set, one way or the other, with respect to the investigation, hadn't you?

(BATES) No, not really.

(DC) Did you when you interviewed ['Arthur'], did you think it may be wise to have it video taped?

(BATES) We don't have that capability.*

[*Really?  In the year 2000, the Albany County Sheriff's Department didn't have 'the capability' to videotape interviews?]

(DC) Does the Sheriff's Department of Albany County -- it doesn't have a video or tape -- [77]

(BATES) They're available tapes; it's not common practice.*

[* Oh, so you actually  do  have the capability to videotape.]

(DC) Well, wouldn't it have seemed to be at that time, and didn't the educate you, that it -- that it is a wise tool in interviews of children particularly the initial interview?

(BATES) I have heard opinions, I haven't heard fact or anyone advised me.

(DC) Could we agree if we had a live individual or interview, it would express fully and truthfully, just how that interview was conducted, wouldn't it?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did you make any attempt to tape the interview, to use some sort of tape recording to preserve what if any questions were asked, how they were asked, what if any answers were given and how it was given?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) No.

(DC) Again in your courses that you've taken with these young complainants, haven't you heard this method suggested? [78]

(BATES) Yes.

(DC) Wouldn't this be a way of keeping it in the open, out in the open, so that there could never be any criticism of what went on or how it went on?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did you ever, Investigator Bates, ask for a medical examination of ['Arthur']?

(BATES) Yes.

(DC) And was such a medical exam conducted?

(BATES) Yes.

(DC) Your Honor, if it please the Court, I was never provided and never made aware of any medical exam of this boy before, and this comes quite honestly, as a complete shock to me.*

[* This is a Brady  -- or, 'discovery' -- violation of the first order. Clearly, this is potentially (highly) exculpatory evidence. And the prosecution side has obviously attempted to bury it. (Had it tended to show Nickel's guilt  [which it  did not], the results of this medical exam would have been front and center in the prosecution's case.)]

(TORNCELLO) I'm not aware of it either.*

[*Really? You're prosecuting a child sexual abuse case, and you didn't think to ask if a medical exam was performed? Even assuming Torncello was unaware of this exam, the law is crystal clear: He is presumed to have known about it. Thus, ignorance is no excuse. Defense counsel should have immediately moved for a mistrial.]

(DC) I would certainly find it helpful, Your Honor, to be able to review, any medical reports.*

[*'Helpful'? That's quite the understatement. These medical exam results could absolutely  annihilate the case against Nickel. Here, defense counsel is being 'polite' to the point of obsequiousness; what he should  be is hopping  mad at this grotesque exemplar of prosecutorial misconduct.]

(CZAJKA) Do you have any reports?

(TORNCELLO) I'm sorry? [79]

(CZAJKA) Do you have any reports, any notes from the doctors?

(TORNCELLO) I don't think that one was completed.*

[* What the heck does that mean? Czajka just asked Torncello if he had any medical reports or notes; Torncello responded with a non-sequitor.]

(CZAJKA) All right.* I'll give you an opportunity to make whatever motions that are appropriate. Continue your cross-examination.

[*What do you mean 'all right'? You know damn well that was a flagrant discovery violation. So, why aren't you excoriating the prosecutor over this? Is it -- perhaps -- because you're functioning as the prosecutor you once were (and would be again)?]


(DC) Do you recall the name of that doctor?

(BATES) No.

(DC) Investigator Bates?

(BATES) No.

(DC) Do you recall when that examination was conducted?

(BATES) No.

(DC) Do you recall where it was conducted?

(BATES) It was, I believe, set up by [the group home].

(DC) And were you present or -- strike that. Have you talked to the people from [the group home] throughout this investigation, from time to time throughout this investigation?

(BATES) Yes.

(DC) To keep yourself abreast and updated [80] on it?

(BATES) Yes.

(DC) Did they report to you, the results of that examination in conversation?

(BATES) Yes.

(DC) And in reporting to you the results of that conversation, did they indicate to you, the particulars of that examination? Did they get into any particulars with you?

(BATES) No.*

[* So, they told you the 'results,' but not the 'particulars'?]

(DC) Did they tell you and I'll hopefully pronounce this correctly, did they tell you whether a culdoscope* was used in any diagnosis?

[*It's actually 'culposcope,' which is an instrument with a camera and light used for internal examinations.]

(BATES) Not that I can recall.

(DC) Did you see any notes or records from the time that you got there at [the group home] as to the questions and the order of the questions that you used for ['Arthur']?

(BATES) No, I don't believe I asked ['Arthur'] any questions, if I had a question for ['Arthur'].

(CZAJKA) Well, the question was, did you keep a record of any questions that you asked. If you didn't keep any was the question, you didn't keep a record. [81]

(BATES) Right.

(DC) Did you ask any questions of ['Arthur'] on the 7th of August, 2000?

(BATES) Not that I remember, no.

(DC) But your name appears on top of the notes. It refers to -- that notes were taken by you, is that correct?

(BATES) Correct.

(DC) So who was asking -- who if anyone was asking questions of ['Arthur'] on that day?

(BATES) Senior Investigator Mark DeFrancesco.

(DC) Did you make any observations as to whether or not Senior Investigator Mark DeFrancesco, was keeping any notes, of the questions he was asking ['Arthur']?

(BATES) No.

(DC) Did you make any observations as to whether Investigator DeFrancesco was keeping any notes on any answers that were given?

(BATES) No.

(DC) To the best of your knowledge, Investigator, did Investigator DeFrancesco have a note pad or pencil in his hands?

(BATES) Correct.*

[* This is non-responsive; defense counsel failed to follow up on this, which meant that it was never conclusively established whether DeFrancesco was taking notes of his own.]

(DC) That was your -- what you were doing, [82] correct?

(BATES) Correct.

(DC) But you only took down answers and no questions?

(BATES) Correct.

(DC) Did it -- did you happen to think at that time, officer, that without the video or without the tape, without the questions that were asked of ['Arthur'], that one day, that this might be looked upon with some suspicion by some --

(TORNCELLO) Objection as to --

(CZAJKA) Sustained.

(DC) This picture for identification that I showed you as number five, had you before the day of the Grand Jury, had you seen that picture before?

(BATES) Yes.

(DC) When did you first see that picture as you best recall?

(BATES) At the Colonie Police Department.

(DC) And when would that be?

(BATES) I don't recall the exact date.

(DC) And who brought that to your attention [83] that particular picture?

(BATES) Detective Tanski.

(DC) Now, he's a member of the Colonie Police Department, is he not?

(BATES) Correct.

(DC) And did Detective Tanski isolate this one photograph and bring it to your attention? Is that what you're telling us?

(BATES) I remember looking at that one image on the computer monitor, okay? His lab, I guess you would call it, so it would be yes.

(DC) But he, I mean Tanski, to your knowledge, had he ever seen the defendant?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Well Tanski is with a completely different Police Department, isn't he?

(BATES) Yes.

(DC) And he was given the job of pulling images off a computer because it's thought he has some expertise in that field, is that right?

(BATES) Yes.

(DC) All right. Now, you were physically present as he's pulling these off? Are you [84] the one that stopped him and said let me look at this one?

(BATES) No.

(DC) Was someone else from your department with you at that time?

(BATES) Yes, I believe there was someone with me; I don't remember who it was.

(DC) Was it that person who said here, let me look at this one?

(CZAJKA) Well, I don't understand what you mean by that? How do you know what to look at without looking? How could he ask that question without looking at it in the first place?*

[*Either Czajka wasn't really paying attention here, or he was trying to help the prosecution get out of the rather awkward position of having to explain precisely how and why that particular photo caught their attention, and how and why they came to think it depicted 'Arthur' and Nickel. (In fact, it depicted  neither.) What Bates -- and whatever 'mystery' person was with him at the time -- seemed to have been doing was sifting through lots of pornographic photos, just bound and determined to find at least one that depicted Nickel and one of the alleged victims in this case. They appear to have landed on the one that they felt came 'closest.']

(DC) Well, Your Honor --

(CZAJKA) How could he refer to a particular image, without having seen it? If you've seen it, why would he say let me look at it?* Rephrase your question.


[*Czajka apparently does not understand -- or is pretending not to understand -- the concept of a 'thumbnail' image; i.e., a greatly reduced version of the image which, once clicked on, brings the full-size image up.]

(DC) Thank you, Your Honor. So we are clear, we are talking about People's number five here throughout these questions, okay? And all I'm trying to learn [85] from you officer, is how this particular image, ID'd as number five, popped to the forefront? Tell us how that happened.

(TORNCELLO) Objection judge.

(CZAJKA) If you know? Ifn you know? When you say popped to the forefront, came up on the screen?

(DC) Well, no. I thought he answered one of my earlier questions, Your Honor, I thought he said he wanted to look at that. I thought that was one of his answers to me, so I kind of pre supposed it may, and he was the one that said, hey, let me look at that. There was some, Your Honor, I think --

(CZAJKA) I don't remember that testimony. It may have been, but I don't remember.

(TORNCELLO) Does [DC] want to put it into evidence?

(CZAJKA) Make your objection. The last objection was sustained *; go ahead and ask another question [DC].

[*No, the last objection was not sustained. When Torncello objected just a moment ago, Czajka effectively overruled it by saying to the witness: "if you know?..." Once again, Czajka does not seem to be paying attention here.]

(DC) You're out at the Colonie Police [86] Department, you and another officer whose name you can't remember, and Officer Tanski, as I understand it, is running through a series of pictures that are coming up on the computer screen, that you're looking at with him, is that correct?

(BATES) Correct.

(DC) Is that what was going on? All right. And there were hundreds, were there not, of these images?

(BATES) (No response).

(DC) Let me say a great number, would that be fair to say?

(BATES) There were a number of pictures, but --

(CZAJKA) How many pictures were actually on the screen.

(BATES) Not very many.

(DC) So each time you would go up to a different field of pictures, is that what you mean?

(CZAJKA) A field of pictures? Was each image, was it a single picture on the screen one time or were there --

(BATES) I believe it was just one at a time, [87] but we had to narrow it down to maybe a couple dozen out of a vast amount.*

[*'Narrow it down' based on what, exactly? Defense counsel fails to ask this crucial question. Again, Bates etc. appear to have been bound and determined to 'find' at least  one image depicting an alleged victim in this case.]

(DC) So a couple of dozen. So a couple of dozen that were brought up on the computer screen, and it was one picture at a time on the screen?

(BATES) I believe so.

(CZAJKA) Go ahead [DC].*

[*It's unclear why Czajka would say that here. Defense counsel had just asked a question, which Bates answered. Czajka does not seem to have interrupted DC verbally; but perhaps he made some sort of gesture which had this same effect.]

(DC) All right. Now again with respect to People's ID number five, what if anything did you say or what if anything did Detective Tanski say, when that picture came up on the screen?

(BATES) I recognized the people in the photo.*

[* Well, he was wrong; in fact, that photo depicted neither Nickel nor 'Arthur.' For one thing, whereas the boy in the image has brown  eyes,  'Arthur's' eyes are blue. And then there's the fact that the defense counsel's photography expert conclusively established that the older person in that photo is not Nickel. But defense counsel does not ask what  caused Bates to 'recognize' the people in the photo.]

(DC) All right. And your claim to this recognition would be, you had previously met Mr. Nickel, hadn't you?

(BATES) Yes.

(DC) And you had previously met ['Arthur']?

(BATES) Correct.

(DC) And did you tell us the date that this was done officer?

(BATES) I don't recall the exact date; it was prior to the Grand Jury actually.

(DC) Okay. A few days after, a week [88] before?

(BATES) (No response).

(DC) Sometime after the 7th, but before the 18th, would that be fair to say?

(BATES) Yes.

(DC) All right. Then was it you, because of what you believed to be this recognition, that you more or less singled out this photograph?

(BATES) I'm sorry?

(DC) Was it you, because of what you perceived to be this recognition, that you singled out this photograph?

(BATES) Yes.

(DC) And can we assume safely further that you probably brought that information forward to the DA's office, in some fashion?

(BATES) Yes.

(DC) Hey, I think I recognize a photograph here, would that be fair to say.

(BATES) Yes.

(DC) All right. And now comes the day for the Grand Jury presentment, is that correct?

(BATES) That's correct.

(DC) The 18th of August, 2000? [89]

(BATES) Correct.

(DC) Now you got ['Arthur'] in one of the rooms here in this building, prepping him for Grand Jury, I assume?

(BATES) Correct.

(DC) Were you present during that preparation with Ms. Dumas I think you said?

(BATES) Not during the preparation, no.

(DC) Had you given the picture to Miss Dumas before that preparation?

(BATES) Yes.

(DC) But that day for Grand Jury?

(BATES) I believe so. I don't remember the exact date I gave it to her.

(DC) So we know that sometime between the 7th of August and the 18th, the date of arrest, and the date of presentment to the Grand Jury, without knowing the exact date, you were the one who selected that particular photo because of your belief that you recognize the people in it, and that on the 18th before this child goes into the Grand Jury, this is exhibited to him, correct?

(BATES) Correct.*

[*So, here, the prosecution has done something (potentially very harmful) to 'Arthur' that  Nickel wasn't even alleged  to have done: show him child pornography. And they didn't have sufficient professionalism, a sense of responsibility, or ethics to first make damn sure he  was the boy depicted in it, before exhibiting this to him? Did the prosecution truly see 'Arthur' as a child who needed to be protected in every way possible, or simply as an expendable pawn -- to be used however they saw fit -- in order to 'get' Nickel?]

(DC) And are you the one that exhibited it [90] to him?

(BATES) No.

(DC) Who did, if you know?

(BATES) Miss [Veronica] Dumas [the original prosecutor of the case].

(TORNCELLO) Judge I believe this was the subject of a suppression hearing held and this entire --

(CZAJKA) Well, there's no question outstanding.

(TORNCELLO) I think I guess I would object to the line of questioning and that is -- would be my request.*

[*Object based on what?]

(CZAJKA) I'll consider your objections as you make them. What -- was there some kind of weight determination for trial?

(DC) I don't recall there ever having been.

(CZAJKA) Whatever. I was just wondering. Go ahead. Miss Dumas is no longer with the DA's office, is that correct?

(BATES) To the best of my knowledge.

(DC) Now, again during this preparation, if you know, of this complaining ['Arthur'], [91] complainant, ['Arthur'], was there anyone present when Miss Dumas was talking to him, to your knowledge?

(BATES) Myself.

(DC) Any other members of your department or anyone else?

(BATES) I don't remember other members being there. There may have been ['Arthur's'] -- I believe she would be a social worker or counselor whose name escapes me. She may have been there. I don't remember if she was.

(DC) Amy Hingess?

(BATES) I think that's how you pronounce it; I don't recall. I don't know if she was in the room or not. I know this was around that day.

(DC) Before you interviewed ['Arthur'] at [the group home], did you make any inquiry of the staff there, regarding concerns for his maybe stability or truthfulness? Did you make any sort of background check before you sat down and interviewed ['Arthur']?

(BATES) I am sure I would have.*

[* What kind of mealy-mouthed answer is that? You either inquired about this, or you did not. It seems that Bates is hedging, afraid to admit that he wasn't really interested in 'Arthur's' reputation for veracity at all, given that, inquiring into it would have tended to dull the scent of the hunt.]

(DC) All right. And who would you have [92] made that inquiry of?

(BATES) It would have been one of two people I spoke with, which was either Amy Hingess or I believe she is the administrator.

(DC) O'Donnell?

(BATES) I don't recall the last name; I recall a first name of the Helen as an administrative --

(DC) All right. And did the -- did they share this information with you? Did they share information with you?

(TORNCELLO) Objection, withdraw judge as to that question. I withdraw, apologize.

(DC) Did they share information with you?

(BATES) Yes.

(DC) I would assume that one of your concerns would be, the truthfulness or imagination in dealing with a young child, would it not?

(BATES) Yes.

(DC) Did you make inquiries along those lines?

(BATES) I am sure I would have.

(DC) Well, it would be kind of important; [93] did you take any notes as to what you said or what they said to you?

(BATES) No.

(DC) Do you recall anything you said to them or anything they said to you?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) I don't recall. I recall speaking with -- and I don't recall the content of the conversation of their answers.*

[* Well, that's convenient. He's 'sure [he] would have' inquired into 'Arthur's' reputation for truthfulness etc.; and yet, he cannot recall anything they told him regarding this? That's not credible. The logical conclusion here is that, in fact, Bates was told his reputation for veracity was not very good. After all, had he been told that 'Arthur' was always truthful, it would have helped his case enormously to simply say  so here. (And it may have hurt Bates' own credibility if he simply lied about what he was told, in the event that other witnesses said otherwise.)]

(DC) Well, when you went into this room alone, with ['Arthur'], and the other investigator, DeFrancesco, now there's just the three of you there alone, was it you that, or your partner, that asked for that sort of interview?

(BATES) I don't know what you mean by that sort of an interview?

(DC) All right. You're at [the group] home, you talk with the social workers, this Miss Hingess or Mrs. O'Donnell, someone by the name of Helen, now you and your partner go into a room alone with ['Arthur']. Who if anyone made that decision to do that alone? [94]

(BATES) It would have been either myself or my supervisor.

(DC) Did your supervisor have any independent, to your knowledge, have any independent conversation, with the staff at [the group home] before the interview started of ['Arthur']?

(BATES) Not that I can remember.

(DC) You were both present and together all the time while you were there as far as you recall, you and DeFrancesco?

(BATES) Yes, as far as I can recall, we were together.

(DC) Now, do you recall any conversation by a staff member at [the group home] wherein, they indicated to you, in words or substance, that this ['Arthur'], in the past, has made some things op?

(TORNCELLO) Objection.

(DC) Do you recall --

(TORNCELLO) That calls for hearsay, judge.

(CZAJKA) Sustained.*

[*Why did Czajka sustain this objection? He'd just overruled Torncello's immediately prior  objection to a question which asked essentially the same thing. Are Czajka's rulings on objections basically arbitrary  at this point?]

(DC) Do you feel you have any expertise at all, Mr. Bates, in interviewing, a child complainant?

(BATES) I'm sorry?

(TORNCELLO) Objection, asked and answered. He answered where he went to classes.

(CZAJKA) Well, whether -- the question, the question wasn't asked, nor was it answered, but what difference does it make what his opinion of his own expertise is? It's sustained for that reason.

(DC) The day that ['Arthur'] went before the Grand Jury, did you also talk with him on that day in addition to Mrs. Dumas?

(BATES) I am sure I would have talked to him, yes.

(DC) Did you keep any notes or record of that interview?

(BATES) No.

(DC) Do you know on the day of the Grand Jury was that Miss Dumas the first interview [96] with ['Arthur']?

(BATES) I'm not sure.

(DC) Are you aware as the investigating officer in this case, as to whether she or any other's D.A.'s representatives ever interviewed ['Arthur'] before the day of the Grand Jury presentment?

