Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01394-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants.

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C.A.No.04-1394-GMS

PLAINTIFF'S REPLY IN SUPPORT OF HER SIXTH MOTION IN LIMINE TO ALLOW LEADING QUESTIONS DURING THE DIRECT EXAMINATION OF CAPTAIN GLENN DIXON

THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: April 19, 2006 Attorneys for Plaintiff

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A. Introduction. In his July of 2005 deposition, Capt. Glenn Dixon expressed fear of retaliation because of his truthful subpoenaed deposition testimony. Since that time, Dixon's fears became a reality as defendants made clear their intent to smear Dixon's name and reputation as a result of his testimony. Thus, to ensure Dixon's trial testimony is unswayed by fear, threats or intimidation, the Court should exercise its discretion under Fed.R.Evid. 611(c) to permit plaintiff to use leading questions on direct examination of this high level DSP Manager. B. Defendants' Attempt to Intimidate and Smear Dixon's Name Only Validate Dixon's Reasonable Fear of Retaliation. Defendants refute their own claim that Dixon's fear of retaliation is "nothing more than speculation" by their supplemental witness disclosures and motions in limine regarding the admission of highly speculative evidence of an alleged sexual and/or romantic affair between Dixon and plaintiff.1 (AB at 4; see D.I. 168 and 169). Notably, such allegations only surfaced after Dixon's damaging deposition testimony was given. Now, defendants continue and now add the baseless allegation that plaintiff is blackmailing Dixon with this alleged relationship and has coerced him to testify falsely and engage in perjury without any factual basis for making such an allegation. (AB at 4). In light of this, defendants cannot seriously contend Dixon's fear of retaliation was the product of mere speculation. Defendants have made clear their intent to drag Dixon's name through the mud and disrupt his marriage. Such efforts only substantiate Dixon's reasonable fear of retaliation.2 C. Leading Questions are Permitted on Direct Based on the Surrounding Circumstances and Dixon's Current DSP Employment. Defendants contend plaintiff wants
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Testimony relating to an alleged sexual and/or romantic affair between plaintiff and Dixon is entirely irrelevant to whether Dixon is identified with an adverse party. Defendants have previously offered this speculative testimony to prove Dixon's alleged bias toward plaintiff, but failed to lay the proper evidentiary foundation for such testimony. (See D.I. 187). In short, evidence of phone calls, visits and spending time together only prove that plaintiff and Dixon at best, are friends. (See D.I. 181). It does not prove Dixon's personal stake or interest in the case any more than it proves his bias. (AB at 2). Plaintiff notes that Dixon has testified under oath that another lawyer representing Chaffinch, MacLeish and the DSP previously "threatened." (Tab A - Dixon 32).
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the Court to shut its eyes to the circumstances surrounding Dixon's testimony. (AB at 4). Quite to the contrary, plaintiff seeks to bring to light the defense smear and intimidation tactics directed against this witness. Plaintiff asks the Court to exercise its discretion to permit leading questions on direct as Dixon is clearly a witness identified with an adverse party by virtue of his high level employment and in light of all the surrounding relevant facts and circumstances. Fed.R.Evid. 611(c); Ellis v. City of Chicago, 667 F.2d 606, 612-13 (7th Cir. 1981). While plaintiff agrees the Rule does not require a formalistic application, ultimately it is the trial court who "has the authority and responsibility to control the examination of witnesses and the presentation of evidence in order to achieve the objectives of ascertaining truth and avoiding needless consumption of time." Haney v. Mizell, 744 F.2d 1467, 1477 (11th Cir. 1984). Thus, permitting plaintiff to use leading questions on direct will further the quest for truth in this legal proceeding and avoid needless consumption of time by ensuring Dixon testifies in accord with his prior testimony. Moreover, the cited case law is not inapposite to the case simply because it is unfavorable to defendants. (AB at 2). Instead, it supports plaintiff's assertion that an employee is identified with an adverse party when appropriate under the circumstances. Courts in these cases never addressed the content of the testimony as a determinative factor in permitting leading questions. Instead, the courts looked to the witness' relationship with the employer and the impact that relationship may have on the testimony being elicited .3 Here, Dixon is currently employed by the DSP and serves as a high level manager - Troop Commander for Troop 5 Bridgeville. As Troop Commander, he bears command responsibility for all of western Sussex

Defendants conclude that under plaintiff's reasoning plaintiff would be entitled to ask leading questions on direct of every DSP employee. (AB at 3). Conversely, plaintiff only asks that leading questions be permitted on direct when the circumstances surrounding a witnesses' testimony warrant such a decision. Unlike Dixon, not every DSP employee has not endured the defendants' intimidation, retaliation and smear tactics.

