Trial Transcript - Day Two

Trial Transcript - Day Two (May 18, 2001)

(Annotated)

[Typographical / Syntax errors have been left uncorrected]

[246] (CZAJKA) Good morning. You were both kind enough to accommodate my schedule, and I'm the person that's late this morning, please excuse me for that. Are we -- do we have to do anything before the next witness is called?

(TORNCELLO) The only thing is I want to renew my request, on the letters, People's number one through four for identification. It's our position that they contained admissions of the defendant, to the specific charges in the indictment.

(CZAJKA) I haven't read them yet.

(TORNCELLO) The only reason is I want to make a point, as I'm close to resting, and I don't think I can rest unless a decision is made on that, that's all, at some point.

(CZAJKA) I'll deal with it before you rest.

(TORNCELLO) Great. Thank [247] you. Other than that --

(DC) I'll reserve my objection.

(CZAJKA) I'll give you both an opportunity to argue after I've read the materials and before I rule.

(DC) Your Honor, with respect to the reading materials, I believe they were handed up to the Court, four letters, I was provided with but one letter, so, three of the letters that the Court is going to have I never --

(TORNCELLO) Let me say that there were four envelopes, there is one letter. The other envelopes contain photographs, with notations on the back of the photographs, that's what we are referring to. I think you've had an opportunity any way to see them though, haven't you?

(DC) That I have. I thought maybe four envelopes were handed up and four letters.

(TORNCELLO) Four envelopes.

(DC) And Your Honor, before -- as to the joint capacity of the [248] Court in this trial as both the trier of the law and the facts, of course these were the kinds of the -- the things that we were very careful of with respect to a jury, so again, we would like to ask the Court to, you know, use its discretion.

(CZAJKA) I appreciate that, I'm confident that I can disregard that which is inadmissible. Certainly including, the things that we discussed in pre-trial.

(DC) Thank you, sir.

(CZAJKA) Call your next witness.

(TORNCELLO) We call ['Chris'].

(CLERK) Good morning. Tell me your full name?

('CHRIS') I know my middle name.

(CZAJKA) Great.

('CHRIS') Okay. [Gives full name]. [249]

(CZAJKA) What do you want me to call you?

('CHRIS') Either ___________ or ___________, I don't really care.

(CZAJKA) All right. How do you spell that?

('CHRIS') Which one. __________ or ___________?

(CZAJKA) All of them.

('CHRIS') [Spells both full first name and shortened version.]

(CZAJKA) What about your last name?

('CHRIS') My last name is spelled _____________.

(CZAJKA) All right. How old are you now ['Chris']?

('CHRIS') I am 11 and 3/4.

(CZAJKA) Whoa. What's your date of birth?

('CHRIS') I was born on ______________.

(CZAJKA) [Repeats birth year]. Where were you born?

('CHRIS') I don't know.

(CZAJKA) And where are you living now?

('CHRIS') I'm living in _______________. [250]

(CZAJKA) Okay. Whereabouts?

('CHRIS') [Gives address].

(CZAJKA) Who are you living there with?

('CHRIS') I am living with -- with my mother, step-father, my brother and my little sister.

(CZAJKA) What's your little sister's name?

('CHRIS') [Gives name].

(CZAJKA) How old is she?

('CHRIS') She is 8.

(CZAJKA) Okay. And are you in school?

('CHRIS') Uh-huh.

(CZAJKA) Yes?

('CHRIS') (Nod nod).

(CZAJKA) You have to say yes or no ['Chris'].

('CHRIS') Yes.

(CZAJKA) What school are you in?

('CHRIS') [Specifies].

(CZAJKA) What grade are you in?

('CHRIS') 6th.

(CZAJKA) What classes do you take? What subjects?

('CHRIS') Math, science, social studies, reading, library, same things, and I think that's it.

(CZAJKA) Okay. What is your favorite subject?

('CHRIS') Math.

(CZAJKA) And what are you learning about in math these days.

('CHRIS') Measuring.

(CZAJKA) What? How so?

('CHRIS') (No response).

(CZAJKA) What are you measuring?

('CHRIS') Right now the centimeter part.

(CZAJKA) Uh-huh. How do you measure the volume of a rectangle, the area of a rectangle? Is that what it is you're doing, things you're learning about?

('CHRIS') Yes.

(CZAJKA) How would you determine what the area of a rectangle is?

('CHRIS') I don't know. [252]

(CZAJKA) Tell me what you've learned in math in measuring?

('CHRIS') We have learned about inches, centimeters, and right now I'm learning about cubic stuff, observing an area.

(CZAJKA) What does that mean?

('CHRIS') I don't know yet.

(CZAJKA) You are going to start learning, that's why they're teaching you?

('CHRIS') Right.

(CZAJKA) If you knew that already they wouldn't have to teach you, right?

('CHRIS') Right.

(CZAJKA) What are you learning about in reading in English class?

('CHRIS') I think in English now I'm learning about -- I don't remember.

(CZAJKA) That's okay. How's your reading?

('CHRIS') Pretty good.

(CZAJKA) Are you able to read pretty well?

('CHRIS') Uh-huh. [253]

(CZAJKA) Write pretty well? Say yes or no.

('CHRIS') Yes.

(CZAJKA) Are you reading any books?

('CHRIS') In reading.

(CZAJKA) What was -- what is your favorite book that you have read?

('CHRIS') This one like I'm reading in the classroom is 'A Dog Called Kitty.'

(CZAJKA) Is that a good book?

('CHRIS') Yup.

(CZAJKA) What's it about?

('CHRIS') It's a dog that a girl keeps, that a girl is afraid of, but then when she -- when they realize the dog is so kind and it's starving to death, that's when she is not afraid and she helps the dog.

(CZAJKA) Okay.

('CHRIS') And it keeps coming when the mother says, come kitties.

(CZAJKA) The dog comes?

('CHRIS') Yes.

(CZAJKA) That's a silly book!

('CHRIS') Yeah. [254]

(CZAJKA) Do you go to church at all?

('CHRIS') Uh-huh.

(CZAJKA) What church do you go to?

('CHRIS') [Answers].

(CZAJKA) And do you have any religious instruction when you go to that church?

('CHRIS') I don't know.

(CZAJKA) Well, do you just attend services or do you also have a teacher that teaches you about religion?

('CHRIS') We don't get taught about religion, I don't really know how to explain what we get taught about.

(CZAJKA) Do you go every week?

('CHRIS') Uh-huh.

(CZAJKA) What day of the week do you go?

('CHRIS') Well, I guess Sundays, Saturday and Wednesday.

(CZAJKA) Three days a week?

('CHRIS') But Saturday is just for kids.

(CZAJKA) Okay. [255]

('CHRIS') Sunday is for kids and adults, so is Wednesday.

(CZAJKA) For kids and adults?

('CHRIS') Uh-huh.

(CZAJKA) What's that shirt you have on.

('CHRIS') As [name of school he attends] shirt.

(CZAJKA) Okay. Do you know who I am?

('CHRIS') Uh-huh.

(CZAJKA) Do you know what my job is?

('CHRIS') The judge.

(CZAJKA) Okay. Do you know who the other people in the courtroom are?

('CHRIS') No idea.

(CZAJKA) How about that lady over there?

('CHRIS') She's the typist.

(CZAJKA) Do you know what she's doing?

('CHRIS') Typing up what I said.

(CZAJKA) Very good. How about this man behind me?

('CHRIS') (Nod nod). [256]

(CZAJKA) He's the first person you talked to when you came up here, right?

('CHRIS') Uh-huh.

(CZAJKA) You and he talked?

('CHRIS') Yes.

(CZAJKA) What did you talk about?

('CHRIS') Telling the whole truth.

(CZAJKA) And did you?

('CHRIS') Uh-huh.

(CZAJKA) Remember to say yes or no.

('CHRIS') Yes.

(CZAJKA) What does that mean to you?

('CHRIS') It means that if you tell the truth you're correct, if you tell a lie, you're not.

(CZAJKA) You're getting it correct?

('CHRIS') Yes, and correct.

(CZAJKA) Give me an example of something that's true?

('CHRIS') If I broke the window, but I didn't want to say I broke it, I still said it, that [257] way I would get wouldn't get into much trouble as I would if I lied and said my brother broke the window.

(CZAJKA) If you broke the window and I asked you if you broke the window, would that be truthful?

('CHRIS') If I broke the window?

(CZAJKA) If you broke the window and I asked you, if you broke the window, what would a lie be?

('CHRIS') I didn't, my brother did it.

(CZAJKA) Okay. And if that was a lie that you told to your brother, about your sister, you told your sister that your brother broke the window, that would be a lie, would that be good or bad?

('CHRIS') Bad.

(CZAJKA) And if you told a lie like that to your teacher, would that be good or bad?

('CHRIS') Bad.

(CZAJKA) And if you told a lie like that to your mom, what would that be?

('CHRIS') Bad.

(CZAJKA) How about if you told [258] a lie like that here in court in the courtroom to me.

('CHRIS') Really bad.

(CZAJKA) What would be worse, what would be the worst of all these?

('CHRIS') Telling a lie in here.

(CZAJKA) Why is that?

('CHRIS') Because you can get arrested.

(CZAJKA) You can get arrested?

('CHRIS') Uh-huh.

(CZAJKA) I couldn't hear?*
[* Once again, Czajka apparently has trouble hearing something that the stenographer heard just fine. What else did he not hear, or hear incorrectly?]

('CHRIS') You'd get arrested if you told a lie in Court.

(CZAJKA) Okay. And did you learn about telling lies when you got to church?

('CHRIS') Uh-huh, yes.

(CZAJKA) And what have you learned in church about lying?

('CHRIS') That lying --

(CZAJKA) Speak up.

('CHRIS') That lying isn't right, but telling the truth is better and instead of lying. And no lying is also in the commandments.

(CZAJKA) In the commandments, [259] and what are the commandments?

('CHRIS') You can have no other God --

(CZAJKA) No, no, no, don't tell me what they are, what are they about?

('CHRIS') About the rules for God, rules for us.

(CZAJKA) Okay. And what if you break one of those rules of God?

('CHRIS') God will punish us.

(CZAJKA) Okay. ['Chris']?

('CHRIS') Yes.

(CZAJKA) What I'd like for you to do is to step out in the hallway with Lieutenant Stoudt, okay?

('CHRIS') Yes.

(Whereupon, the witness was excused.)

(CZAJKA) All right. Mr. Torncello, do you wish to be heard with respect to the issue before the Court?

(TORNCELLO) Judge, no. I have no exceptions or additional requests for any further questioning of the witness.

(CZAJKA) [DC]? [260]

(DC) Your Honor, my request would be the same as having -- that I made with all the children called here.

(CZAJKA) Okay. I'm satisfied that this child, like the others, is an intelligent child, and in fact, more mature or his beyond his years, very bright, like the other two children, and fully capable of understanding the nature of the oath, and in fact, may testify under oath.

(TORNCELLO) Thank you.

(CZAJKA) Bring him back in.

(DC) Respectfully take an exception.

(CZAJKA) Come back up here ['Chris'].

('CHRIS') Okay.

(Whereupon, the witness resumed the witness stand,)

(CZAJKA) Now, you swear promise that you will tell the truth?

('CHRIS') Yes.

(CZAJKA) Okay go ahead. [261]

(TORNCELLO) Thank you, Your Honor. Good morning ['Chris']?

('CHRIS') Good morning.

(CZAJKA) Remember ['Chris'], you have to speak up.

('CHRIS') Okay.

(CZAJKA) So, that even the people in the back of the room can hear.

('CHRIS') All right.

(TORNCELLO) I guess so everyone knows, can you state your name for us again?

('CHRIS') I am ['Chris'].

(TORNCELLO) Okay. And ['Chris'], when is your birthday?

('CHRIS') [Specifies].

(TORNCELLO) Do you recall what year you were born in?

('CHRIS') 89.

(CZAJKA) 1989?

(TORNCELLO) Is that --

('CHRIS') Well, I am going to be twelve this [262] year.

(DC) Object to the statement of age, by this witness.

(CZAJKA) Well, I suppose age is something that would require -- none of us have personal knowledge of our own age.

(DC) That's correct.

(CZAJKA) So this witness is no different from the rest of us I suppose, in that regard. Objection overruled.

(TORNCELLO) Thank you. ['Chris'], do you got to school?

('CHRIS') Yes.

(TORNCELLO) And where do you go to school?

('CHRIS') [Specifies].

(TORNCELLO) What grade are you in?

('CHRIS') Sixth.

(TORNCELLO) Where do you live? What town or community do you live in?

('CHRIS') I live in ______________.

(TORNCELLO) And you live --

(CZAJKA) Remember to speak up; you live in _______________?

(TORNCELLO) And who do you live with in _____________? [263]

('CHRIS') My mother, my stepfather, my brother, my little sister.

(TORNCELLO) Okay. Now, for how long have you gone to __________ School?

('CHRIS') (No response).

(TORNCELLO) Do you recall?

('CHRIS') No, I don't.

(TORNCELLO) Okay. Have you been there for a few years?

('CHRIS') Yes.

(TORNCELLO) Okay. And you're in what grade now?

('CHRIS') Sixth.

(TORNCELLO) Okay. I want to bring your attention back to last year, back to 1999, so I'm a assuming you're in fourth grade, is that right?

('CHRIS') Yes.

(TORNCELLO) And I want you to focus on the month of about July, of 1999, okay? During that time did you meet a person or do you know a person by the name of Jeff Nickel?

('CHRIS') Yes.

(TORNCELLO) And where did you meet Jeff Nickel?

('CHRIS') My school.

(TORNCELLO) Okay. What was -- do you know what [264] was his job at [the school]?

('CHRIS') A teacher assistant.

(TORNCELLO) Okay. He was a teacher's assistant?

('CHRIS') Uh-huh.

(TORNCELLO) Was he assigned to the fourth grade or to your grade?

('CHRIS') I believe so.

(TORNCELLO) Okay. Or was he assigned to every grade? Did he work with all the grades do you know?

('CHRIS') I don't know.

(TORNCELLO) Okay. Now, well I guess incidentally, do you see Jeff Nickel in the courtroom today?

('CHRIS') Uh-huh.

(CZAJKA) Say yes or no?

('CHRIS') Yes.

(TORNCELLO) Can you point to him, please?

('CHRIS') Right there (indicating).

(TORNCELLO) What color jacket does he have on?

('CHRIS') Vanilla colored.

(TORNCELLO) Judge, I'd ask the record reflect that the witness identified the defendant.

(CZAJKA) Yes. [265]

(TORNCELLO) Okay. Back in July of 1999, where would you see Jeff Nickel? Where would you see him?

('CHRIS') In the classroom.

(TORNCELLO) All right. And did you talk to him?

('CHRIS') Uh-huh, yes.

(TORNCELLO) Did he help you with your subjects and with your class work?

('CHRIS') Yes.

(TORNCELLO) Did you become friends with him?

('CHRIS') Yes.

(TORNCELLO) All right. Did you ever have any contact with him. I mean physical contact with him?

('CHRIS') Alls I can remember is being restrained once, being restrained by him once.

(TORNCELLO) Being restrained by him once?

('CHRIS') Yes.

(TORNCELLO) Could you have -- when you say restrained, did his hands come in contact [266] with you?

('CHRIS') Yes.

(TORNCELLO) And where were his hands, when they were in contact with your body?

('CHRIS') I personally don't remember.

(TORNCELLO) Okay. Now, did you ever have any -- do you recall any sexual contact?

('CHRIS') No.

(TORNCELLO) With Jeff Nickel?

('CHRIS') No.

(TORNCELLO) Okay. During that period at all do you recall anything like that?

('CHRIS') No.

(TORNCELLO) Okay. Do you recall having any conversation with Jeff Nickel, concerning touching?

('CHRIS') I don't remember.

(TORNCELLO) You don't remember? Okay. Could I have just a minute judge? Okay. You said earlier that Jeffrey Nickel was your friend, right?

('CHRIS') Yes.

(TORNCELLO) Okay. Did there come a time when things changed when he really wasn't? That [267] you didn't think of him as your friend any more?

(DC) Objection, immaterial and irrelevant.

(CZAJKA) Overruled.

('CHRIS') Can you say that again?

(TORNCELLO) Yes. Did there come a time when things changed and that he wasn't really your -- that you didn't consider him your friend any more?

('CHRIS') Yes.

(TORNCELLO) Okay. And was that because did he make you feel uncomfortable?*
[* Again, Torncello is leading the witness, which is a clear violation of established rules of evidence.]

(DC) Objection.

('CHRIS') Yes.

(DC) Move to strike.

(CZAJKA) I'm going to give the D.A. a little latitude here.* Overruled.
[* The reason why Czajka is flouting established rules of evidence here is because he knows Torncello has not been able to elicit anything from 'Chris' that would constitute a crime on Nickel's part. So, as de facto second prosecutor, once more he gives Torncello a little 'help.']

(TORNCELLO) Thank you. Did something happen that changed your feeling for Jeffrey Nickel that made it, like you said,* it changed that at first you were comfortable and later you were uncomfortable?
[* Now, Torncello has gone beyond merely posing a leading question -- he's actually putting words in this witness' mouth: It wasn't "like 'Chris' said" -- it was Torncello who used the word 'uncomfortable.']

(DC) Objection.*
[* This time, Czajka simply ignores defense counsel's objection.] [268]

(TORNCELLO) Did something happen?

('CHRIS') Not that I remember.

(TORNCELLO) Okay. Judge, I have no further questions.

(CZAJKA) You have no questions [DC]?

(DC) May I have just a moment? Your Honor, we have no questions of ['Chris'].

(CZAJKA) ['Chris'], you're all done. Thank you.

(Whereupon, the witness was excused.)

(TORNCELLO) Good morning. Could you state your name for the record, please? [269]

(DEFRANCESCO) [Detective] Mark DeFrancesco.

(TORNCELLO) And what is your occupation?

(DEFRANCESCO) I am an inspector with the Albany County Sheriff's Department.

(TORNCELLO) How long have you been an inspector with the Sheriff's Department?

(DEFRANCESCO) Since September.

(TORNCELLO Okay. September, 2000?

(DEFRANCESCO) 2000, correct.

(TORNCELLO) Okay. And how long have you been employed in total, by the Albany County Sheriff's Department?

(DEFRANCESCO) Since April of 1991.

(TORNCELLO) Okay. Can you give us an idea of some of your duties and responsibilities, I guess as an inspector? 

(DEFRANCESCO) As an inspector I am in command of the Office of Professional Standards which encompasses internal affairs and inspections.

(TORNCELLO) Back in August of 2000 what was your title?

(DEFRANCESCO) Senior Investigator.

(TORNCELLO) Give us an idea then, in August of 2000, what were your duties and responsibilities then? [270]

(DEFRANCESCO) I was a supervisor of the Criminal Investigations Unit within the Sheriff's Department.

(TORNCELLO) Okay. And I guess, what's the Criminal Investigations Unit?

(DEFRANCESCO) It's a unit in the Sheriff's Department which investigates crimes, major felonies, actually all felony investigations, crimes against children, computer crimes, everything with the exception of narcotics and vice.

(TORNCELLO) Okay. Narcotics and vice is a separate unit?

(DEFRANCESCO) Correct.

(TORNCELLO) Do you have staff that works for you or below you?

(DEFRANCESCO) Yes.

(TORNCELLO) How many people are involved with that staff, if you remember?

(DEFRANCESCO) It varies, usually four investigators.

(TORNCELLO) Okay. I want to bring your attention again back to August of 2000; at some point did you become involved in an investigation, of alleged child abuse?

(DEFRANCESCO) Yes. [271]

(TORNCELLO) And if you recall, when did you -- did you become involved with that investigation?

(DEFRANCESCO) I believe it was August 3rd of 2000.

(TORNCELLO) And how did you become involved, do you recall?

(DEFRANCESCO) I received a call from my superior, that a mail clerk at the Correctional Facility, the Albany County Correctional Facility had received letters in the mail and contained in the letters were some pictures.

(TORNCELLO) What did you do? Did you respond to the jail?

(DEFRANCESCO) No, I didn't. I sent an investigator over.

(TORNCELLO) Who was?

(DEFRANCESCO) I believe Investigator Ron Bates.

(TORNCELLO) Okay. And I'm assuming you're the boss and were you kept apprised of the investigation?

(DEFRANCESCO) Yes.

(TORNCELLO) Okay. Did you get a chance to see the letters?

(DEFRANCESCO) At some point, but not that day.

(TORNCELLO) Right. Do you recall what did you do that day on August the 3rd? Did you have any [272] part really in the investigation?

(DEFRANCESCO) Not on that day, no.

(TORNCELLO) What's your first -- what's the first real action that you took with respect to this investigation? Strike that, that's not so great. Did you identify any individuals that you wanted to interview?

(DEFRANCESCO) An individual was identified, a young boy needed to be interviewed.

(TORNCELLO) Who was?

(DEFRANCESCO) ['Arthur'].

(TORNCELLO) And did you do that? Did you interview ['Arthur']?

(DEFRANCESCO) Yes, I did.

(TORNCELLO) Do you recall when you interviewed ['ARTHUR']?

(DEFRANCESCO) I believe it was August 7th.

(TORNCELLO) And do you recall where you interviewed ['Arthur']?

(DEFRANCESCO) At [the group home].

(TORNCELLO) Okay. Without I guess -- with respect to the contents, did you get some information from ['Arthur']? [273]

(DEFRANCESCO) Yes, I did.

(TORNCELLO) After you received that information, from ['Arthur'], what did you do?

(DEFRANCESCO) I completed an affidavit, based on my interview.

(TORNCELLO) And then what was the next action that you took?

(DEFRANCESCO) I directed some people, some of my investigators, to locate Jeff Nickel.

(TORNCELLO) Okay. I want to show you an item, People's number 2 (A), 2 (A), which is let me show you what that is?

(DEFRANCESCO) This is a picture of Jeff Nickel and ['Arthur'].

(TORNCELLO) Okay. Do you know --

(DC) Hold it up inspector please. Thank you.

(TORNCELLO) And on the back of that photograph there are some initials, is that correct?

(DEFRANCESCO) Yes, sir.

(TORNCELLO) What are those initials?

(DEFRANCESCO) My initials, the date and time.

(TORNCELLO) Did you initial that?

(DEFRANCESCO) Yes, I did. [274]

(TORNCELLO) What role did that photo play in your investigation?

(DEFRANCESCO) Well, pardon?

(TORNCELLO) If any?

(DEFRANCESCO) When I was interviewing --

(DC) This is not in evidence. Any testimony now relating to this is beyond its identification.

(CZAJKA) Well, I have no idea what you mean. It's a bad question. The objection is sustained.

(TORNCELLO) Where did you get that photo?

(DEFRANCESCO) This is one of the photos that was secured from the Correctional Facility that came in the mail.

(TORNCELLO) Okay. And did you use that photo in some way?

(DEFRANCESCO) Yes, I did.

(TORNCELLO) How did you use it?

(DEFRANCESCO) I showed it to ['Arthur'] during my interview with him.

(TORNCELLO) Did you ask him who was in that picture?

(DEFRANCESCO) Yes. [275]

(TORNCELLO) Did he tell you?

(DEFRANCESCO) Yes.

(TORNCELLO) Did he tell you it was Jeff Nickel?

(DEFRANCESCO) Yes.

(TORNCELLO) Incidentally I guess just for -- does that photo, does this appear to be in the similar condition or same condition as when you received it on August 7, 2000?

(DEFRANCESCO) Yes, sir.

(TORNCELLO) Thanks. I'll offer that. I'll offer it again.

(CZAJKA) This will all be grist for the mill.

(TORNCELLO) Thank you. Now, after the interview with ['Arthur'] you said you instructed some of your investigators to go, visit Mr. Nickel, is that correct?

(DEFRANCESCO) Yes.

(TORNCELLO) Do you know where he lived?

(DEFRANCESCO) Yes.

(TORNCELLO) Where was that?

(DEFRANCESCO) I believe 46 Lansing Drive.

(TORNCELLO) How do you know where he lived?

(DEFRANCESCO) From the return address on the mail [276] envelopes.

(TORNCELLO) Okay. And did they do that? Did they go out to 46 Lansing Drive in Delmar?

(DEFRANCESCO) Yes.

(TORNCELLO) Do you recall who went out there?

(DEFRANCESCO) I believe it was investigator Ron Bates and Investigator Thompson.

(TORNCELLO) Okay. And you didn't go, did you?

(DEFRANCESCO) No.

(TORNCELLO) What was the result of their visit out to Lansing Drive in Delmar?

(DEFRANCESCO) Mr. Nickel came back to the Albany County Court House.

(TORNCELLO) Now, where -- on August 7, 2000, did you meet Jeff Nickel?

(DEFRANCESCO) Yes.

(TORNCELLO) Do you see him in the courtroom today?

(DEFRANCESCO) Yes, I do.

(TORNCELLO) Point to him please?

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

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

(CZAJKA) Yes. [277]

(TORNCELLO) Thank you. Now where did you first see Jeff Nickel?

(DEFRANCESCO) Here at the Courthouse.

(TORNCELLO) Okay. And if you know, how did he arrive at the Courthouse?

(DEFRANCESCO) He drove his car here.

(TORNCELLO) Was another member of the Albany County Sheriff's Department in the car with him?

(DEFRANCESCO) No.

(DC) Objection.

(CZAJKA) If you know?

(DC) Unless he was physically present there and saw it?

(DEFRANCESCO) I was told he did not --

(DC) Objection, hearsay.

(CZAJKA) It's stricken.

(TORNCELLO) Okay. At some point did he find his way in the county -- into the building?

(DC) Objection.

(CZAJKA) Well, he got in the building?

(DEFRANCESCO) Correct.

(CZAJKA) Whether he found his way or was lead. He got in here? [278]

(DEFRANCESCO) Correct.

(TORNCELLO) Did he get into your office somehow?

(DEFRANCESCO) An office, not mine.

(TORNCELLO) Whose office did he go to?

(DEFRANCESCO) It was the complex of the chief and the deputy command office.

(TORNCELLO) Where is that office?

(DEFRANCESCO) Down in the basement floor of the courthouse here.

(TORNCELLO) Okay. Were you there?

(DEFRANCESCO) Yes.

(TORNCELLO) And Jeffrey Nickel was there, right?

(DEFRANCESCO) Correct.

(TORNCELLO) Anybody else?

(DEFRANCESCO) In and out of the office during the time were Investigator Bates, Montaleone, Reilly and Chief Apel and Investigator Thompson.

(TORNCELLO) Somebody showed him where your office was, right?

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) They brought him into your office?

(DEFRANCESCO) Correct.

(TORNCELLO) And what happened when he arrived? [279]

(DEFRANCESCO) (No response).

(TORNCELLO} Well strike that. Have you ever seen Jeff Nickel before?

(DEFRANCESCO) No.

(TORNCELLO) Had you ever met Jeffrey Nickel before?

(DEFRANCESCO) No.

(TORNCELLO) How were you dressed?

(DEFRANCESCO) In civilian clothes.

(TORNCELLO) Okay. Did you identify yourself?

(DEFRANCESCO) Yes.*
[* No he didn't.]

(TORNCELLO) I guess you identified -- did you introduce yourself?

(DEFRANCESCO) I told him my name, who I was, the fact that I was a supervisor and that he had met an investigator earlier.*
[* In fact, DeFrancesco did none of those things. He's lying -- four times over. But don't take our  word for it. See the  DeFrancesco  section, where a federal judge finds his testimony (related to Miranda warnings) in another case incredible. The reason he is lying here is in order to make sure that Nickel's supposed 'statement' is found to be 'voluntary.']

(TORNCELLO) What kind of room did you -- describe the room that you were in, on that day, August 7th?

(DEFRANCESCO) It's a office with three or four desks in this office, they're three or four doors that have an office, one person in an office one field commander's office and another just a filing room.

(TORNCELLO) Okay. What was your initial [280] observation of Mr. Nickel? What was his demeanor like?

(DC) Objection, irrelevant.

(CZAJKA) Sustained, not for that reason, although that may or may not be accurate. Firstly, it's two questions. Ask one question at a time. I'll consider the objections as they're made.

(TORNCELLO) Thank you. Did you make any observations of him?

(DEFRANCESCO) Yes.

(TORNCELLO) And what were they?

(DEFRANCESCO) That he was very calm, relaxed and composed. *
[* This also helps DeFrancesco in his bid to make sure that Nickel's 'statement' is allowed into evidence. And there was probably even some truth to it -- at least, as it characterized Nickel's initial demeanor, before he found out what this was really all about (i.e., not a supposed 'slapping incident', as he'd been led to believe).]

(TORNCELLO) Did you invite him to sit down and talk with you?

(DEFRANCESCO) Yes.

(TORNCELLO) Okay. Where did you sit?

(DEFRANCESCO) I was seated behind a desk.

(TORNCELLO) Where did Mr. Nickel sit?

(DEFRANCESCO) Right beside me.*
[* This is -- at best -- misleading. When Nickel came into that room, he took a chair directly across from DeFrancesco. And be remained there for quite some time. Only later on did he sit (sort of) next to DeFrancesco, as the latter was typing up the 'statement.' (It's unclear why DeFrancesco would have misrepresented this issue -- perhaps [again] to help make this statement appear as 'voluntary' as possible.)]

(TORNCELLO) Okay. So you sat at whose desk, do you recall?