(BATES) Not that I'm aware of, or can remember, no.

(DC) Did you ever -- did you ever or did any member of your department, ever put ['Arthur'], in a -- in a motor vehicle and drive him anywhere?

(BATES) Yes.

(DC) First was it on more than one occasion or just that one occasion?

(BATES) I recall one.

(DC) All right. Do you recall a date?

(BATES) The day of the Grand Jury.

(DC) And where did you drive him to?

(BATES) The Town of Bethlehem.

(DC) Did you drive him to Lansing Drive?

(BATES) Yes.

(DC) Who else was in the vehicle beside you and ['Arthur'] the day of the Grand Jury when you [97] drove him to Lansing Drive?

(BATES) Investigator Montaleone.

(DC) Was this the first that your department had driven him to that
location?

(BATES) Yes.

(DC) And was the purpose of that driving, to reinforce or to have him, identify a residence?

(BATES) Yes.

(DC) What time of day was that done, officer?

(BATES) I believe it was -- it was in the afternoon. I don't recall the exact time.

(DC) Well, do you recall what time the Grand Jury met that day?

(BATES) No, I seem to recall being a morning Grand Jury, but I'm not
positive.

(DC) Before you drove him, by the Lansing Road address, number 36, had you previously quizzed him, as far as the identification of that residence?

(BATES) Yes.

(DC) Now, how long after you drove him by the Lansing Drive address was it before he testified before the Grand Jury in terms of, [98] was it minutes or hours, whatever it might be?

(BATES) That was after the Grand Jury.

(DC) Was Ms. Dumas with you?

(BATES) No.

(DC) Just you and the other investigator?

(BATES) Yes.

(DC) Did you make inquiry after the Grand Jury, of maybe the way that ['Arthur'] had testified to some questions or answers given before the Grand Jury?

(BATES) I'm sorry?

(DC) Did you make any inquiry or talk with ['Arthur'] after Grand Jury? Did you familiarize yourself with how he testified before the Grand Jury?

(TORNCELLO) Objection.

(CZAJKA) I don't understand what you're asking?

(DC) Do you know whether or not before the Grand Jury there was any description of the house, given by ['Arthur']?

(BATES) Yes.

(DC) Do you know, if you know, if that description -- did he say the house was [99] white?

(TORNCELLO) Objection, he's asking what ['Arthur'] said in the Grand Jury.

(CZAJKA) Is that what you're asking [DC]? What ['Arthur'] said to him with respect to the description of the house?

(TORNCELLO) Objection.*

[*Why is Torncello making an objection when  Czajka  is asking a question?]

(CZAJKA) Well, ask a question again and I'll hear you both.

(DC) All right. In a conversation after the Grand Jury that you had?

(CZAJKA) In a conversation?

(DC) In a conversation that Officer Bates had after the Grand Jury, with ['Arthur'], was there inquiry made, as to a description he gave of the house?

(TORNCELLO) Objection.

(CZAJKA) Sustained.


(DC) At any time during the course of your questioning of -- let me withdraw that. Outside of the first day, August 7th, that you met with ['Arthur'], when's the next time you physically see him or talk to him? [100]

(BATES) I believe it was just a couple of days later; I don't recall the exact date.

(DC) Where did that meeting take place?

(BATES) [The group home].

(DC) Who was present for that?

(BATES) Myself and I believe it was Investigator Thompson.

(DC) Now, was that the second interview of ['Arthur'], again conducted with just the two of you, the two officers?

(BATES) The two of us were there, I don't recall if there was a social worker in the room or not. I don't recall.

(DC) Did you or your partner make any notes of that second interview, with ['Arthur']?

(BATES) No.

(DC) If there had been anyone else in the room did you make any observations as to whether they may have any notes of that?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Now on this first interview that you had with ['Arthur'] on the 7th of August, how long did that take?

(BATES) Maybe an hour, roughly. [101]

(DC) And the second interview took how long?

(BATES) The second interview was the best I can remember much less than the first, so somewhere in the area of a half hour, possibly.

(DC) When was the next time that you saw ['Arthur'] or anyone from your department, if you know?

(BATES) After the second time?

(DC) Yes, sir?

(BATES) I believe I would have seen him next at the Grand Jury. I don't recall seeing him between that day and the Grand Jury.

(DC) On the second interview, did you make a determination, to either video or tape record that interview?

(BATES) No.

(DC) And did you not even find it necessary, to take any notes?

(BATES) No.

(DC) In the Grand Jury presentation, which would now be the third time you met with him, correct?

(BATES) Correct. [102]

(DC) That was in the District Attorney's office here?

(BATES) I remember seeing him in the DA's office, but we also met in -- there's another room off the District Attorney's office, it's like a living room type setting, a part of it.

(DC) To your knowledge, does the DA's office have recording devices, tape recording devices?

(BATES) Not to my knowledge.

(DC) Video cameras? Was anything videoed or recorded of that interview?

(BATES) Not that I'm aware of.

(DC) On the several times that you met with ['Arthur'], let me ask you this, with interview number one, did you talk with any parent?

(BATES) No, not that I remember.

(DC) With interview number two, did you talk with any parent or?

(BATES) I did meet with a parent now you mention it. I don't remember who it was though, but it was at [the group home].

(DC) Did you make any inquiry, officer, of [103] that parent, as to the reliability of ['Arthur'] in statements that he made or did not make?

(BATES) Not that I can recall.

(DC) Did that parent alert you to any difficulties along these lines?

(BATES) No, not that I remember.

(DC) Did you make any inquiry as to whether or not in the past, ['Arthur'] had ever told a -- I guess a kid would call it a fib?

(BATES) No.

(DC) Did you check with anyone at [the previous group home] where ['Arthur'] had been a student before going to [the 'new' group home]?

(BATES) No, not that I can remember.

(DC) Did you ever make any inquiry of [the 'new' group home] as to his reputation for telling or not telling fibs?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) The picture that you showed to ['Arthur'], did you ask him to initial it or did anyone in your presence ask him to do that?

(BATES) What picture are you referring to?

(DC) Well, People's for identification [104] number five?

(TORNCELLO) Judge, can we put it into evidence please? If -- we have been referring to it for about an hour now and I'll be glad to.

(CZAJKA) Answer the question, did he initial it?

(BATESA) No, no, I don't think so.

(DC) May I have just a moment please, Your Honor? Now, I would like to bring you back, if I may Mr. Bates, to the 7th of August, and more particularly the Town of Bethlehem Lansing Drive, there came a time in that day, when you and another officer, arrived at what you believed to be the residence of Jeff Nickel, did you not?

(BATES) Correct.

(DC) And when you arrived at that residence, I think the D.A. asked you about what time that occurred?

(BATES) Correct.

(DC) Do you recall what answer you gave to the D.A. here this morning?

(BATES) Late afternoon. [105]

(DC) Now, was there something that made you believe it to be late afternoon as opposed to, earlier, middle afternoon?

(BATES) No.

(TORNCELLO) Objection.*

[*This objection, which was actually made after Bates had already answered the question, was not  ruled on by Czajka.]

(DC) Did you see any notes or memoranda, as to what time you arrived there?

(BATES) No.

(DC) So when you say late afternoon, as you sit here today, I have to assume it's a guess on your part?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did the other officer that accompanied you, did he -- did he, to your knowledge, keep any record as to time after your arrival?

(TORNCELLO) Objection.

(DC) If you know?

(CZAJKA) I sustained the objection -- I'll speak up. I thought I said it.

(DC) Now when you arrived at the Lansing Drive address, whatever time that was, did you have an occasion to meet someone? [104]

(BATES) Yes.

(DC) Your Honor, could I impose upon the Court, I have an injury to my leg, would it be acceptable if I sat? Thank you.

(CZAJKA) Let's take a break for a few minutes.

(Whereupon, a recess was had.)

(TORNCELLO) Can I put one thing on the record? During the cross-examination there was an issue that came up about medical treatment, of a boy, named ['Arthur']. We contacted [the group home] and they faxed over whatever information they had, it looks like it contains about three pages of medical handwriting judge and I've given a copy to [DC]

(CZAJKA) You didn't have it before?

(TORNCELLO) I did not know of its existence until this morning. Thank you. [107]

(CZAJKA) Okay. Do you need time to review that before you resume your cross-examination, [DC]?

(DC) No, sir.* I would like to resume my cross-examination with the officer, if I may, Your Honor, and we are referring to August 7th.
[* Well, the problem is, defense counsel never did  carefully scrutinize this rather illegible -- because faxed and hand written by a doctor -- document. Nor did he attempt to call to the stand or consult with the doctor who wrote it. About all that could be made out were the phrases 'no erythema,' and 'no apparent injury.' To this day, we are unable to decipher the vast majority of what was written in this report, which could well be devastating to the prosecution's case. Nor does Czajka attempt to correct or punish this blatant discovery violation.]

(BATES) Okay.

(DC) That's the question did you have occasion to meet with someone.

(CZAJKA) August 7th, August 7th the date of the search warrant that you executed or August 7th the day you seized that property.

(BATES) Yes.

(CZAJKA) Okay. It was the 18th that you went with the boy to the Grand Jury?

(DC) Yes.

(CZAJKA) Yes, any way, the question was -- what was the question?

(DC) Did there come a time on August 7th, when you arrived at the residence of Jeff Nickel? [108]

(BATES) Yes.

(DC) And when you arrived there, what if any person did you first come upon?

(BATES) A lady who I believed to be Jeff's mother, during the initial contact.

(DC) All right. And she was at the residence on that day, and made the initial meeting with you?

(BATES) Yes.

(DC) Now, how did you gain her attention? Did you ring the bell, knock on the door or was she out on the lawn or what?

(BATES) I either rang the door bell or knocked on the door, I don't remember. I remember going to the front door and knocking or ringing the door bell.

(DC) Were either you or your partner in a uniform that day or in civilian clothes?

(BATES) Civilian clothes.

(DC) And the vehicle that you used to go there, was that marked with any emblazonment on it identifying it as a Sheriff's Department car or was it what we might call an unmarked car?

(BATES) Unmarked car. [109]

(DC) So that when you approached and did you approach Mrs. Nickel on that day?

(BATES) Yes.

(DC) You and your partner -- and who was that partner?

(BATES) Investigator Thompson.

(DC) All right. Now, if her recollection as far as time, was near or early afternoon would you disagree with that?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Now, when you approached Mrs. Nickel, was that the first you had seen her?

(BATES) I believe so.

(DC) Now, members of your department had been there before though, hadn't they?

(BATES) Correct.

(DC) As a matter of fact, they made a couple of visits there before this August 7th, didn't they?

(BATES) Yes.

(DC) And do you know who was involved a couple of days before in going to that residence?

(BATES) Yes. [110]

(DC) What was that person's name?

(BATES) Investigator Montaleone.

(DC) Was Investigator Montaleone -- do you know whether or not he spoke with Mrs. Nickel?

(BATES) I believe he did.

(DC) And was there not a plan or a scheme devised by your department, a few days before the 7th, wherein Investigator Montaleone would go to the Nickel residence, and pretend to inquire about a motor vehicle and photograph an accident?

(TORNCELLO) Objection, relevance.

(CZAJKA) When you make an objection don't give me a reason unless I ask for it. Let's start over.

(DC) You were aware of that, weren't you?

(BATES) Yes.

(DC) And there was no accident, that was a complete fiction, wasn't it? There was no accident. It was a complete fiction.

(BATES) Correct.

(DC) And this was a few days before the 7th [111] that Montaleone went there, and what kind if inquiry was he making, if you're aware?

(TORNCELLO) Objection.

(CZAJKA) Sustained. You weren't present with this other investigator, when he went?*

[* So, Czajka reflexively sustains the prosecutor's objection, but then has to backtrack a bit. Shouldn't he have asked that question before ruling on the objection?]

(BATES) No.

(DC) Did you go back a second time?

(BATES) I believe so, yes.

(DC) Again under this pretext of some V&T accident that never occurred?

(TORNCELLO) Objection.

(CZAJKA) What's the source of your information about this?

(BATES) Well, as far as I know, it wasn't a plan.

(CZAJKA) Whatever it was, what was the source of your information, with respect to investigator Montaleone?

(BATES) It came from Investigator Montaleone himself.

(CZAJKA) He told you this?

(BATES) Yes.

(CZAJKA) So you weren't -- did you not watch it happen? You didn't listen [112] to it?

(BATES) Correct.

(CZAJKA) Sustained.*


[*On trans. pg. 110, Czajka effectively overrules Torncello, on this same basic objection. Again, Czajka's objection rulings would appear to be arbitrary.]

(DC) To your knowledge, did Investigator -- if you know, did investigator Montaleone tell Ms. Nickel, that a car believed to belong to Jeffrey had been in an accident at one of the shopping center in Delmar?

.(TORNCELLO) Objection.

(CZAJKA) If you know? Just so I understand, were you with Investigator Montaleone at any time, that he spoke with the defendant's mother?

(BATES) No.

(CZAJKA) All right. Objection sustained.

(DC) Now, you know that this was a falsehood, don't you?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Were you aware that Mr. Nickel, had been under some serious investigation, prior to your arrival in the 7th?

(BATES) No.

(CZAJKA) Well, Investigator, [113] you find out on the 3rd, that this guy is doing something with kids; he wasn't under investigation?*

[*Even pro-prosecution 'Judge' Czajka is becoming rather exasperated with Bates' lack of candor.]

(BATES) I misunderstood the question.

(CZAJKA) All right. Read it back.

(The preceding question was read back.)

(CZAJKA) Go ahead.

(BATES) Yes I'm sorry, I thought you were referring to the accident here. I'm sorry.

(DC) And it would be fair to certainly describe him as a suspect before the 7th, wouldn't it?

(BATES) Yes.

(DC) When you went there on the afternoon of the 7th, there was no doubt in your mind when you went there, but that you were going to arrest Mr. Nickel, was there?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Had there been a discussion within your department, as to when you were going to arrest Mr. Nickel?

(TORNCELLO) Objection. [114]

(CZAJKA) Well, to the extent that may be relevant for a determination as to what a person, a reasonable person, innocent of any crime may have believed, at that time of the statement that was allegedly made by the defendant, and the investigator's actions with respect to that issue, I will allow it.

(BATES) Yes.

(DC) And that discussion about arresting Mr. Nickel, involved what? What was that discussion?

(TORNCELLO) Objection.

(CZAJKA) I don't understand, a discussion between the Investigator and some third police officer?

(DC) No, no, within their own depaertment, Your Honor. I was trying to inquire as to --

(CZAJKA) Rephrase the question, if you would.

(DC) All right. When you went to Jeffrey Nickel's house on the 7th of August, he was a suspect, and you knew you were going to arrest him, isn't that a fact? [115]

(TORNCELLO) Objection.

(CZAJKA) Well, it's two questions.

(DC) I'm sorry for the compound question. When you went to Jeffrey Nickel's house on the 7th of August, you knew, did you not, you were going to be arresting Jeff Nickel?

(BATES) No.

(DC) When you arrived at Jeffrey Nickels --

(CZAJKA) Investigator, whether you did it that day or some other day, whether it was going to be done by you, or someone else in your Department, he was going to be arrested one way or the other, right?

(BATES) That was our goal, yes.

(CZAJKA) All right.

(DC) So that when you arrived at his house the fact that you didn't handcuff him at that moment, had no bearing on the fact as to whether you were or were not going to arrest him, did it?

(CZAJKA) I don't understand what you mean.

(DC) Well, I believe he testified, Your Honor, that he followed this [116] officer, in his vehicle, down to their station, and --

(CZAJKA) You started to say -- explain what it was that you're getting at?

(DC) Lack of use of handcuffs at the time that you arrive at the Nickel residence, was not because he was not going to be, strike that. I'll strike that question, Your Honor.

(CZAJKA) All right.

(DC) Mr. Nickel was going to be escorted by you and another officer to your facility, one way or the other, was he not, when -- when your arrived there on August 7th?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) If Mr. Nickel said he didn't wish to speak with you at that time, what was your plan? What were you going to do?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did you officer, or your partner, identify yourselves to Mrs. Nickel, the defendant's mother, as people from [the group home]? [117]

(BATES) No.

(DC) Did you ask her or tell her that you wanted to speak with Jeffrey?

(BATES) Yes.

(DC) And of course you did want to speak with him, didn't you?

(BATES) Yes.

(DC) You also were going to arrest him, weren't you?

(BATES) There was a very good potential.

(TORNCELLO) Objection, because I want him to clarify. They were there twice, one time, I think, to invite him back to here, and then another time, later on.

(CZAJKA) Your objection is as to time and place or?

(TORNCELLO) As to form would be my objection. I just want to know when he's talking about.

(DC) I am talking about --

(CZAJKA) The 7th?

(DC) Early afternoon of the 7th, Your Honor, he's right, that was the time he returned to the home. [118]

(CZAJKA) On the same day you went there twice the same day?

(BATES) Yes.

(CZAJKA) You are talking about the first trip?

(DC) The first trip, yes, sir. All of these questions deal with the first trip. Did you understand that to be what I was speaking about?

(BATES) Yes.

(DC) Did you indicate to Mr. Nickel -- there came a time that you met Mr. Nickel, did there not?

(BATES) Yes.

(DC) On the 7th again on this first visit to his house by you?

(BATES) Yes.

(DC) And did you indicate to him that you wanted to discuss with him, this slapping incident?

(BATES) Yes.

(DC) And this slapping incident involved one ['Arthur'], did it not?

(BATES) Yes.

(DC) Now, Mr. Nickel was not accused of [119] slapping ['Arthur'], was he?

(BATES) No,

(DC) But it was someone else?

(BATES) Correct.

(DC) And Mr. Nickel would have been a witness to that?

(BATES) Yes.

(DC) So you asked him to come with you to the station, to discuss that, did you not?

(BATES) Yes.

(DC) Or you asked him to go with you to discuss that?

(BATES) Yes.

(DC) So would it be proper to conclude as Mr. Nickel I believe you said he drove his vehicle behind your vehicle down here to the Court house building?

(BATES) Yes.

(DC) And would it not have been reasonable for him to believe at that time, that he was coming to the Court house building, to discuss that slapping incident?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Now, did you say that his arm was in a [120] cast at that time?

(BATES) Yes.

(DC) So you would not have been able to secure a handcuff around the arm or hand that the cast was on?

(BATES) Correct.

(DC) Now, when you got here to this building, the Courthouse, the building on the corner of Columbia and Eagle Streets in the City of Albany on the 7th of August, 2000; what time did you arrive?

(BATES) We came directly from down here from 36 Lansing Drive and again it was, late in the afternoon, late in the afternoon, being four, 4:30,* somewhere in that area.

That's false; it was, in fact, around 2:30. Why is Bates 'subtracting' a couple of hours? In order to make Nickel's 'statement' seem 'voluntary.']

