Schoolcraft v. The City Of New York et al

Filing 397

FILING ERROR - DUPLICATE DOCKET ENTRY - DECLARATION of NATHANIEL B. SMITH in Opposition re: 297 MOTION for Summary Judgment .. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit POX 11, # 2 Exhibit POX 12, # 3 Exhibit POX 13, # 4 Exhibit POX 15, # 5 Exhibit POX 16, # 6 Exhibit POX 18)(Smith, Nathaniel) Modified on 2/17/2015 (db).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ADRIAN SCHOOLCRAFT,

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PLAINTIFF,
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-against-

Case No:
10 Civ. 6005
(RWS)

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THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL MARINO,
Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH BROOKLYN
NORTH GERALD NELSON, Tax Id. 912370, Individually
and in his Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO, Tax Id. 895117, Individually and
in his Official Capacity, CAPTAIN THEODORE
LAUTERBORN, Tax Id. 897840, Individually and in his
Official Capacity, LIEUTENANT WILLIAM GOUGH, Tax Id.
919124, Individually and in his Official Capacity,
SGT. FREDERICK SAWYER, Shield No. 2576, Individually
and in his Official Capacity, SERGEANT KURT DUNCAN,
Shield No. 2483, Individually and in his Official
Capacity, LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004 and P.O.'s "JOHN DOE"
#1-50, Individually and in their Official Capacity
(the name John Doe being fictitious, as the true
names are presently unknown) (collectively referred
to as "NYPD defendants"), JAMAICA HOSPITAL MEDICAL
CENTER, DR. ISAK ISAKOV, Individually and in his
Official Capacity, DR. LILIAN ALDANA-BERNIER,
Individually and in her Official Capacity and
JAMAICA HOSPITAL MEDICAL CENTER EMPLOYEES "JOHN
DOE" #1-50, Individually and in their Official
Capacity (the name John Doe being fictitious, as
the tru~ names are presently unknown),

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DEFENDANTS .

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DATE:
TIME:

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October 17, 2014
10:20 A.M.

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(Deposition of JOHN ETERNO, PhD)
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DATE:

October 17, 2014

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TIME:

10:20 A.M.

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DEPOSITION of an Expert Witness,

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JOHN ETERNO, PhD, taken by the Respective Parties,

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Pursuant to a Notice and to the Federal Rules of

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Civil Procedure, held at the offices of the New

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York City Law Department, 100 Church Street,

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New York, New York 10007, before Nathan MacCormack,

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a Notary Public of the State of New York.

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J. ETERNO
Would we would bring them up in lecture and in

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class discussion.

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as well.

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Q.

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Students often might do papers on this,

Have you ever taught a course dealing with the

topic of emotionally disturbed persons?

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A.

Not specifically.

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Q.

Has it ever come up in any of your courses?

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A.

Again, possibly.

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Q.

But you don•t have a specific recollection?

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A.

No.

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Q.

Do you hold any expert or professional

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certifications?

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A.

Yes.

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Q.

What certification or titles are those?

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A.

I am CITI-certificated, in terms of social

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behavioral research, that•s C-I-T-I, which means

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Collaborative Institutional Training Initiative; I am

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certificated as a physical fitness instructor for law

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enforcement; I was certified by the New York City Police

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Academy to be a Police Academy instructor, where I taught

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police science, where I taught Emotionally Disturbed

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People; I am also a verbal judo instructor, and

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certificated by the New York City Police Department there.

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Q.

Can you repeat which courses you have taught on

emotionally disturbed persons?
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J. BTERNO

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A.

That would be in police science.

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Q.

So, when I asked earlier if you had ever taught

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any course dealing with emotionally disturbed persons you

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would add that to the list?

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A.

I would.

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Q.

When did /you teach that course?

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A.

This was 1987 through '88.

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Q.

In what context did you teach that course?

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A.

I taught recruits at the academy.

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Q.

Was the course solely on emotionally disturbed

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persons?

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A.

No.

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Q.

What was the context of the course?

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A.

Police science.

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Q.

How long was the section on emotionally disturbed

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persons?

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A.

I don't recall.

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Q.

How long was the training that you gave to these

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new recruits?

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A.

Approximately six months.

