Opinion
No. 3 JD 2016
12-14-2016
IN RE: DAVID W. TIDD, FORMER MAGISTERIAL DISTRICT JUDGE, MAGISTERIAL DISTRICT 03-2-04, THIRD JUDICIAL DISTRICT NORTHAMPTON COUNTY Prehearing Conference
APPEARANCES: ELIZABETH A. FLAHERTY, Deputy Counsel MELISSA L. NORTON, Assistant Counsel Judicial Conduct Board Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 3500 Harrisburg, Pennsylvania 17120-0901 (For Judicial Conduct Board) SAMUEL C. STRETTON, Esquire 301 High Street P.O. Box 3231 West Chester, Pennsylvania 19381 (For Respondent) ALSO PRESENT: JOSEPH U. METZ, Counsel Court of Judicial Discipline 601 Commonwealth Avenue, Suite 5500 P.O. Box 62595 Harrisburg, Pennsylvania 17106-2595 TONI I. SCHREFFLER, Legal Assistant Judicial Conduct Board 601 Commonwealth Avenue, Suite 3500 P.O. Box 62525 Harrisburg, Pennsylvania 17106
Pages 1 through 44 Conference Room 3006
PA Judicial Center
601 Commonwealth Avenue
Harrisburg, Pennsylvania Met, pursuant to notice, at 11:35 a.m. BEFORE: HONORABLE DAVID BARTON, Judge APPEARANCES: ELIZABETH A. FLAHERTY, Deputy Counsel
MELISSA L. NORTON, Assistant Counsel
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
Harrisburg, Pennsylvania 17120-0901
(For Judicial Conduct Board) SAMUEL C. STRETTON, Esquire
301 High Street
P.O. Box 3231
West Chester, Pennsylvania 19381
(For Respondent) ALSO PRESENT: JOSEPH U. METZ, Counsel
Court of Judicial Discipline
601 Commonwealth Avenue, Suite 5500
P.O. Box 62595
Harrisburg, Pennsylvania 17106-2595 TONI I. SCHREFFLER, Legal Assistant
Judicial Conduct Board
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, Pennsylvania 17106
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CONTENTS
| WITNESSES | DIRECT CROSS REDIRECT RECROSS |
|---|---|
| (None.) |
EXHIBITS
| NUMBER | FOR IDENTIFICATION IN EVIDENCE |
|---|---|
| (None.) |
***
PROCEEDINGS
JUDGE BARTON: Good morning, everyone. This is the matter of In re: David W. Tidd, Former Magisterial District Judge at this court's Docket Number 3 JD 2016.
At the outset here, why don't we go around the table and everybody introduce themselves, and we'll start moving to my left.
MR. METZ: Joseph Metz, counsel to the Court of Judicial Discipline.
MS. FLAHERTY: Elizabeth A. Flaherty, Deputy Counsel to the Judicial Conduct Board.
MS. NORTON: Melissa Norton, Assistant Counsel to the Judicial Conduct Board.
MS. SCHREFFLER: Toni Schreffler, Legal Assistant to the Judicial Conduct Board.
MR. HARLACKER: Jack Harlacker, investigator.
MR. FONTANES: Paul Fontanes, investigator.
MR. TIDD: David Tidd.
MR. STRETTON: Sam Stretton on behalf of former Judge Tidd.
JUDGE BARTON: Okay. I see that both pretrial memos have been filed.
Ms. Flaherty, did the Board receive the Respondent's pretrial memo?
MS. FLAHERTY: Yes, we did.
JUDGE BARTON: And, Mr. Stretton, have you received the Board's pretrial?
MR. STRETTON: Yes.
JUDGE BARTON: I guess we'll turn to the Board and ask for a brief summary of the case and where you see this heading at trial.
MS. FLAHERTY: Well, as the court knows, this Board complaint was filed in August, on the 26th of August 2016, and alleged numerous instances of misconduct, Section A, retaliation; Section B, improper demeanor; Section C, ex parte communications; Section D, special consideration; Section E, failure to recuse; Section F, failure to accord full right to be heard; Section G, conflicts of interests and prioritization of business court; Section H, failure to wear judicial robes; Section I, disregard for the dignity of the judicial robe.
There were numerous allegations of violations of the rules governing standards of conduct of Magisterial Judges as well as violations of the Constitution of the Commonwealth of Pennsylvania.
We have submitted pretrial memos. There was a concerted effort to draft stipulations, but we were not able to come to an agreement as of yet as to any of those stipulations, so I think that remains a work in progress.
Without those stipulations, I believe the trial would be lengthy and involve a great many witnesses. If we were able to reach agreement on some stipulations, it would, of course, condense the length of the trial.
I have observed, just as opening remarks about the pretrial memos, that within the Respondent's pretrial memos, there are many witnesses that would testify as to former Judge Tidd's character, and it's our belief that the appropriate time for character witnesses is at the sanctions hearing as opposed to the trial on the merits, and if we were to include character witnesses on the trial on the merits, that it would become an even more lengthy proceeding. So I would request that we have a ruling as to the appropriateness of character witnesses at that time.
JUDGE BARTON: Okay. Thank you.