(DEFRANCESCO) It was one of the secretaries desks, I [281] believe Kim Shaw.*
[* Why wasn't DeFrancesco at his own desk, in his own office? Perhaps because he wanted to continue to obscure the fact that he was a policeman? Moreover, don't police usually have special interrogation rooms, with cameras and microphones mounted in the ceiling?]

(TORNCELLO) Is there a computer on the desk?

(DEFRANCESCO) Right behind it.

(TORNCELLO) All right. And Mr. Nickel sat right next to you?

(DEFRANCESCO) Correct, behind the desk, right next to me.*
[* Not exactly -- see above.]

(TORNCELLO) Could you see the computer screen?

(DEFRANCESCO) Yes.

(TORNCELLO) Could -- was Mr. Nickel's vision blocked in any way from seeing the computer screen?

(DC) Objection.

(CZAJKA) Overruled.

(DEFRANCESCO) No.*
[* Again, this is -- at best -- extremely misleading. At that point, as he is typing, DeFrancesco is -- of course -- sitting directly in front of the computer screen. Nickel is seated to his right. Thus, to the extent Nickel can  see the screen, he's viewing it from an angle extreme enough to render actually reading  what's on the screen almost impossible.]

(TORNCELLO) Now, what's the first thing the first thing that you talked about with Jeff Nickel, when you sat down at that desk.

(DEFRANCESCO) I advised him of his Miranda rights.*
[* Another lie. Neither DeFrancesco, nor anyone else, ever read Nickel his Miranda rights. (Again, see DeFrancesco  section, where a federal judge essentially calls DeFrancesco a liar in another case, when the latter claimed to have read that  suspect his rights.) Once more, this lie is in the service of having Nickel's supposed statement declared 'voluntary,' and thus, admissible as evidence against him.]

(TORNCELLO) How did you do that?

(DEFRANCESCO) We have a disk, a computer disk, that I placed into the computer and I pulled up a form.* It's a standardized form on that and the form is --
[* In order to read someone his rights, DeFrancesco puts a disk into a computer, and then reads them from a screen? This is not credible. Detectives and other members of law enforcement virtually always have preprinted Miranda cards that they read from. (The ACLU and other organizations provide them to members of the general public as well.) And, it's not as if these Miranda warnings are lengthy; indeed, an experienced member of law enforcement -- which DeFrancesco already was by that point -- would almost certainly have them memorized.]

(DC) Objection to the [282] characterization standardized.

(CZAJKA) Overruled, continue your answer.

(DEFRANCESCO) It's a standardized form and on the form it's captioned the Miranda warnings. I read the Miranda warnings from the computer screen which were on that form.*
[* No he didn't.]

(Whereupon, People's Exhibit "22" was marked for identification)

(TORNCELLO) Let me show you what's been marked as People's number 22, for identification is that the standard form that you're referring to?

(DEFRANCESCO) Yes, it is.

(CZAJKA) Well, the printed portion?

(DEFRANCESCO) Correct.

(CZAJKA) I mean?

(TORNCELLO) The top?

(CZAJKA) All right. Go ahead.

(TORNCELLO) I guess do us all a favor and read to the Court the Miranda warnings, in the same manner that you read them to Jeff Nickel, on [283] August 7, 2000?

(DC) I'm going to object, as what's being called for here is a reenactment. There would he no way to truthfully be able to determine how they were read on that day at that point in time, unless there was some recording or visual for the -- for the trier of fact to determine.

(TORNCELLO) Your Honor --

(CZAJKA) Don't interrupt.

(DC) That would be the basis of my objection.

(CZAJKA) Overruled. Go ahead.

(DEFRANCESCO) I stated that you have the right to remain silent, anything you say can and will be used against you in a Court of law.*
[* No -- he told Nickel none of that.]

(CZAJKA) I want to amend Mr. Torncello's question, I want you to answer the following question, instead read it in the manner in which you read it to Mr. Nickel on that day, interpose what if anything he said as you read it. Go ahead.

(DEFRANCESCO) Yes, sir. I stated to him one that [284] you have the right to remain silent, and I said two, anything that you say can and will be used against you in a court of law. That you have the right to talk to a lawyer, to have him present, while you are being questioned, that if you cannot afford a lawyer, one will be appointed to represent you before any questions. At this point I asked him if he understood what I just explained to him.*
[* None of the above ever happened.]

(DC) Your Honor, I believe he's reading from the printed form here; he read it incorrectly.

(CZAJKA) Well, that would be grist for cross-examination then. Go ahead.

(DEFRANCESCO) And he told me he understood. And I asked him if he wanted to continue and speak with me and he said yes.*
[* All of the above are indeed required under Miranda; but none of them actually happened here.]

(TORNCELLO) Now, after you read those warnings, did the interview or the conversation continue?

(DEFRANCESCO) Yes.

(TORNCELLO) And how did it -- describe the interview? Describe what you did and what he did, and tell us what happened? [285]

(DEFRANCESCO) We sat and we talked, Mr. Nickel told me it would be best of we started right from the very beginning, which he meant from the beginning of his life.

(CZAJKA) Well, you don't know what he meant. Just answer the question. Tell us what you said and what he said.

(DEFRANCESCO) He told me it would be better if we started from the beginning, I said fine. He started to explain to me his life experiences, starting around six or seven years of age, to the present time.

(TORNCELLO) Okay. And if you remember, what did he say and what did you say?

(DEFRANCESCO) He told me --

(DC) Objection.

(CZAJKA) Overruled.

(DEFRANCESCO) He told me that, how he first realized that he was gay, he had attended gay groups, he explained to me how he had partners, male partners and the break-ups with the male partners.

(TORNCELLO) Continue?

(DC) Your Honor, I'm going to object to the introduction of this line of [286] conversation, as not relating to or being definitive of a statement, but is being offered for the purpose of prejudicing the trier of fact here against the accused.

(CZAJKA) How so?

(DC) If I heard this statement to this point, he was recounting, that Mr. Nickel told him he was gay.

(CZAJKA) Well, I can tell you that I have no bias against the defendant because of sexual orientation if that is the implication, and even were the trier of fact to have such a bias, as I said, I don't, but were I to do so, I am confident that I can consider that which is relevant and admissible.*
[* Well, that's all very nice -- even if not altogether believable. But one should ask oneself: Why is the prosecution going into the gay-related stuff at all? Why did the police seize from Nickel's home -- and the prosecutor then attempt to introduce into evidence -- several gay magazines? In any event, it will soon become clear that Czajka is absolutely incapable of disregarding information which is absolutely irrelevant to the specific criminal acts Nickel was on trial for.]

(DC) I think the only purpose, Your Honor, for which this is being offered though, is an attempt to influence or prejudice against Mr. Nickel. It has no relevancy to the charges at issue here.

(CZAJKA) Mr. Torncello?

(TORNCELLO) It's part of the defendant's statement judge.*
[* Even if that's true, it in no way addresses defense counsel's concern that this is only being discussed in an effort to prejudice Nickel, and has no bearing on any of the actual crimes he was charged with. (Moreover, the judge is going to be reading this statement anyway. What's the point of going into [absolutely immaterial] portions of it now? There can only be one answer.)]

(CZAJKA) Overruled. Go ahead [287] Inspector, continue. Is there an outstanding question?

(TORNCELLO) The Inspector was in the middle of an answer, as I recall. Can you just tell us, what he said, what you said?

(DEFRANCESCO) As we spoke, I was -- correction, as I spoke to him, he spoke to me, he was saying so much that --

(CZAJKA) I want to amend something that I said earlier when I referred to the defendant's sexual orientation. The defendant's sexual orientation is not remotely relevant, and so, as trier of fact, it will not be up to me to determine whether he is or is not gay. That is not an issue before the Court. I want to make that clear. I didn't want to leave the impression that that might somehow effect the verdict because it won't. Go ahead.*
[* Some very flowery words, the only intended purpose of which is to try to ensure that Nickel would not be able to effectively use this issue on appeal. See Czajka  section where he does precisely this -- and appellate lawyers call him out for it -- in other cases.]

(DEFRANCESCO) As we spoke to each other I would type some of what he said, what I was typing [288] what he was saying to me, if I typed something on the computer screen that was not as the way he wanted it to read or say, he would say no, no, no I meant this and I would go back and correct it to what he wanted it to say.*
[* No. As already noted, it is impossible for a person sitting next to someone who's typing on a computer to accurately make out what is appearing on the computer screen. Thus, the only way Nickel would know what DeFrancesco had typed was if the latter read it back to him, which DeFrancesco rarely (if ever) did. In any event, at no point did Nickel ever say anything along the lines of 'no, no, I meant this...'.]

(TORNCELLO) Did the defendant make corrections?

(DEFRANCESCO) As we were going along. *
[* No -- see above.]

(CZAJKA) So he was looking at the screen?*
[* Did Czajka actually think before posing this question? Common sense tells you that it's virtually impossible to see what's on a computer screen unless you're looking directly at it -- as opposed to sitting next  to the person who's right in front of it, and trying to make out words on the screen from such an extreme angle. Or, perhaps Czajka is quite aware of the utter implausibility of DeFrancesco's claims here, and is simply -- and reflexively -- providing yet another 'helping hand' to the prosecution.]

(DEFRANCESCO) He was.

(DC) Objection as to the conclusion whether he was looking at the screen meaning thereby he was reading as opposed to merely seeing a screen. I object to the testimony of even seeing a screen, only the accused would know what he was looking at.

(CZAJKA) He was making corrections as you typed?*
[* Yet another helping hand for the prosecution side.]

(DEFRANCESCO) Yes, sir.*
[* No  -- physically impossible, for the reasons noted above.]

(CZAJKA) Overruled. Go ahead Mr. Torncello.

(TORNCELLO) Thank you. And I take it, your conversation was reduced to writing, is that [289] correct?

(DEFRANCESCO) Correct.*
[* No -- DeFrancesco only wrote things down that would help the prosecution side. For example, he asked Nickel if he ever inserted his finger into 'Arthur's' rectum. Nickel adamantly denied doing so. But that denial is nowhere to be found in this supposed 'statement.']

(TORNCELLO) And that's what I want to get at, how was it reduced to writing. Would the defendant talk and then you -- you would write or did you type it? What actually happened?

(DEFRANCESCO) I would type it. We would talk both of us like you and I are talking now, and he talked and I typed on the computer as we went along, then he would stop and when I caught up to where we were in the conversation and continue our conversation.

(TORNCELLO) Okay. And you said that defendant would make some changes, is that correct?

(DEFRANCESCO) Yes.*
[* No -- see above.]

(TORNCELLO) Did he tell you how he wanted things phrased for instance?

(DEFRANCESCO) Yes.*
[* No.]

(TORNCELLO) Now, how long did this take, approximately?

(CZAJKA) How long did what take?

(TORNCELLO) The taking of the statement?

(DEFRANCESCO) Two and a half hours or so.*
[* No. Nickel walked into that room at about 2:30 pm, and the interrogation ended at about 8:00 pm, meaning that it lasted some five-and-a-half hours. (Bates also conveniently altered the actual times here in order to make the interrogation appear dramatically shorter than it actually was.) The reason why DeFrancesco is lying here is, again, to try to make the statement appear as 'voluntary' as possible. (2-1/2 hours looks a lot better than the actual 6-1/2 hours it took DeFrancesco to pressure and cajole him. (And even then, DeFrancesco still had to significantly alter what Nickel actually said.)] [290]

(TORNCELLO) Were you at the computer the whole time?

(DEFRANCESCO) No.

(TORNCELLO) Okay. Did you have anything to eat?

(DEFRANCESCO) We ordered outside for pizza; we had soda I believe and we also had coffee.

(CZAJKA) Did defendant eat?

(DEFRANCESCO) Yes, sir.

(CZAJKA) And drink?*
[* Well then, doesn't that just conclusively prove the 'voluntariness' of this 'statement'? (Not hardly.)]

(DEFRANCESCO) Yes, sir.

(TORNCELLO) Okay. And then I guess would you go back and continue writing the statement?

(DEFRANCESCO) Yes.

(TORNCELLO) Preparing the statement. Okay. Now, at some point in time, let me ask you, were you comfortable that the defendant could read?

(DC) Objection.

(CZAJKA) Overruled.

(DEFRANCESCO) Yes.

(CZAJKA) Well, the defendant's -- the witness is comfortable, is irrelevant.* Go ahead.[* Well, if that's irrelevant, why did you immediately overrule defense counsel's objection? The answer is clear: Once again, Czajka has reflexively sided with the prosecution, backpedaling only when he realized that what he just did could help the defendant win on appeal.]

(TORNCELLO) Could the defendant read?

(DEFRANCESCO) Yes.

(DC) Objection. [291]

(CZAJKA) How do you know that he could read?

(DEFRANCESCO) He told me he went to college.

(TORNCELLO) Okay. Did he tell you where he went to college?

(DEFRANCESCO) In Boston.

(TORNCELLO) Okay. Now, at some point in time did you print-out the statement?

(DEFRANCESCO) Yes, I did.

(TORNCELLO) And after you printed it out, what did you do?

(DEFRANCESCO) I handed it to Mr. Nickel and asked him to read it over.

(TORNCELLO) Okay. And where was he sitting when you asked him to do this?

(DEFRANCESCO) Again, right next to me.

(TORNCELLO) Okay. Did he read it?

(DEFRANCESCO) Yes, meticulously.

(DC) Objection as to that characterization.

(CZAJKA) Sustained.

(TORNCELLO) Did he -- tell me did he glance at it, did he take a while to look.

(DEFRANCESCO) He took a while with each page. He would read that page over and go on to the [292] next page.

(TORNCELLO) And at the conclusion, do you know how many pages the statement is?

(DEFRANCESCO) I believe six pages.

(TORNCELLO) At the bottom of the statement there's a little line for signatures?

(DEFRANCESCO) Yes.

(TORNCELLO) And did you ask the defendant to sign it?

(DEFRANCESCO) Yes.

(TORNCELLO) What did you say to him? What did you say. Did you say you have to sign that or sign that now? What did you do?

(DEFRANCESCO) I asked him if he would sign the statement.

(TORNCELLO) Did he sign the statement?

(DEFRANCESCO) Yes.*
[* It is true that Nickel signed at the bottom of the last page of the statement. But, unlike other statments taken by other investigators in this case, Nickel did not initial every page of the statement. Thus, DeFrancesco had the opportunity to -- and in fact, did -- alter what was printed on at least one of the pages after Nickel signed the statement. (Moreover, whether or not a suspect actually signs a statement is not nearly as significant as Torncello makes it out to be. In Martin Tankleff's case (see New York State Wrongful Convictions section), although he did refuse to sign a coerced 'confession' purportedly admitting that he killed his parents, this 'statement' was used against him at trial anyway -- and he was convicted.)]

(TORNCELLO) Did he sign it in front of you?

(DEFRANCESCO) Yes.

(TORNCELLO) Did you make him sign it?

(DEFRANCESCO) No.*
[* Well, there certainly were false promises and coercion involved, which -- had this interrogation actually been videotaped (or even audio-taped) -- would have rendered this supposed 'statement' involuntary and inadmissible. (Nickel was told what he did would only be subject to a fine, and that he wouldn't want his mother to have a stroke if they had to do things 'the hard way,' if he failed to 'cooperate.')]

(DC) Objection.*
[*This objection comes too late -- the question had already been answered.]

(CZAJKA) Overruled.

(TORNCELLO) Did you sign it?

(DEFRANCESCO) Yes. [293]

(TORNCELLO) Did you sign it in his presence?

(DEFRANCESCO) Yes.

(TORNCELLO) Was there anybody else present when he signed that document?

(DEFRANCESCO) I believe there was.

(TORNCELLO) Who was that, do you recall?

(DEFRANCESCO) I believe Investigator Reilly.

(TORNCELLO) Okay. Was Investigator Reilly in the room the whole time?

(DEFRANCESCO) The whole time the statement was taken, sir?

(TORNCELLO) Yes?

(DEFRANCESCO) No.

(TORNCELLO) Were other members of your department in the room?

(DEFRANCESCO) In and out of the room.

(TORNCELLO) Okay. Basically were you in the room with the defendant the entire time?

(DEFRANCESCO) Yes, sir.

(TORNCELLO) Okay. Let me do this, I have some questions I want to ask you specifically about that, but I'll offer it. Let's look at People's number 22 for identification, and if you can tell the Court what that is?

(DEFRANCESCO) This is the statement of Jeffrey [294] Nickel taken on August 7, 2000.

(TORNCELLO) Is that a photocopy or is it the original? Look at it?

(DEFRANCESCO) This is the original.

(TORNCELLO) Okay. If you can -- take your time, did you look at it and see if it's in the same condition or similar condition as when it was created on August 7, 2000?

(DEFRANCESCO) It appears to be in the same condition.

(TORNCELLO) Okay. Judge, I would offer People's number 22 in evidence?

(DC) Your Honor, would I be able to ask some preliminary questions?

(CZAJKA) Go ahead.

(DC) Before hand, in the nature of voir dire.

(CZAJKA) I would assume so.
(DC) Yes, sir. Good morning Mr. DeFrancesco. I am going to ask you a few questions, if I may this morning. I believe you testified with respect to People's number 22? [295]

(CZAJKA) Inspector, would you step down for a minute, please? Attorneys* come up.
[* Note that Czajka asks both Torncello and DC to come up. This is not always the case -- particularly during the defense photography expert's testimony below.]

(Side bar).

(CZAJKA) Come back inspector please.

(DC) Inspector, referring now to People's for identification, number 22. I'll hand this back to you for a moment, if I may? At the very top of item 22, there appears what we commonly refer to as the Miranda warnings do they not?

(DEFRANCESCO) Yes, sir.

(DC) And it is your testimony that as they appear there was as you gave them, that afternoon or evening?

(DEFRANCESCO) I don't think I understand?

(DC) Well, you're holding a document in your hands?

(DEFRANCESCO) Correct.

(DC) At the top of which are Miranda warnings?

(DEFRANCESCO) Yes, sir. [296]

(DC) Are those -- are the Miranda warnings that you say you gave to Mr. Nickel that afternoon?

(DEFRANCESCO) These are the Miranda warnings I gave with the exceptions.

(CZAJKA) With what?

(DEFRANCESCO) With exception.

(DC) Well, let me ask you this, let's look at the Miranda warnings number one.

(TORNCELLO) Objection.

(CZAJKA) Sustained. This should be voir dire, this may or may not be appropriate cross-examination, but it's not appropriate for voir dire.

(DC) Then I have no further questions.

(CZAJKA) What do you say to the People's offer of number 22?

(DC) Object to it, Your Honor, on the following grounds: That the Miranda warnings listed at the top of this document are not the proper Miranda warnings that must be provided to a defendant. If the Court will look at this document, you'll [297] notice that number one, it says that I have the right to remain silent, not that you have. He's the typer of it. That anything I say can and will be used against me in a court of law, he's the typer, he's the speaker. It's not whatever you say can be used against you in a court of law. Three, that I have the right to talk to a lawyer, that the investigator would have the -- such a right. It's -- there's a very important difference here, Your Honor. He should have been advised that you have the right as you sit there, to talk to a lawyer, not what his rights might be, and to have him with me, while I am being questioned. Well he's being questioned, it should be while you are being questioned you have the right to have that lawyer there. He's got that, if I cannot afford a lawyer if should be if you can't afford a lawyer, one will be appointed to represent you before any questioning, if you want one. It's continually used in the singular with the word I. I submit, Your Honor, that this is not the proper Miranda warning. It was [298] not intelligently given or understood to be given. It was not advising the defendant of his rights, nor was there any answer elicited as to whether or not even in this confused state, that the accused understood any of these answers. He wasn't stopped and asked after each one of them did you understand what I said, and gotten a response, and for that reason I'm going to object to it, Your Honor.

(CZAJKA) Wish to be heard?

(TORNCELLO) No, I think I'll rest on the testimony of the witness.

(CZAJKA) All right. Certainly at the conclusion of the trial, the defendant may wish to argue to the trier of fact that it should disregard the statement for those very reasons, consistent with the applicable CJI charge, but that does not go to the admissibility of the statement in the first place.* The objection is overruled, and Exhibit 22 is received. [299]
[* This would appear to be simply incorrect. If a statement is not truly 'voluntary,' it cannot be admitted into evidence -- at least as far as the prosecution's 'case-in-chief' is concerned. (It can, however, be admitted for the purpose of rebutting trial testimony.)]

(Whereupon, People's Exhibit 22 was received in evidence).

(DC) Your Honor, could I make an additional objection to the witness?

(CZAJKA) One minute. Go ahead.

(DC) Your Honor, I believe that pages, physically counting, the first two and a half, to three quarter pages.

(CZAJKA) Yes.*
[* Apparently, something caused defense counsel to pause, and possibly look up at Czajka, given that Czajka then interjects with "Yes." Thus, it would seem that defense counsel had reason to think Czajka was not actually paying attention to what he was saying.]

(DC) Which are taken in the nature of a sort of background or whatever one wants to characterize them, should not be regarded or admitted because they are not relevant to the charges in the indictment against this defendant. I would object in the basis that I'm also I asking for, I suppose, a redaction, if you will, although I appreciate it's the Court that --

(CZAJKA) Well, as I indicated earlier, I'm confident that I can disregard that which is irrelevant, and I will do so, subject to whatever arguments both of you have. Certainly if there was a jury here, we'd consider that in greater detail, and [300] I'll consider each of your requests and for a redaction and what if anything should be redacted, but I'm going to have to read it any way*, and you tell me at the appropriate time what you want me to disregard, and the reason for it, and I'll consider the request before I render a verdict. Make sense?
[*Note that Czajka has, apparently, not yet read the 'statement.' After he does so (just below), Czajka's behavior will change significantly.]

(TORNCELLO) Thank you. Judge, I wanted to ask for the purpose of a clean record, if I publish that document now. I'll read it very quickly, as quickly as is --

(CZAJKA) Read it to me?

(TORNCELLO) I do.

(CZAJKA) No, no, no.

(TORNCELLO) I would like to put it on the record.
(CZAJKA) The exhibit is in the record, it's marked and received. I can read it myself.

(TORNCELLO) I do have to ask particular questions with respect to the document.

(CZAJKA) I'll consider the objections as they're made. Do you want me [301] to read it first?

(TORNCELLO) Yes. Thanks judge.

(CZAJKA) While I'm doing is, why don't we take a few minutes?

(Whereupon, a brief recess was had).

(CZAJKA) Go ahead Mr. Torncello.

(TORNCELLO) I want to ask you a couple of questions about People's number 22 which is in evidence, okay. They're some terms there, that I would like you to explain to me, okay? The first one is, its called B/L, and later referred to as boy lover*; did you have a conversation with Jeff Nickel, about the term boy lover and what it means?*
[*Torncello knows damn well what the term 'boy-lover' means. His real purpose here is to say these terms as many times as he -- or prosecution witnesses -- possibly can, in order to distract Czajka's attention from the fact that evidence of the actual crimes Nickel was charged with is -- in this document, and throughout the trial itself -- slim to nonexistent. (The prosecution will use the word "boy lover" a total of 13 times. "NAMBLA," which stands for the North American Man-Boy Love Association, will also be used a total of 13 times. And, counting conservatively, there were an additional 16 timeswhen either Torncello or prosecution witnesses drew attention to Nickel's purported proclivities by some other means. Thus, in total, there were at least 42 propensity-related references by the prosecution, none of which had any bearing on any of the specific acts he was charged with.)]

(DC) Objection, the document speaks for itself.

(CZAJKA) You're referring to a conversation separate and apart from that which was reduced?

(TORNCELLO) I wonder if he [302] could explain to the Court what the term boy lover means and what about that means --*
[*Note that Torncello does not actually answer Czajka's question here.]

(CZAJKA) That's in his statement? Unless you're talking about some separate conversation?

(TORNCELLO) No.

(CZAJKA) The objection is sustained.

(TORNCELLO) And if you'd refer to page two, it says in the first paragraph it starts picking up the NAMBLA Journal, is that -- what does that mean?*
[* So, defense counsel's objection to Torncello trying to get DeFrancesco to 'explain' what 'boy-lover' means was just  sustained; and yet, now Torncello's attempting to do exactly the same thing with the term NAMBLA. Thus, he's essentially disregarding Czajka's instruction on this issue. But it wasn't the first time, and it won't be the last. However, there will never be any real consequences for Torncello doing so.]

(DC) Objection again, Your Honor. These were the same pages that I was addressing earlier.

(CZAJKA) All right. Let me clear one thing up, inspector did it -- did you have any discussions with the defendant, that were not reduced to that document?*
[* This question was clearly addressed to DeFrancesco; and yet, Torncello then interjects.]

(TORNCELLO) Do you mean other days or times or just that interview?

(CZAJKA) Well during this period of time on this day?

(DEFRANCESCO) It's hard for me -- [303]

(CZAJKA) Did he say anything to you that was not reduced, that was not transcribed?

(DEFRANCESCO) No.*
[* That's false: For one, Nickel's adamant denial of the alleged digital penetration incident is nowhere to be found in this document.]

(CZAJKA) The objection is sustained.

(TORNCELLO) I'm asking you, do you have any experience in or some education, in sex crimes?

(DEFRANCESCO) Yes.

(TORNCELLO) Okay. And what kind of experience or where did you receive that training?

(DEFRANCESCO) I attended --

(DC) Again if I could just be heard on this issue? If the attorney would be kind enough to identify whether it was prior to or after his involvement in this case?

(TORNCELLO) Prior to your involvement in this case, did you have any experience in investigating or working on sex crimes?

(DEFRANCESCO) Yes, yes.

(TORNCELLO) And where did you get that training and where did you get that experience?

(DEFRANCESCO) I attended numerous training seminars [304] and conferences, including one which was the New York State Police Sexual Offender Seminar, Cornell Henry Seminar for Missing and Exploited Children, and other seminars that I don't recall off the top of my head.

(TORNCELLO) Is it fair to say some of them dealt with children?

(DEFRANCESCO) Yes.

(TORNCELLO) Okay. Did the topic or the term, NAMBLA ever come up?*
[* So, having been thwarted from discussing NAMBLA in terms of the purported statement, Torncello finds another  way to continue harping on it. Note that he has yet to discuss anything in the 'statement' relating to actual criminal actions.]

(DEFRANCESCO) Yes.

(TORNCELLO) Do you know what that term means?

(DEFRANCESCO) Yes.

(DC) Objection again whether that's before he was talking about this, August 7th of 2000 or after it.

(CZAJKA) Overruled. Go ahead.

(DEFRANCESCO) NAMBLA stands for North American --

(CZAJKA) For the -- did you know what it meant before this statement?*
[* Yet again, Czajka reflexively sides with the prosecution, only to then have to backpedal. (The next word he was going to say after 'For the' was very likely: 'record').]

(DEFRANCESCO) Yes.

(CZAJKA) All right. Go ahead.

(DEFRANCESCO) NAMBLA stood for or stands for the [305] North American Men Boy Lover Association.*
[* Not quite.]

(TORNCELLO) Okay. And --

(DC) I'm going to object to this, Your Honor again, as being highly prejudicial to the case. Again, if a jury were here, I would be moving for a mistrial, because this does not deal with the accusations contained in the indictment. It's merely offered to prejudice the accused, and its only purpose is for that to be --

(CZAJKA) Overruled. It goes to well number one, it's part and parcel of exhibit 22, which the People allege is a statement given by the defendant. Number two, it is relevant for the purpose of the People's attempt to prove sexual gratification. You may proceed. Objection overruled.*
[* Firstly, Czajka cuts defense counsel off before the latter can finish. Secondly, what happened to: 'The exhibit is in the record...I can read it myself'? Czajka just sustained two defense counsel objections on virtually identical facts. So why is he now overruling? Third, the idea that what someone may read is relevant to proving an actual crime runs counter to the whole of the common law.]

(TORNCELLO) Thank You, Your Honor. The North American Man Boy Love Association*, do you know anything about them or the tenants or any -- what their beliefs are? [306]
[* Note that this is not exactly what DeFrancesco said 'NAMBLA' stood for.]

(DC) Again objection.

(CZAJKA) That calls for hearsay. Have you learned that through your experience as an investigator?*
[* This question is completely irrelevant to the core issue: One's reading material may not be used to prove an actual criminal action Either Czajka knows this is a red herring, and is being disingenuous, or he doesn't, and he's simply incompetent.]

(DC) Objection.

(CZAJKA) I'll allow you to voir dire before he answers the ultimate question; have you learned about the organization?

(DEFRANCESCO) Yes, to some degree.*
[* Well, not to the degree that he can get its actual name right.]

(CZAJKA) Go ahead.

(TORNCELLO) And what are, if you can, if you know, what are the tenants, some of their beliefs through your training?

(DC) Objection.

(CZAJKA) What -- explain the source of your information first.

(DEFRANCESCO) From working with other investigators who have dealt with crimes or investigations where NAMBLA came up.

(CZAJKA) Actually, wait. The reference in the statement, Mr. Torncello, is that or are -- is that defendant read a magazine, or looked at a magazine, not that he was a member of the organization.* So for [307] that reason the objection is sustained.
[* Yet again, Czajka backpedals after reflexively ruling for the prosecution. But in the meantime, (unfair) damage has been done. But even now, he's still  wrong: Even if Nickel were a member of NAMBLA, that would not make this whole line of questioning constitutionally permissible. In this country at least, we're not supposed to convict people for the (lawful) organizations they may belong to; we're supposed to convict people only for what they DO.]

(TORNCELLO) Okay. Now, do you know if -- do you know if this defendant is a member of NAMBLA?

(DC) Objection.