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Q.

What kind of training did you give with regard to

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emotionally disturbed persons?
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There were very strict lectures that we do and

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cover on emotionally disturbed people.

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role play, other types of activities for the recruits.
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We sometimes do

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J. ETERNO
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Q.

Do you personally have any experience with

emotionally disturbed persons?

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A.

Yes.

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Q.

What is that experience?

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A.

As a police officer, police sergeant, police

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lieutenant and a police captain.
Q.

And what were your experiences in those different

capacities?
A.

We handle emotionally disturbed people on a

regular basis.
Q.

In your capacity as an employee of the N.Y. P. D.,

did you ever have occasion to declare someone as an E.D.P.?

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A.

Yes.

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Q.

And when I say "E.D.P.,

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you understand that I

mean an emotionally disturbed person?

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A.

I do.

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Q.

How many times did you declare someone an E.D.P.?

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A.

I don•t recall.

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Q.

How did you decide whether or not somebody was an

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E.D.P.?

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MR. SMITH:
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Objection to the form.

Using the patrol guide standard:

Mentally ill

And how would you determine if someone was

mentally ill?

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and dangerous to himself or others.
Q.

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J. ETERNO

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individuals were disciplined as a result of having that

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Q.A.D. report?

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A.

No, they haven't.

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Q.

You drafted the patrol guide section on

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complaints when you were employed by the N.Y.P.D.; is that

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correct?

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A.

I helped draft it, yes.

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Q.

Do you know if that section, as written by you,

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is still in place?

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A.

No, I don't.

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Q.

The next section, starting on page 8 of your

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report, is the Blue Wall of Silence.

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MR. SMITH:

Why don't we take a lunch break?

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MS. PUBLICKER METTHAM:

If you let me finish

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the question, Mr. Smith.

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take a break while a question is pending.

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take a break after that.

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MR. SMITH:

As you know, you cannot
We can

I was suggesting that we take a

break before you asked the question.

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MS. PUBLICKER METTHAM:

Well, I am going to

ask the question, then we can take the break.

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Q.

Your section indicates that the blue --

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A.

Where are we now?

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MS. PUBLICKER METTHAM:

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MR. SMITH:
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On page --

She is asking one more question,

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then we are taking a break.

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MS. PUBLICKER METTHAM:

Mr. Smith, if you

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are going to continue to interrupt

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inappropriately I am going to make an application

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to the court based on your continued malfeasance.

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Q.

Professor Eterno, your section entitled Blue Wall

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of Silence indicates that the code of silence has been

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observed and studied in reports of many police departments

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throughout the world, right?

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A.

Yes.

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Q.

So, do you believe that every police department

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in the world has a blue wall of silence?
A.

I believe that the informal code is something

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that exists and is well researched.

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studies that have shown the police culture is pervasive in

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policing.

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There are numerous

So, when you say "every police department,

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would have to say that it is pervasive, it might not be

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somewhere.

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documented.

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But there is an informal code, that is well

MS. PUBLICKER METTHAM:
at this time for lunch.

We can take a break

The time is 1:18 p.m.

(Whereupon, a luncheon recess was taken at
this time.)
MS. PUBLICKER METTHAM:
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So, we are going

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J. ETERNO

back on the record.

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Q.

It is 2:12p.m.

Dr. Eterno, when we left off we were talking

about the blue wall of silence.

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A.

Yes.

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Q.

How do you determine whether a police department

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has a blue wall of silence?
A.

There is a huge amount of research that indicates

that a blue wall of silence is nearly ubiquitous in police
departments.
Q.

This research is well documented.

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How does the research determine whether a

department has a blue wall of silence?
A.

They use typical social science methods, might

include surveys or qualitative research, where they would

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actually visit the department and watch what's going on.

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Q.

And what kind of information that would be

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derived from a survey or research, qualitative research,

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would indicate that a blue wall of silence was in place?

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A.

Well, the blue wall of silence is really part of

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the informal code, which is part of police culture.

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the police culture is something that's in -- it's in every

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department.

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code.

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And

But instead of a formal code, it's an informal

It's just what's going on.

So, the nature of the

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blue wall of silence may be very different depending on the

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department.

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Q.