MR. STRETTON: I will address that. Case law is so clear character witnesses are allowed. In fact, during the Merlo case, they raised the same thing and the board overruled them immediately. The Supreme Court case in re: Esther Sylvester 1987, the Pennsylvania Supreme Court said character witnesses in judicial disciplinary proceedings are absolutely critical and they by themselves can result in an acquittal, which they did in Judge Sylvester's case. So she's incorrect on the law on that particular issue.
In a case of this nature, we intend to present numerous character witnesses because we feel it will give a very different view to the court as to what Judge Tidd was involved in. We essentially have a runaway office where secretaries don't work for the Judge. They work for the AOPC, and secretaries were out to get him and collected records for years.
MS. FLAHERTY: I object to any
JUDGE BARTON: Just a moment. Obviously, this is Mr. Stretton's belief and characterization. I don't think the Board needs to object. It's not a matter of substantive evidence. The court certainly understands that this is argument with Mr. Stretton's perceptions.
I think your point is well taken with respect to character witnesses at trial. We'll look at it in a more formal basis. It's my understanding as I sit here this morning that Mr. Stretton is correct, and while it may add length to the trial, they're entitled to put on a full and fair defense and certainly the court is not going to get in the way of that.
Mr. Stretton, in terms of a brief overview, anything else that you would like to offer?
MR. STRETTON: Don't be overwhelmed with our witnesses. We're going to work stipulations out. Elizabeth Flaherty, she and I are pretty good friends even though we'll fight like cat and dog in a courtroom in a courteous way, but we're going to work out a lot of the stipulations. We're not trying this case for four or five weeks. We're going to try this case in about a week just like we did in Merlo. Merlo, I think we did three and a quarter days.
She sent me a lot of stipulations. I went through them. I'm going to say they're slanted, but I'm going to redraft them to get all the facts in. I just can't -- there's a little bit of editorializing in some of her matters.
Like, for instance, he raised his voice all the time with the secretaries; I can't initially agree to that, but we can stipulate to most other things. I just have to recast it in facts so it gives me the wiggle room to disagree on the merits.
Here's how I intend to present this. It will primarily be David Tidd's testimony. In fact, it's possible he might be my first witness. Usually you make your Judge last, but I may make him my first depending on the timing and everything else and go through each of these matters and lay the groundwork.
I listed probably every police officer that walked through Easton or Northampton County. I'm going to be meeting with a number of them. I'll probably cut them down just to get a cross section of officers who will say, "I've been in his courtroom and he didn't do this and he did that, didn't see him yelling at his secretaries."
I'm going to stipulate -- even though we fought early on, I'm going to stipulate to the tapes and how they got set up and all the documents. So we don't have to worry about the tapes. They can play the tapes and then we'll explain why he was in a bad mood that day and why he said things maybe he shouldn't have said. That would be his testimony pretty much.
We have some of these lawyers, who most of them will be quick on direct; just we've been in his courtroom. He stands at the counter. Everything is done right. There weren't any deals made by him and his demeanor was good and we loved being in his courtroom, stuff like that or things of that effect. They should be pretty quick.
Then we get into the conflict of interest. He'll explain his understanding when he got that letter from Judge Duncan who headed or at least participated in the ethics committee for the State Judges and then his explanation. That I'm going to work stipulations to all the facts; that his office entered a judgment here and then he was representing him there, and then we'll put in how he got the clients so we can negate any suggestion he was soliciting clients out of his office, at least try to negate that in any event.
So, although it looks overwhelming when you look at my pretrial memo and Elizabeth's and you feel, my God, we're going to be here from now to eternity, that's not going to happen here. Elizabeth and I are going to work this out, and when we come to trial in January, the 18th, or whatever day it is, we have three days there. I don't know if we can complete it in those three days, but then we'll get another two days or maybe another day and I think we can complete this case without doing any injustice.
Quite frankly, David Tidd, and I told him this, knows, too, that if I'm going to prolong this and make this messy like Lucadota -- and I didn't try Lucadota. I represented her until about a week before and then she got mad at me and I was history and she made a mistake how she presented her case at the time. She could have done a lot better. She wouldn't have been off, but she could have done a lot better for herself if she had just done it my way.
I'm well aware that although this court will listen and give us all the time in the world, we're dealing with experienced trial Judges and you've tried all kind of cases yourself and we're well aware that Judges know if I'm overdoing it and I'm not going to help my cause by doing that. So I want to get to the essence of it. So I'll pare these down.
I'm going to try to meet with a lot of these people between Christmas and New Years or the first week of January and I'll probably get rid of a lot of people. I'll probably just submit a supplemental or final pretrial memo so you know actually who I'm going to call as opposed to my wish list which is here, but I guarantee you we're not going to call every one of these and I guarantee when we show up on the 18th, Ms. Flaherty and I will have stipulations on the case, like this case happened here; these Judges were here, and things of that nature. He didn't stand at the counter. He was not standing with his robe on, because I don't think he ever did, but I'll double-check if there was ever a time until he got the letter. Then, of course, we changed a lot of that.
So we'll have all that and we'll have a stipulation of authenticity. Well, we have that stipulation already, authenticity of any court record and any document. So we don't need to trot people in.
I honestly believe that we'll be able to do this in a rational fashion, and, you know, with all the fluff, character, lawyers and all that, that will be useful, but it really comes down to his testimony. I don't want to torment you for three weeks to hear that and then you hear his testimony. At that point, everyone is half brain dead. I want him almost to go first and then I'll fill in the blanks with some of the others.