(DC) What makes you remember that?

(BATES) That's just what -- late afternoon, late afternoon, nothing in particular makes me remember it.

(DC) So if he arrives here at four o'clock, he arrives here at four o'clock. Okay. What does it take, a half hour down here from Delmar from his house?

(BATES) A half hour or less.

(DC) Assuming you move a little bit slower [121] if you've got somebody following you? He didn't know where he was going except to be following your vehicle?

(BATES) Correct.

(DC) And it has been your experience when people are following you when you're leading the way it takes longer than it ordinarily would if you're just driving yourself?

(BATES) It could.

(DC) Yes. So, if you left there let's say around 3:30, and by there I'm referring to Lansing Drive in Delmar, you would have arrived at the home sometime prior to that, wouldn't you?

(BATES) Yes.

(DC) You would have had the conversation with the mother because Jeff wasn't physically on the scene when you first arrived, was he?

(BATES) Right.

(DC) Did you inform the mother that it was about slapping a student at [the group home]?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Do you when you are out in your [122] unit --

(CZAJKA) Excuse me for a minute. Was any of your conversation with the defendant's mother, in the presence of the defendant?

(BATES) I don't think so.

(CZAJKA) Then I'm losing my mind; did you inform her about the slapping business?

(BATES) No.

(CZAJKA) All right. Go ahead.

(DC) Now, when you got down to this building, the courthouse building, the Sheriff's Department, has an office here, several offices in this building, don't they?

(BATES) Yes.

(DC) And some are emblazoned, I would take it, or identified by marks on it of the Albany County Sheriff or such a fashion as to identify what was inside that office?

(BATES) Correct.

(DC) Now, the office to which you led Mr. Nickel, that you described as the chief's office, that does not have any emblazonment on the door, does it? [123]

(BATES) Not the exterior door, no.*

[*Actually, not anywhere in that room at all.]

(DC) So if any of us were to walk through that door and open that door up, we would not know that we were going through that or that we were in the chief's office by markings on the door?

(BATES) Not that door, no.

(DC) And the chief is -- was the chief there that day?

(BATES) Yes.

(DC) Was he dressed in civlian clothes like you and your partner?

(BATES) He commonly is, but I don't remember, sometimes he does wear a uniform.

(DC) Apparently he's in civilian clothes here today?

(TORNCELLO) When you say chief, I believe I think it's Chief [Craig] Apel, he's here.

(CZAJKA) That's who you're talking about?

(DC) He's here today in civilian clothes, wasn't he?

(BATES) Yes.

(DC) And I assume you have secretaries or [124] personnel ladies or something that work or?

(BATES) Yes.

(DC) And men secretaries, whatever the case may be, and they're in civilian clothes, are they not?

(BATES) Yes.

(DC) So it takes on the demeanor and the appearance of something like a business office, does it?

(BATES) It could, yes.

(DC) Now, you did not advise Mr. Nickel of any Miranda warnings, did you?

(TORNCELLO) Objection.

(CZAJKA) Why?

(TORNCELLO) Relevance. This is just -- we never talked about a statement. We never talked about anything with any time with this witness and it's outside the scope.

(CZAJKA) Overruled.

(BATES) No.

(CZAJKA) I mean the fact that there's no jury here does not mean that the defendant doesn't have the opportunity to contest the voluntariness of the statement. He still does. He still gets two bites at [125] the apple. Overruled.

(DC) I believe you indicated that you were in and out of that room, much of the time, weren't you?

(BATES) Yes.

(DC) Now, if we were talking about four, talking your figure, we are talking about four o'clock?

(CZAJKA) I think the witness said between four and 4:30, if I remember correctly.

(DC) Within that time frame, your estimate as to what the time was, to your knowledge, when does Mr. Nickel leave that office?

(BATES) Between 8 and 8:30.

(DC) And then is he instructed to follow you back to the Delmar residence?

(BATES) Yes, follow or meet. I believe it was follow.

(DC) He did that?

(BATES) Yes.

(DC) Now during this period of time, from four or 4:30 to 8 or 8:30, Mr. Nickel has been continually in the presence of some [126] officer of your department?

(BATES) Yes.

(DC) Now, I assume at Lansing Drive no one did or no one advised him of any rights while you were still there before you left to come down, did you?

(BATES) No.

(DC) Since you didn't drive down together, can we assume that no one advised him of his rights as you respectively motored to this building?

(BATES) Yes.

(DC) Now, after Mrs. Nickel introduced you to Jeffrey or the two of you met one another, and you tell him this is about that you want to talk to him about this slapping incident, that was a slapping incident of ['Arthur'], wasn't it?

(BATES) Yes.

(DC) What if anything did he say to you?

(BATES) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Wait, wait what was the question? What did the defendant say to him? [127]

(CZAJKA) Yes.

(TORNCELLO) Withdraw.

(CZAJKA) Answer the question.

(BATES) Repeat the question.

(The preceding question was read back.)

(DC) What if anything did the defendant say to you before -- after you talked to him or broached the subject of the slapping incident?

(BATES) He acknowledged that he knows ['Arthur'], and he was aware of the slapping incident.* He mentioned something about a weather man.

[*That's extremely misleading, because, as Nickel knew full well, the 'slapping incident' never happened -- it was a figment of 'Arthur's' imagination. (See 'Arthur's' testimony below.)]

(DC) A what?

(BATES) A weather man, that he didn't physically slap ['Arthur'].

(DC) When you said aware of a slapping incident, aware that a report had been made of one or that one actually happened?

(BATES) I don't recall or if it went to that much detail at that particular time.

(DC) All right. Had you satisfied yourself at that point, when you asked him about this, had you already satisfied yourself that no [128] such incident had happened?

(BATES) I wasn't sure if the incident had happened or not, yes to be honest.

(DC) And that reason for your confusion was because ['Arthur'], recanted that?

(TORNCELLO) Objection.

(CZAJKA) What confusion?

(DC) Confusion about whether the slapping incident, did or did not ever occur?

(CZAJKA) Sustained.

(DC) Now, were you ever present in the room when any Miranda warnings were ever given, to Mr. Nickel?

(BATES) No.*

[*That's true -- because Miranda warnings never were given to Nickel.]

(DC) When Mr. Nickel arrived here, at your office, did you enter the office with him?

(BATES) I believe so, yes.

(DC) All right. Could we safely assume that someone would have started some conversation with Mr. Nickel when he arrived at the office?

(BATES) Yes.

(DC) Who started a conversation with Mr. Nickel?

(BATES) It would have been Senior Investigator [129] Mark DeFrancesco in the office.

(DC) All right. Could we assume then if he told Mr. Nickel he was coming down to discuss this alleged slapping incident, that he would have began with that?

(TORNCELLO) Objection.

(CZAJKA) Sustained as to form.

(DC) What if anything did you hear the Investigator say with regard to this slap?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) I don't remember anything about the topic initially.

(DC) Well, what did you hear him say to him?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) I left shortly right after he went in, I didn't get over to listen to the conversation, the deck is maybe fifteen feet roughly, inside that door. I really wasn't listening.

(DC) An investigation that you had been on since the 3rd of August, realizing a suspect was going to be interviewed that was the [130] purpose of bringing him down, wasn't it, or having him come down?

(BATES) Yes.

(DC) You didn't remain to hear any of that interview?

(BATES) No.

(DC) Beside the officer who allegedly conducted the interview, were any other officers listening to it, to your knowledge?

(BATES) Not to my knowledge, no.

(DC) Now again, in your chief's office here, these interviews, are they recorded?

(BATES) No.

(DC) Are they video taped?

(BATES) No.

(DC) Would it be fair to say then that the only information we have, with respect to whether or not Miranda warnings were ever given, would be through this other investigator, is that correct?

(BATES) As far as I know.

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Were you aware that questioning was going on of Mr. Nickel? [131]

(BATES) Yes.

(DC) Was there -- were you aware of any questioning, of Mr. Nickel, about the alleged slapping incident?

(BATES) No, not that I can remember.

(DC) Did there come a time during the course of Mr. Nickel's presence in your office, that handcuffs were brought in and thrown on the desk in front of him?

(BATES) Not that I know of.
*

[*He's lying: Bates is the person who did this.]

(DC) Were you present during this interview, or strike that. In your presence did you hear anyone say to Mr. Nickel, these are only misdemeanors, let's get out of here and you would be going home?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) No.*

[*Well, DeFrancesco did in fact say this.]

(DC) Were you present or did you hear anyone say that gee, your mother might suffer a stroke if you don't go ahead, and tell us something?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) No.*

[*Well, DeFrancesco did say that as well; although, it actually related to his coercing Nickel to sign a 'consent' to search (after Nickel had already been shown a search warrant anyway).] [132]

(DC) Now, I think you talked about an instrument that you called a consent to search; now you were, I believe, it was your testimony, if I recall it correctly, Mr. Bates, that talked with Mr. Nickel, about a -- what you commonly call a consent search, is that correct?

(BATES) Correct.

(DC) Now, did you hear or were you present and did you hear Mr. Nickel ask for an attorney?

(BATES) No.*

[* Well, Nickel did.]

(DC) Was he ever permitted, to your knowledge, to call an attorney?

(BATES) No.*

[*That's for damn sure.]

(DC) When you spoke to Mr. Nickel about a search and seizure waiver, did you advise him, you know, in words or substance, look, if you would like the advice of counsel, you're free to call or, call one before you sign it?

(BATES) I wasn't present during this signing and reading of the search and seizure waiver.*

[*That's awfully convenient.]

(DC) I'm sorry sir, I didn't realize that. Well, I have no further questions. There's [133] no information you would have about this document other --

(BATES) Other than being familiar with the document. It's a standard document in our department. I understand having seen it afterward, but it would be after the fact. Yes.

(DC) Okay. Now, Mr. Bates, I think you told us that beside these several visits that you had with ['Arthur'], you were also present when another child was interviewed?

(BATES) Yes.

(DC) Do you recall who that other child was?

(BATES) After ['Arthur'], ['Chris'].

(DC) All right. Now, is ['Chris'] the boy from ________, isn't he?

(BATES) He may be, I'm not positive. I'm not sure of his address.

(DC) But you were present during the conversation between your partner and ['Chris']?

(BATES) Yes.

(DC) Is it not a fact that during that interview ['Chris'] told you that there [134] was no sexual abuse? Isn't this a factor --

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(BATES) He may have, I don't have the affidavit or statement to refresh my memory on it.

(DC) But you don't deny that?

(BATES) No.

(DC) Was this interview of ['Chris'], recorded, televised or in any manner preserved so that we can review it or look at it today?

(BATES) No.

(CZAJKA) Somebody took notes?

(BATES) Yes, I thought he meant video tape.

(DC) Electronically recorded in any way?

(BATES) No.

(DC) But again those notes, never reflected what questions were asked, did they?

(BATES) They may not have, no.

(DC) May I have just a moment please, Your Honor? Now with respect to this ['Chris'], was Mr. Nickel's contact with him [135] according to your interview, done in class? Was that the relationship?

(BATES) Yes, it was a summer classroom camp type thing at --

(DC) And other children were always present?

(BATES) They are other children, yes.

(DC) And other teachers and assistants also present?

(BATES) I believe so.

(DC) And this ['Chris'] that indicated to you he never or to you and your partner he never wanted Mr. Nickel to get into any trouble?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did he say that to you in your interview?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did ['Chris'] tell you in that interview --

(TORNCELLO) Objection.

(CZAJKA) Let him finish the question.

(DC) By the way, do you know the date of [136] that interview?

(BATES) After August 7th, possibly August fourteenth, I don't recall off the top of my head without looking at it.

(DC) May I? I'll just ask you to look at the top of these notes if you don't mind? I'll mark it first for identification. If that refreshes your recollection, would you look at the top?

(BATES) August 16th.

(DC) Where did this interview take place?

(BATES) At our patrol station in Voorheesville.

(DC) And again just you two officers there?

(BATES) Yes.

(DC) Was there any medical examination of ['Chris'] to your knowledge?

(BATES) No.

(DC) Did you interview ['Chris'] after that date of August 16th?

(BATES) Did I interview him after that.

(DC) Yes, sir.

(BATES) Not that I can remember, no.

(DC) Were you here when he was present to testify before the Grand Jury? [137]

(BATES) Yes.

(DC) Was that on the 18th, two days later?

(BATES) Yes.

(DC) Did you interview ['Chris'] that day in preparation for his Grand Jury testimony?

(BATES) No.

(DC) Before you interviewed ['Chris'], did you make any sort of background check as far as his reliability or unreliability might be concerned?

(BATES) No, not that I can remember.*

[*So, with 'Arthur,' Bates says he's 'sure [he] would have' made such inquiries; but with 'Chris,' he simply did not?]

(DC) Now, did ['Chris'] during this interview, indicate to you that he would get "whacked" on, to get started to --

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did this interview with ['Chris'] develop, that any relationship or exposure of Mr. Nickel and Mr. -- and ['Chris'], would have been with other people present?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Just a short bit more Mr. Bates. You agree that your arrival at the Nickel's [138] residence, on August the 7th, the first arrival there, in the afternoon hours that you previously described, in establishing that time, you're not relying on any notes, are you?

(BATES) Correct.

(DC) And you're talking about an event which was almost a year ago, are you not?

(BATES) Correct.

(DC) Could you state with absolute certainty, that it would not have been, could not have been, 2:30 that you arrived there?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Your estimate of your time or arrival is just that, isn't it? An estimate, I guess, if you will?

(TORNCELLO) Well, is it an estimate?

(BATES) Yes.

(DC) Thank you. No further questions. *
[* So, defense counsel fails to ask Bates any questions about the alleged victim 'Brendan.']

(TORNCELLO) Just a couple of questions, Mr. Bates. [139] You talked about when you first arrived at 46 Lansing Drive, and there was some conversation about a slapping incident with the defendant, right?

(BATES) Right.

(TORNCELLO) Do you recall who initiated the term "slapping incident," or who talked about it?

(BATES) Mr. Nickel initiated that.*

[*Well, that would appear to contradict an answer Bates gave to defense counsel above (tr. pg. 126):

<<< (DC) Now, after Mrs. Nickel introduced you to Jeffrey or the two of you met one another, and you tell him this is about that you want to talk to him about this slapping incident, that was a slapping incident of ['Arthur'], wasn't it?

(BATES) Yes.>>>]

(TORNCELLO) So, is it fair to say that you didn't say you're coming with us about the slapping incident?

(DC) Objection, he's leading the witness.*

[*If the transcript is correct, Czajka simply ignored this objection from defense counsel.]

(TORNCELLO) What did he say?

(BATES) He mentioned to him there was a complaint made against him concerning a child, stemming from [the group home].

(TORNCELLO) Okay.

(BATES) Stemming from [the group home], he responded this must be the incident where ['Arthur'] got slapped* and he began to build on that, he said yes, that's what it is.

[*Nickel did not  say that, because he knew 'Arthur' had not  been slapped -- that this was a figment of 'Arthur's' imagination. (See 'Arthur's' testimony below.)] [140]

(TORNCELLO) Did you know about a slapping incident, before you arrived, at Jeff Nickel's house?

(BATES) I believe so, I think I did know about that.
.
(TORNCELLO) Okay. Now, when you arrived down here that afternoon, into this building?

(BATES) Right.

(TORNCELLO) You said you went to the chief's office, right?

(BATES) Right.

(TORNCELLO) Were the secretaries present when you arrived?

(BATES) No.

(TORNCELLO) Did you have any idea what time they usually leave in the afternoon?

(BATES) I believe they leave, 4:30, four, five, some I believe work eight to four, some nine to five.

(TORNCELLO) So they weren't here when you arrived; it was after the secretaries any way had gone home?

(BATES) Right.

(TORNCELLO) Okay. Thanks. Now, over the course of your investigation, you have had a chance [141] to meet ['Arthur'], right?

(BATES) Yes, right.

(TORNCELLO) Have you also had the chance or the opportunity to look at photos of ['Arthur']?

(BATES) Yes.

(TORNCELLO) Have you had the opportunity to see photographs of Jeffrey Nickel?

(BATES) Yes.

(TORNCELLO) Now as with that, with that in mind, I would like to show you People's number five for identification, have you seen that image of that photograph before?

(BATES) Yes.

(TORNCELLO) Where have you seen that image?

(BATES) First the Colonie Police down here, Colonie Police, I've seen them during the interview of myself and [Veronica] Dumas [the original prosecutor in the case].

(TORNCELLO) Do you recognize any of the individuals, in that image?

(BATES) Yes.

(TORNCELLO) Who do you recognize? [142]

(BATES) I recognize ['Arthur'] and Jeffrey Nickel.*

[*Whether he's lying or simply incompetent, he's wrong on both counts. As to the younger person depicted, it cannot be 'Arthur,' because, whereas the boy in the image has brown  eyes, 'Arthur's'  eyes are blue. As to the older person in the photo, though Czajka refused to let him testify as  an expert, the defense's  photography expert proved conclusively that the older person in the image is not Nickel.]

(TORNCELLO) Okay. Now, you first saw that on the computer with Investigator Tanski, right?

(BATES) Right.

(TORNCELLO) Then that's a print out, right?

(BATES) Right.

(TORNCELLO) Does that print-out fairly and accurately represent what you initially saw on the computer, with Investigator Tanski?

(BATES) Yes.

(TORNCELLO) I would like to offer People's number five.

(DC) Objection.

(CZAJKA) What's the basis of your objection, [DC]?

(DC) That it's being offered, Your Honor, for this witness to make an identification of certain people. And I think that's a question of fact really for this Court to determine, not this witness.

(CZAJKA) Sounds like your rolls are reversed. Didn't you tell me, the other day [DC], he couldn't call a witness for that purpose, whether this is [143] admissible?

(DC) Well, I don't think I would respectfully suggest, Your Honor, that this witness does not pretend to be an expert in this field of identification.

(CZAJKA) Of course not. Any way, as to the admissibility of the evidence, what did you wish to -- what's your position?

(DC) That it not be admitted into evidence.

(CZAJKA) The reason being?

(DC) As I stated, because of the identification issue.

(CZAJKA) All right. The objection is overruled.

(Whereupon, People's Exhibit "5" was received in evidence.)

(TORNCELLO) Nothing further. Thank you.

(CZAJKA) Any recross [DC]?

(DC) Yes, sir. [144] You have now looked at People's "5" that's been marked in evidence Officer Bates, and this is the same depiction of a picture, that you saw in the Colonie Police Station, which you initiated it being pulled as identifying the defendant, and ['Arthur'], is it not?

(BATES) (No response).

(DC) This is one and the same photograph?

(CZAJKA) I don't know what you mean by being pulled?

(DC) Selected out of all of the photographs that you viewed?

(CZAJKA) To be printed?

(DC) Yes, sir.

(CZAJKA) You directed the investigator from Colonie to print this?

(BATES) Yes.