(CZAJKA) Well, before you answer the question, tell me what the source is of your information?*
[* Again, this is a red herring.]

(DEFRANCESCO) Regarding his belonging?

(CZAJKA) Yes.

(DEFRANCESCO) I don't know.

(TORNCELLO) Okay. You don't know?

(DEFRANCESCO) No.

(TORNCELLO) Okay. Have you had a chance to review some of the items that were seized as evidence?

(DEFRANCESCO) Yes.

(TORNCELLO) Okay. Do they contain a number of NAMBLA magazines, and mailings?*
[* Clearly, Torncello's approach to prosecuting here is as follows: Regardless of a mountain of factual inconsistencies and other problems with the People's case against Nickel, so long as the former is able to show that he had some propensity along these lines, charging -- and convicting -- him with anything and everything is right, and just. Pyongyang [North Korea] would be proud.]

(DEFRANCESCO) Yes.

(DC) Objection.*
[* Again, given that then question was already answered, defense counsel's objection comes too late.]

(CZAJKA) These are the exhibits that are being reserved on?*
[* Another red herring. The real issue here is that these items are purely prejudicial, having no bearing on the actual  acts Nickel was charged with. (Courts are supposed to weigh the 'probative' nature of the proposed evidence against its likely 'prejudicial' effect. Czajka either does not understand this, or simply doesn't care.)]

(TORNCELLO) Yes.

(CZAJKA) Sustained. If I receive them, they speak for [308] themselves. If they don't, they're not in evidence. Go ahead.

(TORNCELLO) Okay. Let me go back a little ways to August 3, 2000, you said that you were made award of letters that arrived at the jail?

(DEFRANCESCO) Correct.

(TORNCELLO) Are you aware that the letters -- do you know who the letters were mailed to?

(DEFRANCESCO) Mr. Peters.

(DC) Objection, hearsay.

(CZAJKA) Sustained. Once again, talking about exhibits one through four that I reserved on? Sustained.

(TORNCELLO) Well, as part of your investigation did you learn, who those letters were mailed to?*
[* This is virtually the exact same question Torncello just  asked, the objection to which was sustained.]

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Do you know who Matthew Peters is?

(DEFRANCESCO) Yes.

(TORNCELLO) Who is Matthew Peters?

(DC) Objection, irrelevant as to who is Matthew Peters. [309]

(CZAJKA) I'll allow it subject to connection.*
[* Once again, having previously sustained defense counsel's objections to virtually the exact same questions, Czajka now overrules. It would seem that, if Torncello persists in his misconduct for long enough, Czajka will simply relent.]

(TORNCELLO) Who is Matthew Peters?

(DEFRANCESCO) Matthew Peters -- he was confined to the Albany County Correctional Facility. He was there on charges related to a conviction for a sexual offense involving children.

(TORNCELLO) On August 3, 2000, was he an inmate at the Albany County Correctional Facility?

(DEFRANCESCO) Yes, he was, he was.
(CZAJKA) So what's the purpose of that evidence?

(TORNCELLO) That's the tie up of People's one through four, that's all.*
[* No it isn't. Torncello is absolutely attempting to prove guilt by association.]

(CZAJKA) Well, other than to prove that the defendant was associating with those convicted of sex crimes, what's the relevance?

(TORNCELLO) Again, I think it goes to the intent issue that I have to prove with respect to several other counts in the indictment.* It is also further proof, in order to authenticate the letter, that are the letters that is in People's one through four. **
[* Baloney. 'Intent' cannot be established through who one associates with. That's just the 'guilty-by-association' argument in sheep's clothing.]
[** To the extent that this sentence may be said to make any actual sense, 'who Matthew Peters is' -- meaning (as Torncello clearly does) what sort of crimes he was charged with or convicted of -- does not 'authenticate' anything, as Torncello damn well knows.] [310]

(CZAJKA) [DC]?

(DC) I object to it, Your honor.

(CZAJKA) Objection sustained. The question and answer are stricken.*
[* That's very nice, but what does this actually mean? It's still in the record i.e., the trial transcript. Moreover, Czajka -- the very person who is also determining guilt or innocence -- has already allowed -- and heard -- all of this.]

(TORNCELLO) Okay. Now, on August 7th; did you ever go to Lansing Drive?

(DEFRANCESCO) Yes.

(TORNCELLO) As part of the search?

(DEFRANCESCO) Yes.

(TORNCELLO) You did. And did you pursuant to that -- pursuant to the search did you go through that area? Did you go through the house?

(DEFRANCESCO) Yes.

(TORNCELLO) Okay. Were you pretty much throughout the entire house?

(DEFRANCESCO) I walked in several different rooms in the house.

(TORNCELLO) Okay.

(CZAJKA) What are you looking for?

(TORNCELLO People's 7. I want to show you People's number 7 marked for identification, if you can, can you tell the Court what that document is please? [311]

(DEFRANCESCO) This is Search and Seizure Waiver that was executed on that date.

(TORNCELLO) Now, did you prepare that document?

(DEFRANCESCO) Yes, I did.

(TORNCELLO) Did you assist in preparing that document?

(DEFRANCESCO) Yes.

(TORNCELLO) And when was that document prepared?

(DEFRANCESCO) Shortly after Jeffrey Nickel had signed the statement that he had given me.

(TORNCELLO) So on August 7th at the conclusion of him giving his written statement, that document was created, is that correct?

(DEFRANCESCO) That's correct.

(TORNCELLO) Okay. And why was it created?

(CZAJKA) Mr. Torncello, I made a mistake, but unlike suppression of a statement, where a defendant would get two bites, to where the Court in a pre-trial matter be suppressed and the trier of fact that is, it not consider the statement for [CPL] 60.45 reasons, that's not the case with a search, is it? That's purely legal, is it not?* [312]
[* To the extent this sentence makes any actual sense, note that Czajka is asking the prosecutor to answer a legal  question. Note that he does not ask defense counsel this question. Moreover, if he truly does not know, what's he doing presiding over a trial?]

(TORNCELLO) You are correct. [DC] talked about it the other day and it seems like he's making an issue of the search, and I just want to explain to the Court that a search consent was signed and that the defendant signed it and a voluntary search commenced.*
[* This was hardly a 'voluntary' search. Firstly, DeFrancesco mentioned that they might have to 'tear the place apart' unless Nickel consented. Secondly, Nickel was shown the search warrant they had anyway. The latter -- as courts have consistently made clear -- vitiates  any 'consent' to search, because the suspect is presented with a fait accompli; i.e., the search was going to happen regardless. (But detectives still prefer that a 'consent' be signed, because it makes it harder for a defendant to challenge the search.)]

(CZAJKA) That may or may not be the case. What's your position? Is it a legal and factual issue or that -- is it a legal and factual issue both for the pre-trial Court and trier of fact or is it --?*
[* Once again, 'Judge' Czajka asks a legal question of the prosecutor, but not the defense counsel.]

(TORNCELLO) A legal issue that's previously been determined.

(CZAJKA) All right. Then move on.

(TORNCELLO) You went to his house, right?

(DEFRANCESCO) Correct.

(TORNCELLO) And did you notice anything?

(CZAJKA) I'm not ruling, [DC], if you have a position that's contrary that you want to discuss at some point at the relevant time, I would be glad to hear it but right now move on Mr. Torncello. [313]

(TORNCELLO) You went to his house, right?

(DEFRANCESCO) Correct.

(TORNCELLO) And did you go down to the basement?

(DEFRANCESCO) Yes.

(TORNCELLO) What if anything did you notice down in the basement?

(DEFRANCESCO) A computer*, a printer, scanner, fax, copier.
[* Note that the computer was not in the bedroom, as 'Arthur' claimed (see his  Day One  testimony).]

(TORNCELLO) And how were things stored down in the basement?

(DEFRANCESCO) There was a second couple of rooms with a second room off the basement main room where the computer had been located. There was numerous boxes.

(TORNCELLO) Okay. And what were the boxes doing there?

(DEFRANCESCO) Jeffrey Nickel told me that he was packing to go to college.

(TORNCELLO) Okay. So, his -- were his belongings packed together?

(DEFRANCESCO) Yes.

(TORNCELLO) Okay. And is it fair to say that the room had been broken down and packed up and ready to leave?*
[* It's unclear what Torncello was trying to accomplish with this line of questioning. It certainly didn't help to prove any of the actual crimes Nickel was charged with. Perhaps he was insinuating something nefarious about the fact that Nickel was planning to go away to grad school.]

(DEFRANCESCO) Right some of it, yes. [314]

(DC) Objection.*
[* Again, defense counsel waited far too long to object to this line of questioning.]

(CZAJKA) Sustained.

(Whereupon, People's Exhibit "23" was marked for identification).

(TORNCELLO) I am handing you what's been marked as People's twenty-three for identification; tell me what that is?

(DEFRANCESCO) It's a picture of Jeffrey Nickel.

(TORNCELLO) Do you know when that was taken?

(DEFRANCESCO) It would have been after his arrest.

(TORNCELLO) Okay. On August 7, 2000?

(DEFRANCESCO) August 7, 2000.

(TORNCELLO) Do you know where it was taken?

(DEFRANCESCO) Albany County Correctional Facility.

(TORNCELLO) Do you know by whom it was taken?

(DEFRANCESCO) No, I do not.

(TORNCELLO) Does that picture fairly and accurately depict the way Jeff Nickel looked on August 7, 2000?

(DEFRANCESCO) Yes, it does.

(TORNCELLO) At this point, I would offer twenty-three in evidence judge.

(DC) May I see it judge? [315] I have to object on the basis that this is apparently in common parlance, a mug shot, if you will, wherein a sign is held in front of the --

(CZAJKA) What's the relevancy Mr. Torncello?

(TORNCELLO) His appearance on the day of, his appearance at the time. I think his appearance has changed, that's all.*
[* No, Nickel's appearance had not changed in any significant way: the length/style/color of his hair were all the same, he still had no facial hair, and his weight was virtually the same it had been for years. No: What Torncello was really doing here was trying to get this 'mugshot' in front of Czajka, so as to paint Nickel -- particularly given the paucity of evidence against him -- in the worst possible light.]

(CZAJKA) Somehow relating to Exhibit 5?* What are you getting at?
[* Another helping hand to the prosecution. Exhibit 5 is the oral sex photo (which -- as noted in great detail above -- depicts neither Nickel nor 'Arthur').]

(TORNCELLO) It may, it may yes.*
[* False, as Torncello knows damn well. It's not as if the older person in that image has, for example, facial hair, or a radically different hairstyle. But what the latter does have -- as the defense's photography expert found -- is a very different (relative to Nickel) pattern of hair on his back, meaning -- combined with other characteristic contrasts -- that this image does not depict Nickel.]

(CZAJKA) Well, it's your evidence.*
[* The irony of this statement will soon become clear, when Czajka redirects the prosecution's theory of the case re: the sex photo.]

(TORNCELLO) Yes, well, it may, I think, it would help the trier of facts.

(CZAJKA) Objection sustained.

(TORNCELLO) Thank you. I don't think I have any more questions, Your Honor. Can I check my notes for a second? Judge, no thank you. No further questions.]

(DC) If it please the [316] Court, Your Honor? Good morning, Mr. DeFrancesco; how are you?

(DEFRANCESCO) Good morning sir.

(DC) I'm going to bring you back in time, if I may, to, I believe the 7th of August, but you correct me if that's an incorrect date. Did you have occasion on that day, to sit and talk with a person by the name of ['Arthur']?

(DEFRANCESCO) Yes.

(DC) And who was there present with you?

(CZAJKA) What's the reference day [DC]?

(DC) August 7th, sir. About what time of day was that taking place?

(DEFRANCESCO) I would say like ten o'clockish.

(DC) In the morning, sir?

(DEFRANCESCO) Yes.

(DC) Is it not a fact that another officer [317] accompanied you, for that purpose?

(DEFRANCESCO) Yes.

(DC) And who was that other officer?

(DEFRANCESCO) Investigator Bates.

(DC) Okay. Is that Ronald Bates of your department?

(DEFRANCESCO) I couldn't hear you?

(DC) Was that Ronald Bates of your department?

(DEFRANCESCO) Yes.

(DCl And when you -- did you in advance of this interview, did you have -- did you have a chance to set it up as far as what location it was going to take place?

(DEFRANCESCO) With specifics no, no.

(DC) With respect to just a general location?

(DEFRANCESCO) Yes.

(DC) All right. And what was that going to be at the [group home], was it?

(DEFRANCESCO) Yes.

(DC) And that was a place you knew where the boy went to school?

(DEFRANCESCO) Correct.

(DC) Where his counselors would be and [318] other people of that nature, correct?

(DEFRANCESCO) Yes.

(DC) All right. And you chose to interview the boy alone, did you not? And by alone I mean you and Investigator Bates?

(DEFRANCESCO) Yes.

(DC) No one else was present?

(DEFRANCESCO) No, no one else was present. *
[* From the standpoints of making 'Arthur' feel more at ease as well as getting at the truth, this was a really bad idea. 'Arthur' had never seen these people before. And they're policemen. That sort of 'authority figure' has been proven to heighten children's suggestibility, even beyond how interviews are actually conducted. (See Suggestibility section.)]

(DC) Okay. Now, in your course of study that you have take, or let me just ask you this, would you have found it an aid or beneficial, in chatting with a young person of tender years or age, to have it recorded in some way?

(DEFRANCESCO) No.

(DC) You don't think that would be a wise thing to do?

(DEFRANCESCO) No.*
[* That's absurd. The overwhelming consensus among professionals -- even back then -- was that all such interviews must be recorded. (See Videotaped Interviews section.) But then again, perhaps everything hinges on what's meant by the word, 'wise.' If you're an incompetent interviewer of children, and/or, you're really only interested in 'getting' the defendant (as opposed to getting at the facts), then maybe recording is not wise.]

(DC) All right. Could we agree that it would if it were recorded, it would give us the benefit today, wouldn't it, of knowing every question that was answered, wouldn't it?

(DEFRANCESCO) Certainly.

(DC) Would you have found it a useful tool [319] to video tape such an interview again when you're dealing with someone of tender years?

(DEFRANCESCO) No, it would be more of a hindrance.*
[* If DeFrancesco means a hindrance to the child speaking freely, he's simply wrong. Professionals have found that children, handled properly, become accustomed to a camera almost immediately. (Again, see Videotaped Interviews  section.) On the other hand, if he means a camera would be a hindrance to convicting people of things they did not do, then he's correct.]

(DC) Well again, with a television or a review, again, wouldn't we know exactly the questions that were asked the answers -- answers that were given?

(DEFRANCESCO) Certainly.

(DC) But you consider that to be a hindrance did you say?

(DEFRANCESCO) The fact of the cameras would be and video taping, yes.*
[* For the actual facts concerning this issue, see Videotaped Interviews section of this site.]

(DC) All right. Before you sat down to interview ['Arthur'], did you make any investigation with respect to his background?

(DEFRANCESCO) As far as, sir?

(DC) Anything.

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(DEFRANCESCO) I would have to say yes to some degree.

(DC) Some degree? And tell us, who did you get information from or what did you know?

(DEFRANCESCO) I don't remember her name, it was one I believe an Administrator of [the group home] [320] to the degree when ['Arthur'] came there, and where he was previous.

(DC) All right. Did you make any inquiry as to him of anyone else of the boy is on any medication?

(DEFRANCESCO) I don't believe I did.*
[* Well, someone who was interested in getting to the actual truth certainly would have.]

(DC) Would that have been important in investigating when you're going to interview someone and hoping to record the truth or the facts about the situation, to find out whether they're on medication?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Did you make any investigation to find out whether or not the boy, ['Arthur'], was on medication?

(DEFRANCESCO) No.

(DC) Would that have been a factor, would you consider an important factor to know?

(DEFRANCESCO) No.*
[* Well, then he's either incompetent or simply lying.]

(DC) Would you consider it an important factor to know, whether or not medications were given that day?

(DEFRANCESCO) No. [321]

(DC) Would you consider it an important factor to know, the type, if any, of medications, that were given?

(DEFRANCESCO) No.*
[* This is starting to remind one of the cartoon monkeys who 'see no evil,' and 'hear no evil,' as they use their hands to cover their eyes and ears.]

(DC) Would you have considered it an important factor, for this interview to determine whether or not ['Arthur'], has told untruths in the past?

(TORNCELLO) Objection?

(CZAJKA) Whether or not the witness believed or heard that he told untruths in the past, his position, as to whether or not it was an important factor, is not relevant, the witness' position.

(DC) Did you make any inquiry as to whether or not he told untruths in the past?

(DEFRANCESCO) No.

(DC) Did you make any inquiry as to whether or not he has been punished in the past for untruths?

(DEFRANCESCO) No.

(DC) Did you make -- did you ask any questions to ascertain whether or not he has been punished on more than one occasion, for the untruths? [322]

(DEFRANCESCO) No.

(DC) Only you and Officer Bates were present during this so called or this interview, isn't that correct?

(DEFRANCESCO) That's correct.

(DC) And was any of that interview reduced to writing?

(DEFRANCESCO) I made out and affidavit after my interview.

(DC) No, at the interview were you making --

(CZAJKA) Contemporaneously?

(DEFRANCESCO) I was not taking any notes.

(DC) If you knew at that time of the interview that the boy had told untruths in the past, would it have, strike that. I believe you said you went to 36 Lansing Drive, on the 7th of August, 2000 is that correct?

(DEFRANCESCO) Yes, sir.

(DC) And could we safely assume that besides yourself there were other Sheriff's Department personnel that went there?

(DEFRANCESCO) Yes.

(DC) You went there to conduct a search, [323] didn't you?

(DEFRANCESCO) Yes.

(DC) Sure. Now, did you take any camera man with you or anyone to take photographs of that?

(DEFRANCESCO) There would have been an investigator there to take photographs, yes.

(DC) And did they take photographs?

(DEFRANCESCO) Yes.

(TORNCELLO) You have them; they have been supplied.*
[* No -- the interior pictures taken by the police the day of the search were not  'supplied' to the defense until this second day of trial; and then, only because defense counsel cross-examined DeFrancesco about them. This is much like the medical exam notes of 'Arthur' that were not given to the defense until it cross-examined Investigator  Bates. (See buried evidence .) (Exterior photographs of Nickel's home taken at a later time [apparently by a previous prosecutor] -- which are discussed below -- were provided to the defense before trial.)]

(DC) I'll have to check. Were there photographs taken of the bedroom of Jeff Nickel?

(DEFRANCESCO) I believe there was.

(DC) Did you go into the bedroom of Jeffrey Nickel?

(DEFRANCESCO) Yes.

(DC) Did you see any water bed in the bedroom of Jeffrey Nickel?

(DEFRANCESCO) No.*
[* Quite so -- and directly contrary to 'Arthur's'  testimony (see Day One).]

(DC) Did you make an observation as to the color of the walls in the bedroom of Jeff Nickel?

(DEFRANCESCO) Yes. [324]
(DC) What color were they officer?

(DEFRANCESCO) I don't remember.*
[* Well, isn't that convenient? He knows the answer is off-white. But because 'Arthur' said blue, DeFrancesco doesn't want to say 'off-white.']

(CZAJKA) Well, if you don't remember the color, how is it that you remember that you made an observation of the color?*
[* Even pro-prosecution Czajka is growing tired of DeFrancesco's obfuscations. This is not an honest person. On the other hand, such disingenuousness is so common among 'law enforcement,' that they themselves coined the term 'testilying.' (See Police section.)]

(DEFRANCESCO) ['Arthur'] said they were blue and they weren't blue.*
[* Well, it took the 'judge' to finally get at least a partially honest answer from DeFrancesco.]

(CZAJKA) All right.

(DC) Did you see any computer in that room?

(DEFRANCESCO) No.*
[* That's correct -- and again, contrary to 'Arthur's' testimony (see Day One).]

(DC) May I have a moment please to look at my file? Thank you for permitting the delay, Your Honor.

(Whereupon, Defendant's Exhibit "B" was marked for identification).

(DC) I would -- could I show you Defendant's marked for identification, B, which I believe contains a packet of ten photographs, if you just take for a moment [325] and examine those please and then I'll ask you some questions about them.

(DEFRANCESCO) Yes, sir.

(DC) Firstly can you identify what those ten photographs depict?

(DEFRANCESCO) Pictures of 36 Lansing Drive, Delmar New York.

(DC) And was that the home that you went to to conduct this search?

(DEFRANCESCO) Yes.

(DC) And were those photographs taken by your department, of that home, at the time of that search?

(DEFRANCESCO) Yes, no, not at that time of the search, no.

(DC) Where [When?] were these taken investigator?

(DEFRANCESCO) I don't know.

(DC) Do they fairly and accurately depict the residence as you recalled the residence on August 7th of 2000?

(DEFRANCESCO) Yes.

(DC) Are those photographs in color?

(DEFRANCESCO) Yes.

(DC) Did those ten photographs depict the color of the house? [326]

(DEFRANCESCO) Yes, sir.

(DC) Would you be kind enough to tell the Court what color is depicted in those photographs?

(CZAJKA) What color the house is?

(DC) Yes.

(DEFRANCESCO) Light blue.*
[* This is more or less correct, and also contrary to 'Arthur's' claim that it's white. But even here, DeFrancesco seems to be hedging a bit. Most people, when asked to describe the exterior color, would simply say 'blue.' It's actually neither so 'dark' that it verges on black, nor so light that it verges on white. But implying the latter makes 'Arthur's' label of 'white' appear to be more plausible.]

(DC) Now, your department had brought ['Arthur'] even by that house, hadn't they?

(TORNCELLO) Objection, time frame.

(DC) Some time.

(CZAJKA) Ever?

(DEFRANCESCO) I believe they did.

(CZAJKA) Did you?

(DEFRANCESCO) No, sir. I did not.

(DC) Did he indicate, did ['Arthur'] indicate to you the color of the house was white?

(DEFRANCESCO) Honestly, I don't remember if he did or not. He may very well have though. *
[* Still hedging and obfuscating. You can bet that if 'Arthur' had gotten the color right, he'd have remembered that quite clearly.]

(DC) I would like to offer these, if I may?

(CZAJKA) On consent. [327]

(TORNCELLO) Yes. Can I have a look? No objection.

(Whereupon, Defendant's Exhibit "B" was received in evidence).

(DC) Officer, we talked before about photos being taken the night of the search after August 7th and those pictures you showed us were not of that event?

(DEFRANCESCO) That's correct.

(DC) All right. I don't recall ever seeing any pictures of the search.

(TORNCELLO) I don't think I have any other pictures.*
[* Even if that's true, it's irrelevant; under the law, the prosecutor is presumed to have all potentially exculpatory evidence. (Again, if the prosecutor could simply claim he or she 'didn't know,' there would be every incentive for the police to never make the prosecutor aware of such evidence.)]

(DC) Well, your department whether they took pictures the evening of August 7th, would have preserved those, would they not?

(DEFRANCESCO) Yes.

(DC) All right. And your office is right here in this building, is it?

(DEFRANCESCO) Not my office, but we do have an office here, yes.

(DC) Would they be fairly easily retrieved?

(DEFRANCESCO) They very well may be.*
[* More hedging / obfuscating.]

(CZAJKA) Is this your last witness?

(TORNCELLO) No.

(CZAJKA) How about if Inspector DeFrancesco goes to look and you call your next witness?*
[* How about if the'Judge' in this trial gets hopping mad about the prosecution burying exculpatory evidence -- now for the second time? How about imposing actual sanctions on the prosecution for such flagrant misconduct?]

(DEFRANCESCO) He will be here in ten or fifteen minutes.

(CZAJKA) Go ahead. Well is there an investigator or officer that's outside -- would you get him Lieutenant?

(DEFRANCESCO) He's not testifying so he can get it for me.

(DC) I would appreciate looking at those photographs before continuing, if I may. In the nature of conserving time, Your Honor, maybe I can jump to a different area while we're waiting. Okay. Now, this investigation you were the supervisor of this investigation, were you not?

(DEFRANCESCO) Yes.

(DC) And were you aware that some people [329] working under your command had been at the home of Jeff Nickel prior to August 7th, were you not?

(DEFRANCESCO) Yes, I was.

(DC) And you were aware also that they went there, and spoke with the mother of Jeff Nickel, were you not?

(DEFRANCESCO) Yes.

(DC) You were aware, were you not, that they gave a fictitious story to her, about wanting to see Jeffrey Nickel because of a V&T accident, in a shopping center?

(DEFRANCESCO) Yes.
(DC) And that was not the truth, was it?

(DEFRANCESCO) No.

(DC) Are you the one that authorized that not truth to be uttered?

(DEFRANCESCO) I don't believe I was.

(DC) As a matter of fact, you were aware they made more than one visit to the home prior to August 7th, again pursuing that non truth, isn't that correct?

(DEFRANCESCO) Yes.

(TORNCELLO) Objection.

(CZAJKA) That it's a policy? [330]

(TORNCELLO) On the grounds of relevancy.

(CZAJKA) That he authorized it?

(TORNCELLO) Or that even --

(CZAJKA) Overruled. I'll allow it. Go ahead [DC].

(DC) Is it a policy of your department to instruct or permit officers, to tell non truths?

(TORNCELLO) Objection.

(CZAJKA) What was the question? *
[* Once again, Czajka is apparently not able to hear something that the stenographer heard just fine. Or was this more about Czajja just not really paying attention?]

(The preceding question was read back).

(CZAJKA) So what's the difference? What's wrong with it? I don't understand the point?

(DC) Well, officers went to the home of Mr. Nickel and lied about it.

(CZAJKA) I understand that, but I mean is there some legal prohibition against officers lying to suspects that I don't know about?*
[* There's a quite interesting (and revealing) double-standard here. If Nickel (or any defendant) were shown to have lied to law enforcement personnel, that would most certainly have been used against him at trial. But here, when it's the other way around, somehow, that is not fair game.] [331]

(DC) I would hope there would be, but --

(CZAJKA) All right. Well, I don't know of any. Objection sustained.

(DC) You were aware, I think you told us --

(CZAJKA) Do you have the pictures?

(TORNCELLO) I sure do.*
[* As was the case with the medical exam notes, these police-taken interior photographs of  Nickel's home were provided to the defense far too late for the latter to be able to effectively use them to cross-examine witnesses: Bates and 'Arthur' had finished testifying the previous day.]

(CZAJKA) Did you ever see those before?*
[* Again, whether or not Torncello  ever saw them before is absolutely irrelevant. The law is clear that the prosecutor must be presumed to have dominion over any exculpatory evidence. (Another example of Czajka providing a helping hand to the prosecution.)]

(TORNCELLO) No.*
[* This is dubious indeed. Torncello is prosecuting a serious child sexual abuse case. And he didn't ask the police if they took any interior pictures of the location where the most serious act supposedly took place?]

(DC) I'm sorry, sir.

(CZAJKA) I asked the Assistant D.A. did he ever see those before and he shook his head no. Why don't we have them marked at your convenience, [DC]?

(DC) There came a time on evening of August 7th officer, when you were in the bedroom area of Jeffrey Nickel's home and Jeffrey Nickel's bedroom?

(DEFRANCESCO) Yes.

(DC) And there was no water bed in the [332] room? Can we safely assume there would have been a bed in the bedroom?

(DEFRANCESCO) Yes.

(DC) All right. And did you make an observation as to the -- the bed covers and colors of bed covers in that room?

(DEFRANCESCO) I would have noticed them; I don't recall them.

(DC) If I asked you if the bed spread were a solid white, would that refresh your recollection?

(DEFRANCESCO) No, because I don't recall.*
[* One can bet that had the bedspread in Nickel's bedroom actually matched the one in the sex photo, he would have remembered that.]

(DC) If I asked you that the sheets or pillows was a light blue, would that refresh your recollection?

(DEFRANCESCO) No, sir.

(DC) If I can show you People's for identification purposes, these two photographs in the hopes of refreshing your recollection?

(Whereupon, Defendants Exhibits "C" and "D" were marked for identification).

(CZAJKA) Go ahead.

(DC) Officer, I am going to show you [333] Defendant's "C" and "D" for the very limited purpose of seeing if it might refresh your recollection, as to the color of the bed spread or sheets or pillow cases that you found in that room on that night of August 7, 2000?

(DEFRANCESCO) In the picture the bedspread is white, solid white.

(DC) Does that refresh your recollection as --

(DEFRANCESCO) Honestly, I don't remember them. The picture didn't help me remember them.

(DC) Okay. Now, I would like to ask you, if I may officer, did there come a time on the day of August 7, that under your instruction you would have sent officers and directed them to go to the home of Jeffrey Nickel?

(DEFRANCESCO) Yes.

(DC) And the decision to send officers to that home, was made by you?

(DEFRANCESCO) Yes.

(DC) And could you recall the time of day that you made that decision?

(DEFRANCESCO) No. [334]

(DC) Well, you had interviewed ['Arthur'] that morning, hadn't you, like around ten o'clock?

(DEFRANCESCO) Yes, sir.

(DC) And you and Bates now I assume after you left ['Arthur'], were driving back in your car probably discussing the case, weren't you?

(DEFRANCESCO) Probably, I don't recall.

(DC) Well, was that the time that -- does that refresh your recollection as to the time when yoiu decided you were going to send officers to the Nickel residence?

(DEFRANCESCO) No, sir, it doesn't.

(DC) Where did you go after you left [the group home]?

(DEFRANCESCO) Here to the Courthouse, I came here to the Courthouse.

(DC) Did you send Bates somewhere else?

(DEFRANCESCO) I don't recall.