Now, as to the Jim Burke issue, the lawyer who's his friend, who he would call for, you know, "A warrant is about to issue. Why don't you come in and pay your traffic tickets," I called Mr. Burke. He's a little hesitant to get involved, because I guess he's afraid he could have other consequences. I'll probably call him, but mainly it will be David Tidd or former Judge Tidd who will testify.
It is what it is. If it was a mistake doing that, it was a mistake, but it's our position it's not a mistake, but you've got to hear the testimony on that. So I think we can sort of bring it to a more logical conclusion, and then I can save Elizabeth from all these people, but the people I probably can't save her from is the secretaries. I don't know how I can -- I mean, I could stipulate they were secretaries, they worked there, and whatever, but I probably can't stipulate to their relationships and that he was yelling at them all the time.
JUDGE BARTON: Well, I certainly wouldn't expect the defense necessarily to make that type of a stipulation and I'm confident with experienced advocates on both sides of the case, you know how to prepare your cases in an efficient manner with some attention to being conscious of the judicial resources that the clock will be ticking on during the trial with the court.
MR. STRETTON: We are very conscious of that and we know that every one of you has another life beyond this court and we will respect that. We also know that if it does go a little longer but you see we're not just playing, or we're not being serious and we're just throwing everything but the kitchen sink, that we're not doing that and you see it might need an extra day, we know the court will keep an open mind. That's the way it's always been.
The Court of Judicial Discipline, I've never had a problem with them or the Judicial Inquiry and Review Board. I've been through a lot of Judges over the years. Some courts are more liberal; some are more conservative, but I've always found that the bottom line was they were great people doing their best to do justice, and judicial trials are always difficult, as Joe Metz knows and Ms. Flaherty knows, and you will know if you stay here longer, and Toni, who's an institution here; she has the institutional memory.
I always say I'm going to hire her some day, but they won't let me.
JUDGE BARTON: Well, thank you, Mr. Stretton.
MS. SCHREFFLER: Thank you.
JUDGE BARTON: Ms. Flaherty, with respect to the Board's pretrial memorandum, I wanted to make sure that the names and addresses of all witnesses expected to testify at the trial are provided, and it sure looks to me like they are. You have a list of all exhibits that you intend to introduce at trial.
MS. FLAHERTY: Yes. I would like to say within the trial witness list, I noticed a couple of omissions, unintentional, of course. At paragraph 16, Officer Dominic Fragano will be testifying regarding Section C; and then at paragraph 21, Jeff Leahy will be testify about the audio/video recording system at District Court 03-2-04.
JUDGE BARTON: And I understand that the Board's pretrial statement includes a list of exhibits. Are those all the exhibits that the Board at least at this point intends to introduce at trial?
MS. FLAHERTY: Yes.
JUDGE BARTON: We discussed already stipulations, and I understand that they would be ongoing in our efforts to eliminate factual disputes that won't make sense to spend time at trial on.
I guess next we come to a certification by the Board that it has furnished the Respondent with the materials required to be exchanged under Rule of Procedures 401(D)(1). Has the Board provided all of those materials?
MS. FLAHERTY: Yes.
MR. STRETTON: Too much.
MS. FLAHERTY: I would like to comment that although earlier, Mr. Stretton had referred to the stipulations as slanted, that in drafting those, we made every effort to tone them down from the language in the complaint. So it's a matter of perception for each of the parties and we certainly didn't believe we were submitting something that was slanted, but that was the way it was perceived. So it's a work in progress.
JUDGE BARTON: As a lawyer having been on both sides of those equations, I understand completely.
Has the Board provided the Respondent with any exculpatory evidence relevant to the charges contained in the Board complaint in accordance with Rule of Procedure 401(E)?
MS. FLAHERTY: Yes. All exculpatory evidence to our knowledge has been submitted or provided to Mr. Stretton.
JUDGE BARTON: Mr. Stretton, are there any questions that you have concerning the Board's pretrial memo?
MR. STRETTON: Not right now. If I do, I'll call Ms. Flaherty. Like I said, we get along pretty well. I can't imagine we can't resolve any disputes, but I think we both know where this case is going and the outline and what we have to do to get it in an orderly fashion.
I've just been on too many trials recently to get this stipulation firmed up, but we will have that. The Christmas holidays sometimes give you time to get things straightened out.
JUDGE BARTON: Is there any additional information by the Board that the Board would like to raise at this time?
MS. FLAHERTY: Just one factor that Toni Schreffler noticed with her eagle eye, and that is within the complaint at paragraph 116, the Lohman case, the year was misstated within the docket citation as 2016 when it's actually a 2015 case. So, thank you, Toni.
JUDGE BARTON: Okay. The expected length of time for the Board to present its case. I appreciate that the matter of stipulations remains outstanding. Nonetheless, I'm going to ask you to make a calculated estimate.
(Pause.)
MS. FLAHERTY: It is hard for us to answer that because of the outstanding stipulations. We have 62 pages, 251 stipulations. So it's hard to know what we're going to get in. If Sam and I are able to work and accomplish a great deal of the stipulations, my hope would be two to three days. If we are not able to reach agreement, then it may take the Board up to five days to present its case.