(CZAJKA) Or asked him any way. You caused him to push the print button?

(BATES) Yes, I did.

(DC) That was because not of what ['Arthur'] told you at that time, or not what [145] anyone else told you at that time, it was your own singular decision?

(BATES) Correct.

(DC) Based on your opinion, that that picture depicted the defendant, isn't that correct?

(BATES) Yes.

(DC) Now, that picture that you are looking at, number five, does it show but a profile, of the defendant?*

[*This is an egregious  error by defense counsel. It doesn't show the defendant at all, because it's not Nickel. Here, defense counsel seems to be acceding to the (false) notion that it depicts the defendant. This was devastating to Nickel's defense.]

(BATES) I'm sorry, does it show?

(DC) But a profile, not a full face, is it?

(BATES) Correct.

(DC) It would be one side of the face?

(BATES) Correct.

(DC) When you pulled that off the computer did you ask this Tanski how long can something like that be on the computer? Can you tell the age of that or did you ask him anything like that?

(BATES) No.

(DC) Ask him whether or not there would be any way he or any other photographic expert could tell, whether this had been circulated around for years or was brand new? [146]

(BATES) No, I didn't ask that.*

[* The reason Bates didn't ask these sorts of questions, is because he was 'sure' the photo depicted Nickel and 'Arthur'; this tunnel vision on his part made him totally uninterested in verifying whether this truly was the case.]

(DC) I think you said that one of the items marked for identification here was a 35 millimeter camera; did you ever check to see if that camera, were capable of taking that picture?

(BATES) No.*

[*Again, nothing can be permitted to dull the scent of the hunt.]

(DC) Did you ever make any determination, your or through Tanski, whether that image, was initially created on the computer or was one brought into that computer from someone other system?

(TORNCELLO) Objection as to form. I just don't understand it.

(CZAJKA) I don't know either. Rephrase the question [DC]. Read it back.

(The preceding question was read back).


(CZAJKA) Having had it read back, do you understand the question, do you?

(TORNCELLO) I think I do, yes I think so. Go ahead.

(CZAJKA) Do you understand the question? [147]

(BATES) I don't believe I understand it.

(CZAJKA) Actually, it's two questions. Do you know if -- that -- is that came from that computer originally or some other computer?

(BATES) It was retrieved directly from that computer.

(CZAJKA) I mean was it originally produced on that computer?

(BATES) Oh, I don't know where it was originally produced.

(DC) May I see that? For the purpose of identification you did -- People's five now in evidence, with respect to the individual that you identified as Jeff Nickel in that photograph, were you able to do so by the color of the eyes?

(BATES) No.

(DC) What color are the eyes in that photograph?

(BATES) Of Jeffrey Nickel?

(DC) Yes, sir?

(BATES) I don't recall.

(DC) Well, were they open or closed?

(BATES) I don't remember. [148]

(DC) With respect to the hair line of the individual depicted, the adult individual depicted, in People's "5", did you make any examination of the hair line?

(BATES) Did I make any examination of it, no.

(DC) All right. Well, when you pulled this photograph, were there any bed clothing or anything like that shown in the photograph?

(BATES) Clothing?

(DC) I mean like, sheets or?

(BATES) Sheets, yes.

(DC) All right. And you conducted a search of Jeff Nickel's house, didn't you?

(BATES) Yes.

(DC) Did you see a sheet like that in his house?

(BATES) No.

(DC) Anything on the wall in that picture, that would have told you that was Jeffrey Nickel's house?

(BATES) No.

(DC) What were the color of the walls?

(BATES) In the picture or?

(DC) In the picture?

(BATES) I believe it was light blue. [149]

(DC) Now, you obviously would have asked ['Arthur'] about the colors of the walls in the room in which the picture was taken, wouldn't you?

(BATES) Yes.

(DC) And he told you blue also, didn't he?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) You have been in Jeffrey Nickel's bedroom, haven't you?

(BATES) No.

(DC) Other members of your Department have, right?

(BATES) Right.

(DC) In the course of your investigation, did you ask the other members of the department what are the calls of the walls in his bedroom?

(BATES) Yes.

(DC) What did they tell you will?

(BATES) It wasn't blue. I believe it may have been off white or something to that effect.

(DC) In reviewing this picture number five in evidence, it only shows the extreme right portion of the male torso, isn't that [150] correct?

(BATES) Yes.

(DC) Did you examine the hair pattern on that photograph with any hair pattern on Mr. Nickel?

(BATES) No.

(DC) Did anyone to your knowledge?

(BATES) Not to my knowledge.

(DC) During the course of your investigation, did you ever ask Mr. Nickel, to strip to the waist or to pose so that you can make an observation?

(BATES) No.

(DC) Before August 3rd of 2000, had you ever met Mr. Nickel to your knowledge?

(BATES) No.

(DC) Was your first encounter with Mr. Nickel on the 7th of August?

(BATES) Yes.

(DC) Even during that period of time that is the time that all this time that he was at your station here or your office, you were in and out not really there when the -- when he was talking to the other officers, isn't that a fact? [151]

(BATES) Yes.

(DC) Did you say you also identified the boy in this picture as ['Arthur']?

(BATES) Yes.

(DC) And what color are the eyes of the boy in this picture?

(TORNCELLO) Objection, show him the picture.

(CZAJKA) I sustained the objection.* The exhibit speaks for itself.

[*No, he did not  -- at least, according to the stenographer's transcript.]

(DC) May I be permitted to ask him what the exhibit shows, Your Honor?

(CZAJKA) Testing?

(DC) Yes.

(CZAJKA) I'll allow it for that reason, yes.

(BATES) And you asked me?

(DC) The color of his eyes in the picture?

(BATES) I believe blue.*

[*Wrong -- the boy in this picture clearly has brown eyes. This can scarcely be an honest mistake on Bates' part -- he's looking right at  it. The reason he's saying the 'picture boy's' eyes are blue is because that's the actual color of  'Arthur's' eyes. (Another clue to Bates' lack of candor here is his use of the words 'I believe' [blue]. That's something someone might say when they're going purely on their own memory; but it is not  something one would say when they're looking right at the object in question.)]

(DC) What color are his eyes?

(BATES) I'm not sure.*

[*First he says the boy in the picture -- which he's looking right at -- are blue; but immediately after that, he says he's 'not sure' what color they are? This is ridiculous.]

(CZAJKA) The eyes?

(DC) Yes, sir.

(BATES) I'm not sure.*

[*Well, why doesn't defense counsel just show it to  Czajka, or even, any other  prosecution witness? Because he never does so, there is no indication on the trial record of the 'picture boy's' eye color.]

(DC) I believe the photo in evidence number [152] five also shows what I would call like a pillow, do you recall that in the photograph?

(BATES) Yes.

(DC) And was it multi colored?

(BATES) I believe so.

(DC) And did you check in your search of the residence of Jeff Nickel, did you check for any multi color pillow?

(BATES) Not specifically, we didn't have that picture until after we were searching his house. We didn't specifically search for a pillow to fit that picture.*

[*True enough. But it is also the case that the police-taken  photos (which they tried to hide -- see DeFrancesco's  Day Two testimony) -- also do not show such a pillow -- or, for that matter, the above-mentioned sheets -- in Nickel's bedroom, or anywhere else in his house.]

(DC) At any time prior to any search warrant, did you go back or at any time check to see if there was anything like that there?

(BATES) No.

(DC) Nothing further. Thank you. Could I just have one moment judge? Thank you, Your Honor. No further questions.

(TORNCELLO) May I? Okay. I want to go back a little while. The People have no more questions.

(CZAJKA) Call your next witness. Step down Investigator.

(Whereupon, the witness was excused).

(DC) May we approach please, Your Honor?

(Side bar)

(DC) As the Court is aware, sometime during the examination of Mr. Bates, it was learned that a medical examination was run on ['Arthur'], and again, during that period --

(CZAJKA) Step back so we can talk. Start again [DC] please?

(DC) Yes, Your Honor. If it please the Court? Sometime during the examination of Mr. Bates, it was revealed, that to the defense for the first time, that there had been a medical examination of, a [154] physical examination conducted of one ['Arthur']. And again, during that period of time, Mr. Torncello was kind enough to have a faxed copy of that report provided to me, with a copy, which I had a chance to do a cursory review. Your Honor, it puts me in a bit of a problem with this, had I known of a medical examination, I probably would have requested one myself or I would have at the very least, at this very minute, been able to have a chance to digest some of the writings. As brief as this is in all honesty, I can make out some of the words.

(CZAJKA) May I see it?

(DC) Yes. There's present, the taking of several different kinds of drugs, one of the drugs, I remember is, one I'm only familiar with, I think they had a program on it maybe last night on television on how devastating this one particular drug was. In all honesty, I haven't prepared myself, medically enough to know. And there's words there, that I'm going to have someone interpret for me* and to [155] be honest with you, I can't read them or properly interpret them. I'm not even sure that I can tell from that document what the conclusionary result is; I could guess at it, but I'm not positive.

[*There's no evidence defense counsel actually did this.]

(CZAJKA) All right.

(DC) If the prosecution, you know, this puts me, under the circumstances, in a bit of a -- a bit of a problem here, I would say.

(CZAJKA) So what do you want me to do I should say?

(DC) Well, at least I would like to have the opportunity to be able to decipher what the devil it says.

(CZAJKA) Before you cross-examine the child?

(DC) Yes I think so.

(CZAJKA) Mr. Torncello?

(TORNCELLO) Yes?

(CZAJKA) As I understand it, this was not a medical exam ordered by your department by any means, correct?*

[*Well, that's a helpful lifeline to the prosecution. The fact is, it doesn't matter who ordered it -- or even whether or not Torncello knew about it. As Bates himself testified, the police were certainly aware of it (and apparently chose -- because it was not helpful to the prosecution case -- to not share its existence with Torncello himself). As was previously mentioned, the law is crystal clear here: The prosecution is presumed to know about it -- because otherwise, it could just make sure the police never tell them  anything that is helpful to the defense case, and the prosecution could thereby always plead ignorance.]

(TORNCELLO) That's correct.

(CZAJKA) Do you know -- do you [156] know the circumstances in which the medical exam was requested?

(TORNCELLO) I do not. I didn't know about the medical exam at all. I'm assuming, and I don't know, but that it was something that perhaps [the group home] does as a matter of course.

(CZAJKA) That would be my guess, but I mean do you have any information with respect to that?

(TORNCELLO) I have a witness who is a social worker for [the group home] that I intend to call today; she is right outside the door, if you want to?

(CZAJKA) Bring her in okay.

(CZAJKA) Ms. Amy Hinges,* do you know anything about a medical exam of ['Arthur'], performed by a doctor, back in August of 2000?

[*Her last names may actually be spelled Henges.]

(HINGES) I know that he had an exam. [157]

(CZAJKA) Do you know who caused that exam to be conducted?

(HINGES) It is routine at [the group home] if allegations are made by a child, that the child is seen by a doctor.

(CZAJKA) It's a decision by [the group home] personnel at [the group home]?*

[*Czajka keeps harping on this issue of who ordered the exam to be conducted, as if that somehow relieved the prosecution of its obligation to inform the defense  about it well before  trial ever began. It does not. Czajka either doesn't understand the law on this issue, or he is simply aiding the prosecution notwithstanding his full knowledge as to the absolute irrelevance of who ordered the exam to be performed.]

(HINGES) Yes.

(CZAJKA) Any questions, Mr. Torncello, with respect to that limited issue?

(TORNCELLO) I do not.

(DC) No, sir.

(CZAJKA) You can step out please.

(Whereupon, the witness was excused.)

(CZAJKA) It's certainly not unreasonable for [DC] to have an opportunity to review this, to prepare for cross-examination; however, I don't want to have to bring the child in and out of the Court house, so do either of you have any ideas?*

[*So, it's not as if 'Arthur' had  already  testified, and would need to be put on the stand a second time. (But he was  in the courthouse by that time, and indeed, is the very next witness to be called.) Though Czajka is trying to appear  to be balancing competing concerns here, the fact is, he's leaning heavily towards 'protecting' this child simply from having to come to the courthouse  a second time. The reality that this would destroy defense counsel's ability to effectively cross-examine 'Arthur' is given virtually no weight by 'Judge' Czajka.]

(TORNCELLO) The only thing I [158] guess we can go forward, and --

(CZAJKA) I think it would be hard for the child. I am not --

(TORNCELLO) Subject to, I mean, maybe [DC] will look at it and think there's no need to cross-examine him. I can have him always available to come back another day. Would you prefer -- would the Court prefer that I put him on for tomorrow? Would the Court prefer?

(CZAJKA) I'm not going to try your case for you.*

[*Well, as we shall see later on (re: the issue of what the sex photo is being offered as evidence of), Czajka has no  qualms about instructing the prosecution about how it should try its case.]

(TORNCELLO) No, I don't care.

(CZAJKA) And again, don't misunderstand me, I'm not making any determinations, as to whether or not there's any validity to the allegations or not, just keeping in mind that the witness is a child, would you prefer to call another witness at this time, rather than calling him now, only to have him called back again? I'll leave it up to you because [DC] does have a valid concern, and legitimate request.

(TORNCELLO) Here's my [159] preference is to call him now, have direct and cross, and [DC] can call --

(CZAJKA) Do you want to talk to the social worker first before you decide?

(TORNCELLO) Yes.

(CZAJKA) I'm not directing you to, but I think it's a good idea.

(TORNCELLO) I'll do that.

(Whereupon, a recess was had.)

(TORNCELLO) Yes, I've spoken with Mrs. Hinges, social worker for ['Arthur'], and it's her suggestion and my request, that we -- given the testimony today, get as much as we can today and if need be, if he has to come back tomorrow, and talk about some medical issues, he will be available and she would be available.*

[*The reality is, for whatever combination of reasons, that does not happen. Thus, defense counsel is never able to use these medical exam results to effective cross-examine 'Arthur,' or anyone else for that matter.]

(CZAJKA) Then that's what we will do, right? Make sense [DC]? So that way you have an opportunity to consult with someone about the report.* Make sense?

[*That never happened either.]

(DC) Yes, your Honor. I'm hoping that I will, as I say, my first problem with this document is one of unscrambling the written portion. [160]

(CZAJKA) I can't read much of it either.*

[*So, even Czajka is acknowledging that this report is largely illegible; and thus, basically useless, unless the doctor who wrote it were brought in (or at least consulted).]

(DC) For example, I have heard of this one drug.

(CZAJKA) You don't have to explain your request; I already said it's a valid one.* Bring the boy back.

[*If Czajka  truly believes this is a valid issue/request, why does he not even attempt to sanction the prosecution for -- or try to rectify -- this blatant discovery violation? And why doesn't he offer a 'helping hand' to the defense on this issue (as he often does to the  prosecution) once 'Arthur' has finished testifying?]

(CZAJKA) What's your name?

( 'ARTHUR') ['Arthur'].

(CZAJKA) And how do you spell your last name?

('ARTHUR') _____________.

(CZAJKA) And how do you spell your first name?

('ARTHUR') ______________.

(CZAJKA) Is it ______________?

('ARTHUR') Yes.

(CZAJKA) How do you spell that?

('ARTHUR') ____________.

(CZAJKA) Do you have a middle [161] name?

('ARTHUR') ___________.

(CZAJKA) What do you want me to call you?

('ARTHUR') _______________.

(CZAJKA) And do you know who I am?

('ARTHUR') The judge.

(CZAJKA) All right. And that man behind me, he just asked you a question, what was that about?

('ARTHUR') To tell the truth.

(CZAJKA) All right. How old are you?

('ARTHUR') Ten.

(CZAJKA) And what day were you born?

('ARTHUR') _____________________.

(CZAJKA) And where are you living now?

('ARTHUR') [The group home].

(CZAJKA) And how long have you been there?

('ARTHUR') I have no clue.

(CZAJKA) Okay. Is that the [162] only place you remember living ['Arthur']?

('ARTHUR') And [names the road where his previous group home is located].

(CZAJKA) And where did you live on ___________ Road?

('ARTHUR') [Names group home].

(CZAJKA) Do you recall living any other places?

('ARTHUR') No.

(CZAJKA) Okay. And are you in school now?

('ARTHUR') Yes.

(CZAJKA) What grade?

('ARTHUR') Fourth.

(CZAJKA) And what subjects are you taking these days?

('ARTHUR') Everything.

(CZAJKA) Tell me what they are?

('ARTHUR') Health, science, social studies, language and art, history.

(CZAJKA) What is your favorite subject?

('ARTHUR') History class.

(CZAJKA) Yeah? What did you learn about in history class these days? [163]

('ARTHUR') The Civil War.

(CZAJKA) Do you have books on the Civil War?

('ARTHUR') Yes.

(CZAJKA) Or is it the same history book for all history subjects?

('ARTHUR') All history subjects.

(CZAJKA) That's the same book?

('ARTHUR') Yes.

(CZAJKA) What's the name of that book?

('ARTHUR') The Civil War.*

[*That makes no sense. A book covering 'all history subjects' would obviously not be entitled, 'The Civil War.' The reason for pointing this out is not simply to show that 'Arthur' gave an incorrect answer; it's to demonstrate  why he did so, as well as highlight the fact that this obviously mistaken answer doesn't seem to faze Czajka  at all. 'Arthur' already appears to be just 'playing along,' telling Czajka what the former believed the latter wanted to hear, regardless of its actual  accuracy. Moreover, Czajka appears completely uninterested in further exploring what this may mean in terms of 'Arthur's' overall ability to answer questions accurately; i.e., there are no follow-up questions on this.]

(CZAJKA) Do you read it?

('ARTHUR') Yes.

(CZAJKA) How's your reading these days?

('ARTHUR') Good.

(CZAJKA) Good. Do you have other books you read as well?

('ARTHUR') Yes.

(CZAJKA) What are the names of those books?

('ARTHUR') Harry Potter.*

[*Well, that is not the actual (full)  name of any book.]

(CZAJKA) That sounds familiar. Which Harry Potter books have you read? [164]

('ARTHUR') Four or five.*

[*Some nine months earlier, when 'Arthur' was interviewed by Detective DeFrancesco , when the latter asked if he could read, 'Arthur' said that he could not. So, we are supposed to believe that, since that time, 'Arthur' has read 'four or five' rather dense Harry Potter books. Moreover, Czajka didn't ask how many Potter books 'Arthur' had read; he asked which books he'd read; i.e., for actual book titles. But Czajka doesn't follow up on that either.]

(CZAJKA) Yes. Tell me some of the characters that are in Harry Potter?

('ARTHUR') Mr. Harry Potter*, Mrs. -- the two kids I forget, the cat, the cat's name. I forget his name.

[*Harry Potter is a  boy; and thus, does not have the title 'Mr.' And he can't remember  any  other characters in these 'four or five' books he supposedly read?]

(CZAJKA) How about do you recall any of the People's names at the school?