(DC) And what time of day did you make a decision to send officers to the Nickel residence?

(DEFRANCESCO) I honestly don't remember when I directed people to go there.

(DC) Who did you direct to go there? [335]

(DEFRANCESCO) Ultimately Investigator Bates and I believe Investigator Thompson.

(DC) Now, through your interview with ['Arthur'], were you made aware or did ['Arthur'] indicate or were you made aware of some slapping incident or hitting incident?

(DEFRANCESCO) Yes.y

(DC) And was also Bates made aware of that?

(DEFRANCESCO) He would have.

(CZAJKA) If you know?

(DEFRANCESCO) He would have been in the interview and heard the questions and answers.

(DC) Okay. Before you left well, when you were dispatching your officers to the Nickel residence, did you give them any instruction as to what they were to say, or what they were to do when they got there?

(DEFRANCESCO) I would have told them to see if Jeffrey Nickel --

(CZAJKA) The question calls for a yes or no.

(DEFRANCESCO) Yes.

(DC) Did you indicate to them, to either one of them that they were to indicate they were from [the group home]?

(DEFRANCESCO) No.

(DC) If they did this, this would have been done on their own?

(DEFRANCESCO) Obviously.

(DC) Were they to bring Mr. Nickel back to your office?

(DEFRANCESCO) Yes.

(DC) And can we assume that the purpose of bringing Mr. Nickel back to your office would have been to see, if you can get a statement from him?

(DEFRANCESCO) I would it would be fair to say it was to see if he would be willing to be interviewed regarding the allegations made.

(DC) Isn't that what I just said, to get a statement from him? Are we talking about the same thing in a different language?

(DEFRANCESCO) Different language.

(DC) You wanted to get a statement if you can, right?

(DEFRANCESCO) Surely.

(DC) All right. You wanted to get him in there for that purpose, didn't you? I mean that was the purpose of bringing him there, wasn't it? [337]

(DEFRANCESCO) I believe so.*
[* How mealy-mouthed can you get? He's 'in charge' of the 'investigation,' and he merely 'believes' that was the purpose of having Nickel come in?]

(DC) And with that purpose in mind, the longer a period of time that he may be in custody with your personnel, as opposed to the shorter period of time, might have some bearing on the statement, would you agree to that?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Would you agree, that a statement could be -- strike that. Would you agree that it would be beneficial to you and your department, if in the taking of a statement it were shorter in duration?

(TORNCELLO) Objection.

(CZAJKA) Sustained.*
[* It is absolutely indisputable that the answer to defense counsel's above question is yes: The longer it takes detectives to get a 'statement' from a suspect, the less likely it is that courts will rule that statement 'voluntary.' Now, whether it was legitimate for Czajka to sustain Torncello's objections here is debatable. On the one hand, these questions could be said to require DeFrancesco to draw conclusions, which is impermissible unless the witness has been qualified as an expert. There seems little doubt that an experienced detective is, in fact, an expert in the admissibility of statements made by suspects.]

(DC) What time of day did you dispatch officers, to the Nickel residence.

(DEFRANCESCO) I don't recall.*
[* How very convenient.]

(DC) Would you not have made some sort of note or log as to the various duties that officers were on?

(DEFRANCESCO) No.*
[* Well, it would certainly seem to be the professional thing to do. However, his failure to do so may have a motivation similar to that for his failure to electronically record any interviews in this case; i.e., if they were recorded, it could do a lot of damage to the prosecution's case.]

(DC) Would you not have kept some sort of log yourself, some chronology as to when you [338] directed things to be done?

(DEFRANCESCO) No.

(DC) As well do you have any idea what time these officers, pursuant to your direction, arrived at the Nickel residence?

(DEFRANCESCO) No, I don't.

(DC) Do you have any idea as to how long a period of time, they were with Mr. Nickel, before they physically brought him to you?

(DEFRANCESCO) No.

(DC) Do you have any idea as to what conversations they had with Mr. Nickel before they brought him to you?

(DEFRANCESCO) No.

(DC) Do you have any idea of any conversations that these officers would have had with Mrs. Nickel, the mother of Jeff Nickel?

(DEFRANCESCO) No.

(DC) Was Jeff Nickel's mother present, if you know, when the officers arrived that 7th of August?

(DEFRANCESCO) I don't know.

(DC) Now, what time did Mr. Nickel arrive [339] at your office?

(DEFRANCESCO) I'm not quite sure, I think it was after 4:30 or five o'clock.*
[* False. It was around 2:30. (But 'losing' 2 hours here helps make Nickel's 'statement' seem 'voluntary.')]

(DC) He would have had to travel from Delmar where Lansing Drive is located, to the corner of Columbia and Eagle Streets in the City of Albany, wouldn't he?

(DEFRANCESCO) Yes.

(DC) Now, when your officers were coming or bringing him in, did they radio dispatch you or communicate with you in any way that they were bringing Mr. Nickel down, that they'd him and were bringing him to your location?

(DEFRANCESCO) I believe they had.

(DC) And would that be by radio dispatch? How would that communication be made?

(DEFRANCESCO) It could have been made any of numerous ways.

(DC) What way do you recall it being made that day?

(DEFRANCESCO) I don't recall.

(DC) What are the ways it could have been made?

(DEFRANCESCO) Radio, telephone.

(DC) Is your department, if it were done by [340] radio, would your department keep a log of that radio call?

(DEFRANCESCO) It may or may not.

(DC) How so?

(DEFRANCESCO) Sometime frequencies are recorded, some are. If it went car to car or direct to me --

(CZAJKA) The question was about recording the call, was there a log entry?

(DEFRANCESCO) There is no log entry.

(DC) So when you are calling?

(CZAJKA) Is there a log that they're required to --

(DEFRANCESCO) No.

 

  (CZAJKA) That's used from time to time?

(DC) Yes, sir.

(DEFRANCESCO) If I had spoken twith the dispatcher it would have been recorded and probably logged if he spoke with me.

(DC) If not, there would be no type of record communicating when your officers arrived? They're not required to keep that time, is that correct? [341]

(DEFRANCESCO) That's correct.

(DC) They're not required to log in anywhere?

(DEFRANCESCO) That's correct.

(DC) You're not required to log in with a prisoner that is brought before you?

(DEFRANCESCO) No.*
[* That's simply astonishing. How unprofessional can you get? (But then again, why would they want anyone to know just how long they'd 'put the screws' to someone?)]

(DC) So when you talk about times and statements and a guess of time, that is exactly what you're taking about, isn't it an estimate and guesses?

(DEFRANCESCO) Estimates.

(DC) Now, I think during the taking of this statement you had indicated that one of the responses to the DA's questions, that there was some food brought in?

(DEFRANCESCO) yes, sir.

(DC) You have testified in cases before, haven't you officer?

(DEFRANCESCO) Yes.

(DC) And you have testified about taking statements before, haven't you?

(DEFRANCESCO) Yes.

(DC) All right. Do you find it a beneficial tool for the purpose of making the [342] statement look a little more palatable, to have this sort of party atmosphere or pizza brought in for that purpose?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Kind of goes a little better? Now, I assume that before you started to take the so-called statement, there was some conversation that took place, wasn't there, between you and Mr. Nickel?

(DEFRANCESCO) Yes.*
[* Let's have another look at the top of transcript pg. 303:

<<< (CZAJKA) Did he say anything to you that was not reduced, that was not transcribed?

(DEFRANCESCO) No. >>>

Thus, on pg. 342, DeFrancesco directly contradicts what he said on pg. 303.]

(DC) All right. You just don't start out saying, I have the right to remain silent, do you?* I mean, there's some preliminaries to it, isn't there?
[* Here, defense counsel appears to tacitly concede that Miranda rights were given at some point; in fact, they were never given.]

(DEFRANCESCO) Correct.

(DC) All right. And there could be preliminaries not only between you, but between other officer, could there not?

(DEFRANCESCO) Yes.

(DC) Are you aware of any other officer to have a preliminary discussion with Mr. Nickel before you started your statement?

(CZAJKA) Do you mean other than those, other than Bates? [343]

(DC) Yes, sir.

(DEFRANCESCO) Not that I'm aware of it?

(DC) For how long a period of time did you converse with Mr. Nickel before you say you gave him his Miranda warnings?

(DEFRANCESCO) I would estimate about a couple of minutes, two or three minutes.

(DC) Got right to it?

(TORNCELLO) Objection.

(DC) Forgive me. Is it fair to say that your statement took approximately three hours?

(DEFRANCESCO) Probably, two and a half hours, without recalling exact times.*
[* As already noted, he's a couple of hours short here.]

(DC) Now, during that period of time, during that three hour period of time, do you recall saying to Mr. Nickel, at any time, that these were only misdemeanors, and wouldn't be all that big a deal?

(DEFRANCESCO) No.*
[* This is -- at best -- highly misleading. He may not have used the word 'misdemeanors,' but he did tell Nickel that what the latter did would only be subject to a fine.]

(DC) Do you recall telling Mr. Nickel, that or making reference to, that his mother could suffer a stroke, if he failed to sign this statement?

(DEFRANCESCO) No.*
[* He's lying. Again, see DeFrancesco section where a federal judge 'declines to credit' DeFrancesco's similar testimony in another case.] [344]

(DC) Do you recall indicating to Mr. Nickel, that if he signed the statement he could go home, but if he didn't, the inference would be he would not be going home?

(TORNCELLO) Objection?

(CZAJKA) I don't understand the question.*
[* The question would seem to be quite understandable. Was Czajka simply not paying attention?]

(DC) Do you recall saying to Mr. Nickel, that night, that if he signed that statement, he would be able to go home?*

(DEFRANCESCO) No.*
[* He may not have said so in so many words, but, as he knows damn well, he meant to convey -- and did convey -- precisely that impression.]

(DC) Did you speak to Mr. Nickel that evening about coercion or what might be considered coercion?

(TORNCELLO) Objection.

(CZAJKA) I don't understand?*
[* Again Czajka 'doesn't understand' a perfectly comprehensible question. Paying attention?]

(DC) My question of the witness, Your Honor, when he spoke to Mr. Nickel that evening about coercion?

(TORNCELLO) Objection.

(CZAJKA) The?

(DC) Use of that word, coercion.

(DEFRANCESCO) I don't recall even mentioning the [345] word.*
[* That's true enough. Defense counsel is asking some very inartful questions here, apparently trying to get at the issue of whether DeFrancesco actually employed coercion -- which he most certainly did (see above).]

(DC) I'm sorry?

(DEFRANCESCO) I don't recall mentioning the word.

(DC) Could you have?

(TORNCELLO) Objection, asked and answered.

(CZAJKA) Sustained.

(DC) Well, that word coercion didn't come up with respect to any accusations against Mr. Nickel that evening, did it?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(DEFRANCESCO) I don't remember.

(DC) During the taking of this so called statement from Mr. Nickel, no one else was continually present in the room beside yourself and Mr. Nickel, were there?

(DEFRANCESCO) No.

(DC) Did you have any recording device taking this conversation down?

(TORNCELLO) Objection.

(CZAJKA) Asked and answered.
(DC) Again, did you have any video cameras, recording the event of this evening with Mr. Nickel? [346]

(TORNCELLO) Objection.

(CZAJKA) Well, wasn't that in fact the other witness? Overruled.*
[* But note that, just above, Czajka effectively (and -- yet again -- reflexively) sustained (by stating "Asked and answered") Torncello's virtually identical objection, only to have to backtrack and correct himself.]

(TORNCELLO) I apologize.

(CZAJKA) Did you?

(DEFRANCESCO) No.

(DC) So the only two people in this world that know what was said, in that room, with respect to this statement, would be you, and Mr. Nickel, isn't that a fact?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(DEFRANCESCO) I don't believe so.*
[* What? He just agreed that he and Nickel were the only two people 'continually present' in that room throughout the interview / interrogation. And yet now, he says 'I don't believe' that only he and Nickel would know what was said there? This guy's so worn out from lying, and obfuscating, that he's no longer even making sense.]

(CZAJKA) You mean in its entirety?

(DC) Yes, sir.

(CZAJKA) Well, if only two people are present in effect it's been asked and answered.

(DC) The pictures officer, that you took the evening of August the 7th, 2000, while conducting a search of 36 Lansing Drive, you had never turned those over to the DA's office, had you? [347]

(DEFRANCESCO) I didn't take any pictures on that date, sir.

(DC) Your department?

(DEFRANCESCO) I don't know.*
[* How can that be? He's 'in charge' of this whole investigation? And yet, he doesn't know if these pictures were furnished to the prosecutor? He's either lying, or hopelessly incompetent.]

(DC) Right here and now is the first time to your knowledge your department ever turned those photographs over to the DA's office, isn't that a fact?

(TORNCELLO) Objection.

(CZAJKA) To your knowledge?

(DEFRANCESCO) I have no idea.*
[* This is critical exculpatory evidence, and you 'have no idea' if it was given to the prosecutor?]

(DC) Do you have the ability to find out?

(DEFRANCESCO) No.*
[* Assuming that's true, it's evidence of a grotesque degree of unprofessionalism.]

(DC) Would you keep a record of when documents are turned over to the DA's office?

(DEFRANCESCO) I don't know if there's any such document.*
[* And you'd been with the sheriff's department for some 9 years? Not remotely credible.]

(DC) Is there anything in your file when these pictures were retrieved that indicated, by date or time or any manner at all, no matter how informal, that they were turned over to the D.A.?

(CZAJKA) Well,* regardless, if the -- if the pictures should have disclosed to defense counsel,** it doesn't [348] matter whether it was this witness, the Assistant District Attorney or anyone else's fault, personally the People were required to provide the information, and it's as simple as that.*** It doesn't matter whether it was the office of the D.A. or the office of the Sheriff that was at fault, whether or not the People ever had these photographs to turn them over to you, whether or not it was personally Mr. Torncello or his predecessor it doesn't matter, he's responsible, the People of the State of New York are responsible. ****
[* Here, Czajka interjects, saving DeFrancesco from having to come up with yet another answer that could only serve to further highlight his office's dishonesty, incompetence, or both. Another Czajka helping hand to the prosecution.]
[** What does he mean -- 'if' they should have been disclosed? Obviously, there is no question  but that they should  have been.]
[*** That's all very nice and very true. But then, why -- earlier -- did Czajka keep harping on the strikingly irrelevant question of whether the medical exam of 'Arthur' had been ordered by someone on the prosecution team, or the group home?]
[**** So, 'the People...are responsible.' What does that actually mean? You impose absolutely no sanctions on them for this flagrant Brady (discovery) violation. Thus, they have every incentive to keep right on engaging in this sort of egregious misconduct. But again, the far more important issue as far as this trial and for this defendant, is the following: These pictures were provided to the defense far too late for the latter to be able to effectively utilize them in cross-examining prosecution witnesses. This was the second day of (a two-day) trial -- 'Arthur' had wrapped up his testimony the previous day.]

(DC) Okay. I have no further questions. *
[* Well, how about asking for some sanctions? Or even for a mistrial?]

(CZAJKA) Any redirect?

(TORNCELLO) Your Honor --

(CZAJKA) Whether or not there's a remedy or there's a specific remedy to -- for the Court to issue, is another question,* but the People are responsible any way. Redirect?
[* Well, it's certainly not a question addressed by either Czajka or  defense counsel. That's it: DeFrancesco and the entire prosecution side are simply and totally let off the hook in terms of this severe constitutional violation.]

(TORNCELLO) No thank you.

(CZAJKA) Step down inspector. [349]

(Whereupon, the witness was excused).

(DEFRANCESCO) Thank you sir.*
[* Indeed: DeFrancesco owed Czajka a huge thank-you for (unwarrantedly) bringing a halt to this severe grilling by defense counsel.]

(TORNCELLO) Call Steve Tanski.

(CZAJKA) Before the next witness is called [DC], is there anything that you want to do with respect to these pictures?

(DC) Not at this time, Your Honor, no.* Just so it's clear, I'm only marking them as a Court's exhibit.
[* Actually, defense counsel never  brings this issue up again, thus missing a chance to at least attempt to have some real sanctions imposed over this. (And even if the latter were not imposed, the mere attempt could have helped significantly on appeal.)]

(CZAJKA) Attorneys, as I understand it, the pictures, in question, are 22 in number, twenty in number, defendant's C and D are two of them, the remaining 18 have been marked as Court's exhibit number one.

(TORNCELLO) Yes.

(Whereupon, Court's Exhibit "1" was marked for identifucation).

(CZAJKA) Steve Tanski? [350]

(Whereupon, People's Exhibit "24" was marked for identification).

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

(TANSKI) My name is Steve Tanski.

(TORNCELLO) What is your occupation?

(TANSKI) I'm a police officer, investigator, with the Colonie Police Department.

(TORNCELLO) How long have you been employed in total with the Colonie Police Department?

(TANSKI) A little over twenty years.

(TORNCELLO) And what's your current assignment with that department?

(TANSKI) My primary assignment is an investigator assigned to the juvenile unit and secondary responsibility is in the department's unit for computer crime -- that [351] unit.

(TORNCELLO) And if we can take each of those one at a time, tell us some of your duties and responsibilities, as a member of the juvenile unit?

(CZAJKA) Skip to that which is relevant to this case.

(TORNCELLO) Thank you. Did you -- were you asked to become involved in an investigation, of a man by the name of Jeff Nickel?

(TANSKI) Yes.

(TORNCELLO) Who asked you to become involved?

(TANSKI) I received a call from Investigator Ron Bates from the Sheriff's Department, Albany County, and he explained to me that he had a computer that was seized pursuant to a search warrant that he would like to have thoroughly analyzed.

(TORNCELLO) I take it you have some expertise in that area?

(TANSKI) Yes.

(TORNCELLO) Judge, would you like me to ask him about his background and training for that training? What do you have in that area? [352]

(TANSKI) Our department became --

(CZAJKA) If all we're talking about is talking [sic] pictures off the computer, I don't know that you need any particular expertise in that area.

(TORNCELLO) It might be a little more in depth.

(TANSKI) Our department became interested in and involved in the computer a few years ago, and in March of last year, I attended a specialty training school, for a specific sort of --

(DC) I object, that would have been after the fact.

(CZAJKA) March of what year?

(TANSKI) March of 2000.

(CZAJKA) Continue.

(TANSKI) It was a specialized school that pertained to specific computer software and it was put on by the administrator of this parrticular software, guidance software, out in California. The name of the particular support application is called NENCASE, that's the particular computer software that we in the Colonie Police Department use to analyze [353] computers. Subsequent to that, I attended training conferences, particularly to --

(CZAJKA) What does the software do?

(TANSKI) The software enables one to analyze computer information, without altering any of the contents of it, such as the dates, and times, files that are created and the access, so without altering any of that information, it's an application that allows you to look at and copy out, and analyze, if you will, files, contained on a computer medium.

(TORNCELLO) Okay. Thank you. Now, do you recall the date when Ron Bates asked you to become involved?

(TANSKI) I believe it was August the eighteenth.

(TORNCELLO) Okay. And what did you do? Did you set up a meeting with him or?

(TANSKI) Yes, Investigator Bates came over to our station with the computer and some peripherals, some other related materials and dropped that off to me. I issued a receipt and he explained what the fundamental fact of the case were. [354]

(TORNCELLO) Okay. I want to show you, I guess an item marked as People's number 20, in evidence, and let me just show you this. Is it -- have you seen this before?

(TANSKI) Yes.

(TORNCELLO) Where have you seen People's number 20?

(TANSKI) That would be the CPRU an Investigator delivered me on the 18th and the one that I analyzed.

(TORNCELLO) Okay. In addition to analyzing that computer, or the contents of that computer, did you perform any other analysis?

(TANSKI) Yes. After.

(DC) Your Honor, excuse me, objection. Could I -- would I be able to voir dire on a chain of custody of this before he's allowed to testify. I'm assuming they would ask now questions, about information or whatever from that computer, and we have here both on the record that Ron Bates dropped it off to him on the 18th of August and we have it being seized on the 7th of August, with no change of custody or control introduced. [355]

(CZAJKA) So what is it that you would like to do?

(DC) Voir dire him at this point.

(CZAJKA) This witness?

(DC) Yes, sir.

(TORNCELLO) Do you want me to offer it first?

(CZAJKA) I thought you offered it yesterday.

(TORNCELLO) I did offer and the Court reserved.

(CZAJKA) Correct. 20?

(TORNCELLO) Maybe you didn't.

(CZAJKA) I have it up to 19 that I reserved on.

(DC) Well, let me ask you this?

(CZAJKA) Let's clear it up. Well, in any event, we agree it's not received, whether you moved it in evidence or not is another -- it's not received.

(TORNCELLO) To protect myself, I would like to ask a couple of foundational questions, then offer it, subject to -- you have seen that [356] computer before?

(TANSKI) Yes, I have.

(TORNCELLO) At a glance does that appear to be in a similar condition or the same condition?

(CZAJKA) Did you receive -- does it appear to be in the same condition or similar condition?

(TANSKI) That I left it in, yes.

(TORNCELLO) Okay. I'll offer People's number 20, Your Honor.

(CZAJKA) Do you want to voir dire now?

(DC) May I please, Your Honor? Yes. Good morning Mr. Tanski, how are you? With respect to People's for identification, number 20, that was brought to you by Investigator Bates, on August the 18th, is that your recall as to when that was?

(TANSKI) Yes.

(DC) Were you provided with any information as to when that piece of evidence was seized?

(TANSKI) Yes.

(DC) Was that the 7th of August?

(TANSKI) I believe it was. [357]

(DC) And do you know where it was, between the 7th and 18th of August? Do you have any personal knowledge as to where that was?

(TANSKI) No, no direct knowledge.

(DC) I am going to object Your Honor, no proper foundation.

(CZAJKA) Correct me if I'm wrong, but Bates testified that you seized this, from the house?

(TORNCELLO) Yes.

(CZAJKA) I know he had a bunch of boxes up here and that was one of them. Is it clear on the record that this Bates testified that about this?

(TORNCELLO) Yes.

(CZAJKA) [DC]? I am trying to recall his testimony?

(DC) Your Honor, with respect to that, because there was a marking of a lot of things.

(CZAJKA) I believe he did, but honestly specifically I don't recall. Let's find it.

(CLERK) Our notes indicate that he did. [358]

(CZAJKA) Take your time. Let's find it.

(Whereupon, a portion of Ronald Bates testimony was re-read to the Court).

(CZAJKA) Okay. It's clear that Mr. or Investigator Bates did testify about Exhibit 20, and Bates did identify it as being one of the items seized from the house. Do you wish to be heard further with respect to the admissibility?

(DC) Yes, I would, Your Honor. Because we -- this officer now is going to be asked to testify about anything with respect to that, I would believe it would have to be a showing of a continuity of possession, that nothing was, you know, done with it or whose hands it was in. I have an understanding it may have been with the State Police for a while too for a time, so that's the reason for it.

(CZAJKA) All right. In a sense, at least part of the exhibit has already been received in as much as I [359] understand it, Exhibit 5 came from Exhibit 20, but in any event, your argument goes to weight, not admissibility, and it's received.

(Whereupon, People's Exhibit "20" was received in evidence).

(TORNCELLO) Just so we're clear, Ron Bates also identified number 21. I would like you to identify, what's been previously marked as People's number 21 for identification?

(TANSKI) It's a box containing, computer peripherals and cords, several floppy disks.

(TORNCELLO) Okay.

(TANSKI) Three ZIP drives and disks.

(TORNCELLO) Now, was that also, in addition to People's number 20 in evidence, given to you, and examined or looked at by you?

(TANSKI) Yes.

(TORNCELLO) Okay. Does that appear to be in the similar or same condition or similar condition as when you looked at it? [360]

(TANSKI) Yes, it does.

(TORNCELLO) I will offer it.

(CZAJKA) What's in there? You say peripherals, what does that mean?

(TANSKI) Keyboard, computer keyboard, camera, this is a computer mouse, and a fingerprint ID scan for -- it's just a device that's connected to the computer, and calls for a fingerprint ID in order to turn the computer on. So really it's an on / off switch.

(CZAJKA) What else is in there?

(TANSKI) Cords, power cords, external ZIP drive.

(CZAJKA) Numerous diskettes?

(TANSKI) That and ZIP disks.

(CZAJKA) Okay. ZIP diskettes hold more? Is that it?

(TANSKI) Yes, that's it.

(TORNCELLO) I'll offer that as People's number 21.

(DC) Objection.

(CZAJKA) What's the nature of your objection? [361]

(DC) Relevancy, Your Honor, what is the relevance of these items?

(TORNCELLO) Just items seized, judge in the case. There's a photograph taken from the computer, and --

(CZAJKA) Let's clear that up that wasn't clear. Show him Exhibit 5.

(TORNCELLO) Investigator, I'm going to show you People's number five in evidence, and ask you, have you seen that before?

(TANSKI) Yes, sir. I have.

(TORNCELLO) Where have you seen that item?

(TANSKI) I recovered this image from the slack space of one of the ZIP disks that I forensically analyzed.

(CZAJKA) What does that mean, slack space?

(TANSKI) What that is, Your Honor, is, the best analogy I can give you would be two boxes containing paper files, of one case, and the files merely fill up a box and a half, but yet you still have two boxes. The space left over in box number two would be the slack space in the computer. [362]

(CZAJKA) So it's not in a folder?

(TANSKI) No, this would be recovered from what is known as slack space, on a -- on one of the ZIP disks. That was an area of the disk that has been -- that is set to be written to, in other words, this was an image that was once there, it had been deleted,* remains in the slack space until such time at it's overwritten by another file.
[* That's absolutely correct: This image -- the sex photo depicting an older person performing oral sex on a younger person, which was absolutely central to this entire case -- had actually been deleted. It was only by using specialized software that one would be able to recover it -- or even know it was there.]

(CZAJKA) Oh, all right. So that didn't come from Exhibit 20?

(TANSKI) No, this particular came from one of the ZIP disks.

(CZAJKA) Which one?

(TANSKI) The ZIP?

(CZAJKA) In the box?

(TANSKI) In the box.

(CZAJKA) Dig that out. Let's have that marked.*
[* Though Czajka appears to ascribe great importance to that image now, later on, in order to lend yet another helping hand to the prosecutor, he will minimize its significance.]

(TORNCELLO) 21 A, B & C?

(Whereupon, People's Exhibits 21 A, B, C, ZIP drives, marked for identification). [363]

(TORNCELLO) Okay. Investigator Tanski, I am handing you what's been marked as People's number 21, A, B and C, for identification, can you tell me what they are, please?

(TANSKI) These are the three ZIP disks, that I analyzed and were given to me by Investigator Bates as part of the contents of a box.
(TORNCELLO) Okay. You analyzed these items, right?

(TANSKI) Yes, sir. I did.

(TORNCELLO) Do they appear to be in the same or similar condition as when you first looked at them when you made your observations back in August of 2000?

(TANSKI) Yes, they do.

(TORNCELLO) I'll offer them now, 21 A, B & C and offer 21 collectively.

(DC) Objection.

(CZAJKA) Which of these did five come from?

(TANSKI) My number twelve.

(CZAJKA) What's the --

(TANSKI) People's 21 a.

(CZAJKA) All right. [364] Take them one at a time. [DC], what do you say to 21 a?

(DC) Your Honor, my objection would be what I understood of what the officer had said, he recovered from some slack space off the ZIP disk which he marked as number three. I thought he said his numbering --

(CZAJKA) Does that correspond with A? Number twelve, as I understand it, Investigator Tanski, your twelve is People's 21 A?

(TANSKI) Yes, sir. Your Honor, it is. Where that image was recovered from.

(DC) All right. I had three for some reason.

(TANSKI) They correspond, the three disks, that I report, it lifted as one, two and three.

(CZAJKA) So what is it you want me to do with this if it's received in evidence? I have five in evidence.

(TORNCELLO) Right, I thought it was important for the Court to know where five came from. That's all.

(CZAJKA) So you told us. [365]

(TORNCELLO) All right. I am offering it into evidence.

(CZAJKA) For what reason?

(TORNCELLO) As proof from where People's number 25 came from. It came from a ZIP disk found in the defendant's possession. It was seized pursuant to the Albany County Sheriff's Department seizure.

(CZAJKA) [DC]?

(DC) Well, it wasn't found in the defendant's position, per say. It was -- this wasn't even found -- it had been found, as I understand it, by a device, isn't that so?

(TORNCELLO) Objection.

(CZAJKA) Was it?

(TANSKI) Yes, it needs to be recovered using software.

(DC) My understanding would be, Your Honor, that this number five in evidence here would not have been seen by this individual, as he went through this, until he used a recovery device to try to find out anything that had once been there [366] and no longer there. I believe that's what he's saying.

(CZAJKA) That's what it sounds like.

(DC) And I would object to its relevancy. Five is already in evidence.

(CZAJKA) Well, I'm not going to look through on a computer screen or otherwise, five has been received, the remaining I see little relevance to or no relevance to it at this point, except to the extent as identified it's the source of five.

(TORNCELLO) Okay. Thank you. Investigator, I am handing you a packet of photographs, which have been marked as People's number 24 for identification; can you tell us what that those images are?

(TANSKI) These are images that were printed from the hard drive of People's 20.

(TORNCELLO) Okay. Did you recover those images?

(TANSKI) Yes, sir. I did.

(TORNCELLO) And did you print-out those images?

(TANSKI) Yes, sir.

(TORNCELLO) And?

(CZAJKA) When you say the hard [367] drive, you mean that part of 20, exhibit 20, the Exhibit 20?