So, when you use the term "blue wall of silence,"

what do you mean?
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Well, again, it's a euphemism for police culture,

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and it is a way that officers informally deal with what's

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going on in the dangerousness of the work environment and

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the loyalty to one another.

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Because of that danger, they kind of stick

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together.

And because of that, they will develop a blue

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wall of silence where they won't talk about things.

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Because they need to stick together, they need to be loyal

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to one another.

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Commission, the Knapp Commission, we have seen this

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numerous places.

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Q.

And again, we have seen this in the Mellen

Is the blue wall of silence necessarily

pejorative?
A.

I think most people do take it that way, as a

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pejorative term.

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necessarily a bad thing.

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But I would say in some cases it's not

It could be at times something healthy, where

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officers want to keep things to themselves.

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But generally,

it is used as a negative term.

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Do you believe it's a pejorative term?

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A.

I think in general it is, yes.

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Q.

Q.

You said that it can manifest in different ways

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and different agencies; is that correct?
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A.

Yes.

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Q.

And how could it manifest differently in

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different agencies?
A.

In some agencies it may not be as necessary.

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There may not be as much danger, there may not be as much

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need for that protection.

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very strong need for that protection.

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agency that perhaps is doing things that might be illegal.

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And officers are aware of that, that you need to make sure

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In other agencies there may be a
It might be in an

that you don't rat out the other guy.

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Or it may just be that they are doing things that

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may be questionable in the eyes of people who are not

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initiated into the world of policing.

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at times the officers need to stick together to defend

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themselves from what they perceive at times to be unneeded

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circumspection of what they are doing.

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Q.

And to that extent,

In your answer you mentioned danger and

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protection.

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danger and protection you believe are related to this blue

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wall of silence?

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A.

Can you be more specific about what kind of

Yes.

The danger of the work environment.

We are

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talking about perpetrators and others who may be fighting

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police officers, or just could be animosity against police

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officers.

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the police officers.

It could be a community that may be negative to

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But the danger is generally thought to be, at

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least in most of the literature, it•s generally seen to be

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the work environment itself and from the perpetrators.

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Q.

And when you

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to protection, what are you

referring to?
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Well, protection from various different things

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from the outside, community pressures, media pressures.

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could be legal pressures, it could be C.C.R.B, or it could

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be from the bosses.

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There is a literature on the New York City Police

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Department written by Elizabeth Reuss-Ianni, had a very

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interesting study that compares two cultures of policing.

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They call them management culture and the street cop

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culture.

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between those two, so it could even be protection from

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management.

She points out that there is some animosity

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Q.
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R-E-U-S-S dash I-A-N-N-I.

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The name of the book

is Two Cultures of Policing, one of many of her writings.
Q.

And earlier you mentioned that there were

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surveys, qualitative research and studies into police

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culture and the blue wall of silence that you believe are

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authoritative; is that correct?

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A.

Very authoritative, yes.

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Q.

What are those?

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Can you spell Reuss-Ianni?

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Stoddard, Wesley, Fielding 1 Manning, Crank, just

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to name a few off the top of my head that show that.

There

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is also research on an attitude effect, Oneman, Wardman and

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Shepherd, just a few of the names that come to mind.

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Q.

What do you mean by attitude effect?

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A.

The attitude effect is where officers respond

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to

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the blue wall of silence, that officers respond to the

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attitude of suspect as to opposed to the legality of what

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again, this is part of the police culture, just like

the suspect is doing.
Q.

And do you believe that attitude effect is

reflected in your expert report in any way?
A.

It•s possible.

It could be there somewhere.

I

didn•t specifically mention it, but it might be there.
Q.

Have you formed opinions in this case about the

attitude effect?
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Not specifically.

But there might be

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circumstances that come up when we are talking that it may

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come up.

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Q.

But in your expert report, have you come to a

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conclusion or opinion about the attitude effect as it

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relates to Adrian Schoolcraft?
MR. SMITH:

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Objection to the form.

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A.

No.

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Q.

In your expert report you mention that the issue

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of the blue wall of silence has repeatedly come up in the

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history of New York City; is that correct?

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A.

Yes.

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Q.

And in doing so, you cite to the 1972 Knapp

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Commission and the 1994 Mollen Commission; is that correct?