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County. 4 He is certainly a high level manager. Furthermore, the DSP is a paramilitary organization where the rank structure dominates all else. The DSP is Dixon's employer. Col. MacLeish is Dixon's commander. Col. Chaffinch is Dixon's former commander. All three are defendants in this action. Further, Major Hughes, although not a defendant, is a comparator, and is currently Dixon's current direct commander. In light of the pressures being brought to bear on Dixon by defendants and their tactics in this case, coupled with the pressures being brought to bear on him by his direct commanders in the chain of command all of whom are defendants or key defense players in this lawsuit, leading questions are appropriate under Fed.R.Evid. 611(c). D. Conclusion. For the reasons stated above and in plaintiff's Motion on this issue (D.I. 195), plaintiff's Motion in Limine to allow leading questions during the direct examination of Capt. Glenn Dixon should be granted. Plaintiff waives a reply brief in support of this Motion.

Respectfully Submitted, THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: April 19, 2006 Attorneys for Plaintiff

Due to his position as a high level manager, it is highly doubtful that plaintiff's counsel can even contact him or interview him about the issues in this case without violating Model Rule of Professional Conduct 4.2. Accordingly, counsel has not done so. Thus, it is impossible for plaintiff's counsel to `prepare' him for direct examination the way they would for other witnesses who are not in the employ of the DSP. This is yet another reason why Dixon is a witness identified with an adverse party.

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Tab A

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In the Matter Of:

Price v. Chaffinch, et al.
C.A. # 04-1207 --------------------------------------------------------------------Transcript of: Captain Glenn D. Dixon September 21, 2005 -----------------------------------------------------------------------Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: [email protected] Internet: www.wilfet.com

Case 1:04-cv-01394-GMS
Price Captain Glenn D. Dixon

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v. C.A. # 04-1207

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Chaffinch, et al. September 21, 2005 Page 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CORPORAL B. KURT PRICE, ) CORPORAL WAYNE WARREN, ) and SERGEANT CHRISTOPHER ) D. FORAKER, ) ) Plaintiffs, ) ) v. ) C.A. No. 04-1207 ) COLONEL L. AARON CHAFFINCH,) individually and in his ) official capacity as ) Superintendent of the ) Delaware State Police; ) LIEUTENANT COLONEL THOMAS ) F. MacLEISH, individually ) and in his official ) capacity as Deputy ) Superintendent of the ) Delaware State Police; ) DAVID B. MITCHELL, in his ) official capacity as the ) Secretary of the Department) of Safety and Homeland ) Security of the State of ) Delaware; and DIVISION OF ) STATE POLICE, DEPARTMENT OF) SAFETY AND HOMELAND ) SECURITY, STATE OF ) DELAWARE, ) ) Defendants. ) Deposition of CAPTAIN GLENN D. DIXON taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Suite 302, Wilmington, Delaware, beginning at 10:00 a.m., on Wednesday, September 21, 2005, before Kimberly A. Hurley, Registered Merit Reporter and Notary Public. WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477
Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-01394-GMS
Price Captain Glenn D. Dixon

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Chaffinch, et al. September 21, 2005
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APPEARANCES: THOMAS S. NEUBERGER, ESQUIRE THE NEUBERGER FIRM, P.A. 2 East 7th Street - Suite 302 Wilmington, Delaware 19801 for the Plaintiffs ROBERT J. FITZGERALD, ESQUIRE MONTGOMERY McCRACKEN WALKER & RHOADS, LLP 123 South Broad Street Avenue of the Arts Philadelphia, Pennsylvania 19109 for the Defendants ALSO PRESENT:

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remember that? A. Yes. Q. You sort of explained about approximately 17 years during your career the various kinds of contacts you would have with him, right? A. Yes. Q. And presently you're the troop commander of Troop 5 down in Bridgeville, Delaware? A. I am, yes. Q. And he was the former troop commander there, for example? A. Yes. Q. And he lives within a couple miles of the troop, right? A. Two miles. Q. So to set the stage, what I'm going to do is show you a yellowed copy of the Delaware State News dated Wednesday, April 7th, 2004, and it's got a story on the front page that then goes into page 6 about a media tour given the day before by Aaron Chaffinch and Gloria Homer, the Secretary of Administrative Services back at that time. MR. FITZGERALD: I'll object only to the characterization that it was a tour given by Chaffinch.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CORPORAL WAYNE WARREN ----CAPTAIN GLENN D. DIXON, the witness herein, having first been duly sworn on oath, was examined and testified as follows: BY MR. NEUBERGER: Q. Captain Dixon, I subpoenaed you to be here today; is that correct? A. Yes, you did. Q. And I had subpoenaed you in another case called Conley versus Chaffinch to give testimony on July 13th, 2005. Do you remember that? A. Yes, I do. Q. Prior to that date, July 13th, 2005, you had never met me before, had you? Page 3 A. No. Q. Since then, except for answering some questions on how to get here and sending the subpoena to you, you and I haven't spoken, have we? A. The other day, whatever day it was, was it Tuesday, I called in reference to another prior meeting that I was going to request a continuance in this. But it didn't work out. But that was the only time. Q. And I refused to give you a continuance? A. Yes. Q. You're being forced to testify today, right? A. By subpoena. Q. When I took your deposition on July 13th, 2005, I explained the process. You remember that? A. Yes. Q. Since that time are you taking any medications or anything that would interfere with your memory? A. No. Q. If I ask you a question today that you don't understand, just ask me to rephrase it. Is that okay? A. Okay. Q. Just to quickly skip over something, back in July I asked you a series of questions about your contacts with Aaron Chaffinch over the years. Do you

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BY MR. NEUBERGER: Q. Let's just simply say it relates to an event at the Firearms Training Unit the day before. Okay? A. Okay. Q. And this is in the record as some sort of an exhibit. I don't know the number right now, but I think that's a sufficient reference to it. What I will do is we will just take a minute and I'll ask you to read through the story. A. Okay. Q. I have scratched in red some references to Colonel Chaffinch himself and some things, some references to him in there. But you just take your time and just read through the story and then I'll probably ask you a few questions. Okay? A. Okay. MR. FITZGERALD: Before you ask the questions, Tom, I'd like to look at just your markings on it. MR. NEUBERGER: Please. MR. FITZGERALD: After you read it. Go ahead. MR. NEUBERGER: Why don't you just read through it.

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Case 1:04-cv-01394-GMS
Price Captain Glenn D. Dixon

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Chaffinch, et al. September 21, 2005

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deposition today was going to be?

1 A. The range, and solely because I saw 2 Corporal Price's name on the subpoena. 3 Q. Did you know that you were going to discuss 4 Aaron Chaffinch today? 5 A. Well, yeah. He's related to the range case. 6 Q. Did you know anything else about the range? 7 A. As far as what? 8 Q. Anything. When it was built, why it was built, 9 what the damage to it was, who worked there. Did you 10 have any other information on the range that you thought 11 might be relevant to this case? 12 A. No. Only the questions that were going to be 13 asked. 14 Q. So when you came here today, didn't you think 15 you were going to be asked about Aaron Chaffinch? 16 A. Yes. He's involved in the range case, so, yes, 17 I think I would be asked about Aaron Chaffinch. 18 Q. When you got a subpoena with the Price caption 19 on it, what did you understand that case to entail? 20 A. The range. 21 Q. That's it? 22 A. Yes. 23 Q. What did you think Corporal Price was suing 24
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Page 32 here today? A. No. Q. Did you have any documents to review? A. No. Q. You agreed to meet with me yesterday but then cancelled the meeting. Why did you cancel the meeting? A. Two reasons. The first reason is very busy yesterday. I had an investigation I had to tie up. Plus we were planning to move into our new troop at next Wednesday. So we're in the process of packing the troop. The other one is I didn't feel that I was obligated to meet with you yesterday. I didn't have a subpoena. You contacted me the prior day, too, as well. Didn't have any advance notice. Q. Then why did you agree to meet with me on Monday? A. Well, I felt you were forcing me to meet with you. I felt threatened by you initially that I had to meet with you. Q. Why did you feel that way? A. Because you were pushy about meeting and you were not pleasant, I felt, on the phone. So my guard, my red flag comes up immediately. Q. But even with the red flag, you agreed to meet Page 33