('ARTHUR') School?

(CZAJKA) What's the name of the school?

('ARTHUR') The Academy.*

[*That's incorrect -- the school in the Harry Potter novels is 'Hogwarts.' But perhaps 'Arthur' thought Czajka was asking for the name of 'Arthur's' own  school. Unfortunately, that  is not called 'The Academy' either.]

(CZAJKA) Harry Potter's -- what's the name of the school in --

('ARTHUR') ['Arthur' then names the school he himself  goes to.]

(CZAJKA) What are the names of the characters in that book, other than Harry Potter? Do you recall?

('ARTHUR') No.

(CZAJKA) Okay. Who are your teachers?

('ARTHUR') [Then provides 3 teachers' first names].

(CZAJKA) You call them by their first names? [165]

('ARTHUR') Yes.

(CZAJKA) Do they teach you all the subjects or does each have a special subject to teach?

('ARTHUR') They all teach us one, they all teach us the one subject.*

[*This makes no sense either; no elementary school has three teachers all teaching the same subject. Czajka soon drops this issue, too.]

(CZAJKA) At the same time?

('ARTHUR') Yes.

(CZAJKA) How are you doing in school?

('ARTHUR') Good.

(CZAJKA) What kind of grades are you getting?

('ARTHUR') Good.

(CZAJKA) Did you have a report card recently?

('ARTHUR') Yes.

(CZAJKA) What were your grades?

('ARTHUR') All A plus.*

[*In her letter submitted to the probation department, apparently in an effort to ensure that Nickel received the maximum possible sentence, Amy Hinges (or possibly Henges) indicated that, because of Nickel's actions, 'Arthur' was having difficulty focussing at school. Given that she wrote this letter only two months after 'Arthur's' above testimony, it would appear that either 'Arthur' is misrepresenting his grades, or Hinges/Henges is misrepresenting 'Arthur's' state of mental health.]

(CZAJKA) Excellent. Good job. Now, do you know who this man is standing right over there?

('ARTHUR') Yes.

(CZAJKA) Who is he? [166] Peter [Torncello, the prosecutor].

(CZAJKA) And did you see the lady over to your left?

('ARTHUR') Yes.

(CZAJKA) See that gadget she has right there?

('ARTHUR') Yes.

(CZAJKA) Do you know what it is?

('ARTHUR') No.

(CZAJKA) Do you know what she is doing?

('ARTHUR') Typing.

(CZAJKA) And do you know why?

('ARTHUR') So they have information.

(CZAJKA) That's right. She's putting down everything you and I say. So you have to answer all our questions, so she can get it clearly, right?

('ARTHUR') Yes.

(CZAJKA) All right. And do you know why you're here today?

('ARTHUR') Yes.

(CZAJKA) Why is that?

('ARTHUR') Because of the Jeffrey Nickel case.* [167]

[*This would seem to be a rather odd way for a 10-year-old boy to put it. It appears that 'Arthur' had spent a great deal of time listening to detectives discuss this 'case,' and had adopted -- among other things -- their way of referring  to it.]

(CZAJKA) All right. And you told this man behind me, something earlier, you told me, what was that?

('ARTHUR') To tell the truth.

(CZAJKA) And what does that mean, to tell the truth?

('ARTHUR') It means like if I say, you're a girl, this is part of a lie, if you if -- I say you're a girl, it's a lie. If I say you're a boy, it's the truth.

(CZAJKA) All right. What if I told you that thIs dress I'm wearing is pink?

('ARTHUR') It's a lie.

(CZAJKA) And what if I told you that Mr. -- Attorney Torncello has lots of hair, what would that be?

('ARTHUR') A lie.

(CZAJKA) Do you go to church?

('ARTHUR') Yes.

(CZAJKA) Do you, what kind of a church do you go to? Do you have any religious upbringing or instruction when you go to church?

('ARTHUR') No.*

[*Really? He goes to church, but there's no religious upbringing or instruction? Perhaps he did not understand the question. Here's the critical point: He didn't say that he did not understand it; he simply 'went along,' telling the person asking questions what he thought the latter wanted to hear. It would be naive to believe this did not also happen the several times he was 'interviewed' by the police and prosecutors.]

(CZAJKA) When you're playing [168] with your friends, on the playground, is there a playground at your school?

('ARTHUR') Yes.

(CZAJKA) And you're fooling around playing baseball or on the swings or something, and you lie to one of your friends, would that be good or bad?

('ARTHUR') Bad.

(CZAJKA) All right. When you lie to one of your teachers, would that be good or bad?

('ARTHUR') Bad.

(CZAJKA) When you lie in this courtroom, would that be good or bad?

('ARTHUR') Bad.

(CZAJKA) Now, what would be the worst of these three lies?

('ARTHUR') To tell the lie in the courtroom.

(CZAJKA) What would be the next worse?

('ARTHUR') To tell a lie to a teacher.

(CZAJKA) The next?

('ARTHUR') To tell a lie to your friends.

(CZAJKA) Okay. What will happen to you if you tell a lie to your [169] friends.

('ARTHUR') He will not like you very much.

(CZAJKA) What would happen if you tell a lie to your teacher?

('ARTHUR') They would send you to the principal's office.

(CZAJKA) What would happen if you tell a lie in this courtroom to this judge, me?

('ARTHUR') They would send me to prison.

(CZAJKA) That's what you heard?

('ARTHUR') (Nod nod).

(CZAJKA) You have to say yes or no. Remember she has to get everything down.

('ARTHUR') Yes.

(CZAJKA) You say you go to church?

('ARTHUR') Yes.

(CZAJKA) What did you learn in church about lying?

('ARTHUR') That it's not so good.

(CZAJKA) Okay. Either or both of you wish or want me to inquire further? [170] Mr. Torncello?

(TORNCELLO) No thank you.*

[*Of  course Torncello doesn't want to inquire any further; 'Arthur' has already clearly demonstrated -- to any neutral observer -- that he is not competent to testify under oath, what with his obviously nonsensical answers, and moreover, clear evidence of him  changing his answers in an effort to say what he thinks his questioner wants to hear.]

(CZAJKA) [DC]?

(DC) Could I be allowed to inquire?

(CZAJKA) Not with respect to this issue, but  I'll ask any questions that you would like me to ask of this witness,* if you want to.

[*Emphasis added. Czajka will soon  break that promise.]

(DC) Could I ask the Court to maybe -- to pose some issues to the Court, outside the hearing of the witness?

(CZAJKA) You know what ['Arthur']? I'll ask you to step right down over there for one minute, all right? Don't go too far though. Lieutenant Stoudt?

(Side bar)

(DC) Your Honor, if the Court would inquire, as to whether or not in preparing to come here today, and answering the Court's questions, did anyone prepare him for the kind of questions, and the suggested or recommended answers that he [171] would give. Did they also do that at the Grand Jury level, and maybe along the lines has he known children that told lies in the past, has -- do children tell lies, has he ever told a lie, has he ever told a lie and met no punishment as a result of that lie, or even where he was told nothing would happen to him. I would like to find out further, if he's on his currently taking any medications, if he knows the kinds of medication, whether he took any medication today, before coming here. I don't know, as I say unfortunately, I don't know what effect the various medications could have, on him and what they are, but so that we would be sure that -- have children told lies to him before, did anything bad happen to them when they told lies to him, I guess along that would be about it, Your Honor.

(TORNCELLO) Absolutely opposed to anything further.

(CZAJKA) I'm satisfied that the -- step back. The Court is satisfied that the child understands.* Come back up here ['ARTHUR'], and I'll ask you one or two more [172] questions. Let me ask you in my words, do you promise and swear that you will tell the truth in here?

[*Czajka is 'satisfied' that the child  'understands'  what, exactly? How to tell his questioner what he thinks the latter wants to hear, regardless of its accuracy?]

('ARTHUR') Yes.

(CZAJKA) You already told me what would happen if you don't?

('ARTHUR') Yes.

(CZAJKA) Before I make a ruling do either of you wish to be heard? Mr. Torncello?

(TORNCELLO) No.

(CZAJKA) You indicated to me that you don't wish any further inquiry; you're satisfied, I take it?

(TORNCELLO) Absolutely satisfied.

(CZAJKA) Do you wish to be heard before I rule as to whether the child can testify under oath, [DC]?

(DC) Your Honor, I already presented my questions to the Court.

(CZAJKA) You protected the record in that regard.

(DC) I don't find anything [173] further, Your Honor, except no, sir. I don't find anything further, no.*

[*What would have been the  point  of defense counsel trying to inquire further? Czajka -- despite his own promise -- never even asks the questions defense counsel just proposed.]

(CZAJKA) I find that the child, does understand the nature of the oath the consequence of testifying falsely and may testify under oath.* You may proceed, Mr. Torncello.

[*Thus, Czajka simply -- and completely --  breaks his promise that he would ask defense counsel's proposed competency questions -- not even one  of them. If Czajka was unwilling to disqualify this child from testifying under oath, then, under what circumstances  would he do so? The obvious answer is: never. Czajka was just going through the motions. There was no way in the world -- no matter what  'Arthur' said -- that Czajka was not going to find him 'competent' to testify under oath. Why? Because otherwise, at least with regard to the charges regarding 'Arthur' (which were by far the most serious ones), the entire case against Nickel would have been dead in the water.]

(TORNCELLO) Thank you, Your Honor. Good afternoon.

('ARTHUR') Good afternoon.

(TORNCELLO) How are you today ['Arthur']?

('ARTHUR') Good.

(TORNCELLO) I'm going to ask you some of the questions that the Judge just did, can I ask how old you are?

('ARTHUR') Yes.

(TORNCELLO) How old are you?

('ARTHUR') Ten.

(TORNCELLO) And when's your birthday?

('ARTHUR') ___________________.

(CZAJKA) Excuse me, so the [174] record is clear with respect to those requests, that does not -- I'm not ruling prospectively with respect to any cross-examination on that issue.*

[*Here's Czajka backpedaling again, after he realized that he reflexively did something to aid the prosecution that could help the defendant upon appeal.

 

 

This statement by him does nothing to alter the fact that Czajka broke his promise to ask the competency questions proposed by defense counsel, or, that Czajka's 'finding' that 'Arthur' was competent to testify under oath was patently absurd.]

(DC) I understand that, Your Honor.

(CZAJKA) Excuse me ['Arthur'].

('ARTHUR') Yes.

(CZAJKA) Go ahead.

(TORNCELLO) May I? Okay. You're ten, right?

('ARTHUR') Yes.

(TORNCELLO) And where do you live?

('ARTHUR') A group residence.

(TORNCELLO) And where is that group residence?

('ARTHUR') [Responds with the name of the group home.]*

[*Torncello asked where the group home was; not the name of it.]

(TORNCELLO) Okay. And that's here in _______________ is it?

('ARTHUR') Yes.

(TORNCELLO) Do -- okay. Do you have any brothers or sisters?

('ARTHUR') Yes.

(TORNCELLO) Who do you have?

('ARTHUR') [Says how many siblings he has of each gender.]

(TORNCELLO) Are they older brothers and sisters or younger? [175]

('ARTHUR') [Specifies who's older vs. who's younger].

(TORNCELLO) Okay. And do they live with you at the group residence?

('ARTHUR') No.

(TORNCELLO) They don't, right? How about mom, do you have a mom?

('ARTHUR') Yes.

(TORNCELLO) And where does your mom live?

('ARTHUR') In _________________.

(TORNCELLO) Do you see her times?

('ARTHUR') Yes.

(TORNCELLO) You see your mom and you visit her?

('ARTHUR') Yes.

(TORNCELLO) She visits you?

('ARTHUR') Yes.

(TORNCELLO) Okay. The Judge asked you about school a little while ago, right?

('ARTHUR') Yes.

(TORNCELLO) How about sports, do you like sports?

('ARTHUR') Yes.

(TORNCELLO) And what kinds of sports did you play?

('ARTHUR') Baseball.

(TORNCELLO) You like baseball?

(DC) Objection please, I [176] am not sure I understand, the purpose of these questions.

(CZAJKA) Sustained.

(TORNCELLO) Okay. ['Arthur'], did you used to live at [names first group home]?

('ARTHUR') Right.

(TORNCELLO) Is that what you told the Judge?

('ARTHUR') Yes.

(TORNCELLO) And can you tell us do you know a man by the name of Jeff Nickel?

('ARTHUR') Yes.

(TORNCELLO) Okay. And where did you meet Jeff Nickel?

('ARTHUR') [Names location of first group home].

(TORNCELLO) And what is [names location], is that [names group home]?

('ARTHUR') Yes.

(TORNCELLO) And is that a home also?

('ARTHUR') Yes.

(TORNCELLO) Did you -- you lived there, right?

('ARTHUR') Yes.

(TORNCELLO) Okay. Do you recall when you met Jeff there?

('ARTHUR') No.

(TORNCELLO) You don't remember. So at some point in time I guess you went from [first group home] [177] and you moved to [second group home]?

('ARTHUR') Yes.

(TORNCELLO) All right. And when you moved, did you still see Jeffrey Nickel?

('ARTHUR') Yes.

(TORNCELLO) Okay. Was he a worker at [first group home]?

('ARTHUR') No, he was a volunteer.

(TORNCELLO) He was a volunteer -- was he specifically a volunteer for you or for all of the kids?

('ARTHUR') All of the kids.

(TORNCELLO) When you moved to [the second group home], was he a worker [there]?

('ARTHUR') No.

(TORNCELLO) Okay. What was his job at [second group home]?

('ARTHUR') To volunteer.

(TORNCELLO) A volunteer at [second group home], was he a volunteer for all the kids or just you?

('ARTHUR') For just me.

(TORNCELLO) Now, did you ever have a chance to go places with Jeffrey Nickel?

('ARTHUR') Yes.

(TORNCELLO) Okay. And was that when you were before when you were at [the first group home]? [178]

('ARTHUR') No.

(TORNCELLO) But when you moved to [the second group home]?

('ARTHUR') Yes.

(TORNCELLO) All right. You got a chance to go places with him, right?

('ARTHUR') Yes.

(TORNCELLO) All right. And were there other people from [the second group home], would they go along with you for some of the visits?

('ARTHUR') Yes.

(TORNCELLO) Okay. All the time or some of the time?

('ARTHUR') Some of the time.

(TORNCELLO) Okay. For instance at first when you went with Jeffrey Nickel, would they be alone visits or were there other people that would go?

('ARTHUR') (No response).

(TORNCELLO) Do you know I mean or not?

('ARTHUR') No.

(TORNCELLO) Okay. Is is sometimes people from [the second group home] went, right?

('ARTHUR') Yes.

(TORNCELLO) And sometimes you went alone with Jeff? [179]

('ARTHUR') Yes.

(TORNCELLO) Is that what you called him? What did you call him?

('ARTHUR') Jeff.

(TORNCELLO) You called him Jeff? Okay. Now, I want to take your memory and try to go back a little bit and take your memory back to around June or July of 2000, last summer okay? Do you recall last summer?

('ARTHUR') Yes.

(TORNCELLO) Around June 10th or so, or from June and July, did you ever have a chance to go and play with Jeff?

('ARTHUR') Yes.

(TORNCELLO) Okay. And where would you go, what kinds of things would you do?

('ARTHUR') Go to the swimming pool, go to the movies.

(TORNCELLO) Okay. Like when you say the swimming pool what, where is the swimming pool there -- strike that. Well never mind, I won't ask that one. Do you know where Jeffrey Nickel lives?

('ARTHUR') Yes.

(TORNCELLO) Did you ever go to his house? [180]

('ARTHUR') Yes.*

[*The fact is, 'Arthur' has  never  set foot in that house. (But he was driven  by  it by prosecutors / investigators.)]

(TORNCELLO) Okay. And do you know what city it's in or town or no?

('ARTHUR') It's in Delmar.

(TORNCELLO) Delmar? And how would you get to Jeff's house from [the second group home]?

('ARTHUR') He would drive me there to his house.*

[*That's false; Nickel never drove him to (or even  by) his house.]

(TORNCELLO) Okay. What kind -- did he have a car?

('ARTHUR') Yes.

(TORNCELLO) What kind of car did he have?

('ARTHUR') A red car.

(TORNCELLO) A red car? And when he would drive would it just be you and Jeff?

('ARTHUR') Yes.

(TORNCELLO) You have been to his house, right?

('ARTHUR') Yes.

(TORNCELLO) One time or more than one of time?

('ARTHUR') More than one time.*

[*Again, 'Arthur' has only been driven by  the house, and even then, only by prosecutors/investigators.]

(TORNCELLO) Okay. And can you describe his house? Is it big or little or what color is it, any of that?

('ARTHUR') It's big, white on the outside.*

[*No it isn't -- it's  blue.]

(TORNCELLO) Okay. You have been inside?

('ARTHUR') Yes.*

[*No, he  has not.]

(TORNCELLO) Was anyone else with you when you went [181] with him?

('ARTHUR') No.

(TORNCELLO) Okay. You said you went to the pool, you went to the movies, and things like that?

('ARTHUR') Yes.

(TORNCELLO) Was there a pool hear [near?] his house?

('ARTHUR') Yes.

(TORNCELLO) And was that the Park -- was there a town park or a something like that?

('ARTHUR') Yes.

(TORNCELLO) Okay. And did you ever go to a pool there?

('ARTHUR') Yes.

(TORNCELLO) Well, a lot of times or one time or do you recall?

('ARTHUR') Lots of times.

(TORNCELLO) And was Jeff the one that took you to that park?

('ARTHUR') Yes.

(TORNCELLO) He did, okay, what kinds of things would you do? What would you play with Jeff?

('ARTHUR') We have a game called bull that we used to --

(CZAJKA) Bull?

('ARTHUR') Yes. [182]

(TORNCELLO) What's bull? That's the game that you invented?

('ARTHUR') Yes.

(TORNCELLO) Okay. Tell me what bull is?

('ARTHUR') Bull is a game, that he chases after me, and I jump over him.

(TORNCELLO) Okay. Where would you play this game?

('ARTHUR') In the swimming pool.

(TORNCELLO) Did you have your bathing suit on?

('ARTHUR') Yes.

(TORNCELLO) And did Jeff have his bathing suit on?

('ARTHUR') Yes.

(TORNCELLO) And what would happen, when you played the game bull? You said there was chasing; was it in the water?

('ARTHUR') Yes.

(TORNCELLO) What kinds of things would happen then?

('ARTHUR') He would accidentally slip and put his hands in my pants.*

[*Firstly, this simply never happened. Secondly, given the fact that both persons were moving pretty vigorously, it would have been virtually impossible for one to put his hands in the other's pants -- especially, 'accidentally.']

(TORNCELLO) Okay. And would he put his hands in the front of your pants or the back of your pants or?

('ARTHUR') He put in both.*

[ *Nonsense. Nickel never put his hands down 'Arthur's' pants -- in or out of the swimming pool.]