(TANSKI) Yes Your Honor. The tower.

(TORNCELLO) All right. And after you printed out those, incidentally, do they fairly and accurately depict the way the images appeared I guess on the computer screen when you first discovered them?

(TANSKI) Yes, they do.

(DC) I'm going to object.

(CZAJKA) To what?

(DC) He's not calling for testimony relative to something marked for identification, it's been identified.

(CZAJKA) Well, I think your objection is premature. Go ahead.

(TORNCELLO) Okay. Do they appear to be in the same condition or similar condition as to what -- when you created them?

(TANSKI) Yes, they do.

(TORNCELLO) When you created them by printing them?

(TANSKI) Yes.

(TORNCELLO) Okay. And thank [368] you. I'll offer People's number 24, in mass into evidence.

(DC) Your Honor, I'm going to object that the pictures are completely irrelevant to the case at bar.

(CZAJKA) Let me see them please.

(DC) Yes, sir.

(CZAJKA) What's the relevance Mr. Torncello?

(TORNCELLO) I believe they're relevant on several issues, Your Honor. Number one, they're photographs of the defendant with one of the victims in this case.

(CZAJKA) Which one is that?

(TORNCELLO) One of the latter ones, number two, I think it is very relevant, under the theory that this defendant is capable of taking photographs of himself. He's capable of taking photographs of himself and other children, and he's capable of transferring those photographs.

(CZAJKA) How do you know he took these pictures? [369]

(TORNCELLO) I don't know either.

(CZAJKA) Objection is sustained.

(TORNCELLO) Can I be heard? And that he's capable of transferring those photographs, to his computer, and storing those photographs, either in a ZIP drive, on a floppy or on his computer. And it's consistent with the evidence that's People's number five, already in evidence.

(CZAJKA) Objection sustained.

(TORNCELLO) Investigator Tanski, did you note anything, about the security system, attached to this computer and these items?

(DC) Objection irrelevant.

(CZAJKA) Sustained.

(TORNCELLO) Have you heard of a program called PGP?

(TANSKI) Yes.

(TORNCELLO) What's -- what is PGP?

(TANSKI) PGP is a software, the acronym stands for Pretty Good Privacy, and a software encryption type of protection, it allows for written files to be coded and then decoded [370] using special keys.

(TORNCELLO) Did this computer that you analyzed contain the computer program, PGP?*
[* So, despite the objection to his previous 'computer security' question having been sustained, Torncello persists anyway.]

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) In your area of expertise is it remarkable or of note that a computer contain the computer program, PGP?*
[* Torncello still persists in this vein, despite the specific  PGP objection having been sustained. But then again, why abide by the Court's rulings, when failing to do so costs him nothing.]

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Judge, can I have just a minute please?

(CZAJKA) Yes.

(TORNCELLO) Nothing further judge. Thank you.

(CZAJKA) Go ahead.

(DC) Good afternoon Mr. Tanski, just a very brief few questions of you, for some more clarity, I think. When you took control of this computer, and you looked at the computer, you cannot pull up, what has been marked as People's number five in evidence, isn't this [371] a fact?

(TANSKI) I didn't try.

(DC) Well, you had to go to try to recover a missing portion, did you not? Did I understand your testimony correctly in that regard?

(TANSKI) During the forensic analysis of the computer, the picture just comes up.*
[* But Tanski just testified that the image was not in the computer -- it was on a  disk.]

(DC) You talked, did you not, about a --

(CZAJKA) By operation of software?

(TANSKI) By operation of the software yes, Your Honor.

(DC) This was the software that you had to use to regain, isn't that correct?

(TANSKI) Yes, sir.

(DC) All right. So, in order to recapture People's "5" in evidence, you had to use special software to recapture that?

(TANSKI) Yes, sir.

(DC) All right. Now, in recapturing it, is there any way to indicate, in other words, within the capability to recapture it, it wouldn't have been there, it wouldn't have been seen? [372]

(CZAJKA) I don't know what it is you're asking.

(DC) I guess what we are asking here, without the software that you used, if someone put the disk in the computer, they wouldn't have seen number five, would they, in evidence?

(TANSKI) No, number five was deleted.

(DC) That's correct. And this software was, you bringing back that image of something that had been deleted?

(TANSKI) Yes, sir.

(DC) And would you be able to tell well, you wouldn't be able to tell when it was deleted, or would you?

(TANSKI) No, I would not.

(DC) You wouldn't have been able to tell, who if anyone had used that computer before, who had deleted it or who put it on, would you?

(TANSKI) No, that information would not be available.

(DC) No further questions. [373]

(TORNCELLO) Could anyone other than the defendant, access that computer, without the defendant's fingerprint?

(DC) Objection, it's not from the computer, it's from the disk.

(CZAJKA) Well, the witness did --

(TORNCELLO) Let me reword that. Prior to your forensic examination, did you have to have, in order to access the computer, was it required that the defendant put his finger and use his fingerprint to access the computer?

(DC) Objection.

(CZAJKA) Investigator Tanski, you described in that box, a switch that was activated by a fingerprint?

(TANSKI) Yes, sir.

(CZAJKA) That's what you're referring to Mr. Torncello?

(TORNCELLO) Yes.

(CZAJKA) You didn't need to turn the computer on?

(TANSKI) I didn't turn the computer on, Your [374] Honor.

(CZAJKA) You didn't need that to examine the computer?

(TANSKI) No, I did not.

(CZAJKA) The contents of the computer?

(TANSKI) No, sir.

(CZAJKA) You didn't turn the computer on?

(TANSKI) No, sir. My process is, is not to turn on the target of the computer at all, because in doing so, it would alter a number of files automatically without any goal.

(CZAJKA) So you somehow examined -- how did you examine the computer without --

(TANSKI) What I do, Your Honor, is I removed the hard drive, excuse me, I removed the hard drive, completely from that machine. I place it into our forensic machine, and then I analyze it, using forensic software.

(CZAJKA) All right.

(TANSKI) Without turning on the target computer, I'll be able to analyze.

(CZAJKA) Do you remember what [375] your question was?

(TORNCELLO) Talking about the security system, and could -- did you need the defendant's fingerprint to access that computer, and turn it on?

(DC) Objection, it's not the computer, it's a disk that he's using.

(TORNCELLO) My question was?

(TANSKI) You've got there --

(TORNCELLO) Did you need a security code?

(CZAJKA) Well, if I can access it without the disk in question without using --

(TORNCELLO) He's got a computer lab, a computer crime lab?

(CZAJKA) I think the objection is sustained.

(TORNCELLO) No further questions.

(DC) No further questions.

(CZAJKA) Thank you.

(Whereupon, the witness was excused).

(CZAJKA) Any more evidence Mr. [376] Torncello?

(TORNCELLO) I may have one that I would ask about four or five questions.

(CZAJKA) Who is that?

(TORNCELLO) Amy Hinges. I want to --

(CZAJKA) [DC]?

[DC] Yes, sir.*
[* Note that Czajka got defense counsel's attention, apparently in order to ask something of him, at which point Torncello simply cuts him off. Why? And why did Czajka permit this?]

(TORNCELLO) I don't remember if I asked ['Arthur'] the dates when his unsupervised visits began and ended, I'll ask her two dates, unless [DC] would stipulate. That's all.*
[* He's lying: When such visits began and ended is not  'all' that Torncello is going to ask of Hinges; in fact, this issue is merely a fig leaf for his real motive for re-calling her to the stand, as will soon become apparent. (In any event, Torncello  had  covered this issue with 'Arthur' -- see transcript pg. 190).]

(DC) My recall is there was something in the record about that.

(TORNCELLO) She is here.

(DC) I thought he asked ['Arthur']. If it's on the record we can --*
[* Note how Torncello cuts defense counsel off here. Why? Because Torncello knows that it is on the record, and that, if that record were read back, he probably would not be able to sneak in some entirely different, completely unrelated testimony from Hinges.]

(TORNCELLO I have five questions judge.*
[* That's another  lie: Torncello will proceed to ask a total of twenty-two questions of Hinges here (at least 13 of which are substantive).] [377]

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

(HINGES) Amy Hinges.

(TORNCELLO) What is your occupation?

(HINGES) Social worker.

(TORNCELLO) Where do you work?

(HINGES) [Names agency which operates group home].

(TORNCELLO) How long have you worked at [that agency]?

(HINGES) Five and a half years.

(TORNCELLO) Okay. Do you know a boy by the name of ['Arthur']?

(HINGES) Yes.

(TORNCELLO) Do you know a man named Jeffrey Nickel?

(HINGES) Yes.

(TORNCELLO) Do you see Jeff Nickel in the courtroom?

(HINGES) Yes.

(TORNCELLO) Can you point to him, please?

(HINGES) (Pointing).

(TORNCELLO) What's he wearing? [378]?

(HINGES) A blue tie, brown colored jacket.

(TORNCELLO) Thank you. If the record could reflect that the witness identified the defendant?

(CZAJKA) Yes.

(TORNCELLO) At some point in time, was Jeff Nickel allowed to visit ['Arthur']?

(HINGES) Yes.

(TORNCELLO) And ['Arthur'] goes to your school or lives at [the group home]?

(HINGES) Yes.

(TORNCELLO) At some point in time did unsupervised visits, between Jeffrey Nickel, and ['Arthur'] begin?

(HINGES) Yes.

(TORNCELLO) Do you know when they began?

(HINGES) Somewhere around June 10th.*
[* Torncello already knew  that, as evidenced by the following question he asked 'Arthur' [transcript pg. 179]: "Around June 10th or so, or from June and July, did you ever have a chance to go and play with Jeff?" Moreover, recall the following exchange between Torncello and 'Arthur' [transcript pg. 190]:

<<<(TORNCELLO) Okay. Is it sort of would I be right if I said that your visits with him started in June of last year?

('ARTHUR') Yes.

(TORNCELLO) And they went through July or so?

('ARTHUR') Yes.>>>

Therefore, Torncello's stated reason for  re-calling Hinges to the witness stand was a total and complete lie, for which -- of course  -- he would suffer no consequences whatsoever. His true motive will soon become apparent.]

(TORNCELLO) 2000?

(HINGES) Yes.

(DC) I'm going to object.

(CZAJKA) What's the source of your information Ms. Hinges?

(HINGES) I had come back from maternity leave, in May, and it was toward the end of May. It happened a couple of weeks after I came back [379] so approximately --

(CZAJKA) [DC]?

(DC) Withdraw that objection.

(TORNCELLO) Okay. Do you know when the unsupervised visits ended?

(HINGES) I don't know the exact date.

(TORNCELLO) What's your best guess?

(CZAJKA) Well, there came a time that they ended?

(HINGES) Yes, and it was, when the investigation started.

(CZAJKA) So prior to that.

(TORNCELLO) When the investigation began?

(HINGES) Yes.

(TORNCELLO) Okay. Are you familiar with ['Arthur']?

(HINGES) Yes.

(TORNCELLO) Okay. And you're just, have you been in contact this morning with [the group home agency] concerning either medical records or some treatment that ['Arthur'] has?

(HINGES) Yes.

(TORNCELLO) And what is that -- what is that for?

(HINGES) A physical form. [380]

(TORNCELLO) Okay. And is there anything of note or importance on that physical concerning his eye care?

(HINGES) Yes.

(TORNCELLO) Okay?

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) May I ask a question?

(CZAJKA) Is he color blind?*
[* What in the  world prompt Czajka to ask that? How would he even know  to ask it? In any event, he just aided the prosecution enormously.]

(HINGES) Yes.*
[* Well, that sure is awfully convenient. However, let us assume, for the purposes of argument, that she is actually telling the truth here. Why, then, when asked the color of anything, did 'Arthur' never -- at any point -- say something along the lines of: 'Well, I'm really not sure, because I have color-blindness'? Moreover, how does this explain why he 'identifies' himself as the boy depicted in a sex photo, given that, whereas 'Arthur's' eyes are blue, the boy in the image has brown eyes? How does it explain why he 'identified' Nickel as the adult in the picture, when the defense's  photography expert proved that it was not? How does it account for the fact that, whereas 'Arthur' claims the oral sex (depicted in the image) occurred in Nickel's bedroom  the background in that image obviously does not match Nickel's bedroom? How does it explain 'Arthur's' claim of a window will in Nickel's bedroom wide enough to set a camera on, when there is none? How does it account for a supposed computer in the bedroom that was never there? How about the nonexistent 'long hall' (supposedly) encountered upon entering  Nickel's home? What about the imaginary door Nickel must duck under to enter his bedroom? Or the nonexistent waterbed in that bedroom?]

(DC) Objection.

(CZAJKA) Sustained.*
[* Well, that's interesting: Czajka just sustained defense counsel's objection to a question he (Czajka) himself had just asked. That means he knew it was an impermissible question. So then, why did he ask it? But it's too late anyway -- Hinges already answered it. Is Czajka -- as the person deciding guilt or innocence -- somehow supposed to disregard this?]

(TORNCELLO) Do you know if he's color blind?

(DC) Objection.

(CZAJKA) Without answering whether he is or is not, do you know? Don't tell me -- do you know the state of his colorblindedness?

(HINGES) Yes.

(CZAJKA) What's the source of your information?*
[* How about asking Torncello the question: 'Why did you so blatantly misrepresent to this court the <b> real <b> reason why you were re-calling Hinges to the stand?']

(HINGES) A physical form.

(DC) Objection.

(CZAJKA) Sustained. [381]

(TORNCELLO) All right. I have no further questions.

(CZAJKA) Any questions?

(DC) No, sir.

(Whereupon, the witness was excused).
t
(CZAJKA) Do you have any other evidence other than to your -- you're awaiting my decision on that which I have reserved?

(TORNCELLO) Subject to the reservation you made concerning the four envelopes and the balance of the evidence that I offered subject to that, we will rest.

(CZAJKA) All right.

(TORNCELLO) I do want, I guess, I do want the record to reflect as Ms. Hinges came into the courtroom today, they provided the D.A.'s office with a fax copy* of a physical examination, I received it when she walked into the courtroom. I have handed it to [DC].
[* So, yet another fax copy of a physical exam of 'Arthur.' One wonders if this is just as illegible as the previous one. (Nickel himself has never seen a copy of the notes from this other exam.)]

(DC) I'm objecting to it.

(CZAJKA) Well you are not -- [382]

(TORNCELLO) I'm not moving it into evidence, judge.

(CZAJKA) Let's take a break in this matter.

(Whereupon, a recess was had).

(CZAJKA) Ready. You may be seated. Thank you very much. Mr. Torncello, do you wish to be heard further with respect to the exhibit?

(TORNCELLO) Judge, I would like to renew my --

(CZAJKA) What's the number of that one? The letters? One, consisting of four envelopes with the contents.

(TORNCELLO) For one through four each identified.

(CZAJKA) All right. Do you wish to be heard further?

(TORNCELLO) Well, the only thing I would like to state that I believe that's very relevant for the case, judge, [383] because they identify the victims in this case,* and there are admissions in many respects of the conduct that is the subject of the indictment before the Court,** and with respect to the authenticity and authenticating letters judge, there's a number of reasons. I could tick off half a dozen right now if you would like me to for the record, which could authenticate the records, the return address which is on the outside of the envelope, the signature of the defendant, the fact that the defendant is writing to Matthew Peeters and that the seizure at his home, he received mail from Matthew Peeters, it identified the camp where he worked, he identified the victims ['Arthur,' 'Brendan,' and 'Chris'], it also indicated that he had a cut on his hands and I believe there's more judge, but I will just for the record, I think those are indications. And any one of those, could be used to authenticate the letter.
[* The letter only mentioned their first names.]
[* There are zero admissions as to the three top charges of oral sex, photographing  the former, and insertion of a finger into 'Arthur's' rectum.]

(CZAJKA) [DC]?

(DC) Yes, Your Honor. I renew my objection to the introduction of the [384] four envelopes containing one letter, in this trial, on the basis that there was absolutely no authenticating proof in this record, no direct proof that there was letters, that originated or did come from, Mr. Nickel. They, I believe, bear a signature, first the same signature of the other one bearing an address somewhere, but it would have been a simple matter for the D.A., if he wished to introduce them, to call in the handwriting expert or something of that nature to authenticate that yes, this indeed was written by this person. There has been no direct testimony on the record of this court, that they were so written. Secondly, the relevancy of those letters, Your Honor, I have felt from the beginning that the efforts of the D.A. to have those introduced into evidence, was merely to be prejudicial in the nature against the accused. And offered primarily for that purpose, not for any secondary purpose, but for that purpose. So I object to them, Your Honor.

(CZAJKA) The objection with [385] respect to Exhibit two, one, and three is sustained, the objection with respect to exhibit four is overruled. And exhibit four is received.

(Whereupon, People's Exhibit "4" was received in evidence).

(DC) Exhibit four would be?

(CZAJKA) The letter.

(TORNCELLO) May I say something again? That they're offered with respect to the intent aspect of the indictment, they are not offered to show that the defendant has any inclination or any proclivity to have sexual relations with boys.*
[* And if you believe that, we have a bridge in Brooklyn we'd like to try to sell you. The prosecution used the term "boy lover" a total of 13 times. "NAMBLA," which stands for the North American Man-Boy Love Association, was also employed total of13 times. And counting conservatively, there were an additional sixteen occasions when either Torncello  or prosecution witnesses drew attention to Nickel's purported proclivities by some other means. In total, then, there were at least 42 propensity-related references, none of which had any bearing on any of the specific acts he was charged with. (See Propensity / Who Cares section.)]
 
(CZAJKA) To what extent certainly the People are entitled under People vs. Molineux to prove intent, by referring to prior acts of misconduct or prior convictions,* but in this case, where certainly the trier of fact could infer such intent or such sexual gratification from the conduct itself, the probative value, is not [386] outweighed by the danger of prejudice,** not withstanding that no jury is here. Not withstanding the fact that I disregard it as continually do, and would in any trial. But for the record, those are, that one is received and others are not. With respect to the remaining exhibits, wish to be heard further Mr. Torncello?
[* Nickel had no prior convictions.]
[** This sentence is (internally) contradictory: If it is, in fact, true that "the trier of fact could infer such intent or such sexual gratification from the conduct itself," then there is no need  for any 'evidence' to prove 'intent.' Czajka has apparently been reduced to spouting random legal aphorisms, as if one had pulled the cord of a deranged judicial 'Speak-and-Say.']

(TORNCELLO) Judge, they were the subject of the search warrants, they were items that were taken, I think, for various reasons, they're relevant they too, many of them go the intent of the defendant. In addition to that, they go to the opportunity of the defendant, for instance, the camera is one item, there's one item that's a book that its content is the sexual abuse of children. I think that item goes to the intent of the defendant. Thank you.*
[* Really? So now, in the United States (as opposed to, say, China or North Korea), we can convict people based on what they read? (This is a book co-written by a professor at Cornell University. Perhaps, then, he  should be convicted -- as its author -- of even  more serious offenses.)]

(CZAJKA) [DC]?

(DC) Your Honor, I would object to those items, being offered on the basis that, I do not recall any evidence in this trial, that the, that the camera which [387] is part of this was ever used.* There was no testimony on that.
[* There was certainly no evidence that this camera was used to take the sexual photo that is central to this case -- i.e., no negatives were ever produced.]

(CZAJKA) For the same reasons that I sustained the objection with respect to exhibits three, two and 1, I sustain the objection with respect to those exhibits.* Do you have a motion you would like to make at this time?
[* Well, that's all very nice, but Torncello has already succeeded in highlighting all of this non-evidence to Czajka, the person deciding guilt or innocence.]

(DC) Your Honor?

(CZAJKA) You rest?

(TORNCELLO) Yes, we do. The People rest.

(DC) Your Honor, with respect to the last witness that we only asked a few questions here from the stand, I note, Mrs. Hinges, that was called by the People, that I objected to the introduction of the medical report that the Court, as I recall sustained --

(CZAJKA) In fact, I didn't have to look at it.

(DC) Sustained that. So I would like --

(CZAJKA) In fact, Mr. Torncello didn't even move it into evidence. [388]

(DC) Okay. With respect to some allegations in that report of colorblindness, I'm moving to strike all of that from the record to.*
[* Well, this is a bit of a 'damned if you do, damned if you don't' situation for the defense: On the one hand, it may have been a good idea for counsel to remind Czajka that he is  not  supposed to take this supposed color-blindness on 'Arthur's' part into account. But on the other hand, in doing so, defense counsel actually reminded Czajka of it.]

(CZAJKA) It was sustained.

(DC) Thank you, sir. Your Honor, with respect to the now resting of the People's case, I would like to renew that which I offered to the Court before the trial, started, first with respect to the 7th count of the indictment, five of these counts in this indictment Your Honor --

(CZAJKA) Could I interrupt you for a second [DC]? Mr. Torncello, what was the name of the last child witness, the last child witness that testified?

(TORNCELLO) ['Chris'], Your Honor.

(CZAJKA) That was indictment 7?

(DC) Yes, sir.

(TORNCELLO) Count 7, yes.

(CZAJKA) There was evidence on the record, in both I believe either in the exhibit that I just received four and / or the [389] admission to the inspector, then Senior Investigator DeFrancesco, regarding the defendant's contact with that child, is there any evidence in the record to corroborate that?

(TORNCELLO) Well judge, it's our position that the defendant had the opportunity. The witness identified him, he showed he stated that he was a teacher's assistant at school, that he had -- he was a friend of his, that there had been some touching in which I think he used the word restraint, that he has been restrained by Jeffrey Nickel.* He also testified that at first he was friendly with him, that they thought they were friends and then later something happened, that changed his opinion of Jeffrey Nickel, ** and I don't know whether I think he may have used the word uncomfortable that made him uncomfortable or something like that. I think his testimony coupled with the statement given by the defendant, which is in evidence, which judge admittedly --
[* Yes, Nickel did 'restrain' 'Chris,' in precisely the way the former was trained (by that school) to do when any student became unruly.]
[** What happened was the initiation of this 'investigation.']

(CZAJKA) There's some evidence in the record corroborating the fact that [390] a crime was committed? That particular crime was committed? That corroborated the defendant's admission whatever the section is 60 --

(TORNCELLO) Judge, I think in the letter that was just submitted that would be further proof of it.

(CZAJKA) The admission to corroborate one another?

(TORNCELLO) One statement and another on the testimony of the witness that he had the opportunity and he was available for that.

(CZAJKA) Do you have anything to support that admission that may corroborate another --

(TORNCELLO) Not at present, Your Honor.

(CZAJKA) All right. I interrupted you [DC]. Continue please.

(DC) Your Honor, with respect to five of the counts in the indictment, they were brought on the complaint of an individual by the name of [391] ['Arthur']. I respectfully pointed out to the Court before this trial began that initially there was a criminal felony information filed against Mr. Nickel, in which ['Arthur'], alleged a violation of Section 130.80, a course of sexual conduct. And that subdivision two or (b) of that section, says that no other subsequent prosecution can be had for other sexual, alleged sexual acts, that occurred within that time frame. I would respectfully submit to this Court when -- that all of these allegations brought by ['Arthur'] occurred within that time frame,
and that therefore, that the People since they had begun a prosecution under Section 130.80, they were precluded from proceeding with these other five counts in this indictment, and I would move at this time that they be stricken.

(CZAJKA) And you?

(TORNCELLO) Same argument as last time.

(CZAJKA) My decision continues to be the same.

(DC) Your Honor, if it [392] please the Court, with respect to Count 7 of the indictment which the Court just made some inquiry, my recollection of the testimony, of the alleged complaining witness was that there was no sexual contact that existed, and there would have to have been, some corroboration other than corroboration -- an admission by the defendant and there's none, not on the record.

(CZAJKA) My recollection is consistent with yours; however, I would give the People an opportunity to bring something to my attention that perhaps I'm not able to recall at this time.* Failing that, your motion to dismiss count 7 will be granted.
[* How many 'opportunities' is Czajka going to give Torncello re: this issue? Czajka and Torncello just spent more than two full transcript pages in their vain attempt to salvage the count related to 'Chris.']

(DC) With respect to that count and the other six counts, I would respectfully move at this time, that the People have failed to prove as a matter of law, beyond a reasonable doubt, all of the necessary elements of those charges, to sustain those charges and move for their dismissal at this point.

(TORNCELLO) We believe that there is credible evidence on each and every [393] element of the crime charged.*
[* The hell there is: Other than 'Arthur's' word, there is no evidence whatsoever of the top three charges of oral sex, photographing the latter, and the insertion of a finger into 'Arthur's' rectum. Moreover, 'Arthur' was incontrovertibly wrong -- as established by the police's own photographs -- about each and every detail about Nickel's home (the supposed location where the oral sex / photographing supposedly occurred) that he provided.]

(CZAJKA) I so find.* [DC], do you wish to present a case?
[* Only a de facto  second prosecutor  could 'so find.']

(DC) Yes, sir.

(CZAJKA) Call your first witness.

(DC) Thank you sir.

(CZAJKA) So [DC] can adequately plan his defense, do you foresee coming up with anything beyond that which you told me?*
[* So here, under the guise of being helpful to the defense, Czajka is giving Torncello yet another chance to salvage the count pertaining to 'Chris.']

(TORNCELLO) No, Judge.

(CZAJKA) All right.

(DC) Your Honor, the defense would like to call Mr. Richard McAvoy as its first witness.

(TORNCELLO) May I approach, judge?*
[* Why  did he need to approach the bench (i.e., Czajka), particularly, alone  -- without defense counsel also present? Why did Torncello apparently need to keep defense counsel in the dark here?]

(CZAJKA) Mr. McAvoy is the witness we discussed pre-trial? [394]

(DC) That is correct, Your Honor.

(CZAJKA) And just briefly to summarize what the testimony -- his testimony is to be, he will testify, regarding Exhibit 5, and his opinion that the adult male pictured in that photograph, is not the defendant.

(DC) That's correct, Your Honor, yes.

(CZAJKA) Mr. Torncello?

(TORNCELLO) Judge, I think I'll have to just continue my objection. Under the -- first of all, I'm not aware of anything, that the --

(CZAJKA) You made an objection, yet so the record is clear, [DC] asked for an order or some ruling from the Court before the trial began as to whether or not I would allow the testimony. I declined to rule prospectively in that record.

(TORNCELLO) Right. It's our position, then that there was nothing that this witness can testify to, that is [395] scientific in nature or that has been seen by the scientific community, as to be an acceptable scientific principle, judge.*
[* Oh  really? Richard McEvoy (note correct spelling of last name) was in charge of the Georgia Bureau of Investigation's photographic laboratories for over six years. He also worked on photo identification cases for other agencies, including the FBI. Some of his work involved the identification of persons depicted in bank surveillance photographs. The fact is, courts throughout the U.S. routinely  admit this sort of expert testimony. Thus, there clearly  is  a need for it. See  Photography expert  and  Photogrammetry sections.]

(CZAJKA) Well, whether or not the witness can testify and offer an expert opinion, you called a witness namely Bates Ron Bates, who testified without objection, that in his opinion, the person or persons depicted in Exhibit 5 were the defendant, and the child witness ['Arthur'].

(TORNCELLO) Correct. There's a big difference and the difference is that, this witness has never met ['Arthur'], okay?*
[* Hardly. As Torncello knows full well, the sole subject of McEvoy's proposed testimony is whether or not the  adult  pictured in the image is -- or is not -- Nickel.]

(CZAJKA) He's going to talk about ['Arthur'] or just the defendant?

(DC) Primarily the defendant, Your Honor.

(CZAJKA) So let's take one at a time.

(TORNCELLO) The second difference is that I didn't offer mine as an expert, he's just a lay person,* just like when I look at you --
[* Oh really? A detective -- with many years of experience -- is 'just a lay person' now?]

(CZAJKA) Your objection now [396] goes to his testifying at all?

(TORNCELLO) Correct.*
[* Why is Torncello so desperate to get this witness off the stand as soon as possible?]

(CZAJKA) Let's deal with that without regard to whether he does so as an expert.

(TORNCELLO) Well, I could have taken any --

(CZAJKA) If you presented evidence in this form certainly the defendant can, right? I mean, you opened the door at least to that extent, correct?* Whether or not he does so as an expert or otherwise.
[* Though Czajka may appear to be treating the defense on an equal footing as the prosecution here, the reality is that, regardless of whether anyone on the prosecution side claimed to have 'identified' the persons in the image, the defense had the right to call an expert to establish that Nickel was not the adult depicted therein. Thus, whereas Czajka seems to be establishing a floor above which a defense (expert) witness may testify, he is, in reality, establishing a ceiling, above which this witness will not be permitted to go.]

(TORNCELLO) My position would be if he didn't do so as an expert, then his testimony is irrelevant.

(CZAJKA) How so? How was Bates testimony in that regard relevant?

(TORNCELLO) He was an investigator who met Nickel, he has photos.*
[* What desperate nonsense. McEvoy was also 'an investigator who met Nickel,' and who also 'has photos' (which he took of Nickel, comparing the latter to the sex photo).]

(CZAJKA) Let's see if the defendant can lay a foundation and you can renew your objection at that time. Go ahead [DC].*
[* Despite Czajka asking defense counsel to continue, Torncello, in his utter desperation, prevents that.]

(TORNCELLO) Can I ask one [397] other question with respect --

(CZAJKA) Lay a foundation as to whether or not he knows the defendant, at least to the extent that Bates did.

(TORNCELLO) Well, I guess on re-cross, on redirect, I'm going to line up five hundred witnesses who are all going to come in here and say I looked at the picture.*
[* Now, Torncello is resorting to extreme sarcasm. This is immensely disrespectful; and yet, Czajka barely bats an eye.]