JUDGE BARTON: Thank you. Mr. Stretton, with respect to your pretrial memorandum, has it included the names and addresses of all witnesses expected to testify at trial and the subject of the testimony for each?
MR. STRETTON: It has the names, but in terms of addresses, police officers, we don't have their personal addresses. We just have the police department. As to the attorneys, I guess I got a little lazy when I put it together. I said their addresses would be on the Disciplinary Board website, but I can get those.
When I pare it down to the ones I'm actually going to call, I'll have specific addresses and phone numbers. I'm working on that. But I think it pretty well has everything we need.
JUDGE BARTON: We've already discussed the stipulations. I guess let's touch on the exhibits. Does your pretrial statement include all of the exhibits that you're aware of that potentially would be introduced at trial?
MR. STRETTON: I believe so. Most of the ones were the ones attached to the original letter of inquiry. We do have the one letter that you had written to him at one point which I can't find, but I'll get another copy from Ms. Flaherty. I probably have it somewhere in my file.
Then we referenced all of the exhibits that they provided. The only reason I did that is if they present a witness and the witness digresses from the statement they gave earlier, then I might mark it as an exhibit and say, "Well, you told their investigator X not Y." But we pretty well have all the exhibits.
JUDGE BARTON: You raised a point that I was going to touch on, and that is it's listed on page 9 in paragraph 12 of your pretrial statement a letter on ethical issues from Judge Barton to David Tidd. My recollection
MS. FLAHERTY: I have copies of that.
MS. NORTON: Thanks, Ms. Flaherty.
JUDGE BARTON: My recollection is that I was not the author of that letter. Ms. Flaherty has brought a copy. That was the letter from Lorinda Hinch. Now, attached to that letter is a redacted copy of an opinion of the Ethics and Professionalism Committee of the Special Court Judges Association of Pennsylvania in which I authored; however, I would note that it was not directed to Mr. Tidd, but rather to another inquiring Judge.
MR. STRETTON: I'll accept that as an amendment to my memo. Without the letter, I couldn't recall the specifics, so I threw it in more broad-brushed than I should have done.
JUDGE BARTON: Okay. I wanted to make sure that was squared away.
MR. STRETTON: Thank you. Thanks for the copy, Ms. Flaherty. It's somewhere in my file.
JUDGE BARTON: Have you furnished the Board with the material required to be exchanged under Rule 401(D)(1)?
MR. STRETTON: I think so. I'll check with Ms. Flaherty, but I believe so. I'll ask her. I've given her pretty much every exhibit that we have, and she's given me really -- anything I'm going to use I got from her, if I use it at all.
JUDGE BARTON: Okay.
MS. FLAHERTY: Do you want me to speak or wait?
JUDGE BARTON: Actually, you're next on my list of questions.
MS. FLAHERTY: Okay.
JUDGE BARTON: And that is, is there any questions by the Board with regard to the Respondent's pretrial memo?
MS. FLAHERTY: We do have extensive comments. As to whether or not we've received discovery on the newly listed witnesses, we have not received any information about them. Based on the fact that there are new witnesses listed -- and we can go over them point by point -- just generally speaking, we don't have the contact information. If they're going to be introduced at trial, then our investigators would need time and opportunity to follow up with those witnesses.
We don't have any information as to what they've discovered so far. So we would ask that that take place.
MR. STRETTON: We don't have any information. I haven't talked to most of them. He knows them. They're going to come in and testify when they come into court, he does things right. I don't have any statements, nothing I can give.
MS. FLAHERTY: Will you be conducting interviews with these individuals?
MR. STRETTON: I'm going to be interviewing them, but I won't take statements. I'll just listen to them and I may make some rough notes.
JUDGE BARTON: Ms. Flaherty, are you referring to the witnesses listed on page, I guess, five and six, the various lawyers that are listed in Respondent's pretrial statement?
MS. FLAHERTY: Well, it begins on page three.
JUDGE BARTON: Can you identify which ones specifically?
MS. FLAHERTY: Yes. Dr. Eric Becker.
JUDGE BARTON: In paragraph 11.
MS. FLAHERTY: Paragraph 11. In paragraph 13, Police Officers Tom Barndt, Tom Lauder, Stephen Kunigus. I'm not sure about Charles Werkheiser. We may have some information on him. Kyle Hagerty. On page four, Police Chief Mark DiLuzio. Although we do have more comments about some of these individuals, but just in terms of naming, Nina Reynard, Tracie Barnes at paragraph 17. Page five -- this is a continuation of paragraph 18 -- B. George Heitczman, Esquire; John Waldron, Esquire; Joseph Yanuzzi; Tom Jaoachim, Esquire; Christopher Shipman, Esquire; Rory Driscoll, Esquire.
Continuing in that paragraph at letter J, John Obrecht, Esquire; William Matz, Esquire; Gary S. Azteak.
I could simplify by saying in the continuation from M through T, the only one we have knowledge of is Matthew Potts. If you'd like me to read the rest of them into the record, I can.
JUDGE BARTON: I don't think that's necessary.
MS. FLAHERTY: Okay.
JUDGE BARTON: With respect to the list of lawyers set forth in paragraph 18 and all of its subparts through subparagraph T, Mr. Stretton, are they all essentially that, as you said previously, they would appear and say that they appeared before Judge Tidd in his courtroom and generally things were done as they were supposed to be?