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A.

Yes.

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Q.

Are you aware of any other commissions or studies

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on New York's blue wall of silence in the last 20 years?
A.

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No.

Those are the two main commissions.

There

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haven't been any commissions since Mollen regarding -- at

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least at that level.

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Corruption, Mark Pomerantz, which I do talk about in my

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expert report.

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There was the Committee to Combat

But that was basically cut off and not allowed to

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do

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to rebuke.

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Mark Pomerantz eventually quit when he wasn't allowed

Q.

Was the subject of the Committee to Combat

Corruption the blue wall of silence?
A.

No.

That was complaint reports at the time and

the gaming of complaint reports.
Q.

Are you aware of any studies outside of the

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commissions' on the blue wall of silence's prevalence in

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New York City in the last 20 years?

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A.

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the Law:

No.

I did mention it in my book, Policing Within

A Case Study of the New York Police Department.

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Q.

When was that book published?

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A.

2003.

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Q.

Have you done any research, qualitative research,

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on the blue wall of silence yourself?

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A.

Not qualitative, no.

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Q.

Have you done any quantitative research on the

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blue wall of silence?
A.

Yes.

As I said, it •s in my book, Police Culture,

Policing Within the Law, where there is quantitative work
on the police culture.

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Q,

And what is that quantitative work?

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A.

It was a survey that I sent out as part of my

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dissertation.

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Q.

What was that survey?

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A.

It was a survey on whether officers would follow

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the law in various situations.

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hypothetical situations and asked them what they would do

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in that situation.

I put them in various

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Q.

How does that relate to the blue wall of silence?

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A.

One of the variables was police culture, where I

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mention the loyalty to one another, which is part of the

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blue wall of silence.

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I also did measure the attitude effect.

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We also talk about the language, and

Also, one of the variables that was in the
instrument that I used included a measure of police

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culture.

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Q.

What was that measure of police culture?

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A.

Again, it was a survey question, and they were

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put into hypothetical situations which included the police

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culture.

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Q.

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When you say

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Which included police culture,

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what do you mean, what was the survey question?
A.

Well, it -- it•s hard to explain.

It was a

factorial survey method, which means that when it came to

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police culture, and putting them in various hypothetical

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situations, when I put them in those situations I used

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specific language that measures the extent to which the

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police culture has an effect on them.

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Q.

What questions did you ask that got to the issue

of the blue wall of silence?
A.

The police culture was measured in every

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question, so the police culture including loyalty.

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like that were in various questions, depending on the type

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of questioning.

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survey method, which means they don•t get -- every officer

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doesn•t get the same exact method.

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question they get is randomly selected.

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Things

Since it•s something called the factorial

It•s randomly-- the

And then, looking at the differences in the

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_)

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officers• responses, we can determine how much influence

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the police culture has.
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Q.

What was the result of that survey as it related

to the blue wall of silence?
A.

The police culture did have an effect on some

officers at certain times.

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Q.

On how many officers?

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A.

Well, I don't have that in front of me.

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I would

have to take a look at the -- look it over again.
Q.

Do you recall approximately what the percentage

of officers was?
A.

I don't recall right now, but it depended on the

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situation.

The police culture had more of an effect, and I

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compared it, certain situations and stop situations.

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in the stop situations, the police culture had more of an

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effect in the stop as opposed to the search.

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Q.

Can you explain that further?

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A.

Okay.

And

There are a number of different types of

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scenarios that I put them in legally; some were search

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situations, some were stop situations.
When I compared the differences between the stop

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and the search situations, I found that in the stop

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situations the officers did react more to loyalty and other

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police culture factors that would be involved in the blue

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wall of silence.

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Q..

And that's what you meant when you said that this

has a greater effect on some officers at some times?
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A.

Yes.

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Q.

Did you find that any officers were more or less

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immune to this blue wall of silence?
A.

From -- again, from my recollection, just off the

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top of my head, but from my recollection of my research,

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there were officers that were more prone than others.

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Would you say that this research that you

Q.

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conducted is some of the facts and data on which you relied

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in creating your expert report?

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A.

Not really.

It•s just basic knowledge.