(CZAJKA) I've got to tell you, I was disinclined to allow this, but you're the one that asked Bates in the first place.* I looked at [DC], he happily declined to object --
[* Again, whether a detective testified he 'recognized' who was depicted in that image is absolutely irrelevant to the defense's obvious right to introduce evidence which is clearly exculpatory.]

(TORNCELLO) I also had --

(CZAJKA) You made your bed. Go ahead [DC].

(DC) If you please, state to this Court your name?

(MCEVOY) Richard McEvoy,* Jr.
[* Although the stenographer mis-spelled McEvoy's last name throughout the record, from here on, to avoid confusion, the correct spelling will be used.]

(DC) Where do you reside Mr. McEvoy?

(MCEVOY) Victor, New York.

(DC) And your occupation Mr. McEvoy is [398] what?

(MCEVOY) I consult and train law enforcement personnel, in the use of photography and digital imaging.

(DC) And how long have you been involved in training law enforcement personnel, in photography, and imaging training?

(MCEVOY) Since 1974 in the photography, and the digital, I would make an estimation 1990 to the present. Eleven, eleven years, it's a new field.

(DC) And are you a lecturer and do you conduct courses in those fields?

(CZAJKA) Well actually, [DC], what I preliminarily want to do is to find out, whether or not there exists a foundation to the same extent there was one for Bates.

(DC) I'd be happy to do that, Your Honor, yes.

(CZAJKA) We'll talk about it and deal with the expertise later, if at all.

(DC) Did there come a time in November of the year 2000, that you and Mr. Nickel and myself met? [399]

(MCEVOY) Yes.

(DC) And did you have occasion on that meeting to physically look at Mr. Nickel?

(MCEVOY) I did.

(DC) And on that meeting in November did you also have occasion, to spend a period of time within his presence?

(MCEVOY) I did.

(DC) And did you learn to recognize him from that meeting and experience his features and his profile and his looks?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(MCEVOY) I did.

(DC) And were you provided at that meeting a photograph which I'm going to show you, People's five in evidence, if I may? I'm going to show you People's five in evidence and ask you whether or not, you were physically shown that photograph?

(CZAJKA) Well, that would be the next question. Do you wish to inquire as to foundation with respect to that foundation?*
[* '...foundation with respect to that foundation'? Does that even makesense?]

(TORNCELLO) With respect to [400] whether or not he saw Jeff Nickel? No.

(MCEVOY) I have seen an image.

(CZAJKA) There's no question. As it again [DC], I think there's one outstanding.

(DC) Did there come a time, Mr. McEvoy, when People's five in evidence, that that was provided to you for examination and review?

(MCEVOY) Yes.*
[* That's true. But DeFrancesco, and the prosecution generally, fought tooth and nail to keep it from McEvoy. (Judge Thomas Breslin angrily ordered it to be made available to the defense.)]

(DC) Okay. Now, again in November of the year 2000, in your meeting with Mr. Nickel, did you in your capacity as a photographer take certain pictures of Mr. Nickel?]

(MCEVOY) I did.

(TORNCELLO) Objection.

(CZAJKA) Let's divide it up and do one thing at a time. Sustained for now.

(DC) Your Honor, I'm not sure on the division, I'm not sure.

(CZAJKA) Well, whether or not the witness or any witness for that matter can testify regarding his or her expert opinion on this particular issue, I want to [401] leave alone for now. As I indicated earlier, the People may indeed have opened the door to some kind of testimony regarding at least in a lay person's perspective, as to whether or not the person in Exhibit 5 is indeed the defendant. That as Mr. Torncello correctly argued does not require any expertise.* And the pictures -- the act of photographing the defendant, by the witness, delves into that area. Let's leave that for now.
[* That is simply false. Firstly, if there were never any need to have
photographic or photogrammetry experts establish who was -- and was not -- depicted in a given photograph, why do such experts routinely testify -- for example -- regarding surveillance photograph comparisons in bank robbery cases? Clearly, the simple existence of the field of photogrammetry demonstrates that a lay person is not reliably able to tell who is -- and is not -- depicted in a given photograph. (See Photogrammetry section, where even family members incorrectly 'identified' a man in a certain photograph as a captured POW.) Secondly, the adult male depicted in Exhibit 5 is not facing the camera, and therefore, cannot be identified via a layperson's simple examination of the face.]

(DC) Your Honor, my course of inquiry with this witness, was going to be, a, ultimately of course, in his opinion is that Jeffrey Nickel in People's 5?

(CZAJKA) Well, see if you can do that without regard to the photographs that he took*
[* Could Czajka hamstring the defense any more?]

(DC) Your Honor I think --

(CZAJKA) That's your intent?

(DC) I was doing both, both, Your Honor.

(CZAJKA) Well, as to the first one then we'll cross that other bridge if and when we get to it.

(DC) With respect to People's five in [402] evidence Mr. McEvoy, with respect to one of the individuals depicted in that picture, the one who appears from the photograph to possibly be an adult in that photograph, as you examine it and look at that photograph, is that Jeff Nickel who sits here in the Courtroom on trial today?

(TORNCELLO) Objection.

(CZAJKA) Overruled, again, I say so, based upon the People's own case, and their having opened the door to this type of testimony.*
[* Again, the defense's clear right to present such exculpatory testimony is in no way dependent upon whether or not the prosecution 'opened the door.' And there is also no legitimate reason for Czajka to 'find' that the defense may not go beyond where the prosecution did on this issue.]

(MCEVOY) I believe it not to be.

(CZAJKA) Is that based, Mr. McEvoy, on your having viewed the defendant, face-to-face?

(MCEVOY) It is. If I may qualify it further, among other things, yes.

(CZAJKA) Well, can you separate --

(TORNCELLO) Objection.

(CZAJKA) Can you separate your opinion?*
[* Once again, Czajka is ham-stringing the defense to the greatest extent he knows how.]

(MCEVOY) Yes.

(CZAJKA) Eliminate and [403] disregard everything and everything, other than your personally looking at defendant.

(MCEVOY) Okay.

(DC) What is your opinion with respect to --

(MCEVOY) I believe that this photograph here is not Jeff Nickel.

(DC) Okay. Now, with respect -- I would like to ask you about your background. You're a lecturer -- Your Honor, I'd like to qualify him as an expert in the field for consideration by the Court.

(TORNCELLO) Objection.

(CZAJKA) Before he's qualified as an expert let's figure out whether or not there's such a field and what is the field?*
[* If Czajka truly does not know that this is a field which requires -- and indeed, employs -- bonified experts, that would seem to indicate judicial incompetence.]

(DC) Your Honor, I think that in his comparative between actually having seen Mr. Nickel, the photographs that he took of Mr. Nickel, and then matching that to People's five in evidence, I feel he would be able to provide this Court, with a detailed explanation, as to why this could not be Mr. Nickel. And if a jury were here it would be my hope that this would aid that [404] jury.*
[* Well, one would hope that such testimony would also aid the judge as finder of fact (i.e., guilt or innocence) in this trial; assuming, of course, that Czajka was actually interested in the truth.]

(CZAJKA) So presumably this would be done outside the presence of the jury or at least preliminarily?

(DC) Yes, sir.

(CZAJKA) Let's do that. I'll give you an opportunity to make argument. Go ahead.

(DC) Would you be kind enough sir, to give this court, your background in the field of photography and imaging? Credentials, resume, if you will?

(MCEVOY) I began with photography at age 11 as a hobby, of course, was trained in the military, and did precision photography for the military, I then got into the news work again through photography, got into forensics photography, and ran the photo lab for the Georgia Bureau of Investigations as an --

(DC) Georgia Bureau of Investigations?

(MCEVOY) It's a police agency in the State of Georgia. Depending on one's definition, it's a bureau of investigation and it has powers of arrest, it has powers of investigation. There are other states that have this same or [405] similar unit, not uniformed.

(DC) How long did you -- were you employed?

(MCEVOY) Approximately a little over six and a half years.

(DC) And can you tell me in what capacity you were so employed by the Georgia Bureau of Investigation?

(MCEVOY) When I left I was in charge of their photography division there, which was a part of the homicide investigation team, and fire and arson investigation teams, and whatever else they would come up with if they needed --

(DC) Have you in the past worked on photo identification for other police agencies and assisted other agencies?

(MCEVOY) Yes, I have.

(DC) And among those would the Federal Bureau of -- of Investigations, that would be one?

(MCEVOY) Yes.

(DC) And other agencies?

(MCEVOY) Yes.

(DC) Have you worked on and identified photographs taken, for example, in [406] identification of people depicted on bank teller machines and bank robbery cases and things of that nature?

(MCEVOY) I have.

(DC) And have you had occasion, sir, to testify, in Court before, with respect to this field of expertise?

(MCEVOY) My function --

(TORNCELLO) Objection as to the chacterization, field of expertise. There's no --

(CZAJKA) Rephrase.

(DC) Excuse me, I apologize. In the field of identification from image or photo, have you had occasion to assist police agencies?

(MCEVOY) I have.

(DC) And have you had occasion to testify with respect to your findings?

(MCEVOY) Testimony to the findings and identification, no,* testimony as to the quality of the work and what I have observed, yes.
[* One of the cardinal rules of trial lawyering is never to ask a question -- at least of your own witness -- that you don't already know the answer to. Here, defense counsel has clearly broken that rule. Had he prepared this witness properly, he would not have asked this question -- at least, not in the way he did. (This question and answer were -- to say the least -- not helpful to the defense's case.)]

(DC) Your observations you're able to testify to?

(MCEVOY) Right.

(DC) Those were observations of [407] photographs?

(MCEVOY) Images, yes.

(CZAJKA) Image quality?

(MCEVOY) Of photographs, yes.

(CZAJKA) But you never said that's so and so after looking at the picture?

(MCEVOY) Others have of the work that I worked on.

(CZAJKA) Have you?

(MCEVOY) No.

(DC) Is your --

(TORNCELLO) Objection judge. I move right now for --

(CZAJKA) Well, whatever that's got to do with it, I guess there's a first time for everything, right? Not to say this will be, but that alone is not dispositive. I'll give you an opportunity --

(TORNCELLO) Judge, I think we have to have a full Frye Hearing* and determine --
[* A 'Frye Hearing' is a hearing where it is determined whether expertise is required -- and scientifically accepted -- in a given area. Now, it is Torncello  who appears to be pretending he knows nothing of such experts routinely testifying in -- among others -- bank robbery cases.]

(CZAJKA) That sounds like what [DC] wants.

(TORNCELLO) To accept in the [408] community as scientific --

(CZAJKA) Go ahead. It sounds like that's what we are doing.

(DC) Have you assisted other police agencies, in identification from photographs?

(MCEVOY) I have.

(DC) On many occasions, sir?

(MCEVOY) I have.

(DC) Are you now and have you in the recent past been, conducting educational courses, and instructions for police agencies and police officers?

(MCEVOY) Yes.

(DC) Is it not a fact that almost exclusively you work for and with police agencies and not the defense?

(MCEVOY) That's true.*
[* This is actually why McEvoy was, initially, quite reluctant to be a defense expert/witness. In fact, he was initially quite adamant that, although he was willing to consult on the case, he would not actually testify for the defense. However, when he realized Nickel was definitely not the older person depicted in that sex photo, he changed his mind.]

(DC) And you're so employed, at the present time, are you not, by police agencies?

(MCEVOY) I am.

(DC) Is it not a fact that one of your well -- strike that. Now, in the course of your meeting with Mr. Nickel, did you take certain photographs of him? [409]

(TORNCELLO) Objection, leading,*
[* Not by any stretch of the imagination was this a leading question. Torncello is simply desperate.]

(CZAJKA) Overruled.

(MCEVOY) I took photographs of him.

(CZAJKA) Whether you have any other objection, we don't even want to get there yet. Let's figure out whether this is --

(TORNCELLO) Objection.*
[* So now, Torncello is making an objection to what the judge is saying -- and cutting him off, to boot.]

(DC) Have you found, sir, from your experience, in the law enforcement field, that identification from photographs, that there are techniques and abilities that are not possessed by the general public?

(TORNCELLO) Objection.

(CZAJKA) Well, that's one of the things I'll have to decide, objection sustained.*
[* This is absurd. If McEvoy is not going to be allowed to discuss why expertise truly is required here, Czajka will have no legitimate basis on which to decide whether McEvoy should be allowed to testify as an expert. Yet more hamstringing of the defense by de facto second prosecutor Czajka.]

(DC) Would you be kind enough to explain to us, as an example, whether or not as you viewed the ear portion, the ear on the body shown in that photograph, what discernible differences were you able to make with respect to it, as opposed to the ear examined on the photograph that you took of Jeff [410] Nickel?

(TORNCELLO) Objection.

(CZAJKA) Sustained. At this stage of the proceeding, I'm not receiving in evidence for the purpose of determining the guilt or innocence of the defendant, rather, this would be in the nature of a hearing outside the presence of the jury, if there were a jury, to determine whether or not this testimony is even admissible. So let's skip for the moment the witnesses -- work with respect to this case and determine whether or not this is even admissible. Did you have any other questions with respect to that issue?

(DC) Have you in the past, Mr. McEvoy, in examining photographs, and images, made comparisons of ear style or design?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(MCEVOY) If I can expand on this?

(CZAJKA) No.

(MCEVOY) Yes.

(DC) Have you on other occasions made [411] examinations of images of characteristics of the nose and nostril areas?

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(MCEVOY) Yes.

(DC) Have you made examination and comparisons dealing with the hair line?

(MCEVOY) Yes.

(TORNCELLO) Objection.

(CZAJKA) Overruled.

(DC) Have you made in the past comparisons dealing with body hair, on ones body?

(MCEVOY) Yes.

(DC) And on ones face?

(MCEVOY) Yes.

(DC) Have you made comparative photographs or inspections before, dealing with the construction of ones forehead?

(MCEVOY) Yes.

(DC) Have you in the past made comparisons with respect to the cheek bone and eye socket view of an individual?

(TORNCELLO) Objection.

(CZAJKA) Overruled. [412]
(DC) Have you made in the past --

(TORNCELLO) Judge, can I -- my objection now is just as to leading. Can we ask him what he does, instead of?

(CZAJKA) Well, for that reason your objection is sustained.*
[* Two transcript pages previously, when defense counsel asked McEvoy if he'd "made comparisons of ear style or design," and McEvoy asked if he could "expand on this," Czajka said no. But now, upon Torncello's objection and then suggestion 'Can we just ask him what he does?,' which is exactly what McEvoy had been trying to do earlier, Czajka indicates his agreement with this approach.]

(DC) Could you explain for us what you do in making these comparisons?

(MCEVOY) In this specific case or in general?

(DC) Just in general for now, sir?

(MCEVOY) You look for the geometric nature and patterning defects, if you will.

(DC) What do you mean by geometric? Explain what you mean by geometric patterns?

(MCEVOY) The shape. If you're going to do comparisons, the shape of ones nose, the shape of ones ear, teeth, nostrils, hair pattern within a body, on a body, on a head, or on the face. This amounts to a great deal of observance, and mental notation, between one or several images that are put forward to you. As an example, those things that you identify with and people do this intuitively without realizing it, and when I say [413] intuitively, people in general, the general population when they look at someone say I know him, or her, I know that object, they're doing pattern recognition.*
[* This is another example of very poor witness preparation by defense counsel. Torncello will soon seize on this, as 'proof' that, because anyone can do these sorts of comparisons, this would not be a proper subject of expert testimony. (But of course, laypersons would not do this in the scientific and systematic way that only a true expert  could.)]

(DC) What does that mean?

(MCEVOY) Pattern recognition is, unique features of a person or an object. My job in doing a recognition or comparison between images is to see if there are unique features that will either eliminate, or positively identify, the object in question or the person in question. When doing comparisons within imagery that is a slide sometimes you have to come back as close as you can to the original source. If you're dealing with film, it's a negative. If you are dealing with digital imaging, you try to get as close to the original comport what we call it of the image. The print that is here --

(TORNCELLO) Objection.

(CZAJKA) Sustained. Go ahead [DC].

(DC) I think as you started to explain to us, your work, I think I interrupted you. And then as to what other characteristics you [414] would look at in comparison?

(MCEVOY) Ears is one, there's a method in the past, called Bertilion and I would have to check on the spelling of that, Bertilion, it was there at the turn of the century, and part of the Bertilion method was ear shape and the like. Also a fingerprint* and that fell out of favor because it was where you have a little more objective as -- you could put measurements to these at that time. I don't know how far you want me to go with this, but they have made --
[* Yet another example of poor witness prep by defense counsel. McEvoy is starting to wander way off track, which does not help his chances of being qualified as an expert here.]

(CZAJKA) I'll let you know.

(MCEVOY) Others have made identifications of ear prints where someone is listening for the --

(CZAJKA) I mean that is not relevant to this case.

(MCEVOY) All right.

(CZAJKA) Go ahead [DC].

(DC) Your Honor, I would like to be able to offer now Mr. McEvoy's examination, as an expert in this field.

(TORNCELLO) Objection.

(CZAJKA) Wish to be heard or inquire of the witness? [415]

(TORNCELLO) I think I wish only to be heard in two parts that I understand judge, that number one is that he has never testified to his finding of identification of photographs. He has never testified before to the findings of his identification of photographs. And number two, I think most importantly, when he talked about some of the qualifications he has, he said that, people do it intuitively without realizing it. And I thought that's important. I think that this is something that is outside of the scientific community. I don't believe it's an accepted practice among the scientific community or anything that a jury could understand or a finder of fact to understand.*
[* It's very difficult to imagine that Torncello actually believes what he's saying here. Really -- he's never heard about such experts routinely testifying in, for example, bank robbery cases?]

(DC) [DC]?

(DC) Your Honor, I respectfully disagree. I mean we can all concede in the past couple of days, you, the Court, the People and myself all looked at one another. And but I would dare say are you an expert? We have not looked at the features and looked at it in the detail that [416] this gentleman is prepared to testify in, and because of the importance of this identification in this case, I thought it important that we get -- call an expert in here to be able to do nothing more than aid the jury or the court, and maybe draw the Court's attention to certain areas and to particularize those area as an aid, if you will, in the decision making the Court has to do. And I don't sit around as laymen and measure or look at curves in ears or nostrils or things of this nature, I don't think any of us do. And as a layman we just don't perform that way. I think it certainly is an aid to have someone come in who does this as their life's work and show and instruct us what they did in a particular case. And that is why I was offering Mr. McEvoy.

(CZAJKA) Although Mr. McEvoy certainly seems qualified in his field, this particular portion of his field does not seem to me to be such that it requires any expertise, much less, an example of the kind [DC] suggests is appropriate. Indeed, although it's outside the record on this [417] particular hearing, this separate, discrete hearing, Mr. McEvoy's own testimony at the trial portion a few minutes ago, where he testified that based upon his own opinion, by looking at the defendant face-to-face, he is not the person in Exhibit 5, belies or suggests there's not even any need for such expertise, * whether or not there is such a field, whether or not it is recognized generally in the scientific community.** So, he may not testify beyond that which he is allowed to testify by virtue of the People having opened the door.*** Do you have any other questions with respect to his going back in the trial portion now, do you have any questions of Mr. McEvoy, with respect to observations he made of the defendant, face-to-face?****
[* Czajka's disingenuousness here is absolutely breathtaking. First of all, he is the one who so ham-strung McEvoy, that the latter was only allowed to testify as a 'layman' -- as Bates (supposedly) did -- based on simply looking at the image and then observing Nickel in person. Secondly, even so constricted, the fact that McEvoy can still conclude that Nickel is not the person depicted in this sex photo does not logically lead to the conclusion that 'anyone' could have done so, for the simple reason that this is precisely what McEvoy does for a living, and thus, he has far more experienc even on a simple 'observation' level than would virtually any layman.]
[** It bears repeating that, if Czajka truly does question the need for -- and obvious existence of -- such a field of expertise (as evidenced -- for example -- by experts routinely testifying as to the identity of persons depicted in bank surveillance photographs), he is clearly incompetent to rule on what sort of expert testimony should be permitted.]
[*** Again, whatever Bates testified to is a total red herring: The defense has a constitutional right to present exculpatory evidence regardless.]
[**** Lastly, the question must be asked: What is Czajka afraid of here? If there were a jury, it might (though still implausibly) be argued that McEvoy would confuse the members of it. But there is no jury here. So, what would the cause of justice have to lose by qualifying him as an expert? Nothing. But Czajka's cause of making sure Nickel was convicted definitely would suffer. A prosecutor (including, in name) he was before this trial, and a prosecutor he would (in name) become again several years after this trial.]

(DC) Well, yes, Your Honor. And some further -- I'm assuming the Court's ruling is I'm not permitted to call Mr. McEvoy as an expert?

(CZAJKA) That's correct.

(DC) All right.

(CZAJKA) I don't have to [418] determine whether he is -- whether or not he's an expert. I'm making a determination this is not beyond the cannon of a lay person.*]
[* Baloney -- as one suspects he damn well knows. But, let us examine this from one other perspective. Investigator Bates -- a supposed layman -- claimed Nickel was depicted in the image. McEvoy -- whom Czajka insists upon treating as a layman -- says Nickel is not the older person depicted therein. Ergo, it logically follows that laymen are not qualified to accurately and consistently judge whether a given person is depicted in a given image.]

(DC) Respectfully take exception.

(CZAJKA) Or a trier of fact.

(DC) I'd take exception, Your Honor. I would then like to ask Mr. McEvoy, with respect to being a photographer whether or not in that capacity, he took some pictures of my client and offered those?

(CZAJKA) Mr. Torncello?

(TORNCELLO) I haven't seen the photographs yet, oh, did -- you showed them to me?*
[* Note how Czajka swoops in to save Torncello from the embarrassment of initially claiming he'd never seen these photos, only to have to immediately backpedal.]

(CZAJKA) Well, to protect the record, do you want them marked?

(DC) Certainly.

(CZAJKA) Before you do that Mr. Torncello, let me ask you this, People's five, that's the contraband for which the defendant has been charged in count three? [419]

(TORNCELLO) Correct.

(CZAJKA) Do you want me to consider it for any other purpose?*
[* Now, Czajka is attempting to limit the damage (to the prosecution) from what he must know was his highly questionable decision to prevent McEvoy from testifying as an expert.]

(TORNCELLO) I think it's -- yes, I do. I think it's some proof of Count one.*
[* It's important to note that 'Arthur'  said nothing about a supposed oral sex incident until he was shown that pornographic image.]

(CZAJKA) Well?*
[* Well what? Czajka just 'asked' (in reality, he was trying to convey a strong suggestion to) Torncello if he wished that image to be considered for any other purpose than the 'Use of a Child in a Sexual Performance' count. Torncello clearly responded that he did wish this image to be considered as proof of Count One, which charges the actual oral sex act itself. But Torncello is faiing to get Czajka's 'hint' here.]

(TORNCELLO) It's some proof.

(CZAJKA) I mean on your own* to introduce it for that purpose then the rest of this evidence is irrelevant.** If you want me to consider it, as proof of some other crime, namely count one?
[* The phrase 'on your own' is laughable here, given how Czajka is clearly trying to get Torncello to agree that Exhibit 5 (the sexual photo) should not be considered as proof of the sex act itself.]
[** This sentence actually makes no sense -- and appears to be saying the exact opposite of what Czajka actually means and is trying to convey. That is to say, with Torncello stating that Exhibit 5 should be considered as proof of the oral sex act itself, McEvoy's evidence is extremely relevant. On the other hand, if Czajka can get Torncello to agree that Exhibit 5 should not be considered for any but the 'Use of' charge -- which Czajka eventually does accomplish -- then, provided that Czajka  acquits Nickel of the 'Use of' charge -- which he will do -- McEvoy's evidence would become at least somewhat less relevant. But even then, what McEvoy has to say here would still destroy 'Arthur's' credibility in general, and with respect to the oral sex accusation -- which Czajka will still convict Nickel of -- in particular.]

(TORNCELLO) I think it's proof of count one and count six, that's the endangering charge?*
[* Not only is Torncello not getting Czajka's 'drift' -- the former is now wishing Exhibit 5 to be considered for another charge as well!]

(CZAJKA) Come up please.

(Side bar).*
[* So, because Torncello won't 'take the hint' on the record, Czajka calls him up for a private sidebar -- without defense counsel present -- in order to 'get him with the program.' Now, there is never a good reason for the judge to have a sidebar with the prosecutor only. Moreover, given that there's no jury here to be influenced by whatever may be discussed, there's little or no reason to have any sidebars at all.]

(TORNCELLO) On second* thought, Your Honor, let me say that, People's number five in evidence, would be offered as proof of -- as some proof of count number three ['Use of...'], in that indictment judge that [420] the contraband that we believe is addressed, in count three.
[* Second thought? More like seventh thought. The following is part of Torncello's opening statement: "One of the things that [Tanski] found in the disks is the subject of count three. There's also further proof, of counts one and two, Your Honor, it's a photograph of this defendant engaged in an act of oral sodomy with ['Arthur']..." Then, we have Torncello eliciting testimony from Investigator Bates that he 'recognized' the people in the sex photo as Nickel and 'Arthur.' Obviously, Torncello was eliciting such testimony not only to try to convict Nickel on the 'Use of' charge (count three), but on the oral sex act (count one) as well. Then we have Torncello saying another three times (just above) that he does wish that image to be considered for more than just the 'Use of' charge.]

(CZAJKA) And [DC], in view of the fact therefore, I will not consider, Exhibit 5, as having any relevance or connected with the remaining counts, it would seem to me therefore, that this testimony, would serve no purpose?*
[* Wrong. For one thing, although Czajka will acquit Nickel of the 'Use of' charge, we of course do not yet know that; thus, McEvoy's testimony is still relevant even for that count. And it is still relevant for the oral sex (count one) charge itself -- which Czajka will -- incredibly -- actually convict Nickel of. But the broader issue here is that, if that sex photo is clearly established to not  depict Nickel, that means 'Arthur's' credibility overall is gone. But Czajka -- as de facto  second prosecutor -- just cannot have that.]

(DC) I think quite the contrary. The position taken by the D.A., initially, is exactly the position that he has proven or is attempting to prove through the witness ['Arthur'], is that those two counts are wrapped up in this, in this imagery shown in People's five.

(CZAJKA) Well, I mean it's his case.*
[* Again, this is laughable, given that Czajka has forcefully altered 'the People's' entire approach here.]

(DC) Yes, sir.

(CZAJKA) And if he tells me, not to consider it,* beyond count three, I will not and cannot.
[* The only reason why Torncello 'told' Czajka this -- as is blatantly obvious from the foregoing exchange -- is that Czajka instructed Torncello to tell him this. How Czajka can say such things with a straight face -- or for that matter, pretend to be a neutral arbiter -- is a mystery.]

(DC) Your Honor, I think this Court now can consider whatever was put before it as evidence in this trial, not what the D.A. -- [421]

(CZAJKA) I mean, certainly the defendant or the People couldn't do that. Strike that. Certainly that might have lead -- strike that.* The People having withdrawn that particular purpose for Exhibit 5 they're stuck with it.** So, in essence, you would be using this witness to prove something that you don't need to prove or disprove something that the People are not attempting to prove any more. Namely that, this picture is a picture of the defendant.***
[* Czajka is so desperate to get this witness off the stand, that he's veritably tripping over his own words at this point.]
[** It is Czajka himself who compelled 'The People' to do this. Moreover, it is -- in fact --  the defense that is 'stuck with' this outrageously pro-prosecution ruling on the part of this so-called 'judge.']
[*** No. As has already been noted, even if the defense knew for sure that Czajka was going to acquit on the 'Use of' charge -- which it did not know was going to happen -- the defense still had a very strong interest in impugning 'Arthur's' testimony and allegations in toto. (It's not as if Czajka ended up acquitting Nickel of all charges related to 'Arthur': He still convicted him of the 'sodomy' (the oral sex act itself), the 'Aggravated Sexual Abuse' (alleged insertion of finger into rectum), and 'Sexual Abuse' (simple touching) charges related to him.)]
(DC) Your Honor, the dispute of that picture, is vital to our defense, we are saying that's not --

(CZAJKA) Exhibit 3, strike that. Count three, alleges this is contraband. Whether or not -- without regard to tyhe identity of the people within that picture, whether or not this is the defendant, ['Arthur'], or anyone else, they are allegations that this is contraband, just simply by the nature of that which is pictured. Now, if that's the only reason [422] that they're going to use it, to prove that he possessed this contraband,* and they do not want me to consider it as proof of the remaining counts, then it would seem to me all of this evidence is irrelevant.**
[* Czajka either completely misunderstands the law here, or is simply pretending to misundersand it. The 'Use of a Child in a Sexual Performance' that Nickel was actually charged with is different from (and far more serious than) the charge of merely 'Possessing a Sexual Performance By a Child.' A 'Use of'  charge alleges that the defendant himself caused a sexual act -- involving a  specific child  -- to be visually recorded. (And while it is technically true that the adult himself need not be included  in such an image for it to be a crime, the fact is that, from the beginning, 'the People's' position had been that it depicted 'Arthur' and Nickel.)]
[** If Czajka truly does believe that (which there is great reason to doubt), then he's just flat wrong. At the risk of belaboring the point, this evidence would still be quite relevant, because it calls into serious question all of 'Arthur's' testimony.]

(DC) Your Honor, it does deal with contraband.* It deals with the sexual performance and it deals with the --
[* It is unfortunate that defense counsel himself then adopts Czajka's highly misleading term here.]