(TORNCELLO) In both? [183] Did that happen, sort of lots of times or?

('ARTHUR') Lots of times.*

[*Nope -- never.]

(DC) Objection, we have a singular count, Your Honor.

(CZAJKA) Which count?

(TORNCELLO) That's not true, there's a count of endangering the welfare of a child* that goes from January 2000, through August of the 2000, Your Honor, which discusses a course of conduct, of a sexual nature.

[*This misdemeanor 'endangering' charge is virtually always tacked on to the more serious felony charges in child abuse indictments, which would seem superfluous, given that the former can only be punished by a maximum of one year, whereas the latter can be punished by 7 to 25  years. But the 'endangering' charge is valuable to the prosecution, because it allows them to throw the proverbial 'kitchen sink' of 'evidence' at the defendant. Moreover, if the felony counts are eventually overturned, because the 'endangering' charge is so vague, and could cover almost anything, the state can save face by salvaging at least something.]

(CZAJKA) Objection overruled.

(DC) Your Honor, if I could point out to the Court if we are talking about a period of time here, that's going to cover a 7 month period.

(CZAJKA) Well now, all he's talking about is the Summer of 2000.

(TORNCELLO) That's correct. Okay. Now, you talked about that sometimes he will put his hands inside your pants?

('ARTHUR') Yes.

(DC) Objection to the [184] recapitulation by the D.A.

(CZAJKA) Overruled.

(TORNCELLO) Okay. Now, was there ever a time when he put his finger inside of you?

('ARTHUR') Yes.*

[*Baloney -- never happened.]

(DC) Objection,* leading the witness.

[*This objection came too late -- 'Arthur' had already  answered this question.]

(CZAJKA) Overruled. There's no reference to the -- overruled. Go ahead.*

[*Many of Czajka's rulings in this (and many other) cases were certainly questionable. But  this  one was flat wrong: What Torncello did here was classic  'leading of the witness'. What Torncello  should  have done was something along the lines of: 'Okay. And did anything else happen?']

(TORNCELLO) Okay. And where did that happen -- where did that --

('ARTHUR') In the pool.

(TORNCELLO) In the pool, at the same pool that we are talking about in the park?

('ARTHUR') Yes.

(TORNCELLO) Okay. And how did that feel?

('ARTHUR') It hurt.*

[*No, it didn't 'hurt,' because it simply never happened.]

(DC) Objection,* leading.

[*Again, this objection came too late already answered question.]

(CZAJKA) Overruled.

(TORNCELLO) He can answer, right Judge?

(DC) He did answer.

(TORNCELLO) Well, did you say anything to Jeff when that happened? [185]

('ARTHUR') Yes, I said stop.*

[*No, he didn't 'say' anything, because it didn't happen. But 'Arthur' is providing this answer because he senses that it is the 'right' (expected) one.]

(TORNCELLO) Okay. Did he say anything to you?

('ARTHUR') No.

(TORNCELLO) Okay. Now, you went to the pool a few times and were there any other places that you went? Did you visit other places?

('ARTHUR') Yes.

(TORNCELLO) Where?

('ARTHUR') The movie theatre.

(TORNCELLO) You did? You went to the movies?

('ARTHUR') Yes.

(TORNCELLO) And again did you go lots of times or just once or?

('ARTHUR') Just once.

(TORNCELLO) Do you recall what movie you saw?

('ARTHUR') X-Men.

(TORNCELLO) Was that a good movie? Did you like it?

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Well, what happened at the movie? Did anything happen at the movies?

('ARTHUR') Yes.

(TORNCELLO) What happened?

('ARTHUR') He put his hand on my leg. [186]

(TORNCELLO) Okay. Any place else? Did he put his hands --

(DC) Objection, leading the witness.

(CZAJKA) Overruled.* Go ahead. You can answer the question.

[*Once again, Torncello was clearly leading the witness, which  is not permitted under the rules of evidence. And once again, Czajka wrongly overruled defense counsel's objection to this.]

('ARTHUR') What was you saying again?

(TORNCELLO) Well, did he put his hand any place else on you?

('ARTHUR') Yes.

(TORNCELLO) Where?

('ARTHUR') On -- his mouth touching my penis.*

[*Firstly, that never happened. (And 'Arthur' is only saying it  did  happen because [i.e., after] the prosecution side showed him a sexual photo, and convinced him that it depicts himself and Nickel, when it actually depicts neither.) Moreover, 'Arthur' isn't even answering the question that Torncello actually asked here. Torncello asked where else Nickel (supposedly) put his hand, not his mouth. It seems that 'Arthur' is anxious to just regurgitate everything he is 'supposed' to say, so he can get this over with. That's quite understandable. But it does  not help to get at the actual  truth.]

(TORNCELLO) Okay. Now, that was at the movies?

('ARTHUR') Nope.

(TORNCELLO) Okay. That began at the movies, I'll talk about that later, okay? But, anything else at the movies? Did he touch you any place other than your leg?

('ARTHUR') No.

(TORNCELLO) Okay. Now, you said you have been to Jeff's house, right?

('ARTHUR') Yes.*

[*Wrong.]

(TORNCELLO) Incidentally, do you see him here in the courtroom today, if you look? [187]

('ARTHUR') Yes.

(TORNCELLO) Did you see -- you can just point to him?

('ARTHUR') Right there (pointing).

(TORNCELLO) Okay. What color suit does he have on?

('ARTHUR') Black and white.

(TORNCELLO) Okay. Judge, if the record could reflect that the witness identified defendant?

(CZAJKA) He has.

(TORNCELLO) Thank you. Earlier you just talked about an incident you said where he put his mouth on your penis, right?

('ARTHUR') Yes.

(TORNCELLO) Okay. Where did that happen?

('ARTHUR') His house.

(TORNCELLO) Okay. I want to show you a photograph, okay? It's -- we call it People's number "5" for -- in evidence, right? You see that photograph?

('ARTHUR') Yes.

(TORNCELLO) Okay. And have you seen that photograph before ['Arthur']?*

[*Apparently, for whatever reason, 'Arthur' does not answer this question, because Czajka soon interjects (with a leading question of his own).]

(CZAJKA) Okay. You were shown [188] that before, right?

('ARTHUR') Yes.

(TORNCELLO) Okay. I think you probably met some police officers or Sheriffs, right?

('ARTHUR') Yes.

(TORNCELLO) Ronnie [Veronica Dumas, the initial case prosecutor] from our office, did she show you?

('ARTHUR') Yes.

(TORNCELLO) Okay. Now, do you recognize anybody in that photograph?

('ARTHUR') Yes.

(TORNCELLO) Who do you recognize?

('ARTHUR') Me and Jeff.*

[*He is incorrect on both counts. Whereas the boy in the photo has brown eyes, 'Arthur's' eyes are  blue. And though Czajka would not permit him to testify as an expert, the defense did hire a photography expert, who proved conclusively that Nickel was not  the older person depicted in that sexual image.]

(TORNCELLO) Okay. Do you recall that picture being taken ['Arthur']?

('ARTHUR') Yes.*

[*Well, he's mistaken, because it's not even a picture of him -- no one knows who is actually depicted in it.]

(TORNCELLO) How was that taken -- how was that picture taken? Was there another person in the room?

('ARTHUR') No.

(TORNCELLO) How did that picture get taken?

('ARTHUR') He took the flash off and he set it, when I -- when I was taking a nap.*

[*The  reason 'Arthur' describes Nickel's camera in such detail here is because Nickel had in fact taken pictures of himself and 'Arthur' by setting the timer (and then coming into the frame). But these were 'regular'  pictures, not pornographic ones. Everyone had their clothes on. Secondly, 'Arthur' stated this picture was taken in Nickel's bedroom. If Nickel had, in fact, taken the flash off, the picture would not have come out well at all, given that this is obviously indoors.]

(TORNCELLO) And there was -- did he have a camera?

('ARTHUR') Yes. [189]

(TORNCELLO) Okay. And where was the camera?

('ARTHUR') Sitting on his window sill.*

[*In Nickel's bedroom, there are no window sills -- at least none wider than one-half inch or so. (See: Nickel's home.) That would not have been nearly wide enough to set this 'old-style' camera on.]

(TORNCELLO) Okay. And do you recall you said something about a flash, do you recall a flash going off? Are you -- do you remember the flash?

('ARTHUR') There wasn't no flash.*

[*The pictures Nickel did take of himself and 'Arthur' were taken (at least primarily) outside. Thus, it makes sense that 'Arthur' would say there was 'no flash.' Only, he's conflating those ('regular') outdoor-taken pictures with this sexual photo taken indoors.]

(TORNCELLO) There wasn't no flash; did you hear the camera go off?

('ARTHUR') No.

(TORNCELLO) Okay. Now, you said earlier I think something about a timer, is that right?

('ARTHUR') Yes.

(TORNCELLO) That's what you're talking about? How does that work, do you know?

('ARTHUR') No clue.

(TORNCELLO) Okay. You don't have any clue about that. Did Jeff have a computer?

('ARTHUR') Yes.

(TORNCELLO) And where was the computer, do you know?

('ARTHUR') By the window.*

[*So, 'Arthur' claims this picture was taken in Nickel's bedroom. There was not -- and never had been -- a computer there (as photos taken by the police themselves -- which they tried to hide [see  buried evidence] -- showed). Nickel's computer was actually in the basement 'rec room' -- where there  are no windows.]


(TORNCELLO) It was by the window in what room?

('ARTHUR') In his bedroom.

(TORNCELLO) In his bedroom. And where was the [190] camera? Was the camera also -- well strike that. You tell me where was the camera?

('ARTHUR') In the window sill in his bedroom.

(TORNCELLO) Okay. About how often would you -- would you go with ['Arthur'], do you recall?

('ARTHUR') ['Arthur']?

(TORNCELLO) I'm sorry I. I'm getting silly here. About how often would you go with Jeff?

('ARTHUR') No clue.

(TORNCELLO) Okay. Is it sort of would I be right if I said that your visits with him started in June last year?

('ARTHUR') Yes.

(TORNCELLO) And they went through July or so?

('ARTHUR') Yes.

(TORNCELLO) Okay. And again, were you living at [the second group home] during that July, June and July period?

('ARTHUR') Yes.

(TORNCELLO) Okay. I think that's it judge. Can I just have a minute to look at my notes?

(CZAJKA) Sure. Okay? [191]

(TORNCELLO) I am thinking, okay? I'm a slow thinker. The last time you saw ['Arthur'], did you notice, boy, I did it again, didn't I? The last time you saw Jeff, ['Arthur'], did you notice anything about his hands?

('Arthur') Yes.

(TORNCELLO) What did you notice?

('ARTHUR') His hand -- his left hand has a cast.

(TORNCELLO) The left hand had a cast?

('ARTHUR') (Nod nod).

(TORNCELLO) Okay. Left hand. I think that's it. That's it well, let me think, okay. I'm looking at photographs. Just a second judge. Okay. Just to be sure it's understood, People's "2", make that 2 A, I hand you now something that has been -- we will call it People's 2 A for identification, can you look at that? See that?

('ARTHUR') Yes.

(TORNCELLO) What is that? Can you tell us what that is?

('ARTHUR') The Recognition Dinner at [192] [the second group home].

(TORNCELLO) What's the Recognition Dinner?

('ARTHUR') It's a dinner where all of the houses get together, and the people out there say how good you have been doing.

(TORNCELLO) Okay. Did you get recognized? Were you part of recognition to say how good you did?

('ARTHUR') Yes.

(TORNCELLO) Do you recognize anybody in that photograph?

('ARTHUR') Yes.

(DC) Objection.* This is only made for identification this -- he's identified it.

[*Again, too late -- already answered.]

(CZAJKA) Overruled.

(TORNCELLO) Okay. Who do you recognize?

('ARTHUR') Jeff and me.

(TORNCELLO) Okay. And is that the way Jeff looked at the Recognition Dinner?

('ARTHUR') Yes.

(TORNCELLO) And is that the way you looked at the Recognition Dinner?

('ARTHUR') Yes.

(TORNCELLO) Okay. At this [193] time, I'll offer People's number 2 A, in evidence and show it to [DC].

(DC) Objection.

(CZAJKA) I'll reserve; go ahead Mr. Torncello, anything else Mr. Torncello?

(TORNCELLO) One other thing you told us a little earlier, that when you were at the -- when you were talking about the pool, and you said that ['Arthur'] put his finger in you, what did he do?

('ARTHUR') ['Arthur']?

(TORNCELLO) I'm sorry, Jeff put his finger?

(DC) I'm going to object to that line of questioning as leading and it's already been asked and answered.

(CZAJKA) Overruled, but I don't know that I, well -- I didn't hear the full question, so I'm not ruling. I'll give you an opportunity to object again. Ask your question again.*

[*Yet again, Czajka reflexively sides with the prosecution, backpedaling only when he realizes he may have made a mistake that could help the defendant on appeal. (And here, Czajka acknowledges he 'overruled' even when he hadn't actually heard the ['full'] question.]

(TORNCELLO) Okay.

(CZAJKA) Don't answer the question yet ['Arthur'].

('ARTHUR') Okay. [194]

(TORNCELLO) Let me ask it first. Well, what I want to say is where did Jeff put his fingers in you when you were in the pool in Bethlehem?

(DC) Objection.

(CZAJKA) Overruled.

(TORNCELLO) You can answer?

('ARTHUR') In my butt.*

[* Baloney -- never happened.]

(TORNCELLO) Okay. And you said it hurt, right?

('ARTHUR') Yes.*

[*No. It didn't 'hurt,' because it  didn't happen.]

(TORNCELLO) Can you describe how much?

('ARTHUR') It hurt a lot.*

[*The reason why Torncello was eliciting this (false) testimony was because it was necessary to establish an element of the crime 'Aggravated Sexual Abuse in the First Degree.']

(TORNCELLO) Okay. And did he stop when you asked him to?

('ARTHUR') No.*

[*'Arthur' didn't ask Nickel to stop, for the simple reason that Nickel never did  this to 'Arthur.']

(TORNCELLO) No further questions. Thank you.

(DC) Good afternoon.

('ARTHUR') Good afternoon.

(DC) If you can answer for me please, are you presently receiving any medication, pills or drugs, or things of that nature? [195]

('ARTHUR') Yes.

(DC) And if you know, is it more than one type of pill and drug or just one type?

(CZAJKA) You can answer his questions and I'll tell you if you don't have to ['Arthur']. Go ahead.*

[*'Arthur' must have hesitated to answer, and looked at Czajka at this point.]

('ARTHUR') More than one type.

(DC) How many types of pills or drugs do you take a day?

('ARTHUR') One at one o'clock, and uhm -- one at 11, and four or five and at 8 o'clock.*

[*That doesn't actually answer the question counsel asked, which was how many types of pills he takes.]

(DC) Is that 8 o'clock in the evening or 8 o'clock in the morning?

('ARTHUR') 8 o'clock in the evening.

(DC) Do you take these medications every day?

('ARTHUR') Yes.

(DC) Have you been taking this medication, for some period of time?

('ARTHUR') Yes.

(DC) Do you know the name of the medication that you take at 11 o'clock?

('ARTHUR') Adoral [Adderall].*

[*All of the following are taken from the 2002 edition of the Physicians' Desk Reference (PDR):

Adderall [pg. 3231]. Amphetamine (stimulant); Attention Deficit (Hyperactivity) Disorder [AD(H)D]
Prescribed for: moderate to severe distractability, short attention span, hyperactivity, emotional lability, impulsivity.

"Clinical experience suggests that in psychotic children, administration of amphetamine may exaggerate symptoms of (a) behavior disturbance and (b) thought disorder
" [Emphasis added.]

[pg. 3232] "Long-term effects of amphetamine in children have not been well established."]

(DC) Do you know the medication that you [196] take at one o'clock?

('ARTHUR') Clonidine.*

[*Clonidine [pg. 1037]; for treating hypertension, but also a general calming agent. [PDR Companion Guide, 2002, pg. 1512]; used off-label for obsessive-compulsive disorder; [ibid., pg. 1513]; off-label use as sedative]

(DC) Do you know the four or five that you take at 8 o'clock?

('ARTHUR') Ritalin,* Zoloft,** uhm -- Senokot,*** and I forget the other one.****

[*Ritalin  [pg. 2387] "Ritalin is a mild central nervous system stimulant." Prescribed for attention-deficit disorders. "Sufficient data on safety and efficacy of long-term use of Ritalin in children are not yet available." "Clinical experience suggests that in psychotic children, administration of Ritalin may exacerbate symptoms of behavior disturbance and  thought disorder. [Emphasis added.]]

[**Zoloft is not actually listed as a 'current medication' on 'Arthur's' medical exam form. It is generally prescribed for depression.]

[***Senokot is a laxative.]

[****This would appear to be  Risperdal, which is  listed as a 'current medication' on 'Arthur's' physical exam form. [pg. 1796]; Antipsychotic. "Safety and effectiveness in children have not been established."

Thus, at the time of trial, 'Arthur' was taking either four or five different psychiatric medications. The main problem for the defense here was that, at the time of trial, it did not have  any of the above information. Moreover, we still don't know precisely what these medications were prescribed for.]

(DC) Before coming here today, or at any time today, did you take any medication?

('ARTHUR') Yes.

(DC) Would that have been your 11 o'clock medication?

('ARTHUR') No.

(DC) Would that have been your one o'clock medication?

('ARTHUR') No.

(DC) Would that have been the 8 o'clock medication?

('ARTHUR') No.

(DC) What kind of medication did you take today?

('ARTHUR') It's the 7 o'clock medication.*

[*So, 'Arthur' was taking psychiatric medications virtually around the clock -- during waking hours anyway.]

(DC) Oh, you took another one at 7 o'clock?

('ARTHUR') Yes.

(DC) In the morning?

('ARTHUR') (Nod nod). [197]

(DC) Okay. What did you take at 7 o'clock in the morning?

('ARTHUR') Zoloft.

(DC) Have you been on that medication for some period of time?

('ARTHUR') Yes.

(DC) Do you see a doctor regularly?

('ARTHUR') Yes.

(DC) How regularly do you visit with a doctor?

('ARTHUR') I can't answer that question because I don't know.

(DC) Would it be once a week or once a month?

('ARTHUR') Once a month.

(DC) Do you know that doctor's name?

('ARTHUR') Dr. Pitapato (phonetic) and Dr. Oberhyde (phonetic).

(DC) Do you know what if any specialty either of those doctors have?

('ARTHUR') No.

(DC) Have you been seeing each of those doctors for some period of time?

('ARTHUR') Yes.

(DC) Do you recall giving testimony before [198] a Grand Jury?

('ARTHUR') Yes.

(DC) On the day that you gave testimony before the Grand Jury, had you taken medication that day?

('ARTHUR) Yes.

(DC) Do you recall what medication you had taken that day and what time before you testified?