I didn•t

rely on that for this report, no.
So, at trial, you would not rely on that research

Q.

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in defending your report?

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MR. SMITH:

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A.

No.

Objection to the form.

However, I would rely on general knowledge

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that I have on the police culture and the blue wall of

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silence.

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Q.

That, I would rely on.
The next section on the next page, page 9, is

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titled

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Officer Schoolcraft."

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The Blue Wall and Forceable Hospitalization of

You claim that the blue wall of silence likely
contributed to Officer Schoolcraft?

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Yes.

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A.
Q.

What do you mean by "likely contributed 11 ?

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A.

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Likely 11 means that it appears to have.

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Q.

Is that to a reasonable degree of scientific

certainty?

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A.

Yes.

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Q.

And on what do you base that opinion?

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A.

on what•s in appendix B, and all the other

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materials, my knowledge and expertise.
Q.

Did you read the depositions of any officers

involved in this case?

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A.

Not in their entirety.

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Q.

Did you read any in part?

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A.

There was, I think, an Officer Duncan that I

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looked at.

Q.

And earlier today, when I asked you about

documents, you did not mention Officer Duncan?

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A.

Isn•t that in appendix B?

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Q.

I am sorry, that one is in appendix B.

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MR. SMITH:

Q.

A.

Yes.
MR. SMITH:

But he did mention that there

were subsequent reports.

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THE WITNESS:

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Yes, the lieutenant•s special

assignment from the medical division.

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So, the only depositions you reviewed would be

Finnegan and Duncan?

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As is Finnegan.

Q.

So, you did not review the complete deposition of

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still doesn't make her statement meaningless.
A department psychologist's opinion is very

2
3

important.

4

what she has to say about him very seriously.

5
6

Regardless of the circumstances, I would take

So, you would take very seriously, the fact that

Q.

she removed his guns based on anger issues very seriously?
MR. SMITH:

7

Objection to the form.

8

A.

Yes.

9

Q.

Is it your understanding --

10

A.

Let me clarify that.

I would also take seriously

11

the fact that she said he is not a danger to himself or

12

others.

13
14

Both statements are important.
Do you believe that she saw Adrian Schoolcraft on

Q.

October 31, 2009?
MR. SMITH:

15

Objection to the form.

16

A.

I don't know when she saw him.

17

Q.

So, on page 10, the next real sentence starting

18

with

19

You can read it into the record if you like, or if you

20

like, you can read it to yourself.

11

We note.

11

I would like you to read that page for me.

21

A.

We are talking about two issues?

22

Q.

Yes.

23

A.

I guess we should read this in.

11

Two issues with

24

this are, one, the EMT only states he is potentially

25

emotionally disturbed, which is not emotionally disturbed.

'-...-./

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And two, according to police procedure, a police officer,

2

not an EMT, must reasonably believe that the person being

3

taken into forcible custody is mentally ill or temporarily

4

deranged and his behavior is likely to cause serious injury

5

to himself other others."

6

Q.

7
8
9
10
11
12
13
14
15

Great.

I will move on.

To what police procedure are you referring to?
A.

This is the patrol guide procedure on emotionally
.

disturbed persons.
Q.

Is that cited in your appendix?

It's the last

page of your report.
A.

It's not in the appendix, but it's in the

references section, page 28 at the bottom.
Q.

This just states the "N.Y.P.D. patrol guide,

unpublished," correct?

16

A.

Yeah, unpublished.

17

Q.

So, I am asking which patrol guide procedure,

18

specifically, you are referring to?

19

A.

Emotionally disturbed persons.

20

Q.

You don 1 t know the number?

21

A.

Not off the top of my head.

22

Q.

How did you receive that document?

23

A.

Again, I have the patrol guide on my computer at

24

-...)

[:

work.

25

i
I
MS. PUBLICKER METTHAM:

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I am going to ask

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for production of the E.D.P. procedure in which

2

the expert relied in creating his report.

3

Q.

In that police procedure, does it state what

4

information has to be captured on an unusual incident

5

report?

6

A.

Do you have a copy of the procedure?

7

Q.

I don't.

8

A.

Okay, I am not sure.

9

Q.

When you wrote this report, did you believe that

10

to be the case?