(CZAJKA) Sexual performance is the contraband. The picture itself --

(TORNCELLO) Correct, Your Honor.*
[* Not really. (Moreover, what, exactly, is 'correct'? In his apparent ardor to be on Czajka's 'side', Torncello actually cut Czajka off before the latter could finish what he was saying.)]

(CZAJKA) I would suggest therefore the fact it was the defendant himself, who was allegedly engaging in deviate sexual intercourse as alleged in count three is surplusage. The fact that because by law it could be anyone --*
[* While it is technically true that a defendant himself need not be depicted in a sexual image to convict on a 'Use of' charge, it has been 'the People's' theory of the entire case -- from the start -- that it does depict both 'Arthur' and Nickel. Because that was their theory, the defense constructed its own case accordingly. Thus, this constitutes a grossly unfair surprise to spring on the defense in the last few moments of this trial. (In any event, as has already been noted, a 'Use of' charge still requires that the defendant himself have recorded -- or at least, directed to be recorded -- such a sex act involving a child, himself.)]

(DC) If it were anyone, Your Honor, that's the subject matter of a different indictment, not of this indictment.

(CZAJKA) Well, I thought this picture was only in this indictment, not the other.

(TORNCELLO) I'm not sure [423] whether that picture is in the other one or not.

(CZAJKA) The fact that defendant is alleged in the to wit clause, that clause, that the defendant is alleged to be in that contraband, in that photograph, is surplusage. The People don't have to prove that's the defendant for the contraband in fact to be contraband.

(DC) Your Honor, that's what the People offered those as proof in this case. That's exactly what they were proving through their witness, ['Arthur'], as it applied to two counts, as it applied to the sexual act depicted.

(CZAJKA) Well, go ahead, do what you like. It's taking more time* than it would just to introduce the evidence. Just so the record is complete in view of the fact that the defendant does not seem to accept that stipulation, do you now want me to consider it for all purposes?**
[* So now, another major factor motivating Czajka has been brought into stark relief: He just wants this whole thing to be over as soon as possible. Damn the defendant's right to a fair trial, or anything else for that matter.]
[** This would seem to signal that Czajka will go ahead and convict Nickel of the oral sex charge simply out of spite, because defense counsel would not accede to his grossly un-judge-like redirecting of the People's entire case.]

(TORNCELLO) Please.

(CZAJKA) Okay. [424]

(Whereupon, Defendant's Exhibit "E" was marked for identification).

(DC) I would like to show you, Defendant's "E" for identification, and ask you to examine in totality the packet of sixteen photographs.

(MCEVOY) I have.

(DC) Okay. Are these, sir, the sixteen photographs that you took in November of 2000, of Mr. Jeff Nickel?

(MCEVOY) They are.

(DC) I would like to offer these.

(TORNCELLO) May I voir dire very briefly?

(CZAJKA) Did you already see these pictures?

(TORNCELLO) Some, yes.*
[* Baloney -- he saw all of them. He's just trying to save face re: his earlier claim that he had not seen them.]

(TORNCELLO) Mr. McEvoy, when did you take these pictures?

(MCEVOY) I did.

(TORNCELLO) When did you take these pictures?

(MCEVOY) May I refer to my notes to be exact? I'd say beginning of April or beginning [425] of November 2000. That's okay.

(TORNCELLO) Fair enough. Beginning of November, 2000?

(MCEVOY) Yes.

(TORNCELLO) Okay. Now, you already looked at People's number five?

(MCEVOY) Yes.

(TORNCELLO) Do you know, when this picture was taken?

(MCEVOY) I have no idea.

(TORNCELLO) Okay. So, would you have any idea, first of all, who is in this* picture?
[*Apparently, Torncello is now holding up and showing McEvoy one of the pictures McEvoy himself took of Nickel.]

(MCEVOY) The defendant.

(TORNCELLO) Right. Would you have any idea, if this is the way Jeff Nickel looked, when this was created?*
[* This question is quite confusing. Apparently, Torncello is holding up both the sex photo and a McEvoy-taken picture of Nickel. (Therefore, the first 'this' in question refers to one of these, and the second 'this' refers to the other.) It would seem that Torncello is attempting to make the point that, because McEvoy has no idea when the sex photo was taken, there would be no way for him to say what Nickel would have looked like at that time. But, on multiple levels, this argument simply does not make sense. Firstly, because Nickel only had 'away' visits with 'Arthur' for a short period of time, it could not be plausibly argued that his appearance could have changed in any significant way. Secondly, most of the physical features McEvoy uses to see if a certain person is depicted in a given photograph change very little over time -- or not at all.]

(MCEVOY) I would.

(TORNCELLO) Can you describe the way it looked to me, please?*
[* An even more confusing question than the one above. What in the world does Torncello mean by 'it'? Nickel himself is certainly not an 'it.' But perhaps he's referring to one of the photos he's holding. But if that is so, how is McEvoy supposed to 'describe' the way a photo 'looked'?]

(CZAJKA) Well, you know what look means Mr. McEvoy?*
[* Well, this was a(n absolutely unwarranted) very sarcastic remark. Either Czajka is too dense / angry to realize what a confusing question this truly was, or he's pretending not to realize it. But he's intimidated McEvoy sufficiently to 'gaslight' the latter, and throw him off.]

(MCEVOY) His ears I would assume to be different, or would not be different, I'm sorry.

(CZAJKA) That's the way he [426] looked, when that picture was taken? *
[* So now, Czajka himself is taking up this absolutely irrelevant 'point' that Torncello is trying to make.]

(MCEVOY) His physical features would -- I would expect to be the same.

(TORNCELLO) All right.

(CZAJKA) Well, that is not responsive.

(MCEVOY) Okay, yes, Yes.

(TORNCELLO) You're saying that these pictures fairly and accurately describe the way he looked in November of 2000, right?

(MCEVOY) Yes.

(TORNCELLO) Are these -- do these pictures fairly and accurately depict the way Jeff Nickel looked when that document was created, do you know?

(CZAJKA) Whether that day or --

(TORNCELLO) Do you know that answer? You can't say, can you?

(CZAJKA) Go ahead.

(MCEVOY) I am still thinking on this.

(CZAJKA) Just so you understand the question Mr. McEvoy, this photograph Exhibit 5.

(MCEVOY) Yes. [427]

(CZAJKA) Or this image, Exhibit 5, was generated on some day, whatever that day was.

(MCEVOY) Okay.

(CZAJKA) And assuming for the sake of argument, that it was a day in the life of the defendant.

(MCEVOY) Yes.

(CZAJKA) Assuming* -- not assuming that this is the defendant.
[* This seems to be something of a Freudian slip on Czajka's part. Moreover, note how, when Torncello was not pursuing this [absolutely irrelevant -- see note above] line to Czajka's satisfaction, the latter merely takes over; again, as de facto second prosecutor. And, last but not least, why isn't defense counsel exposing the sheer stupidity of this entire line of questioning?]

(MCEVOY) True.

(CZAJKA) Fix in your mind that particular day, whatever it was, do you understand that there was some day in time when that image was generated?

(MCEVOY) I do.

(CZAJKA) All right. That's the day in time to which Mr. Torncello refers.

(TORNCELLO) Can you say for sure, whether this is the way fairly and accurately it depicts the way Jeff Nickel looked at that other time?

(MCEVOY) Yes.

(TORNCELLO) You can say that?

(MCEVOY) Yes.* [428]
[* Czajka and Torncello -- absolutely uninterrupted by defense counsel -- have now browbeaten and gaslighted McEvoy to a point where he answers this (absolutely irrelevant -- see note further above) question incorrectly, which both Torncello and Czajka then seize upon, as if that somehow destroyed his credibility overall.]

(TORNCELLO) Do you know when that photograph was created?

(CZAJKA) Mr. McEvoy, how could you possibly say that if that picture could be -- that could have been a picture of something that happened 50 years ago?

(DC) As to the construction of the nose, ears, face, facial bones.

(CZAJKA) That is not what I'm getting at.*
[* That's quite true. Whereas defense counsel is (finally) trying to get things back on the track of actual relevancy, Czajka will not let go of this absolutely meaningless 'point' as to what Nickel looked like at the time the sex photo was taken.]

(DC) Wasn't that answer is that things wouldn't change?

(CZAJKA) Maybe I misunderstood the question then. Go ahead Mr. Torncello.

(TORNCELLO) Judge?

(CZAJKA) I shouldn't have said 50 years ago, 50 years was beyond or before Mr. Nickel, the defendant was born, but any way. Go ahead.

(TORNCELLO) I find the answer incredible.

(DC) Object to those remarks of counsel. [429]

(CZAJKA) It's stricken.*
[* Again, given that this is in the transcript, what on earth does it (supposedly) being 'stricken actually mean?]

(TORNCELLO) I am going to object, on the basis of foundation, more importantly, relevance. Thank you judge.

(CZAJKA) Well certainly the defendant or perhaps the People, I remember doing it myself once, the People have requested an Order of the Court, directing that the defendant -- to take his shirt off or look in a certain way or
something. I don't see anything wrong, therefore, with receiving these pictures for that same purpose. And the objection is overruled. Any other questions?

(DC) Just a few. Mr. McEvoy, so that there's no misunderstanding of the questions posed by the Court tand the D.A., you cannot compare* the pictures marked Defendant's "E", against number five, because in number five, you already indicated that that is not, Mr. Nickel in number five.
[* But of course, McEvoy in fact did 'compare' the sex photo with the ones he himself took of Nickel.]

(TORNCELLO) Objection.

(CZAJKA) That's what my [430] decision was, sustained.

(DC) The photographs that were shown to you as defense Exhibit "E", would the ear structure have remained the same in that individual over the years?

(TORNCELLO) Objection.

(CZAJKA) Sustained.

(DC) Your Honor, I would run through the other various parts, but if there's going to be the same objection, I'll shorten it then.

(CZAJKA) Okay.

(DC) Your Honor, in light of the fact that the Court has ruled, that we cannot pursue this witness as an expert, then there would be nothing further, no further inquiry that I can make at this time.

(CZAJKA) Do you have any questions?

(TORNCELLO) No thank you.

(CZAJKA) Call your next witness please, if you have any?

(Witness excused).

(DC) Your Honor, the defense would like to call as its second [431] witness, [Nickel's brother* ('NB')].
[* We choose not to name him.]

(DC) Would you state for this court lease [please] your full name?

(NB) [States name].

(DC) And how old are you [NB]?

(NB) 42.

(DC) And whereabouts do you reside?

(NB) 36 Lansing Drive, Delmar, New York.

(DC) And who do you reside there with?

(NB) My mother, and my brother.

(DC) The brother that you speak of, is that Jeff Nickel?

(NB) Yes, sir.

(DC) And is that Jeff Nickel seated with me at counsel table?

(NB) Yes, it is.

(DC) How old are you, [NB]?*
[* Defense counsel just asked that.]

(NB) Forty-two. [432]

(DC) And how old is Jeff?

(NB) Thirty-two, thirty-three.

(DC) So you're ten years apart?

(NB) Right.

(DC) Now, this address of 36 Landing Drive in Delmar, for how many years have you lived there?

(NB) Twenty-three years in July.

(DC) So you were only about ten when you moved in and your brother was just an infant, I take it?

(NB) Correct.

(DC) And did your brother live there and has that been his residence except for schooling, all of his life?

(NB) Yes.*
[* Actually, no: After college, Nickel lived in Washington, D.C. for about two years, then moved back to Boston for another four years, then moved to Albany where he had an apartment for a little over two years.]

(DC) All right. And except for your early years, that's been your residence all of your lives?

(NB) Yes.

(DC) Are you familiar with that house having lived there for some thirty-two years?

(NB) Yes, sir.

(DC) Are you familiar with the color of the house? [433]

(NB) Yes.

(DC) And what color is the house?

(NB) Interior?

(DC) Exterior of the house?

(NB) The exterior is blue.*
[* Right -- not white, as 'Arthur' has claimed. (Also note that he did not  say 'light blue,' as DeFrancesco self-servingly did.)]

(DC) Is it sided in some way or is it just painted through or is it sided?

(NB) Vinyl siding.

(DC) Do you recall when that siding was added to the home?

(NB) Seven to ten years ago.

(DC) Has that siding always maintained that same color or has it been, to your knowledge, ever repainted or anything done with the color?

(NB) No, it's never been repainted.

(DC) Was there a place in that residence at 36 Lansing Drive, which was your brother Jeff's bedroom?

(NB) Yes.

(DC) And are you familiar with that room?

(NB) Yes, I am.

(DC) And the color of the walls in that room are what color?

(NB) Off white.* [434]
[* Right -- not blue, as 'Arthur' had claimed.]

(DC) How many windows are in that room?

(NB) Three.*
[* Right – not two, as 'Arthur' claimed.]

(DC) Is there a window sill in that room?

(NB) No, no, just the molding in the window. *
[* Right -- nothing like the width that would be necessary to hold an 'old-style,' 35-mm camera, which 'Arthur' claimed was placed there in order to take the sex photo.]

(DC) At any time in the thirty two years that you've lived in that house, was there ever a water bed in that room?

(NB) Never.*
[* Right, and contrary to 'Arthur's' claim that there was. (But Nickel had once told 'Arthur' that his sister had a waterbed, which is almost certainly how 'Arthur' got this idea.)]

(DC) In the thirty-two years that you have lived in that house, was the doorway such that, Jeff had to duck to enter it?

(NB) No.*
[* Correct -- and, once again, contrary to 'Arthur's' testimony. (But he almost certainly got that idea from when Nickel told him that, when he lived in Boston, to go out the back door, he would have to duck.)]

(CZAJKA) Had to do what?*
[* Once again, the stenographer heard the witness just fine; but Czajka, perhaps not really paying attention, did not quite 'catch' it.]

(DC) Duck or stoop to enter it?

(NB) No, sir.

(DC) Your mom has resided there with you that length of time also?

(NB) Yes.

(DC) May I have one moment please, your Honor?

(CZAJKA) Yes.

(DC) Was there ever in that bedroom that you identified as Jeff's bedroom, a computer in that bedroom? [435]

(NB) No.*
[* Right -- and yet again, contrary to 'Arthur's' testimony.]

(DC) Was there ever a water bed anywhere in the house?

(NB) No.

(DC) I have no further questions. Thank you.

(CZAJKA) Wait a moment.

(TORNCELLO! Thank you. [NB], have you lived at 36 Lansing Drive continuously for thirty some years?*
[* As Torncello well knows, NB had already said precisely that. His purpose in asking this question would seem to be to attempt to 'shame' NB for having lived there so long -- i.e., well after he'd graduated from high school, etc.]

(NB) I moved out for a period of one year.
(TORNCELLO) And when was that?

(NB) 1976, 1977.

(TORNCELLO) Okay. Where did you move then?*
[* What the hell difference does that make? Again, this appears to be a quite pathetic attempt at 'shamingt.' But then again, what else can Torncello do? He knows damn well that NB is 100% correct about what he testified to regarding Nickel's home, which is also directly contrary to what 'Arthur' testified to.]

(NB) The south end of Albany.

(TORNCELLO) Are you employed?*
[* Yet more attempted shaming.]

(NB) Yes.

(TORNCELLO) What do you do?

(NB) I work for a property management firm.

(TORNCELLO) Okay. Are you married?*
[* Yet more attempted shaming.]

(NB) No. [436]

(TORNCELLO) You're single. Do you have any children?

(NB) No.

(TORNCELLO) Did you reside at that address in July and August of 2000?

(NB) Yes.

(TORNCELLO) Okay. And was it just you and Jeff and your Mom?*
[* This too was asked and answered above.]

(NB) Yes, sir.

(TORNCELLO) Had you ever been in Jeffrey's room?

(NB) Yes.

(TORNCELLO) Okay. Had you ever been in the basement?

(NB) Yes.

(TORNCELLO) Where is your room?

(NB) On the second floor, where all the bedrooms are.

(TORNCELLO) Okay. Have you ever seen any sexually suggestive material, in or around Jeffrey's bedroom?*
[* Even Torncello's 'basement' question just above should have been objected to by defense counsel as being beyond the scope of direct examination -- i.e., what defense counsel himself asked this witness. But the 'sexually suggestive material' question went way beyond anything asked on direct. Moreover, what would this tend to prove?]

(NB) No.

(TORNCELLO) Uh-huh. So, if Nickel is, then, the fact that 'Arthur' was wrong about every single exterior and interior detail he
provided regarding Nickel's home somehow magically becomes absolutely irrelevant? In that case, why have trials at all?]

(DC) Objection.*
[* Finally.]

(TORNCELLO) It's part of the [437] evidence judge, it's in the statement.*
[* So what? It's outside the scope of the direct testimony, as defense counsel should have pointed out (and Czajka should have known -- or probably did know -- anyway).]

(CZAJKA) Use a different term.*
[* So now, Czajka reverts back to what he did earlier at trial -- as if that in any way cures the absolutely prejudicial nature of the sort of 'evidence' Torncello is obviously seeking to elicit.]

(TORNCELLO) Okay. Were you aware or had he ever confided in you that he was sexually attracted to young boys?

(DC) Objection.

(CZAJKA) Overruled.

(NB) Restate the question again?

(TORNCELLO) What don't you understand about it?

(CZAJKA) That's two questions. Ask one question at a time.*
[* So then, why did Czajka overrule DC's objection just above? (In fact, Torncello's previous question was also a compound question.) Yet again, Czajka reflexively rules for the prosecution, and then has to backpedal. (But of course, the compound nature of these questions is the least of the problems with them.)]

(TORNCELLO) Yes. Had he ever confided in you, that he was sexually attracted to young boys?

(DC) Objection.*
[* Note that Czajka will simply ignore this objection by defense counsel.]

(NB) No.

(TORNCELLO) Were you aware that he was sexually attracted to young boys? *
[* Similar to the situation with McEvoy, this whole line of questioning is obviously one that defense counsel had not adequately prepared this witness for.]

(NB) No, I was not.

(DC) Objection.*
[* Well, this objection came too late -- the witness had already answered.]

(CZAJKA) Sustained.*
[* Yeah, great. But Czajka still let Torncello pursue this whole line of questioning -- and heard all of this.]

(TORNCELLO) You were not?*
[* NB just answered that; but Torncello simply will not let it go.]

(CZAJKA) Well, I sustained the objection without some source of -- without indicating the source of his information. *
[* Another red herring happily supplied by the de facto second prosecutor in this case. Again, under the rules of evidence, cross-examination cannot cover subjects that were not covered on direct. Moreover, any 'judge' is supposed to weigh the likely 'probative' (i.e., legitimate) basis for any proposed evidence against its potential for unfair prejudice against the defendant. What Torncello is doing here is purely the latter.]

(TORNCELLO) The question was were you aware, he [438] already said that he hadn't confided in him. The next question was, were you aware?*
[* First of all (before defense counsel actually objected), NB already answered that question. Secondly, Torncello is flouting Czajka's sustaining of defense counsel's (belated) objection.]

(CZAJKA) I said the objection is sustained.

(TORNCELLO) Somebody else could have told him or he could have --

(CZAJKA) If someone else told him it's not admissible.

(TORNCELLO) That's why I asked were you aware.

(CZAJKA) I got you, you're right.*
[*What? Torncello's 'right' about what? That it's okay to keep flouting the 'judge's' rulings?]

(TORNCELLO) Did you ever see -- did your brother have a computer?

(NB) Yes.

(TORNCELLO) And did you ever see the computer?

(NB) Yes.

(TORNCELLO) It wasn't in his bedroom, right?

(NB) Yes.

(CZAJKA) I didn't understand.*
[* Yet again Czajka has a hard time following what the stenographer heard just fine.]

(TORNCELLO) Was it in his bedroom?

(NB) No.

(TORNCELLO) Where was his computer?

(NB) In the basement.

(TORNCELLO) Does this look like People's number 20 [439] in evidence, does that look like his computer?

(NB) Yes.

(TORNCELLO) Is that his computer?

(NB) Yes.
(TORNCELLO) Okay. And on the side of that computer is taped a picture of a young boy, and the words, NAMBLA, was that on his computer?*
[* There's an old lawyers' adage: 'If the facts are on your side, pound the facts. If the law is on your side, pound the law. If neither is on your side, pound the table.' (Moreover, why didn't defense counsel object?]

(NB) I honestly did not look that close. I wouldn't know.

(TORNCELLO) Okay. Have you ever heard of NAMBLA?*
[*Still no objection from defense counsel.]

(NB) Yes, I have heard of it, yes.

(TORNCELLO) And where did you hear it?

(DC) Objection.*
[*Finally!]

(CZAJKA) Overruled.*
[*What? Torncello is now asking about an organization mentioned on something that was supposedly taped to Nickel's computer? And Czajka is overruling defense counsel's objection to it? The rules of evidence and any pretense of a fair trial have now been dispensed with altogether.]

(NB) In the media.

(TORNCELLO) In the media. Okay.

(CZAJKA) I'm receiving it for purposes of impeachment,* not to prove --**
[* For purposes of impeaching who, exactly? Nickel's brother, who just said he had never looked at the computer close enough to see what was supposedly taped there? Or Nickel himself, who never even testified at trial?]
[** Note that Torncello then cuts Czajka off, with an oddly collegial 'correct.']

(TORNCELLO) Correct. Did you ever find any or have you seen any NAMBLA magazines or bulletins around the house?*
[* Yet again, defense counsel fails to immediately object.]

(NB) No.

(TORNCELLO) In Jeffrey's room? [440]

(DC) Objection, that has been asked and answered.

(CZAJKA) Sustained.

(TORNCELLO) Okay. Are you aware if anyone in your family, are you aware, if anyone in your family, knew that Jeffrey, was sexually attracted to young boys? *
[* Torncello  knows this is a blatant violation of the rules of evidence. He's actually asking this witness what he knew about what others knew!]

(DC) Objection.

(TORNCELLO) It's in the statement.

(CZAJKA) I know that, but you're asking the witness whether he was aware if anyone else knew. Do you want me to rule on that?

(TORNCELLO) I'll withdraw that. Do you know a boy by the name of ['Arthur']?

(NB) No.

(TORNCELLO) So you never saw a boy ['Arthur'] at your home?

(NB) No.*
[* That's correct -- because 'Arthur' never set foot inside that house.]

(TORNCELLO) Let me show you what's been marked as People's number five in evidence, and ask you to look at that okay? Do you recognize the [441] boy in that picture?

(NB) No.*
[* Of course he doesn't recognize him, because he'd never seen either 'Arthur,' or whoever the boy depicted in the sex photo is.]

(TORNCELLO) Okay. No further questions judge.*
[* So, note that Torncello did not challenge Nickel's brother on anything he testified to about the exterior or interior of Nickel's home, all of which flatly contradicted 'Arthur's' own testimony.]

(DC) No further questions.

(CZAJKA) Step down.

(Witness excused).

(CZAJKA) Any other witness [DC]?

(DC) May I have just a moment, Your Honor?

(CZAJKA) Certainly.

(DC) Defendant is not going to call any other witnesses at this time.

(CZAJKA) Okay. How much time would you like to think about your summation [DC]? Length of time for summation? How much time would you like. When will you be ready to sum up?

(DC) Well, could the Court allow me forty minutes or so, or 45 minutes?*
[* So, Czajka just asked DC two different questions: 1) How much time will he need to prepare his summation; and, 2) how much time he will need to actually present his summation. It is unclear which one DC was actually answering.]

(CZAJKA) How much time do you [442] want? (And the same is true of when Torncello  responds just below.)

(TORNCELLO) Half an hour or so, forty minutes, that's fine. Or a half hour.

(CZAJKA) Could I see you up at the bench for a minute?

(DC) All right.*
[* It would seem that defense counsel was invited up for this bench conference.]

(Bench conference).

(CZAJKA) Mr. Torncello, I take it you have nothing more with respect to count seven?*
[* This is the count related to the last child witness, 'Chris,' who did not testify as to any sexual abuse whatsoever. Here, Czajka is giving Torncello yet another chance to -- somehow -- salvage this count.]

(TORNCELLO) That's correct, Your Honor.

(CZAJKA) Count 7 is dismissed.

(DC) That's the right count? Right? Yes. Your Honor --

(CZAJKA) Based upon my determination that not withstanding the fact that there's admissions, by the defendant, of that of the facts underlying that allegation, there's insufficient corroboration, as a matter of law, to prove that the crime was [443] committed. Keeping in mind that it doesn't have to be a lot, but there is, as I recall the record, there's no evidence beyond the admission, so count 7 is dismissed.* Go ahead [DC].
[* Shouldn't Czajka have given this little 'spiel' prior to dismissing count 7 the first time (i.e., just above)?]

(DC) Your Honor, we would like to now at the close renew all the motions made at the end of the People's case, renew all those motions now fully set forth at this time and we would also like to respectfully request of the Court, if the Court feels this would be the appropriate time, that the admonitions with respect to the Court reminding himself about the defendant's right that one does not have to --*
[* Why does Czajka cut DC off here?]

(CZAJKA) Keeping that in mind, is there anything either of you want me to consider, in addition to the allegations, any legal issues, that you want me to consider. I mean, it's silly to have a charge conference, but do the People want me to consider any lesser included offense?

(TORNCELLO) No, Your Honor.

(CZAJKA) Do you [DC]? [444]

(DC) Your Honor?

(CZAJKA) I don't know that there are any. But does your client wish me to?

(DC) Your Honor, I hadn't given that a thought.

(CZAJKA) Let me know when we come back. Also from your cross-examination of the People's witnesses, I understand you want me to disregard the admissions allegedly made by the defendant on the grounds that they were not given voluntarily?

(DC) That's correct, Your Honor, yes.

(CZAJKA) Anything else in that regard?

(DC) The defendant not testifying.

(CZAJKA) Absolutely.

(DC) I think that's all.

(CZAJKA) Your motions to dismiss, are denied once again. And as I say, I'll consider that which you wish me to consider, immediately prior to opening statements, when we reconvene. [445] The People just for the record, the People are directed to keep all the evidence it submitted. Defendant will keep all the evidence that it submitted.

(Whereupon, a recess was had).

(CZAJKA) All set [DC]?

(DC) Yes, Your Honor.

(CZAJKA) Go ahead.

(DC) May it please the Court, Your Honor.

(CZAJKA) Before you up sum up, first is there anything else you would like me to consider in terms of the ultimate verdict, Mr. Torncello?

(TORNCELLO) No thank you.

(DC) I don't believe so, Your Honor.

(CZAJKA) Go ahead.