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about on the range? A. Hearing loss. Q. So you knew it was about hearing loss? A. Yes. Q. Did you know anything else, what the allegations were, what the cause of action was? A. Just what I read in the paper. Q. Did you know who the defendants were? A. For the range case? Q. For the Price case. A. For the Price case? Q. Yes. A. The State or defendants. Q. When you say, "the range case," is that different from the Price case? A. He was assigned to the range, so that's why I refer to the range case. Q. The Price case and the range case are the same thing? A. Yes. Q. Did you discuss your deposition today with Barbara Conley? A. No. Q. Did you review any documents before you came

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with me on Monday, did you not? A. Yes. Q. In terms of advance notice, you had received an e-mail from the colonel's office the Friday before, had you not? A. I actually opened that I think it was -- I came into work for a special event on Saturday, checked my e-mails real quick, opened it, saw some of the stuff that they were asking for, that the colonel was asking for, had no idea why. Got back into work, looked at it again. On Monday is when I received the subpoena for today. So I had -- that's the only advance notice I had of that. And then I had contact with you -actually I sent an e-mail back to Mrs. Harrison saying -asking did you send this to the wrong person because of the type of material that they were requesting about the physical workings of the range is what I felt. And she said no, it was under the direction of Colonel MacLeish. I think you contacted me Tuesday -- no, Monday, I guess. What's today? Wednesday. Q. Isn't it true you sent that e-mail to Pam Harrison, the colonel's secretary, on Tuesday morning? A. It was either Monday or Tuesday. I would have

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Price Captain Glenn D. Dixon

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to look. Q. Isn't it true you sent it after you agreed to meet with me and then called my office the following morning, Tuesday morning, to cancel that meeting? A. I do know that I cancelled the meeting on Tuesday morning, yesterday morning. As far as when I sent the e-mail, I don't recall whether it was before or after I agreed to meet with you, and that's the initial e-mail to Mrs. Harrison. I would have to look. Q. Okay. Did you get the investigation wrapped up yesterday? A. No, I didn't. Q. Did someone tell you to cancel the meeting with me yesterday? A. No. Q. Did Barbara Conley tell you to cancel the meeting with me? A. No. Q. Did any counsel tell you to cancel the meeting with me? A. No. Q. Did you discuss the meeting that you had scheduled with me on Monday afternoon and then cancelled Tuesday morning with anybody? Page 35

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Q. Did you consider consulting with counsel? A. No. Q. Did you consider consulting with counsel prior to this deposition? A. No. Q. You said you received a subpoena on Monday for this deposition? A. Yes. Q. Had you received a subpoena for a deposition in this case at an earlier date? A. No. MR. NEUBERGER: Didn't we reschedule this? MR. FITZGERALD: I think we did. THE WITNESS: I think the subpoena was dated the 13th of September. I think. BY MR. FITZGERALD: Q. The one you received yesterday? A. For today. That I received on Monday. Q. On Monday, the 19th? A. Yes. I had taken Friday off because I was working on the Saturday for the weekend. Q. Prior to your deposition in the Conley case, did you discuss your testimony with anyone? A. No.
Page 37 Q. Did you discuss the subpoena and your testimony with Barbara Conley before the deposition? A. Which deposition? Q. In the Conley case. A. In the Conley case. She actually made sure that I received the subpoena. As far as discussing about the case, no. Q. What do you mean she made sure you received the subpoena? A. She gave me a copy of the subpoena. She served me. Q. Where was that? A. I don't recall. Q. Was it at Troop 5? A. No, it wasn't at Troop -- I think it was at headquarters. Q. After your deposition in that case, did you discuss your testimony with anyone? A. No. Q. You didn't discuss it with Barbara Conley? A. No. Q. Discuss it with your wife? MR. NEUBERGER: I'm going to object to your asking him questions --

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A. Say that again, please. MR. FITZGERALD: Can you repeat the question? (The reporter read back as instructed.) THE WITNESS: No. BY MR. FITZGERALD: Q. Did you discuss that meeting with Barbara Conley? A. No. Q. As Counsel referenced earlier, you were deposed in the Conley case. A. Yes. Q. Were you represented in that case? A. No. Q. Did you ever engage or discuss your deposition in that case with counsel? A. No. Q. When you received the deposition in that case -MR. NEUBERGER: You mean a subpoena. BY MR. FITZGERALD: Q. I'm sorry. Thank you. When you received the subpoena in that case, did you consult with counsel? A. No.

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CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on April 19, 2006, I electronically filed this Reply with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Ralph K. Durstein III, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

Conley / Pretrial / RB - P's Sixth MinL.final

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