11

MR. SMITH:

Objection to the form.

12

A.

Believe what to be the case?

13

Q.

Did you believe that the police procedure

14

required information to be included in the unusual incident

15

report?

16

A.

An unusual incident report is a separate

17

procedure in the patrol guide.

18

of patrol needs to know should be included in the unusual

19

report.

And anything that the chief

I think it would be critical for the chief patrol

20
21
22

hospital.

24
\

of the service is being forcibly placed into a mental

23

-...___)

to know why a member of the service -- a uniformed member

report.

25

Q.

So yes, I believe that should be in the unusual

And you believe it's not contained in the unusual

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incident report drafted by Captain Lauterborn?

2

A.

3

memo.

4

indication specifically delineating how Officer Schoolcraft

5

was found to be mentally ill and dangerous.

6

From my recollection, because I don't have the
But from my recollection of the memo, there was no

Q.

Is it possible that by writing "potentially

7

emotionally disturbed 11 Captain Lauterborn was indicating

8

that he reasonably believed plaintiff was emotionally

9

disturbed?

10
11

MR. SMITH:
A.

Objection to form.

The issue with that, if that's what the EMT said,

12

"He is a potential emotionally disturbed person," this to

13

me does not indicate that he is emotionally disturbed.

14

as I say in my expert opinion, the situation that led to

15

this was actually created, in my view, by the police

16

department.

17
18

Q.

And

Did you read the deposition of Lieutenant Hamlon

of the F.D.N.Y.?

19

A.

I did not.

20

Q.

So, do you know whether by stating

11

potentially

21

emotionally disturbed 11 she believed that he was emotionally

22

disturbed?

23

A.

11

Potentially" means potentially . . I take that for

24
:
·-....___/

what it says.

So, if she has some other meaning or somehow

25

communicated something else, it's not in the written
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record.

•

2

Q,

Is it appropriate to make a determination about

3

someone 1 s mental illness, to make a diagnosis on the scene

4

of an incident?

5

MR.
A.

6
7

10

Objection to the form.

You are not making a diagnosis.

That 1 s going to

be made at the hospital.

8
9

S~ITH:

Q.

So, you can • t make a diagnosis about whether

someone is mentally ill while at the scene of the accident;
is that correct?

11

MR. SMITH:

Objection to the form.

12

A.

Correct, you don 1 t make a diagnosis.

13

Q.

Because police officers don 1 t make diagnoses,

14

correct?

15

A.

Correct.

16

Q.

So, they have to reasonably believe that an

17

individual is emotionally disturbed?

18

MR. SMITH:

Objection to the form.

19

A.

That is correct.

20

Q.

And you don't believe that by writing

21

11

potentially 1' someone could mean

22
23

MR. SMITH:
A.

11

reasonably believing 11 ?

Objection to the form.

I think that it 1 s showing what an EMT thought.

24

It is not showing what any of the officers thought at the

25

scene.

I'

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Your report mentioned that the duty captain

Q.

1

2

referred complaint reports to Internal Affairs for

3

followup; is that right?

4

A.

Again, you are referring to the Lauterborn memo?

5

Q.

No.

I am just referring to your report.

On page

"Additionally, the duty captain refers the complaint

6

10,

7

reports to Internal Affairs for followup, which is referred

8

to Quality Assurance, which, in turn, confirms Officer

9

Schoolcraft's allegations about the corrupt activity in the

10

precinct.

n

11
12

So, this does seem to be you paraphrasing from
the unusual incident report?

13

A.

Yes.

14

Q.

So, based on this, the duty captain did not try

15

to cover up the complaint report he found in Schoolcraft's

16

apartment?

17

MR. SMITH:

Objection to the form.

18

A.

No.

19

Q.

Does that fit within your concept of the blue

20
21

wall of silence?
A.

Well, the tape recorder not being put in

22

certainly is something that bothers me.

23

in -- excuse me, when he put this in, and not the tape

24

recorder, that seems a little conflicting to me.

25

Q.

When he put this

But does the fact that he -- on its own, the fact

't.,_ ._,...,'

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that the duty captain reported the complaint reports he

2

found to Internal Affairs fit within your concept of the

3

blue wall of silence?
A.