MR. STRETTON: That's correct. They'll talk about him at the counter. They'll also give character testimony, but they'll talk about him at the counter. They'll talk about how he handled their cases and they never saw him yelling and screaming, how he treated everyone fairly.
JUDGE BARTON: They're all character witnesses as opposed to specific factual witnesses about individual instances?
MR. STRETTON: No. They're both. They're character, and, also, they'll testify they came in and there was never any misconduct with the police. At the counter, he acted judicial. He handled the cases appropriately. There were disputes saying what was done in the courtroom. In the courtroom, he always had his robe on.
Remember, we have six years of material that was dropped on us. Normally, when a complaint is made against a Judge, the complaint is made and you deal with it. Here, last summer -- not last summer; the summer before, whenever we got that original letter, suddenly Judge Tidd is told for six years, everyone thinks you're doing something wrong, and it's awfully hard to defend on that and we don't have their resources. He doesn't have the money.
Sure, if I had $200,000, I'd have teams of investigators out. We don't have that kind of money; barely enough to afford legal fees for something like that.
JUDGE BARTON: My difficulty is that the purpose of the pretrial statement -- and I appreciate that you've been tied up on some other trials in the run-up to the filing of it -- is the purpose of the pretrial statement is to provide fair notice to the other side, these are the witnesses, these are the addresses, this will be the substance of their testimony, and
MR. STRETTON: Well, I've done that in my opening -- in my thing there. I can't do any better than that. They will come in and testify, each time they come in, how he handled his courtroom. I mean, how else do I deal with seven years of garbage?
JUDGE BARTON: Well, if any of those witnesses will be addressing specific cases that were raised in the Board's complaint that, in other words, are other than general character witnesses, I think that needs to be set forth in the pretrial statement.
MR. STRETTON: Well, I don't think any of them, except for Mr. Burke and I think Mr. Minotti had one, but most of them weren't on the cases listed here, but were in the court regularly every week and handled similar cases and had no problems and will tell you exactly how he ran his courtroom, and they will also tell you that's the way all the other Judges do it in that particular county.
So, I can't do any better than that. Remember, I don't have any discovery. This is not a discovery type of place. We get discovery. I give them the documents. I don't have to create discovery for them and I don't intend to in these matters, in these kind of proceedings. I don't have depositions or things of that nature.
So I've done the best I can and that's what I've always done and it's always been allowed. If you want to give me a team of investigators, I'll send them out, but we don't have the money for that, and you can't judge a case because the Judge doesn't have a lot of money, a former Judge doesn't have a lot of money in terms of how they're tried.
JUDGE BARTON: There's no question that that's the case. I just want to make sure that the Board has a fair opportunity to examine in advance the witnesses that the Respondent would be calling so that they can prepare their case as well.
MR. STRETTON: Well, I'll be meeting with most of these people hopefully right after Christmas. I'm going to go up and rent a room and drag them all in, and if there's anyone who has anything specific, one of these cases if when I'm talking to them, they say, "Oh, you know, I was on that case," then I'll, of course, be able to shoot a letter over.
I've only talked to several and just general. I have not spent hours doing that.
JUDGE BARTON: Okay. So long as if any of these witnesses are other than general character witnesses
MR. STRETTON: Well, they're more than general character witnesses. They will testify to character. They'll testify as to how he handled their cases and their observations during the years, alleged yelling and screaming and ranting and raving, disrespecting the robe, fixing deals at the thing, and these people are going to come in and say they were there every day or every week.
MR. TIDD: One second.
(Attorney Stretton and Mr. Tidd conferring.)
MR. STRETTON: As Mr. Tidd pointed out, if you read their complaint, they are very general allegations in their complaint. I mean, many of the things in the complaint he has no recollection of. They are years and years ago.
Like if I said to you, well, back in 2010, you handled Bill so and so, now, unless Bill so and so really stuck out in your mind, you'd probably said, "Who?", unless you had a photographic memory. That's the situation we're faced with. He doesn't remember many of these matters.
JUDGE BARTON: Okay. I understand your position. Ms. Flaherty, I interrupted you ticking off some items on the list. I'll turn it back to you.
MS. FLAHERTY: If I may, I agree that there were some introductory general statements in several of the sections, but then they were followed with very specific citations, dates, names, factual patterns to illustrate the conduct that was charged. So, if in the course of Mr. Stretton's interviews, if there are more substantive matters that arise at that late date, that may put us into difficulty with the dates that we have for trial as far as our being able to follow up on those. So we'll have to see how that goes.
JUDGE BARTON: Well, the court -- several things. First, I contemplate perhaps issuing an order requiring that Mr. Stretton disclose certain things to you by a date well in advance of the trial. In addition, the Board, of course, is always free to object at trial to a witness and testimony that goes beyond the nature of what was indicated in the Respondent's pretrial statement if that were to arise.
MS. FLAHERTY: Certainly.
JUDGE BARTON: And I'm confident that the Board and Mr. Stretton will continue to work on the pretrial statements and the witness lists at the same time as you're working on stipulations.
MS. FLAHERTY: Yes.
JUDGE BARTON: And you're always free to make motions at trial.