('ARTHUR') No.

(DC) On the day that you testified before the Grand Jury, did anyone ask you, if you were on any medication?

('ARTHUR') Yes.

(DC) Was that person -- do you know that person's name?

('ARTHUR') No.

(DC) Was it a woman or a man?

('ARTHUR') Woman.

(DC) Would the name Mrs. [Veronica] Dumas or Ronnie Dumas [the original prosecutor in the case], would that sound familar to you?

('ARTHUR') Yes.

(DC) Did you tell this Ronnie Dumas that yes, you were on medicafion?

('ARTHUR') Yes. [199]

(DC) Did she ask you what kind of medication you were on?

('ARTHUR') No.*

[*Something doesn't make sense here. If 'Arthur' is correct that Dumas asked if he was on medication, why wouldn't she then have asked  what  medication(s) he was on? But then again, that could have hurt her case.]

(DC) To your knowledge and did she check with any doctor at that time?

('ARTHUR') I have no clue.

(DC) Now, I think you told us about a park in the Town of Bethlehem, the town park I think you called it?

('ARTHUR') Yes.

(DC) And I believe you told us that you went there some time during the months of June and July, of 2000, the summer time?

('ARTHUR') Yes.

(DC) When the park pool was open?

('ARTHUR') Yes.

(DC) And that park pool was open to the public, was it not?

('ARTHUR') Yes.

(DC) And on the hot days there, they get a pretty good crowd, do they not?

('ARTHUR') Yes.

(DC) And on the times that you went there with Jeff, there was a good crowd there, was there not? [200]

('ARTHUR') Yes.

(DC) In the swimming pool and playing?

('ARTHUR') Yes.

(DC) So when you went to the pool, alone with Jeff, during July and August, there were other people and many of them present?

('ARTHUR') Yes.

(DC) And they were both adults and children, were they not?

('ARTHUR') Yes.

(DC) Are there -- strike that. Now, I know you told us you have been by or at Jeff's house, on more than one occasion?

('ARTHUR') Yes.

(DC) And do you know where that's located?

('ARTHUR') Delmar.

(DC) Do you know what street?

('ARTHUR') No.

(DC) What color was his house? Did you tell us white?

('ARTHUR') Yes.

(DC) And when you were there at his house that was the color of his house when you were there?

('ARTHUR') Yes. [201]

(DC) Did the police also drive you by his house at some time?

('ARTHUR') Yes.

(DC) Do you recall when that was that the police drove you by his house?

('ARTHUR') No.

(DC) Do you recall if it was before you testified before the Grand Jury?

('ARTHUR') Yes.

(TORNCELLO) Judge, I want him to clarify -- to clarify. I think the question was, do you recall, not when was it. So could we have --

(CZAJKA) You're correct.

(DC) Forgive me, I didn't mean it that way. When the police took you by that house, was that before you testified before the Grand Jury or after?

('ARTHUR') Before.

(DC) Okay. And was it the same day like earlier the same day or a few days before, do you recall?

('ARTHUR') A few days before.

(DC) Okay. And would you remember the [202] names of the police officers that drove you there?

('ARTHUR') Mr. -- Ronnie, and I forget the other guy's name.

(DC) Okay. Would Ron Bates, does that name sound familiar for Mr. Ronnie?

('ARTHUR') Yes.

(DC) Did you see him here today?

('ARTHUR') Yes.

(DC) And that the same Ronnie we are speaking of?

('ARTHUR') Yes.

(DC) All right. Now, I think you mentioned being in Mr. Nickel's bedroom, did you not?

('ARTHUR') Yes.

(DC) And the colors of the walls in Mr. Nickel's bedroom, were what color?

('ARTHUR') Blue.*

[*No -- they're actually off-white. (But the wall in the background of the sex photo was blue.)]

(DC) Now, when you went into Mr. Nickel's house, well, is it do you know what I mean by a one-story and a two-story house?

('ARTHUR') Yes.

(DC) When you entered the house, what room would you enter into?

('ARTHUR') The hall. [203]

(DC) Was it a rather long hall?

('ARTHUR') Yes.*

[*The way Nickel most commonly entered the house (which, again, 'Arthur' has -- in fact --  never set foot in) was through the door leading in from the garage. The other main way in was through the front door. But in either case, there is no 'long' hallway. Coming in through the garage, the den is immediately to the left; turning right, the bathroom is just a few feet down on the left; then one comes into the kitchen. Through the front door, one comes into the living room.]

(DC) And where was Mr. Nickel's bedroom off that hall?

('ARTHUR') In the top room.

(DC) In the what?

('ARTHUR') Upstairs room.

(DC) All right. And you were upstairs in that room?

('ARTHUR') Yes.*

[*No -- he has never been there -- or anywhere else inside Nickel's home.]

(DC) Did there come a time when one of the police officers, showed you a photograph that's been shown to you here this morning as People's "5"?

('ARTHUR') Yes.

(DC) And did they show you that photograph, before you testified before the Grand Jury or after?

('ARTHUR') Before and after.

(DC) Both times?

('ARTHUR') Yes.*

[*So, 'Arthur' was shown this pornographic image  multiple times -- not by Nickel, but by the prosecution.]

(DC) Was it when you say before you testified before the Grand Jury, was it the same day earlier that same day or before that? [204]

('ARTHUR') Earlier the same day.

(DC) And was that photograph shown to you by Mr. Ron Bates?

('ARTHUR') Yes.

(DC) And did they tell you at that time, that you were going to be going into the Grand Jury?

('ARTHUR') No.

(DC) But you did go in before the Grand Jury, didn't you?

('ARTHUR') Yes.

(DC) Now, did you tell the Grand Jurors that beside the walls being blue and the house being white, that Mr. Nickel would have to duck his head to go through the door?

('ARTHUR') Yes.*

[*Although defense counsel does not specifically say 'the bedroom door,' given the extensive prior discussion of the bedroom, it seems pretty clear that that is what he was referring to, as well as how 'Arthur' understood it. But the fact is, Nickel did not have to 'duck his head' to go through that door -- or for that matter, any other  door in that house. (See: Nickel's home.) However, it's pretty clear where 'Arthur' got this 'idea' from. Nickel had previously told him that, when the former lived in Boston, there  was  a door leading from the basement to a back patio that he  would have to duck his head to go through. Thus, with the 'help' of some highly suggestive interviewing (see: Suggestibility section), 'Arthur' came to conflate that story about one of Nickel's previous residences with this  subsequent one.]

(DC) Did you tell them that?

('ARTHUR') Yes.

(DC) Now, you described a camera being on the window sill in Mr. Nickel's bedroom?

('ARTHUR') Yes.

(DC) How many windows were in that room?

('ARTHUR') Two.*

[*Actually, there are three windows in Nickel's bedroom.]

(DC) And how big was the window sill? Could you show us with your hands or? [205]

('ARTHUR') About this big (indicating).

(DC) All right.

(CZAJKA) Three and a half feet [DC]?*

[*Where had 'Arthur' actually seen window sills (approximately) that wide? In the basement of the group home where he lived at the time.]

(TORNCELLO) Are we talking about the window or the window sill?

(CZAJKA) Do you know what the window will is? What's the window sill?

('ARTHUR') It's like the holding the wall.

(CZAJKA) Where is it in the window?

('ARTHUR') Like here's the ground, here's the window sill.

(CZAJKA) Where the window --

('ARTHUR') It's right in the side the window sill.

(DC) Okay. Now, did you tell the Grand Jury, that in Mr. Nickel's bedroom, there was a water bed?

('ARTHUR') Yes.
*

[*False. But like the above 'head-ducking' reference, its source was something Nickel had previously told 'Arthur.' He had mentioned that his sister (in Virginia) had a waterbed.]

(TORNCELLO) I understand the rules of evidence, I'm going to object to form. If he asked him what he talked about in the Grand Jury. Thanks. [206]

(DC) Now?

(CZAJKA) Object when the question is asked, if you wish to.

(TORNCELLO) Your Honor --

(CZAJKA) If you wish to make an objection, do so in a timely manner.

(DC) When you -- did there come a time, that you went to see Dr. Oberheim, on August the 9th? Do you recall that visit of 2000?

('ARTHUR') Yes.

(DC) And did Dr. Oberheim ask you any questions?

('ARTHUR') Yes.

(DC) Did he run a physical examination of you at that time?

('ARTHUR') Yes.

(DC) When on or about -- let me ask you, do you recall when this Ron Bates first came to see you?

('ARTHUR') No.

(DC) But without remembering the date, do you recall the event? Do you recall when you first met him?

('ARTHUR') Yes.

(DC) And did you tell him or did you say to [207] him that you believed he was there because of some slapping incident?

('ARTHUR') Yes.*

[*Indeed -- that's why Nickel thought they had come to see him as well.]

(DC) Had you reported some slapping incident?

('ARTHUR') No.

(DC) To the school?

('ARTHUR') Yes.

(DC) And did there come a time after you reported that slapping incident, that you realized that didn't happen?

('ARTHUR') One wonders if, later on, 'Arthur' also realized that the sexual acts he testified to here never happened  either.]

(DC) And for --

(TORNCELLO) Objection.

(CZAJKA) Sustained, I don't understand what you're talking about. Sustained. The objection is sustained.*

[*If Czajka doesn't understand what defense counsel was talking about, then he must not have been paying very good attention, given that, earlier that same day, Bates testified at some length about this supposed 'slapping incident.' Also, Torncello was objecting far too  late  -- 'Arthur' had already answered  this question (and DC was already starting to ask another  one). Lastly, it seems rather odd not only that Czajka sustained this objection (given that the question was already answered), but also, that he said 'sustained' three times.]

(DC) Well, at first you told the school, that you had been slapped, didn't you?

('ARTHUR') Yes.

(CZAJKA) Well, the school is the -- did you talk to a person at the school?

('ARTHUR') Yes. [208]

(CZAJKA) Who was it?

('ARTHUR') My principal.

(CZAJKA) Okay.

(DC) Her name was what?

('ARTHUR') Oh, lord.

(DC) Miss O'Donnell?

('ARTHUR') No.

(DC) Miss Hinges?

('ARTHUR') No.

(DC) That is all right if you don't remember. Did Amy Hinges ever talk to you about that --

('ARTHUR') Yes.

(DC) -- Report? And there came a time, did there not, when you told her that that didn't happen?

(TORNCELLO) Objection.

(CZAJKA) Well, no foundation as of yet. It's not clear that he told her, what if anything he told her.

(DC) The principal or when you reported this slapping incident at --

(CZAJKA) Excuse me, what did you tell the principal about slapping? [209]

('ARTHUR') I told her that his friend slapped me.

(DC) Whose friend?

('ARTHUR') Jeffrey Nickel's.

(CZAJKA) Okay. And then you went back and indicated to him that that wasn't correct?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

('ARTHUR') Yes.

(DC) Okay. And who did you tell that that wasn't correct to?

('ARTHUR') My social worker.

(DC) That's Amy Hinges?

('ARTHUR') Hinges, yes.

(DC) And did you tell Amy Hinges that it may have been something that you dreamed or dreampt?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

('ARTHUR') Yes.

(DC) Did you sometimes dream about things?

('ARTHUR') Yes.

(DC) Do you sometimes mistake a dream for what really happened?

(TORNCELLO) Objection. [210]

(CZAJKA) Overruled.

('ARTHUR') Yes.

(DC) If you know, the medication that you took, I'll strike that. Have you in the past told things that maybe weren't true?

('ARTHUR') Yes.

(DC) And how many times have you done that?

(TORNCELLO) Objection.

(CZAJKA) Overruled, if you know. Do you know the times you said things that aren't true?

('ARTHUR') No.

(DC) What would be your best guess?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

('ARTHUR') About two.

(DC) Did you get in any trouble?

('ARTHUR') Yes.

(DC) The first time that you told something that wasn't true, what trouble did you get into?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

('ARTHUR') Staying in my room all day. [211]

(DC) And what was that that you said that wasn't true? What was that about?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

('ARTHUR') That Jeff gave me, a motorcycle.

(DC) And who did you tell that to?

('ARTHUR') My staff.

(DC) And then did you later tell them that wasn't true?

('ARTHUR') Yes.

(DC) And the second time that you remember telling something that wasn't true, what if any punishment happened then?

('ARTHUR') I had to clean up all day and clean every room, and make dinner all day.

(DC) All right. And what was that untruth that you told about?

('ARTHUR') That Jeff gave me a saxophone.*

[*So here, the two things 'Arthur' admits to having told untruths regarding  both related to Nickel.]

(DC) Okay. Did you think that he had given you those things?

('ARTHUR') Yes.

(DC) By then later on you found out that it wasn't so?

('ARTHUR') Yes.

(DC) May I have just a [212] moment please? I have no further questions. Thank you, Your Honor. Thank you young man.

(CZAJKA) Okay?

(TORNCELLO) Can I ask ['Arthur'] just to clarify something?

(CZAJKA) It's your case.

(TORNCELLO) No further questions. *

[*What made Torncello change his mind here? Perhaps a look from Czajka?]

(CZAJKA) ['Arthur'], step down.

(Witness excused).

(DC) Your Honor, I would ask the D.A. could be admonished to keep him available because of that medical.*

[*Well, for whatever reasons(s), 'Arthur' does not  take the stand again.]

(CZAJKA) He understood that.

(DC) Okay. I don't think we can get in another witness before two or -- can we?

(TORNCELLO) It's another child, but I imagine we can. [213]

(CZAJKA) Spell your name for me.

('BRENDAN') [Then spells his name].

(CZAJKA) How old are you?

('BRENDAN') Ten.

(CZAJKA) What do you want me to call you?

('BRENDAN') [Then specifies].

(CZAJKA) ['Brendan']?

('BRENDAN') Yes.

(CZAJKA) ['Brendan'], you hear how loud I'm talking? Think you can match me?

('BRENDAN') Yes.

(CZAJKA) All right. What do you want me to call you?

('BRENDAN') ['Brendan'].

(CZAJKA) All right. That man behind me.

('BRENDAN') Yes.

(CZAJKA) What just happened with him?

('BRENDAN') He was telling me, for the swearing thing.

(CZAJKA) For the what? [214]

('BRENDAN') He told me to tell the truth and nothing but the truth.

(CZAJKA) What did you tell him?

('BRENDAN') Yes.

(CZAJKA) Yes what?

('BRENDAN') Yes, sir.

(CZAJKA) Yes what? I know that's all you said is yes, but what do you mean when you say yes?

('BRENDAN') I wouldn't lie.

(CZAJKA) Okay, What does that mean to lie?

('BRENDAN') To say somebody says that you were doing something, but you weren't, that's a lie.

(CZAJKA) What grade are you in ['Brendan']?

('BRENDAN') Fifth.

(CZAJKA) Where?

('BRENDAN') [Names school].

(CZAJKA) [Repeats school name]. Who is your teacher?

('BRENDAN') [Names teacher].

(CZAJKA) What classes do you [215] take? What are your subjects?

('BRENDAN') Reading, math, language arts, social studies, science.

(CZAJKA) How are you doing in these classes?

('BRENDAN') Great.

(CZAJKA) What are your grades?

('BRENDAN') Passing grades, I don't know exactly what they are.

(CZAJKA) What's the last report card you got?

('BRENDAN') I got a 91 quarterly average.

(CZAJKA) Good. How's your reading?

('BRENDAN') Great.

(CZAJKA) Yes. Do you read any books?

('BRENDAN') Yes.

(CZAJKA) What?

('BRENDAN') 'Everlasting,' right now I'm reading is 'The Fix Up Place of Frank Wyler,' 'The Fighting Grounds,' and one other thing I don't remember.

(CZAJKA) Do you go to church?

('BRENDAN') No. [216]

(CZAJKA) Did you ever?

('BRENDAN') Yes.

(CZAJKA) Did you ever have any kind of religious instruction?

('BRENDAN') No, we just go on a Sunday night with my grandmother, and we would go and play the game.

(CZAJKA) And who are you living with now?

('BRENDAN') My mom and dad.

(CZAJKA) Any brothers and sisters?

('BRENDAN') Yes.

(CZAJKA) What are their names?

('BRENDAN') [Names one of them].

(CZAJKA) Older or younger?

('BRENDAN') Older.

(CZAJKA) What grade is he in?

('BRENDAN') [Answers].

(CZAJKA) You and he get along?

('BRENDAN') Sometimes.

(CZAJKA) Sometimes not?

('BRENDAN') Yes.

(CZAJKA) I figured. When you and he play, do you ever lie to him? [217]

('BRENDAN') No.

(CZAJKA) You don't?

('BRENDAN') No.

(CZAJKA) How about with your pals? What's your best friend's name? Do you have a best friend?

('BRENDAN') Yes.

(CZAJKA) What's his name?

('BRENDAN') [Names him].

(CZAJKA) Do you ever lie to him?

('BRENDAN') No.

(CZAJKA) How about just in fooling around, do you lie to him?

('BRENDAN') Only like turn around, like turn around jokes where you say see the man behind you and he turns around and you say -- I forget the word you say.

(CZAJKA) That would be a lie?

('BRENDAN') Joking lie.

(CZAJKA) Yes. Do you know what it means to tell the truth here in this courtroom?

('BRENDAN') Yes.

(CZAJKA) What? [218]

('BRENDAN') To tell what you know, and tell, tell what you know, and what you remember about whatever it's about.

(CZAJKA) And what if you tell me something that's not true?

('BRENDAN') It's a lie.

(CZAJKA) And what would happen?

('BRENDAN') I don't know.

(CZAJKA) Well, if you are playing with your brother, and you got mad at him, told a lie, would you get in trouble?

('BRENDAN') Yes.

(CZAJKA) If you were playing with your teacher, or you're talking to your teacher about your homework, and you told your teacher you lost your homework when in fact you didn't do it, would you get in trouble for that?

('BRENDAN') Big trouble.

(CZAJKA) Now, if you told a lie here in this courtroom, would you get in trouble for telling a lie here?

('BRENDAN') Yes. [219]

(CZAJKA) What would be the most serious trouble you would have of those three lies?

('BRENDAN') Courtroom.

(CZAJKA) And why do you think so?

('BRENDAN') Because you were told to put your left hand on the bible, and swear that you would tell the truth that you did it.

(CZAJKA) Do you promise and swear that you will tell the truth?

('BRENDAN') Yes.

(CZAJKA) All right. Now ['Brendan'], see Lieutenant Stoudt there?

('BRENDAN') Yes.

(CZAJKA) Go sit with her for a minute. Attorneys? Mr. Torncello?

(TORNCELLO) No concerns, Your Honor.

(DC) I'd respectfully request the same questions I posed as I would have asked the Court to pose to ['Arthur'].

(CZAJKA) Okay. And I don't believe it's necessary to inquire further, do the People? What's the People's position?*

[*Torncello  just told  Czajka that he had 'no concerns.'] [220]

(TORNCELLO) I think that the inquiry was appropriate, in light of 60.20 of the Criminal Procedure Law.