4

How do you mean?

What do you mean, fitting

5

within my concept of the blue wall -- who is being silent?

6

What are you driving at?

7
8

Q.

Well, the duty captain didn't try to cover up

these complaint reports, did he?
A.

9

Yeah, the duty captain is a supervisory officer

10

involved with this.

11

do with officers, you know, police officers' rank.

12

The blue wall of silence really has to

The supervisor has a completely different set of

13

responsibilities and duties that he or she would have to

14

do.

15

within the blue wall of silence 11 in this context.

16
17

So, I am not quite sure what you mean by "fitting

Q.

think we had that before.

18
19

So, for you, the blue wall of silence relates
only to other officers, of the rank of officer?
MR. SMITH:

20
21

Well, thank you for that clarification, I don't

A.

Objection to the form.

Sorry, not totally.

But in this case, they

22

clearly have been brought in as a supervisory type of

23

thing, they are now working under formal guidelines.

24

)

25

The blue wall is an informal thing, it's not
something that is written down.
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They weren't operating
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J, ETERNO

1

under patrol guide procedures now.

2

things that they need to do.

3

with that thesis.

4

Q.

There are very specific

So, this would not fall in

So, if a supervisor, for example, were within the

5

blue wall of silence, trying to protect someone else, you

6

don't believe they could have covered up those complaint

7

reports found in his room?

8
9

A.

I see what you are saying.

Yes, that's very

possible, if they were trying to cover up for him.

But I

10

don't think in this case the supervisors were trying to

11

cover up for him.

12

don't think that was ever an issue.

13
14

Q.

I don't think that was an issue.

I

You don't believe they were trying to cover up

for themselves?

15

A.

That's a separate issue.

16

Q.

You claim that plaintiff was found in good

17
18
19

I don't know.

condition in his apartment; is that right?
A.

Based on the Lauterborn memo, yes, and the tape

recordings.

20

Are you aware of his elevated heart rate?

21

A.

I am aware of that, yes.

22

Q.

And you are aware of his elevated blood pressure?

23

A.

Yes.

24
-~

Q.

Q.

And you believe that, given the elevated heart

25

rate and elevated blood pressure, he was in good condition?
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A.

I think anyone would have an elevated heart rate

2

having a team of armed officers in your living room

3

refusing to leave.

4

Q.

But you didn't answer the question, which is, do

5

you consider having elevated heart rate and elevated blood

6

pressure to be a good condition?

7

A.

Depends on the situation.

8

Q.

You believe in this situation his elevated heart

9
10
11

rate and elevated blood pressure was a good condition?
A.

I think it was completely normal given the

situation.

12

Q.

Were you there that night?

13

A.

No.

14

Q.

Have you seen any video of that evening?

15

A.

No.

16

Q.

You haven't read the officers' depositions who

17

were there that day, other than Officer Duncan?

18

A.

Right, yes.

19

Q.

So, you don't know whether they perceived him to

20

be in good condition or not; is that correct?
MR. SMITH:

21

Objection to the form.

22

A.

Correct.

23

Q.

As you just mentioned, you believe that if he

24

appeared emotionally disturbed, it was only the direct

25

result of the actions of the N.Y.P.D., correct?

~ •• M00/.1

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A.

I didn • t say •'only,

11

but I do feel that that was

certainly a contributing factor.
I believe you do say it•s a direct result.

On

3

Q.

4

page 11,

5

they occurred after they entered the apartment.

6

if they occurred, they apparently were the direct result of

7

the actions of the N.Y.P.D. 11

11

If any actions appeared emotionally disturbed
In fact,

8

A.

Apparently.

9

Q.

So, what do you mean by apparently, then?

10

A.

It appears that that was the direct reaction of

11

them staying in his living room, or bedroom, not sure

12

which.

13

would drive anyone's blood pressure, I think, higher.

But they stayed there against his wishes.

That

14

Q.

Do you have any medical background or training?

15

A.

Just what I had with the Police Academy.

16

Q.

So, are you qualified to make a determination

17

about the impact of others on an individual•s mental or

18

physical health?

19
20
21
22

A.

I am a physical fitness instructor for law

enforcement, but I am not a qualified doctor of medicine.
Q.