MR. STRETTON: If you want to go to trial January 18th and you want that kind of level of specificity, I'm going to ask for a six month continuance, because I would need that. We don't have the resources and time to pull something like that together. This is the way I've always tried these cases in time immemorial, and if it's going to be different now, you should say so, but then you better change your rules and give us some discovery.
I would love to get a crack at those four secretaries during a deposition in these matters and Judge Baratta and others.
JUDGE BARTON: Well, the rules of the court haven't changed and the trials will be conducted as they have heretofore, but, again, if the court were to see that the Respondent's pretrial statement didn't provide fair notice as to the content of a witness' testimony, the court would deal with that at trial.
MR. STRETTON: That's fair.
MS. FLAHERTY: The next item within the statements about trial witnesses, Mr. Stretton has listed officers beginning at paragraph three, which is Office Bowlby, and then referred to a 2015 memo. Again within paragraph four with Officer David Roxbury, there's reference to a May 30th, 2015, memo, and I just wanted to clarify that those were the reports of interview as provided by the Board during discovery.
Are those the memos that you're referencing?
MR. STRETTON: They were the exculpatory -- you gave us 10 or 12 memos of alleged exculpatory. Some have exculpatory, some have not, but I listed them and then referenced their memo. I haven't spoken to them. Whether I call everyone is another story, but I wanted to preserve the right to do so.
JUDGE BARTON: But I think she was trying to ascertain whether the memoranda referenced in there were reports of interview from the Conduct Board or some other memoranda.
MR. STRETTON: They're her -- not her, but
JUDGE BARTON: The Board's documents.
MR. STRETTON: Documents.
JUDGE BARTON: Okay. Thank you.
MS. FLAHERTY: This issue came up at a recent trial. In that case, we were talking about some FBI 203 reports, and this is analogous. We're talking about some reports of interview generated from our Board, and I just wanted to reiterate that those are summaries of interviews conducted by our investigators; that some of the language may be quoted, in which case that could be attributed to the police officer, but otherwise, it's a memorialization by the investigators that we typically do not present as evidence to the court, but use it to refresh the recollection of the investigator should that investigator be called to the stand.
So I just wanted to emphasize that going forward.
MR. STRETTON: Well, I would disagree with that. I use those memos regularly to question witnesses when they vary from that.
JUDGE BARTON: Well, they're certainly subject to use for impeachment purposes. I think that's unquestioned.
MR. STRETTON: And if we have to, then I'll add all of your investigators, including the one who is no longer here, and we'll have to get them in if they're going to say we need that person and actually get them in. That hasn't been the practice in the past. In Merlo, I just continued to pull out the memo in front of the witness.
JUDGE BARTON: I think that's how you do it.
Ms. Flaherty.
MS. FLAHERTY: Did you have some comments, Ms. Norton?
(Pause.)
MS. FLAHERTY: I can go ahead. Which paragraph was that?
MS. NORTON: Paragraph 11.
MS. FLAHERTY: Thank you.
(Pause.)
MS. NORTON: If I may, Your Honor?
JUDGE BARTON: Yes.
MS. NORTON: Thank you. I'm going to refer to paragraph 11 in Mr. Stretton's document, and that would be the witness, Dr. Eric Becker. There is reference there to Dr. Becker testifying as to the treatment of former Judge Tidd for Crohn's disease.
The first question I would have on that is if Mr. Stretton could or if the court would ask Mr. Stretton how that would be relevant to the charges that we will be presenting to the court.
JUDGE BARTON: Mr. Stretton, do you have a brief response?
MR. STRETTON: Sure. During many of these times, Judge Tidd has not been in good health. He had major I think it was lung surgery and he was back in his office, and a week later, there's a video of him yelling at his secretaries. The doctors had told him not to come back for a month. He wasn't well.
I think it's important to show that he was physically not well during most of his time on the bench. His Crohn's disease was longstanding. That is just to put in perspective his conduct and everything else. I would remind the court that in the Ballentine case, that was considered extremely strong litigating evidence, Crohn's disease, for the Judge.
JUDGE BARTON: It's certainly my understanding that that's both relevant and admissible.
MS. NORTON: Thank you, Your Honor. Then I would also be looking at paragraph number 15 in Mr. Stretton's document. That references a Chief Mark DiLuzio. It's indicated he's the Chief of Police of the Bethlehem Police Department.
The second sentence there says, "Chief DiLuzio was never in his courtroom personally, but he would testify to what his officers experienced." In that regard, I would be asking is Mr. Stretton going to be presenting hearsay evidence? What is that about? I don't understand.
MR. STRETTON: I can answer that. It's an interesting issue, but Chief DiLuzio wasn't in his courtroom, but he was in charge of the night court officers. So any officer who had a case with the Judge when he was assigned to night court had to report back to him that night, and if there was a complaint or the Judge was acting badly for whatever reason, that would be noted.
The only thing I would ask him is: Were you the night court Judge -- I mean, not night court; supervise the officers? During what times? Did your officers ever report back to you that the Judge was acting inappropriately? And his answer to my understanding is no.
JUDGE BARTON: Obviously, he's not going to call him as to what happened in the courtroom specifically. It's going to be the absence of complaints that were made. I think that's set forth in the paragraph. I don't see anything improper with that.
MS. NORTON: I guess what I'm struggling with then is if he's going to testify about absence of complaints, is that coming in in the nature of habit testimony? What rule of evidence is that coming in under?