(CZAJKA) [DC]?

(DC) My only exception was to the Court's not asking the questions that I requested.

(CZAJKA) And I find, like I did with respect to the first child witness, that the child is fully capable of understanding the nature of the oath, and testifying under oath. Come back up ['Brendan'].

(TORNCELLO) Thank you, Your Honor. Good afternoon ['Brendan'], how are you doing?

('BRENDAN') Good.

(TORNCELLO) What's your birthday?

('BRENDAN') [Specifies].

(CZAJKA) Remember ['Brendan'], you've got to speak loud.

('BRENDAN') Okay. [221]

(CZAJKA) What is your birthday?

('BRENDAN') [Repeats answer].

(TORNCELLO) Okay. And how old are you?

('BRENDAN') Ten.
 

(TORNCELLO) And where do you live? Can you tell me that?

('BRENDAN') [Specifies].

(TORNCELLO) You live in [names town]?

('BRENDAN') Yes.

(TORNCELLO) Who do you live with there?

('BRENDAN') My mom and dad.

(TORNCELLO) How about your brother?

('BRENDAN') He lives with my mom and dad.

(TORNCELLO) Okay. You said he's older your brother, right?

('BRENDAN') Yes.

(TORNCELLO) How much older?

('BRENDAN') [Specifies].

(TORNCELLO) So he's your _______________, right?

('BRENDAN') Yes.

(TORNCELLO) He's older, right?

('BRENDAN') Yes.

(TORNCELLO) Does he ever let you forget it? [222]

('BRENDAN') Sometimes.

(TORNCELLO) Okay. Now, the Judge asked you about grades and all that stuff, right?

('BRENDAN') Yes.

(TORNCELLO) I want to direct your memory back to last summer, okay? Did you have a chance to go to summer camp last summer?

('BRENDAN') Yes.

(TORNCELLO) Okay. And just so we know, is that -- what was the name of that summer camp?

('BRENDAN') [Specifies].

(TORNCELLO) Did it start around July 3rd of 2000 and go through July 14th of 2000?

('BRENDAN') You're right.

(TORNCELLO) Okay. And tell me about the camp? What did you do at summer camp?

('BRENDAN') We walked to the door.

(CZAJKA) Remember talk up ['Brendan'].

('BRENDAN') We walk through the doors and then we go, we meet with our groups and as soon as everyone was there, we go to the bathroom and we change into our swim shorts and go down to _______________ and we swim for a while. Then we -- [223]

(TORNCELLO] I'm going to interrupt you a little bit, where did you go first? Where was the camp located?

('BRENDAN') [Specifies].

(TORNCELLO) Right here in _____________?

('BRENDAN') Yes.

(TORNCELLO) Okay. What was the name of that camp?*

[*Torncello had already asked this question (and 'Brendan' had already answered it).]

('BRENDAN') [Answers].

(TORNCELLO) And did you sleep overnight at the camp?

('BRENDAN') No.

(TORNCELLO) You just drove there in the morning, is that right?

('BRENDAN') Yes.

(TORNCELLO) And then how did you get home?

('BRENDAN') My dad would come and pick me up around five.

(TORNCELLO) Okay. Did you go -- how many days did you go to the camp?

('BRENDAN') Either a week or two weeks.

(TORNCELLO) But did you go Monday through Friday?

('BRENDAN') Yes.

(TORNCELLO) Okay. And at that time, did you meet a man name Jeffrey Nickel?

('BRENDAN') Yes. [224]

(TORNCELLO) Okay. And what was his role? What did he do at ___________ Camp?

('BRENDAN') He was one of the counselors.

(TORNCELLO) He was a counselor? Was he your counselor?

('BRENDAN') Yes.

(TORNCELLO) Okay. And was he sort of in charge of some of the kids?

('BRENDAN') That were in my group.

(TORNCELLO) How many kids were in your group, if you remember?

('BRENDAN') Either six to eight or eight to ten.

(TORNCELLO) Boys and girls?

('BRENDAN') Yes.

(TORNCELLO) Okay. Do you see Jeff Nickel in the courtroom today?

('BRENDAN') Yes.

(TORNCELLO) Okay. Can you point to him?

('BRENDAN') (Pointing).

(TORNCELLO) Maybe describe a little how his tie -- what color is his tie?

('BRENDAN') A bluish color.

(TORNCELLO) Your Honor, if the record could reflect that the witness identified the defendant? [225]

(CZAJKA) Yes.

(TORNCELLO) Thank you. Now, where was the first time or when was the first time that you met Jeffrey Nickel?

('BRENDAN') The first day I walked into [camp].

(TORNCELLO) You've never seen him before, right?

('BRENDAN') No.

(TORNCELLO) Okay. And he was your counselor and did he become your friend?

('BRENDAN') Yes.

(TORNCELLO) At first, right was, he your friend?

('BRENDAN') Yes.

(TORNCELLO) Okay. And what kinds of things did you do at the camp you said?

('BRENDAN') We'd go to ___________ Park and then we would swim there and come back, and I think we would have a snack or something like that and then we'd go walk around the museum, and then like the last couple of days we would go to a couple of the parks and walk around and play tag and stuff.

(TORNCELLO) Okay. When you went swimming did you arrive at camp with your bathing suit on?

('BRENDAN') We'd change there -- we changed. [226]

(TORNCELLO) Where would you change?

('BRENDAN') In the boy's bathroom.

(TORNCELLO) Where would Mr. Nickel be when you changed in the bathroom?

('BRENDAN') He'd normally be changed before us.

(TORNCELLO) Okay. He changed first?

('BRENDAN') Yes.

(TORNCELLO) Would he go into the bathroom with you?

('BRENDAN') Only to come tell us that you have to hurry up.

(TORNCELLO) Okay. And did you change in a big open area or in the stall?

('BRENDAN') In a stall.

(TORNCELLO) Did he go into the stalls?

('BRENDAN') No.

(TORNCELLO) Okay. You said you did go swimming pretty much every day?

('BRENDAN') Yes.

(TORNCELLO) And when you went swimming on some occasions, some times, did Jeffrey Nickel go swimming?

('BRENDAN') Yes.

(TORNCELLO) And did you ever play any games with Jeffrey Nickel? [227]

('BRENDAN') Yes, and other people from other groups.

(TORNCELLO) Okay. What kinds of games did you play with Jeff?

('BRENDAN') We'd play like swim tag, and bull and that would be basically it.

(TORNCELLO) Okay. What's -- you said bull, right?

('BRENDAN') Yes.

(TORNCELLO) What's bull?

('BRENDAN') It's like where there's one person, and he like pulls you in, and I don't remember the rest.

(TORNCELLO) Okay. Did you make up the game bull?

('BRENDAN') No, we just played it along.

(TORNCELLO) Okay. Did you ever play it with Jeffrey Nickel?

('BRENDAN') Yes, he was like the bull.

(TORNCELLO) He was the bull?

('BRENDAN') Yes.

(TORNCELLO) Okay. What would you do?

('BRENDAN') He would try to pull us in and we would have to get away, and when he got away we have to try to stay away and splash him and stay away.

(TORNCELLO) Did you ever come in contact with [228] Jeffrey Nickel? Did you ever touch him?

('BRENDAN') Yes, when I tried to get away.

(TORNCELLO) Did he ever touch you?

('BRENDAN') Yes.

(TORNCELLO) Where did he touch you? What kinds of -- what part of his body and what part of yours?


('BRENDAN') He'd like touch -- he would bring us -- his foot to pull us toward him and stuff.

(TORNCELLO) Where would his foot touch? What part of your body?

('BRENDAN') Either the back or he'd push us away and bring us back or something.

(TORNCELLO) And when you say the back -- when you say the back, what do you mean by that?

('BRENDAN') The area (indicating) where like the spinal cord is and stuff.

(TORNCELLO) Could the record reflect where you just indicated?

(CZAJKA) His back from the -- his neck he pointed at his neck and below his shoulder blade.

(TORNCELLO) And in addition to that, did he ever touch you, in a private area?* [229]

[*Having failed to get 'Brendan' to say that Nickel touched him anywhere -- or in any way -- that might be seen as  sexual, Torncello now asks him a leading question which, under the rules of evidence, is not permitted. But defense counsel does not object.]

('BRENDAN') Yes.

(TORNCELLO) Okay. And tell me about that? Was that in the pool as well?

('BRENDAN') Yes.

(TORNCELLO) And what part of his body touched you in your private area?

('BRENDAN') His foot.*

[*Really? Supposedly, Nickel is touching 'Brendan,' as the law so crudely puts it, 'for sexual gratification.' And Nickel is using his foot  to achieve this? Come on.]

(TORNCELLO) Okay. Where would the foot touch you?*

[*Torncello makes it sound like this (supposedly) happened lots of times. In fact, the count of the indictment here alleges that it occurred just once.]

('BRENDAN') In my private area.

(TORNCELLO) Okay. When you say private area, what do you mean? Do you have -- what words do you use for your privates?

('BRENDAN') Testicles.

(TORNCELLO) His foot would touch your testicles?

('BRENDAN') Yes.

(TORNCELLO) How did that feel?

('BRENDAN') It hurt.*

[*This seems to be something 'Brendan' was coached to say, given that, 'Arthur' used the exact same words.]

(TORNCELLO) It hurt. Did you say anything to him?

('BRENDAN') Uhm -- not really.

(TORNCELLO) Did he say anything to you?

('BRENDAN') Just sorry throughout the day.*

[*In fact, Nickel said no such  thing to 'Brendan.' However, it is possible that 'Brendan' is saying this in an effort to 'help' Nickel.]

(TORNCELLO) Okay. So?*

[*So... what, exactly? Albeit inaccurately, 'Brendan' did fully answer Torncello's question here.]

('BRENDAN') And he apologized throughout the whole day, yes.

(TORNCELLO) Okay. More than once, right? [230]

('BRENDAN') Yes.*

[*Nope --  never.]

(TORNCELLO) Okay. Did you say anything to him then?

('BRENDAN') Not really.*

[*So, Nickel is supposedly apologizing -- several times throughout the day -- for touching 'Brendan's' testicles with his foot. And 'Brendan' did not respond at all  to these apologies? That's not credible. Even a child knows that when someone apologizes to you, you're supposed to say something like, 'oh, that's okay.' But to say nothing would be very awkward indeed.]

(TORNCELLO) Okay. Did you ever tell your mom and dad that?

('BRENDAN') No.

(TORNCELLO) How come?

('BRENDAN') Because I didn't really know what it was like when I was nine.*

[*Well, this trial was only about ten months after the alleged 'foot' incident. He's since turned ten, but, what could have made him 'aware' of the (supposedly) sexual nature of this event in the intervening period? The answer seems clear: police and prosecution 'interviewing'/coaching.]

(TORNCELLO) Okay. No further questions. Thank you very much.

(DC) Good afternoon, ['Brendan'], again I'm going to bring you back to that time period, of July 3rd to July 14th of the year 2000. If I understood your testimony, you attended a day camp called ____________, and it was a five day a week camp, at _____________, and there were other boys and girls that attended too, is that all correct?

('BRENDAN') Yes. [231]

(DC) All right. And your parents would drop you off and pick you up at the end of the day? That was sort of the system, was it?

('BRENDAN') Yes.

(DC) And I believe that you told the D.A., that you were in a group of maybe somewhere between six and ten children?

('BRENDAN') Yes.

(DC) Now besides your group, were there also other groups?

('BRENDAN') Yes.

(DC) Assigned to this ______________ camp?

('BRENDAN') Yes.

(DC) How many groups would you say?

('BRENDAN') Other than me about four.

(DC) Other than your group, four or five. So you would have had 40 or 50 kids total?

('BRENDAN') Yes.

(DC) And they would break, I assume, the groups into groups of ten or less?

('BRENDAN') Yes.

(DC) And you would have some sort of a supervisor guiding each of the groups?

('BRENDAN') Yes. [232]

(DC) So if we had about five groups you would have at least five supervisors for each group?

('BRENDAN') Yes.

(DC) And then would the groups of supervisors would they have like an assistant or someone to help them?

('BRENDAN') No.

(DC) Was there someone called Peter who assisted?

('BRENDAN') I think he was the person that would come get us off to -- get out of our cars and go into the things and mark us down.

(DC) Okay. So when you finished whatever at the _____________ Pool and take a swim in the summer time on hot days I assume?

('BRENDAN') Yes.

(DC) To give you a chance to, kind of get rid of some energy, right?

('BRENDAN') Yes.

(DC) Okay. And all of your groups would go at the same time?

('BRENDAN') No, I think only two groups went at one time. [233]

(DC) So maybe you would have been between sixteen and twenty kids?

('BRENDAN') Yes.

(DC) Going down to the pool?

('BRENDAN') Yes.

(DC) Okay. And you would get into your bathing suits and come and horse play around the pool?

('BRENDAN') Yes.

 (DC) And on one of these days if I understood your testimony correctly, you were in the pool playing various chase and splash games?

('BRENDAN') Yes.

(DC) When Mr. Nickel's foot, touched you in the testicular area, is that correct?

('BRENDAN') Yes.

(DC) And you told him that hurt or you said that hurt?

('BRENDAN') I didn't say it.

(DC) In any event, he apologized for that?

('BRENDAN') Yes.

(DC) Was there a lot of rough housing happening around in the pool?

('BRENDAN') Not really. [234]

(DC) Would you pull kids into the pool or?

('BRENDAN') No.

(DC) Pull them toward you or push them away?

('BRENDAN') No, only when we were having like making wars and stuff, we'd throw water at him and they moved back.

(DC) Okay. I thought you said they would push you sometimes?

('BRENDAN') Yes, well, we were splashing and they would like accidentally hit us in the shoulder or something.

(DC) Okay. But it was -- were these games so we can better understand for those of us that haven't played either, just like horsing around in the water, is that a way to describe it?

('BRENDAN') Yes.

(DC) And can we agree that, when we horse around in the water, we will sometimes hit someone by accident or mistake?

('BRENDAN') I don't know.*

[*Wait a second. 'Brendan' just  said: "...they would accidentally hit us in the shoulder or something." But just a minute later, he 'doesn't know'?]

(DC) Let me ask you a little bit about this, did some investigator come and talk to you? [235]

('BRENDAN') Yes, they called my mom and then we went down to the police station, and we talked.

(DC) Okay.

(CZAJKA) Thanks.*

[*It's unclear who Czajka's thanking here, or for what.]

(DC) Was your mom present when you talked or just you and the investigator?

('BRENDAN') Just me and the investigators.*

[*Right -- that way, they had freer rein to 'coach' him etc.]

(DC) Okay. And did they tell you that they were investigating a particular individual?

('BRENDAN') Yes, I don't remember.

(DC) Did they take any notes? Did you see they were writing things down?

('BRENDAN') Yes.*

[*Well, the defense did not get a copy of any notes taken of the interview(s) with 'Brendan,' which constitutes yet  another  Brady (discovery) violation.]

(DC) Was there anyone else present besides you and the two investigators?

('BRENDAN') No.

(DC) Do you recall when this was that they talked to you?

('BRENDAN') About a week or two after [camp].

(DC) Sometime, would you say, in July or was it August?

('BRENDAN') I think the end of July or the beginning of August.

(DC) And were they asking you questions at [236] that time about Jeffrey Nickel?

('BRENDAN') Yes.

(DC) When they started to question you, how did they begin?

('BRENDAN') I don't remember.

(DC) Did they ask you, whether or not Jeffrey Nickel's contact with your testicle, whether that was an accident or not?

('BRENDAN') Yes.

(DC) Did you tell them you didn't know?

('BRENDAN') Yes.

(DC) What did you tell them then?

('BRENDAN') I don't remember.

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(DC) And you finished about within the course of that period of time, from July 3rd to July 14th the period [the camp] --

(CZAJKA) And when in that time frame did this incident occur?

('BRENDAN') I think the last week.

(DC) But did you ever go back to class after it?

('BRENDAN') After my session was over? [237]

(DC) No, no.

(CZAJKA) After your camp that day.

(DC) After the day you talked about the foot, in your private era, did you have other --

('BRENDAN') When I was down in the station.

(DC) No, I'm sorry. I am confused?

(CZAJKA) The day you swam and you talked about the foot and going back to the [site of the camp], that day?

('BRENDAN') Yes.

(DC) All right. And did you go to camp the next day at ______________ camp the next day?

('BRENDAN') Yes.

(DC) And the next day?

('BRENDAN') Yes.

(DC) Okay. And then camp ended?

('BRENDAN') I think so.

(DC) Okay. During that three day period that you went back to camp after this that you recounted for us, did you ever complain about this to any personnel there at the [238] camp?

('BRENDAN') No.

(DC) To your mom or dad or?

('BRENDAN') Because I didn't know what it meant.

(DC) Okay. May I have just a moment please? I think that's all, Your Honor. Thank you ['Brendan'].

(TORNCELLO) Yes, judge. When you talked about Jeff Nickel's foot being up by your testicles, was that on the outside your swim trunks or on the inside of your swim trunks?

('BRENDAN') Inside.*

[*That's not credible. Firstly, virtually all modern swim trunks have  inner linings. That means that, standing on one foot, with his other foot, Nickel would have had to get past not only the outer layer, but also the inner one, and  then somehow home right it in this boy's testicles. Secondly, this particular pool had a significant downward slope  to it, which would have made all of these supposed maneuvers all the more difficult.]

(TORNCELLO) Okay. And?*
[* And...  what? Again, albeit implausibly, 'Brendan' did fully answer the question Torncello just asked.]

(CZAJKA) Say that again?*
[* Well, the stenographer clearly heard 'Brendan's' (first) answer just fine. What else was Czajka unable to hear -- or perhaps heard incorrectly?]

('BRENDAN') Inside.

(DC) Your Honor, I'd object* to the question as not being covered on direct or cross.

[*Well, it was far  too late for defense counsel to object to this question: 'Brendan' had already answered it, Torncello had started to ask another question; Czajka then interjected; and last but not least, 'Brendan' answered this question yet  again. In any event, Czajka -- as the one deciding Nickel's guilt or innocence -- could hardly 'un-hear'  these answers. (Nor did he have the benefit of the above analysis of the  implausibility of 'Brendan's' responses here.)]

(CZAJKA) What do you say to that? [239]

(TORNCELLO) I think it was Judge. We talked about it on cross-examination, the contact that he had between his -- on his testicles.

(CZAJKA) Okay. Sustained.

(TORNCELLO) Now, I'm not sure, maybe I did ask this, maybe I didn't ask this, did his foot being in contact with your testicles, did that happen one time or more than one time?

('BRENDAN') One time.

(TORNCELLO) Okay. No further questions.

(CZAJKA) Thank you ['Brendan']. Attorneys, come see me in 201.

<END OF DAY ONE>

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