(DC) May it please the Court, Your Honor, family and friends of Jeff Nickel, Jeff, learned counsel, colleagues, Mr. Peter Torncello and Your Honor, we have come to a point in this trial, though it's [446] been relatively brief, only a couple of days, that I have the opportunity to address you now, Your Honor, as a juror, as a gentleman of the jury. And with Your Honor's permission, I am going to review some of the facts that I thought were important, for you to consider or think about. If I misstate any fact, it's because of a faulty recollection on my part. I will not intentionally refer to anything, that I didn't believe occurred in the course of this trial. When I sit down, as you are well aware, the D.A. will have an opportunity to get up, and I'm not permitted to answer or add to what I have said. I will try to cover the points that I think are important, and the points that I think important for the Court to consider. My not getting up when Mr. Torncello finishes is not because I didn't want or feel I could not answer everything that he might say, but as well recognize, I can't. Sir, under our system, a man is innocent until proven guilty. And under our system, the weight of that proof, must be [447] beyond a reasonable doubt. Beyond a reasonable doubt. Now, we have before us, six charges here. One misdemeanor charge, and five charges that would be felony charges. And if I may review maybe from this indictment, the first charge is called sodomy in the first degree, a class B felony. It talks about the commission of deviate sexual intercourse with another person, less than 11 years of age. In the particulars here my client is accused of putting his mouth, on the penis of one ['Arthur']. Now that's the charge. And now let's look at the testimony that's before this body. First the proof will show that this act, supposedly occurred, at Jeff Nickel's house. That's where it occurred. We know that that's where it's alleged to have occurred because that's where ['Arthur'] says it occurred. Now, let's look at that and let's look as what ['Arthur'] had to say about that. He says I didn't say 36, but the house he identified as 36 Lansing Drive is in [448] Delmar. He told you that house was white. I believe there were photographs entered in this trial, that would be clear the color of this house was blue. He told us that it occurred in a bedroom of the Jeffrey Nickel. He told us that in that bedroom, the walls were blue. We know from testimony that's not accurate. The walls were white. We know further from his testimony, that I said that Jeff Nickel had to duck his head to get through the doorway. We know from testimony, that that's not correct. We know from ['Arthur'] that he says it occurs on a water bed, we know that's not correct. Your Honor, a person might be confused about a couple of factors, but that's an awful lot to be confused about. And if one were to say to themselves well gee now, wait a minute, could it have been that he was confused, that maybe it wasn't the house, that maybe it was some other confusion [location?], no, no, that wouldn't be, you see, because the Sheriff's Department took him back there, didn't they? The testimony in this trial was on the day of the Grand Jury according to ['Arthur'] [449] that morning before he testified, they drove him by it and showed it to him according to the Sheriff's Department, they showed it to him that evening, so there's no question here, that he's got the house located, there's no inference that could be given now, it's somewhere else in that house in [than?] that bedroom. He's wrong on all of those factors. Absolutely and totally wrong. Now why is he wrong on all those factors? Well, let's look at something else we learned about ['Arthur'] the complaining witness here, in five of the six counts. We. know that he has told falsehoods in the past, don't we? We know that because under cross-examination, he admitted that. We know that he said, for example, that he was given a motorcycle by Jeffrey Nickel, and was punished for that. He was given a saxophone or something, and he was punished for that, and we know further, that it even goes beyond that, Your Honor, that he [450] told us from the stand that he made a report about being slapped, and then what happened with respect to the slapping incident when I asked him on cross-examination? He said yes, he recanted that, he took that back, that didn't happen. He must have dreampt or was in a dream and he thought it was real. In a dream and he thought it was real. Your Honor, these just can't be mistakes now of recollection or recall. These are things that just can't be explained away. There's no way that they can be explained away. We know that the boy was on medication, my goodness, he mentioned I don't know so many different times of day and having to take this drug and that drug, and what not. I'm not a psychiatrist, and I'm not here to analyze or pretend to analyze what the problem was, but I do know what I heard from that witness stand, and it just cannot gibe, that this defendant placed his mouth on the penis of ['Arthur'], at that home, doesn't add up. It can't be. I would respectfully suggest that [451] if someone does make a statement about a material fact, that is untrue, that you might disregard that untruth and you may further disregard the entirety of that person's statement. And isn't it curious too, again with this first count, a B felony, that the police say they took a statement, which we argue shouldn't be considered here because the Miranda warnings were not properly given to this, but even if the Court were to accept that, there is nothing in that statement, involving any sodomy in the first degree, as charged in that B felony. Now isn't that curious because we know the Sheriff's Department interviewed ['Arthur'] before they interviewed the accused. If they had that knowledge, that a B felony were committed, by the placing of the mouth on the penis of this ['Arthur'], and you're there with him for three hours, wouldn't logic dictate that you might raise that issue and say something about that to the accused, hey, what about this?* No, no, no, it's not. Except that continually over and over that he never hurt anyone in it. But here's a B felony, if it [452] were to be believed, why wouldn't that be inquired into? But even if the Court were to accept that statement, into its consideration, there's nothing to be found in there, Your Honor, about this sodomy charge. Going to, Your Honor, aggravated sexual abuse, and here again, this same ['Arthur'] is talking about the inserting of a finger in his rectum by the accused. Again if you were to take this statement, there's nothing in there about that action of a C felony. Now where does ['Arthur'] say this occurred? At a public pool, a public park, with other people in the pool and around. But remember too, Your Honor, that this is the same ['Arthur'], the very same one, who told us he reported a slapping incident to the head, that never happened. The same ['Arthur'] that said he gave him a motorcycle that never happened. The same ['Arthur'] that says he gave him a saxophone which never happened. The same ['Arthur'] who says the color of the house exterior is white, and it never was. The same ['Arthur'] who says the color of the walls were [453] blue, and they never were. The same ['Arthur'], who says he had to duck his head to enter the room, and that's not required. The same ['Arthur'] who says that a picture of a sexual performance was taken of him, in this same house. The same ['Arthur'] who says there was a computer in the room that never was. The same ['Arthur'] who says there was a camera on the window sill, except there's no window sill. The same ['Arthur'] who said that this window sill was -- I don't know if he measured it, maybe something like three feet wide or something, like that, he measures with his hands on the stand, as I recall, which is fine except the house doesn't have one. How do we know that. A man who lived there for thirty-two years of his forty-two years of life, described to us what that house looks like and that it hasn't changed. Your Honor, as you look at these three counts and ask on the testimony of this ['Arthur'], has this been proven beyond a reasonable doubt, with respect to this sexual performance, this photograph taken by a [454] camera on a shelf or sill, that doesn't exist? That's really the question here, isn't it? Really, I mean, either this boy is telling the truth or he isn't. I called them untruths, I can use other language to describe it, but I'll keep it as untruths. But we know these are untruths, we know they're not so. Again throughout these three counts, first three counts, of this indictment, we don't have over three hours of interview with this senior investigator, inspector whatever, he never talks about any of the three of those? It doesn't add up. Would logic dictate that's one of the things you can get to start off that would be good, those are the serious matters here. The case started, Your Honor, the other day, with a lady from the jail coming in here. She told us she was a receptionist, and that as clerk of some sort and that part of her duties were to open mail that came to the jail. And she opens a letter, and though they find nothing in seeing the photographs or whatever, she brings the letter to the attention of the Sheriff's Department. That [455] brings Deputy Bates or Investigator Bates into the situation, who then proceeds out to interview these various people. And it's interesting, isn't it, because it's Investigator Bates as I recall the testimony, who selected off the computer, an image, that he believes, is that of the accused and that of this ['Arthur']. He's the one that does this. He's the one that brings this image forward. He's the one and maybe he did believe, that in that image, that that was the accused. But thank God he's not the final word on that. There are other people, with their own two eyes that can look and examine that photograph and can look and examine the adult in the photograph, can look at the other photographs put into evidence by the defense, and make a comparison, and I suggest, Your Honor, when that is done there won't be any doubt that that is not the accused. This whole investigation has got no basis. This whole investigation got started, because of this letter, that was received, and things that were in that letter, that peaked the interest
[456] of the investigators, and that peeked its forward direction of accusatory instruments being made against this defendant. Your Honor, if the jurors or the Court in this case, are going to find somebody guilty of something, if that requires a finding beyond a retasonable doubt, could one imagine how a finding of guilty could be found of a person, on the testimony of so many untruths. So many of them. The record is full of them. It's as simple as that. The prosecution I know in its case, is going to rely on and has relied on, in my judgment, on prejudice, as opposed to proof. On the fact that they can come in and use this prejudice, to so cloud the mind of the Court and/or jury, that a finding could be found of guilty. But when your witnesses aren't giving it to you straight, nothing's going to help you. It is or it isn't. It's true or it ain't. It's as simple as that. And it can't be true if you sit up there on the stand, and tell a falsehood about a fact pattern as serious as this. We're not talking about now a trumpet, we are not [457] talking about a saxophone, we are not talking about now even being hit or slapped, we are accusing someone of a serious, serious matter, forcing that someone to go to trial and to defend themselves, to defend themselves in an atmosphere that one knew would be created. One knew there would be an atmosphere of prejudice. But Your Honor, either our verdicts are found [founded?] on the truth or they're found on the untruths. If this man were in police custody for as many hours that he was, and the police do not interrogate these issues, something -- something doesn't gibe. If the Court were to accept that statement and accept the admissions in it, you won't find any admission to B and C felonies he's charged with, that's for sure. After three hours of professional interrogation, enough said, it's not there. Your Honor, I thank the Court, and to use you as a jury and for listening to me. I pray that you'll render the right and fair and just decision here, that you'll give us a fair shake, that I know that -- I know [458] you will do. Thank you, sir.**
[* Defense counsel appears to have forgotten one rather crucial fact here: At the time Nickel was interviewed, the investigators had not yet 'discovered' the image they (wrongly) believed depicted Nickel performing oral sex upon 'Arthur.' This rather glaring error on defense counsel's part may have seriously compromised his credibility in Czajka's eyes.]
[** The following are some crucial points that defense counsel failed to raise in his summation:

- It was only after 'Arthur' was shown the oral sex photo that he alleged any oral sex (as well as the photographing of it) occurred.

- How the prosecution side buried evidence of Nickel's innocence by failing to turn over both the physical exam of 'Arthur,' as well as the police-taken interior photos of Nickel's home.

- The reason why 'Arthur' was telling so many of these untruths related to Nickel was not because 'Arthur' was 'lying', but rather, due to the extreme suggestiveness of the interviews conducted by the prosecution side. (Indeed, defense counsel failed to mention the word 'suggestibility' -- or any variations or synonyms thereof -- at any point during the trial.)]

(TORNCELLO) Thank you, Your Honor. Your Honor, the best evidence, that we have heard over the last two days, and most compelling evidence that we heard, over the past two days, might not have come from the witness chair.* It might have come, from People's "4", and it might have come from the statement that the defendant voluntarily ** gave to members of the Albany County Sheriff's Department. This trial began yesterday, with me, uttering the words, that by his own admission, and in his own words, Jeffrey Nickel is a boy lover.***
[* Well, it certainly didn't come from prosecution witnesses: 'Arthur' said numerous things that made no sense even when Czajka was 'assessing' his competency to testify under oath, and was wrong about literally every exterior and interior detail that he testified to regarding Nickel's home.]
[** As was discussed at length infra, this statement was most certainly not given 'voluntarily': Investigators never provided Miranda warnings, concealed their law enforcement identities, and employed thinly veiled threats and promises in order to coerce and cajole Nickel into making this 'statement' -- which DeFrancesco  still felt compelled to alter even after Nickel had signed it.]
[*** So therefore, this Court should convict Nickel of anything and everything it was able to ram through the Grand Jury (a la 'indicting ham sandwiches,' etc.), regardless of a veritable mountain of inconsistencies and proven falsehoods. Let's be just like countries such as North Korea, China, and Russia, where people get convicted based not on what they did, but who and what they are.]

(CZAJKA) [DC] objected to that and I sustained his objection at the time of your opening statement. *
[* Ah, but Torncello isn't actually bound by court rulings, given that, all fig leaves aside, Czajka has functioned throughout trial as a de facto second prosecutor.]

(TORNCELLO) The statement --

(CZAJKA) I understand that it was later referred to, included in one or more of the exhibits, but you referred to your opening statement?*
[* What the hell difference does that  make? If the objection was sustained, then Torncello had no business using that term again. So, here, Czajka reels back even the mild rebuke of Torncello he'd just provided.]

(TORNCELLO) Correct.

(CZAJKA) You didn't refer to [459] the evidence, so the truth is that that objection was sustained at the time. So go ahead.* [* What in the world does all of  that mean? 'Go ahead' and keep using that term 'the Court' had told you to 'refrain' from using? Does Czajka's 'sustaining' of defense counsel's objections mean anything at all? Clearly, Torncello himself senses that he's been given a green light on this issue.]

(TORNCELLO) The evidence before the Court, for the Court to consider is that, Jeff Nickel, is a boy lover.* And that term doesn't come from the Albany County Sheriff's Department, it doesn't come from ['Arthur'], it doesn't come from ['Brendan'], it comes from the defendant, in his own words. And Judge, People's number four, which is, I believe, introduced into evidence, was not the product of some coercive interrogation by the Albany County Sheriff's Department. This was a letter, hand written, by the defendant,** and mailed to an inmate at the Albany County Correctional Facility who has been convicted of sodomizing little boys.***
[* So, Torncello simply repeats this same introduction to his 'summation.' He does not  say anything along the lines of: 'The facts have clearly shown that the defendant is guilty of the following acts, because of the consistent and uncontroverted testimony of the witnesses for the prosecution.' Even he -- not terribly intimate with the actual truth -- can't make such a claim with a straight face.]
[** Torncello conveniently fails to mention that, nowhere in this letter does Nickel even so much as hint at committing the most serious acts he was now on trial for (oral sex and insertion of finger).]
[*** Right, so, because Nickel was writing to someone else convicted of 'sodomy,' he must, therefore, be guilty of such himself. Once again, Pyongyang (North Korea) would be proud.]

(CZAJKA) Well, that is not in the record.*
[* That's the least of the problems with what Torncello is trying to do. How about Czajka saying something along the lines of: 'Why are you not summing up with the actual facts of the case; i.e., those which tend to prove Nickel committed the actual acts  that he was charged with?' Instead, we have another toothless rebuke of the prosecutor, which actually functions as yet another red herring which is most helpful to the prosecution.]

(TORNCELLO) Now --

(CZAJKA) What's not in the record is that fact that the recipient was convicted. [460]

(TORNCELLO) He used that term to describe himself, he doesn't use the more accurate term -- He didn't call himself, a man who puts his hands, inside the pants of and grabs the genitals of a nine-year-old boy.* He didn't call himself that, he calls himself a boy lover. He doesn't call himself a man, who takes his toes, and places them inside the swimsuit of a ten-year-old boy,** and touches his testicles and scrotum, and he calls himself a boy lover. Your Honor, he doesn't call himself --***
[* Firstly, that never happened. Neither Nickel's purported 'statement,' nor his letter to the jail inmate, says any such thing. Moreover, even 'Arthur's' own testimony -- replete with falsehoods as it is -- has no reference whatsoever to 'grabbing genitals.' So, Torncello is misrepresenting the trial record itself.]
[** This never happened either. ('Brendan' did claim that it did, but as noted earlier, this would have been a near physical impossibility, given the two layers of swimsuit Nickel would have had to get through, while standing on one leg in a pool that sloped downward.)]
[*** If Torncello were confident as to the strength of his case, he would not employ such inflammatory tactics. But he's desperate -- much like the way he was in the later Riback case. (See Torncello  section.)]

(DC) I've got to object to this constant repertory Judge.

(TORNCELLO) They aren't my words judge.

(CZAJKA) The objection as to -- what do you object to [DC]?

(DC) To the continual comments, Your Honor, of the prosecutor, with respect to the boy lover business, and all of this.

(CZAJKA) All right

(DC) And I don't mean to [461] interrupt him again.

(CZAJKA) Come up for a moment, by the way.

(Side bar).*
[* It's unclear if this was just with Torncello, or defense counsel was also included.]

(CZAJKA) Okay. The objection is sustained.*
[* Great. But the damage has already been done.]

(TORNCELLO) Your Honor, the evidence in this case, doesn't only come from him, ['Arthur'], it doesn't only come from little ['Brendan'], it comes from the defendant, it comes from photographs,* the decision that is being made by the Court and by the jury, comes from the statement that the defendant gives.**
[* There's a lot of evidence that comes from photographs, all right: but it's virtually all exculpatory. The photographs taken by the police themselves, which they tried to hide (see buried evidence), demonstrated that 'Arthur' was wrong about literally every exterior and interior detail regarding Nickel's home  to which he testified. And then, we have the oral sex image, which 'Arthur' claimed depicted himself and Nickel. Only, it couldn't have been either, given that a) the background details clearly didn't match Nickel's bedroom, where 'Arthur' claimed the oral sex happened, b) the eye colors of 'Arthur' (blue) and the boy in the image (brown) didn't match, and c) the defense expert established that Nickel was not the older person depicted in that image.]
[** As Torncello knows full well, this purported 'statement' says nothing about oral sex, photographing the latter, or insertion of a finger into anyone's rectum.]

(still TORNCELLO) Judge, let me just read a little of the defendant's statement for the Court,* concerning ['Arthur'].
[* Let's take another look at one particular portion of the transcript (pg. 300):
<<< (TORNCELLO) Thank you. Judge, I wanted to ask for the purpose of a clean record, if I publish that document [Nickel's purported 'statement'] now. I'll read it very quickly, as quickly as is --

(CZAJKA) Read it to me?

(TORNCELLO) I do.

(CZAJKA) No, no, no.

(TORNCELLO) I would like to put it in the record.

(CZAJKA) The exhibit is in the record, it's marked and received. I can read it myself. >>>

So, why does Czajka -- who is clearly bound and determined to get this trial over and done with as soon as possible -- now permit Torncello to do precisely what Czajka did not want done earlier that same day?]

(still TORNCELLO) At the current time, as we all know, ['Arthur'] was eleven years old and a resident of [a group home]. "I spend most Tuesdays and Saturdays with ['Arthur']. We do everything together,* fish, swim, watch movies, go to dinner, the town park in Bethlehem swimming. Yes, I have touched ['Arthur'], the touching gradually became sexual in nature,* touching [462] for sexual gratification,* and it seemed to be okay. While at the Bethlehem Town Park where we went swimming, ['Arthur'] and I were playing a game called bull, it's an opportunity for me to touch ['Arthur'] and I touched ['Arthur'] during the game. I would feel his bottom with my hand caressing it. I recall touching his groin and being stimulated by this.* I got hard and had an erection.* ['Arthur'] rubbed my groin during this game of bull on at least two separate occasions this summer.* I thought I was touching him affectionately."
[* None of these phrases are ones which Nickel himself would actually use. Several of them are in 'legalese,' clearly crafted by DeFrancesco for the purpose of meeting statutory requirements. In contrast to the practice of all of the other investigators in this case, DeFrancesco did not ask Nickel to initial each page of the purported statement. Moreover, DeFrancesco did, in fact, alter at least a portion of the statement after Nickel had signed it. (If such an action seems implausible, the reader is advised to see the Detective Mark DeFrancesco section of this site, in which a federal judge essentially says DeFrancesco was lying, in his testimony relating to the taking of a statement from another suspect.) The reality is that, because DeFrancesco failed to videotape this -- or for that matter, any other -- statement, there is no way of knowing the extent to which DeFrancesco altered it after Nickel signed it; or even, the degree to which it reflects what Nickel actually said during this interrogation.]

(still TORNCELLO) With respect to ['Brendan'], judge, another boy, "his name was ['Brendan'], twelve-years-old, I liked him a lot, he's cute. Curly brown hair, very tan, a little stocky, he's attractive. We started a friendship, yes, I touched him. Of course that excited me. I doubt he knew how much though. I recall one specific time he grabbed my leg under the water, my other leg went up into his groin under his suit, the first time it may have been an accident, but the second time I probably stuck my foot into his groin touching his penis and scrotum," [463] judge and he says ['Brendan'] didn't seem to mind this. "This tells me something. It told me he didn't mind it that it was invasive. I have a theory that he may have been touched sexually before because he wasn't ticklish, and my foot on his penis feeling -- it didn't bother him." That's the proof in this case, Your Honor. That's the proof. Those are the defendant's words. Those corroborate the statements from the witness stand, by the young boys,** and they serve as a way for the Court to judge the credibility of the witnesses and honesty of the witnesses and the truthfulness of the witnesses, who took that stand, and ['Arthur'], who looked at that photograph, People's number five, and I said, who is that ['Arthur']? That's me, and that's Jeff. Do we need more proof? That is enough right there.***
[* As has been noted, it is virtually impossible for someone, standing on one leg in a downward-sloping pool, to somehow maneuver his other foot through two layers of a boy's swimsuit. Now, here, we have the additional detail that the boy in question was grabbing the one leg Nickel was standing on. That means that 'Brendan' would have been bending down, at least somewhat, which would have made it even harder for Nickel to somehow maneuver his one free foot into this boy's groin area.]
[** Well, they certainly do not corroborate 'Arthur's' testimony concerning the top three charges of oral sex, photographing the latter, and the insertion of a finger into his bottom, given that Nickel's purported statement says nothing about any of these.]
[*** The hell it is. Not only are the contents of this 'statement' not -- in any way -- 'proof' of the top three charges, but, given the extreme implausibility of what this 'statement' says about how Nickel supposedly -- while standing on one leg -- maneuvered his other foot past two layers of the swimsuit of a boy who is also grabbing him by that first leg, this 'statement' doesn't even constitute credible proof of the lesser charge related to 'Brendan'.]

(still TORNCELLO) Everything else judge is gravy. This was a short trial. I'll be brief. We heard from Claudette Scostak, we heard from Ron Bates and Steve Tanski about his expertise in retrieving and recovering photographs, and in particular, People's number five which he [464] retrieved, and which Ron Bates and ['Arthur'] identified, as the defendant and ['Arthur']. You know judge, the defendant likes to state in his letter, in his statement, that he never hurt any boys. Is there anyone here, who saw the trstimony and saw those young boys, that would believe that they weren't harmed? He thinks it was beneficial for ['Arthur'] to have to sit there and in open court in front of people he's never seen in his life at the age of nine years old, and have to identify, a photograph, of the defendant, with his mouth on his, ['Arthur's'] penis.** That's a benefit? That's helpful? It's hurtful.
[* The fact is, none of these boys cried on the stand, or expressed anything that could be regarded as anguish or (emotional) pain. (Instead, they had the rather flat affect one would expect of witnesses who were simply regurgitating what they had been taught to say by the prosecutor.) Moreover, it is important to distinguish between harm caused by Nickel directly, and harm caused by the 'justice' process itself:

First, let's take 'Chris,' who failed to testify re: anything sexual happening to him, which is why that charge had to be dismissed. (Regarding all three boys concerning this issue, see Sentencing section of this site.) When one of 'Chris's parents was interviewed, that person indicated that what was really causing 'Chris' anxiety was the thought of Nickel being punished.

As for 'Brendan,' one of his parents said that he was doing fine, and did not see the need for any sort of counseling or therapy.

Now to 'Arthur.' Due to suggestive interviewing practices, he had become convinced that he'd experienced three very serious things that simply did not happen: oral sex, photographing of that, and insertion of a finger into his rectum. Because it messed with his sense of what was real, this 'memory implanting' arguably caused more harm to him than would have been done if these things truly had happened. Now, as to the brief touching which apparently did happen (outside clothing), it is plausible that 'Arthur' indeed was harmed. But even then, it is impossible to fully separate harm caused directly by Nickel himself from that caused by the 'legal' process.

Last but (certainly) not least, why is Torncello taking about 'harm' here at all?  That  is a topic which should be reserved -- assuming the defendant is convicted -- for the sentencing hearing. What Torncello is really doing  here -- as he has done for most of this trial -- is urging Czajka to convict based not on facts and evidence (given that these are not on his side), but rather, on pure emotion.]
[** If Torncello truly believes that the persons depicted in that image are Nickel and 'Arthur,' then he's grossly incompetent. On the other hand, if he does not believe that, he's simply a liar.]

(still TORNCELLO) ['Brendan'], who had the misfortune* of knowing him for less than two weeks, ten days, he saw him because his parents sent him to summer camp. He's the boy who Jeff Nickel had a theory about, that when he didn't jump back, when Jeff Nickel put his foot inside the swimsuit --**
[* Was 'Brendan's' true misfortune having known Nickel (for a short period of time), or having been dragged into this grotesquely incompetent and unprofessional 'legal' process?]
[** At the risk of beating a dead horse, this didn't happen, because it was physically impossible.]

(CZAJKA) Mr. Torncello, will you be much longer?*
[* Ah, yes: For Czajka, getting this over and done with was an infinitely higher priority than actually giving Nickel a fair trial.]

(TORNCELLO) No. That his [465] theory was, it wasn't invasive. That he had been touched sexually because he wasn't ticklish and he -- it didn't bother him. Judge, you know, I'm almost done judge. Every bit of this defendant, every molecule of his being, is driven by his sex drive, and his need for sexual gratification involving young boys.*
[* Really? As is discussed extensively in the Sentencing and State Appeal sections of this site, while out on bail, Nickel wrote several letters to a ('like-minded') friend in another state. Nickel's prosecutors obtained copies of these letters, using them in attempts to both get Nickel's bail revoked, as well as have him punished as severely as possible. Torncello himself had clearly read them quite carefully, given the fact that he -- 'cherry-picking' -- used them against Nickel. Here are some excerpts from these letters:

"I've never had sex with any child." (from letter dated 9/16/00)

"I've never had any kind of sex with a boy." (from letter dated 11/16/00)

"[I have been] sexually inactive for well over two years..." (from letter dated 12/5/00)

So, Torncello is, once again, simply lying. But even if what he said  were true, it would still not constitute proper summation remarks, because, rather than arguing actual evidence of concrete actions, Torncello is arguing for conviction based on who Nickel (purportedly) is. In a supposedly advanced democracy at least, that's not supposed to happen.]

(DC) Objection.

(CZAJKA) Sustained.

(TORNCELLO) Judge, read the letters, read his statement. He is driven by that need, judge.* You listened to the testimony, you have heard the evidence, you have seen the evidence, you have judged the credibility of the witnesses of the People, you have judged the credibility of the witnesses of the defense, and we will, ask at this time, Your Honor, and respectfully request that you find the defendant guilty of each and every charge, because there's credible, compelling evidence, on every element, charged in this indictment. Thank you.
[* DC's objection to this exact issue was just sustained. But no matter: Torncello was not actually bound by any of this 'judge's' rulings.]

(Whereupon, a brief recess was had).

(CZAJKA) Don't get up. Attorneys with respect to count three?

(TORNCELLO) Yes, Your Honor?

(CZAJKA) The definition of performance, means any play, motion picture photograph or dance?

(TORNCELLO) Yes, sir.

(CZAJKA) What is it that the People allege Exhibit 5 is?

(TORNCELLO) We allege it's a photograph, judge.

(CZAJKA) But it's not.

(TORNCELLO) Under that theory, once it's printed it is. I think that you can, I think that clearly construed --

(CZAJKA) You're suggesting because it was on the computer disk, it was a photograph?

(TORNCELLO) Sure.

(CZAJKA) What do you say [DC]?

(DC) Your Honor, I would [467] argue that no, it was not a photograph, and that it was on a computer disk and was brought back by the use of some software, that the detective from Colonie used to bring it back. It couldn't even be found there, you know, unless he used that software to resurrect and bring it back.

(TORNCELLO) Our point judge --

(DC) Then there was no ability to indicate how long or even when or who placed it there.

(TORNCELLO) At some point it's got to be a photograph scanned into the computer and put on the disk, that is it. It was a photograph. It's just, I mean, any -- I can give you a photocopy of a photograph and would that not fit the statute?

(CZAJKA) The Court as a finder of fact finds as follows: Under count one, charging sodomy in the first degree, in violation of 130.50 subdivision (3) of the Penal Law of the State of New York the class B violent felony, the Court finds the defendant guilty.* [468]
[* This is the oral sex charge. What the stenographer fails to record here is Nickel's incredulous <b> "what?" </b>]

Under count two, aggravated sexual abuse in the second degree, under Section 130.67 subdivision (1) (c), the Court finds the defendant guilty.*
[* This is the insertion of finger into a rectum charge.]

Under count three, use of a child in a sexual performance, in violation of Section 263.05, the Court finds defendant not guilty.*
[* This is, of course the photographing of the oral sex charge. Why did Czajka find Nickel not guilty of this, but guilty of everything else? We strongly suspect that this reflected a cynical attempt to minimize any negative fallout -- on appeal -- of Czajka's decision to bar the defense's photography expert  (Richard McEvoy) from testifying as an expert. In other words, Czajka finding Nickel not guilty of this charge made it much harder for the defense to argue that it was actually prejudiced by Czajka's refusal to qualify McEvoy as an expert (who would then have been able to testify as to his conclusion that Nickel was not the older person depicted in that image). But given the fact that 'Arthur' said nothing about oral sex until he was shown that photograph, the fact is, the defense was still greatly prejudiced by the decision to bar McEvoy. (Czajka did, after all, 'find' Nickel guilty of the oral sex charge.) But even beyond the oral sex charge itself, qualifying McEvoy as an expert would have done immense damage to 'Arthur's' testimony in toto.]

Under count four, sexual abuse in the first degree, in violation of Section 130.65 subdivision (3), the Court finds defendant guilty.*
[* This is the count alleging the 'simple touching' of 'Arthur' ('for purposes of sexual gratification').]

Under count five, sexual abuse in the first degree, in violation of Section 130.65 subdivision (3), the Court finds defendant guilty. *
[* This is the count alleging the 'simple touching' of 'Brendan' (with Nickel's foot) ('for purposes of sexual gratification').]

And under count six, endangering the welfare of a child, the Court finds the defendant guilty. *
[* Czajka had 'deliberated' his verdicts for all of two minutes.

How do we know that? At the end of this trial, Czajka interrupted the prosecutor's closing statement by asking: "Will you be much longer?" When the prosecutor finished his closing, Czajka left the courtroom, presumably to deliberate his verdicts. But just two minutes later, Czajka returned to the courtroom and asked a technical question related to a photograph. He then rendered his verdicts.

The Court Clerk's notes indicate that the prosecutor began his summation at 4:10 P.M., and that Czajka rendered his verdicts at 4:20 P.M. Therefore, the summation and deliberation combined took a total of ten minutes. The prosecutor's summation spanned a full eight transcript pages. Because it takes approximately one minute to read through each transcript page (out loud, at a normal pace), the summation would have taken about eight minutes, meaning that Czajka 'deliberated' for a grand total of two minutes -- if even that long. (We suspect that these two minutes were really just a bathroom break.)]

This was late on a Friday afternoon. It would appear that, from the very beginning, Czajka was bound and determined that this trial would be over by Friday, no matter what. (Otherwise, it would have spilled over into the following week.)]

Defendant is remanded to the custody of the Albany County Sheriff. Any request before we adjourn [DC]? Bail is revoked. Any requests before we stand in adjournment? I'll set a sentencing date right now. How much time do [469] we need? Don't take him away yet. I'm not done.*
[* Apparently, the Sheriff's Department could hardly wait to get Nickel in handcuffs. Nickel recalls seeing one detective sitting right up front, hanging on Czajka's every word at the reading of the verdicts. This person appeared to be deeply concerned that Nickel might actually get acquitted. Notwithstanding the fact that a full acquittal would indeed have been far more fair and reasonable than what actually happened, this detective really needn't have worried: No matter what happened at trial, at least as far as most of the charges was concerned, there was never the slightest possibility that
Czajka  wasn't going to convict.]

(TORNCELLO) Probation likes between six and eight weeks.

(CZAJKA) June 29th all right attorneys? That's a Friday.

(TORNCELLO) Yes, Your Honor.

(DC) No, Your Honor.

(CZAJKA) That's the last Friday of June; that's a bad day?

(DC) I'm not available that week, Your Honor.

(CZAJKA) All right. What's the next Friday in July? July 6th, is that okay [DC]?

(DC) Yes.

(TORNCELLO) Yes, Your Honor.

(CZAJKA) All right. July 6th.

(Whereupon, the proceedings concluded in the above-entitled manner).

For details regarding Czajka's highly questionable conduct in numerous other cases, see Judge Paul Czajka  section of this site.