MR. STRETTON: It's coming in under -- they're alleging pretty much that he was a maniac for those five or six years, yelling at secretaries, mistreating them, dishonoring the robe, acting like a loose cannon at the counter, cutting deals that he had no authority to do, et cetera, et cetera, et cetera.
It's hard for me to -- it's not like I murdered him, but I know I have an alibi where it's very specific. I have to try to show a different view of his courtroom. So it's all coming in to show that other people have not had any complaints who have dealt with him, whether they're lawyers, whether they're police officers, whether they're the night supervisor. That's why it's all coming in.
It's very hard to deal with seven years. He's a real bad Judge. He's bad all the time. How do I deal with that? I've got his testimony and I'm trying to fill in the blanks.
Now, if you rule it's not admissible, it's not admissible. I think it's very pertinent. If he just had two instances, on this occasion, you screamed and yelled or fixed a case, then, sure, none of this other stuff is going to come in, but we don't have that. Pretty much they're saying that since he got on the bench, he's been a bad egg and he's run his courtroom that way.
JUDGE BARTON: Well, I think that really that's a trial objection. If I were ruling on it today, I'd be letting it in; however, I don't want to presume and speak for the other two panel members at trial. The Board can raise an objection if you think the presentation of that evidence is objectionable, and then we'll rule on it at trial.
MS. NORTON: Thank you, Your Honor. Then if I could drop down to paragraph 16 in Mr. Stretton's document, he references a Nina Reynard of Pretrial Services. Will she be a fact witnesses?
MR. STRETTON: Yes. In your allegations, it is alleged that he did not give ample time or enough time for defendants at arraignments. She's the pretrial person who's there and she's going to state exactly to the contrary. There would be ample time. His bail was correct. He had all the information, things of that nature.
MS. NORTON: You indicated she was there. What do you mean she was there?
(Attorney Stretton and Mr. Tidd conferring.)
MR. STRETTON: She was present for bail modifications, which is part of, I guess, the arraignment and then post-arraignment process. At any rate, she would probably testify at the most that she was present when he set bail and bail was modified and how he conducted it and how he got the appropriate information, and as Pretrial Services, she did not get complaints that he was not spending the appropriate time.
MS. NORTON: So you are indicating that she's a fact witness because she was present when he set bail?
MR. STRETTON: That's correct.
(Attorney Stretton and Mr. Tidd conferring.)
MR. STRETTON: Excuse me a second.
(Attorney Stretton and Mr. Tidd conferring.)
MR. STRETTON: All right. Now I got it. No, she wasn't present. I thought she was. I'm thinking Chester County where they do it a little differently. The Judge when he was on night duty would call her to discuss the bail issue and discuss the appropriateness of a bail or whatever, and it's those discussions and that the bail that he was arriving at was based on information provided and that she considered appropriate.
Maybe it's a little more tangential than that. I thought she was actually physically sitting in the courtroom. I stand corrected. But it goes to the issue that he wasn't spending proper time to evaluate setting bail, doing arraignments, things of that nature.
JUDGE BARTON: Again, I think that's really a trial type objection. If I were ruling on it today, I think I would overrule the objection and allow the admission of the testimony, but I'm not.
MS. NORTON: And I appreciate that, and part of the reason that I'm in a situation of asking these questions is because -- I'm searching for a way to say this -- the document that we received from Mr. Stretton was in some respects vague, and because we're up against a calendar that's pretty tight, including holidays, it's important that we get as much information as we possibly can, because I'm fearful that we won't get that information in time to have our investigators interview these people.
So if you are willing to bear with me for a few more questions?
JUDGE BARTON: Sure.
MS. NORTON: Thank you, Your Honor. On paragraph 17, the next paragraph, there's reference to a Tracie Barnes. In particular, it talks about she's going to testify to the fact that Diane Kale, and it references her position as county employee.
If Mr. Stretton is saying at this point in time -- and, again, I'm not sure -- if he's saying that that is a witness he intends to propose, we would be objecting to the relevancy of the witness in the terms that he's placed it.
I think this is a situation where he's basically putting our witness on trial. He's indicating that there's something wrong with the manner in which she's being paid or the manner in which she was hired by the county in his statement, and that to me sounds very much like he is putting the witness on trial. It also sounds somewhat like it's approaching a harassment or some type of retaliation or a threat of that against this witness by putting this in a document, written in this document -- it's a filed document -- and then indicating that he may want to present that type of testimony at trial.
I'm objecting strenuously to that, and if he is indicating that he is intending to call that witness for that purpose, we are objecting to it, and I believe it would be helpful if the court could make a ruling on that for us. That witness needs to be prepared if that type of testimony is going to come out.
JUDGE BARTON: Mr. Stretton, how is the testimony -- well, I guess, first, substantively, what do you contemplate the testimony of Tracie Barnes set, forth in paragraph 17 will be and then how is it relevant and admissible?
MR. STRETTON: Just keep in mind what I said at the beginning; that we believe these several secretaries over the years ganged up on him, kept book on him, acted badly, did not like him. We're going to present evidence about that. This would go to her motive and bias. We believe that these people with the court administration and others were out to get him, and we'll show that she was given very favorable treatment through the system; that she was allowed to retire and get benefits and come back to work when no one else was so allowed.