And have you ever done any studies on the impact

of others on someone•s physical and mental health?
i

23

A.

I actually did a study for the police department

24
•, ___

./

on physical fitness standards and their effect on arrests

25

that went on to win an award.
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Hemmerdinger award, which did indicate that those who are

2

able to have higher cardiovascular endurance made more

3

arrests, things like that.

4

Q.

I'm sorry, but that didn't answer the question,

5

which was, have you done any research on the impact of

6

others on someone•s mental or physical health?

7

A.

Again, it's a physical fitness study on policing

8

and it's effect on police.

9

as a study on somebody's health, on fitness and how they

10
11

And I think that would qualify

react.
Q.

On causation of outside forces, on someone's

12

physical or mental health, you believe your research does

13

that?
MR. SMITH:

14

Objection to the form.

15

A.

Can you rephrase?

16

Q.

You believe that your research on officer's

17

physical fitness actually relates to the causation of an

18

outside force on an individual's physical and mental

19

health?

20
21
22

A.

What do you mean by causation --

I am not clear

on the question.
Q.

My question to you is, is the impact of other

23
24
~

individuals on someone's physical or mental health, that's
a causation?

25

A.

I understand what you are saying.

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J. ETERNO

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2

not be it.
Q.

Your report indicates that it would have been

3

exceedingly prudent to contact the legal bureau for advice,

4

as well as notify them directly; is that correct?

5

A.

Yes.

6

Q.

Is it required that officers contact the legal

7
8
9

bureau before declaring someone an E.D.P.?
A.

It's not required to declare someone an E.D.P.

But this is an extremely unusual situation, where a

10

uniformed member of the service is being declared

11

emotionally disturbed.

12

prudent to contact the legal bureau on this.

It would have been extremely

13

Q.

But is it required?

14

A.

No.

15

Q.

Moving on to the next section, which is also on

16

page 11.

17

right?

That's your section on hospital data; is that

18

A.

Yes.

19

Q.

Mr. Smith has represented that the Health and

20

Hospital Corporation data is no longer available on the

21

website and no copy has been maintained by the expert; is

22

that accurate?

23

Yes.

24
I

A.

Q.

So, there is nothing --

25

MR. SMITH:

Just correct one thing.

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',_./

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didn't do the independent determination of

2

whether or not this data was available on the

3

website.

That was done by, I believe, the

4

witness.

So, I would be passing on information

5

about the existence of the data, I wasn't
MS. PUBLICKER METTHAM:

6

It was your

representation to the rest of the codefendants.

7

MR. SMITH:

8

To the extent that was the

representation, I would like to clarify.

9

I did

10

not go to the hospital's website.

I spoke to the

11

witness about his ability to do so.

12

we will get to the information of what he did to

13

try to get information.

And I think

14

But to the extent that someone was

15

suggesting that I did it, I want to make a

16

correction.

17

Q.

So, was that statement I read accurate, that the

18

Health and

19

hardcopy has been maintained by the expert?

Hospi~al

data is no longer on its website and no

20

A.

Yes.

21

Q.

So, for us to review or check your data here,

22

there is no way you can think of for us to do that?

23

Contact Health and Hospital.

24
~J

A.
Q.

What data would we ask for?

25

A.

You would ask for the datas from the hospital

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2
3

which is collected by them from 1999 through 2006.
Q.
just

Was there a title to this particular section,
11

hospital data,

--

11

generally?

4

A.

It's

5

Q.

Have you made any efforts to locate this data?

6

A.

Yes.

7

Q.

What efforts have you made?

8

A.

Searching through the materials on my study,

9
10
11
12
13
14
15

actually, emergency room visits.

getting on the website.
Q.

So, how did you write the section without access

to those materials?
A.

I did have access at one time.

And it's in our

book, so I know it's true.
Q.

So, you haven't actually looked at any of this

data since before writing your report in this case?

16

A.

The data itself?

17

Q.

Yes.

18

A.

No.

19

Q.

So, you are relying on data you have used in

20
21
22

other books?
A.

section, yes.

23

Q.

24
., __ //

In the book that I cited in the references

research?

25

A.

When was the last time you looked at that

I
Just before we wrote the book.

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