So we think it goes to her bias and motive and also enhances our position that she and the other ladies weren't just innocent and injured people, but had a game plan and motive throughout these five or six years in these matters.
You've got to keep in mind he didn't know any of this. He thought they were his friends. He would talk to then. He would lend them money and other things. He helped them. It was one of the biggest shocks of his life when he finds out, when he gets the letter that the people he sat with every day were apparently the Benedict Arnolds of Northampton County.
MS. FLAHERTY: I'd object to the characterizations.
JUDGE BARTON: That's fine. Ms. Kale is a Board witness; that's correct?
MS. NORTON: Yes, she is, Your Honor.
JUDGE BARTON: I can't imagine that the testimony of Ms. Barnes would be relevant or admissible. Again, I'm not the trial panel. I think that's properly a ruling of the trial panel. I can tell you my impression sitting here, and that is that I have a hard time imagining how Ms. Barnes' testimony as to Ms. Kale's treatment as a county employee would be relevant or admissible.
I think if there was some special treatment afforded Ms. Kale, Respondent's counsel will do that by way of cross-examination. So, if I were ruling on Ms. Barnes' testimony, I'd be sustaining the objection today, but, again, to be clear, I am not.
MS. NORTON: Thank you, Your Honor.
JUDGE BARTON: Anything else on behalf of the Board?
MS. FLAHERTY: Yes. I would just like to make a request that in additional public filings that opposing counsel refrain from making statements about our witnesses which could be construed as harassing or intimidating conduct or retaliatory. Our witnesses have to be comfortable coming into the courtroom and being candid with the court, and these type of statements could be disruptive toward our case.
MR. STRETTON: Well, I would object to that. If they don't want to play the game, if they feel they did something wrong, then don't come in and testify. Don't use them. This is combat. I mean, these people destroyed his career and we intend to fight them hard.
I'm not saying anything -- it's my opinion she got benefits from that county, and, as I said earlier, the way the secretaries are run at least in that county, the Judge has no control over them whatsoever. These people never listened to him.
JUDGE BARTON: I trust that all of the advocates in this proceeding will file appropriate documents. I'm not offended by anything in paragraph 17, although I don't believe as I sit here it's relevant and admissible.
Any other items on behalf of the Board? And, again, there are going to be some trial objections that we don't need to discuss today.
(Pause.)
MR. STRETTON: Just so you know, when I pare this down, some of these may go away anyway, because I wanted to try this case focused, but right now, I want to put the kitchen sink in, because I don't want to -- if something really comes up and then I drag someone in and everyone says, well, it's not here and you didn't say it, just keep that in mind. I intend to really do a surgical approach. This is everything I could think of, but I don't intend to try it quite the way it seems. It will be pretty simple.
JUDGE BARTON: Certainly, my experience in civil litigation is exactly that. When you file your pretrial statement, it's everything you can conceivably, possibly, maybe use and introduce, but it's a very rare case that that would be the actual list of who is called.
MR. STRETTON: And remember, even though I always use combat, we get along with these people. I have absolute confidence in them. I've dealt with them for too many years. We can disagree and have some fun arguing here and there, but this case comes down to his testimony. The rest is fluff. I'll put some fluff in. I'm not going to put all the fluff in, but it's really going to come down to his testimony and I guess to some extent the secretaries.
There's not a lot disputed. It's how you view it. That's really what it comes down to. So, although it sounds like we're being a little like wildcats over here and all that, I'm not going to try it that way. It's just not a first degree murder case or everything else. This is an old-fashion disciplinary trial with cooperation, courtesy, not tormenting witnesses. I mean, we make our points. It's what is required.
So a lot of stuff I have in here, a lot of these witnesses probably won't be there. Remember, I got back in this case. I was out, so I put the box away and I came back in about three or four weeks ago. Unfortunately, they've been the worst three or four weeks of my life with two Supreme Court arguments, a huge election fight that's still going on in Chester County and a number of other trials.
So I wish I could tell you like Perry Mason, I've been sitting here for three weeks just doing this, but 42 I haven't been. So
JUDGE BARTON: I trust that the parties will continue to work on the stipulations and so forth. The court will issue a trial order probably later today or tomorrow, but as we discussed previously, January 18, 19 and, if needed, 20. Maybe we're going to go beyond that. We'll have to wait and see.
MR. STRETTON: We might go beyond that, but not -- if we do this right, and we're going to do it right -- Elizabeth and I will work it out. We always do. I don't think it will go past five days, because I intend to get together a set of stipulations that I think she can live with, and I'll remove my word "slanted" to some extent. We couldn't agree to them, but I can get them where we agree enough that it's not going to be five days of her case. It will be two or three.
And I'll get those to her. I haven't sat down and redictated them, but I will do that now. I think we can work it out. I'm too busy to spend three weeks before you. As much as I like everyone, I couldn't do it.
JUDGE BARTON: Okay. We contemplate the trial will be in this building.
MS. FLAHERTY: Thank you.
MR. STRETTON: Good. I'm glad we're not using the Widener Building. If I get stuck one more time in 43 that elevator
JUDGE BARTON: Okay. That concludes this proceeding. Thank you.
(Whereupon, at 12:35 p.m., the prehearing conference was adjourned.)
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