Conley v. Chaffinch

MOTION in Limine Plaintiff's Third Motion in Limine to Preclude Testimony of an Alleged Sexual Relationship -

D. Del.March 29, 2006

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants. : : : : : : : : : : : : : : : : : : : : : : C.A.No.04-1394-GMS PLAINTIFF’S THIRD MOTION IN LIMINE TO PRECLUDE TESTIMONY OF AN ALLEGED SEXUAL RELATIONSHIP THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 TSN@NeubergerLaw.com SJN@NeubergerLaw.com Dated: March 29, 2006 Attorneys for Plaintiff Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 1 of 29 1 All appendix cites refer to plaintiff’s appendix in support of her motion for summary judgment. 2 These witnesses were also identified in the Price and Foraker cases and it is apparent that these same identified witnesses have more to say than defendants have revealed in the present case. Either defendants have not been as forthcoming in their disclosures as in the Price and Foraker cases or they simply have been unable to elicit the same testimony from these witnesses. Regardless, plaintiff is legitimately concerned about the obvious potential for sandbagging at trial regarding this alleged sexual relationship. 1 A. Introduction. Defendants are obviously unhappy with the sworn testimony of Capt. Glenn Dixon. After all, as an insider with Col. Chaffinch, he was privy to the most revealing statements about his mind set toward women. For example, while on duty, he tells people that “women are nothing but trouble” and “women are a pain in the ass.” (Tab A - Dixon 77-78).1 Capt. Dixon’s testimony offers powerful testimony relevant to Chaffinch’s animosity towards women as the decision-maker in this promotions case. Capt. Dixon was subpoenaed to give his deposition and expressed fear that he would be retaliated against for his subpoenaed testimony. (Dixon 72). B. Discussion. To discredit Dixon’s testimony, the defense have identified witnesses who will testify that Dixon and plaintiff have worked closely together and allude to some alleged, illicit sexual affair. Further, as testimony from these same witnesses in the Price and Forkaer cases have revealed, defendants have a carefully orchestrated plan to address this alleged affair during trial.2 More importantly, however, plaintiff’s entire sexual history, much less this illusion of an affair between plaintiff and Dixon, is irrelevant to the case. Chaffinch admitted he did not take into account sexual history when determining who to promote. The defendants’ efforts to smear Capt. Dixon and plaintiff’s names and their attempts to intimidate and influence their testimony in this lawsuit are meritless. Unfortunately, by testifying truthfully in Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 2 of 29 2 this case, Capt. Dixon’s family now faces the threat of exposure to this false and scandalous information which has no legal bearing upon the facts of this case. Further, plaintiff’s relationship and interactions with Capt. Dixon, which are entirely platonic in nature, are immaterial to the present action. First, the basis for the proposed testimony does not survive evidentiary scrutiny. It is not based upon the personal knowledge of a competent witness. Fed.R.Evid. 602. The majority of the testimony is also clearly incapable of surviving a hearsay challenge. Fed.R.Evid. 801-802. Additionally, the testimony is entirely irrelevant to the issues of the case. Fed.R.Evid. 401-402. And even if the testimony had an ounce of relevance, it is substantially outweighed by its delay, prejudice, confusion and misleading nature of the issues because it simply lacks any logical probative connection to any issue in the case. Fed.R.Evid. 403. Additionally, the evidence offered is often speculative and subject to many interpretations. 1. Janet Vetter, a recently deceased civilian employee, told Lt. Campanella that “Conley had managed to get Glenn Dixon....to sleep with her and Janet could tell when it happened because of a sharp change in demeanor with both of them.” Campanella has no personal knowledge of the alleged remarks. Further, this statement is undeniably irrelevant. Whether plaintiff and Dixon were sexually involved is of no consequence to the determination of whether Conley was unfairly passed up for promotions or whether the DSP retaliated against her for filing a lawsuit. Dixon was not a decision maker and was not involved in the DSP leak of information. Further, Chaffinch admitted he did not take into account sexual history when making promotion decisions. (Tab B - Chaffinch 148- 49,179). This testimony is also hearsay. To the extent defendants claim this is a dying declaration Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 3 of 29 3 See U.S. v. Peppers, 302 F.3d 120, 137 (3d Cir. 2002)(The statement must be made “while ‘conscious of impending death and under the belief that there is no chance of recovery.’”); Sternhagen v. Dow Co., 108 F.Supp.2d 1113 (D.Mont.1999) (imminent death not found when declarant had three to six months to live). 4 On December 27, 2005 defendants clearly stated their intentions not to pursue Workman as a witness “unless necessary for impeachment or rebuttal.” Accordingly, plaintiff submits that defendants have waived the use of Sgt. Workman as a witness. 3 under Fed.R.Evid. 804(b)(2), defendants are mistaken as to the hearsay exception’s application. The statement must be “made by a declarant while believing that the declarant’s death was imminent.” Fed.R.Evid 804(b)(2) (emphasis added). Campanella would testify that he visited Ms. Vetter when she was in the hospital and that “she wanted him to know the truth” and “‘she could not die’ with this on her mind.” There is no indication that while Ms. Vetter was in the hospital, she made this statement believing her death was imminent. “Fear or even belief that illness will end in death will not avail itself to a make a dying declaration.” Shepard v. United States, 290 U.S. 96, 99 (1933).3 “There must be ‘a settled hopeless expectation’ that death is near at hand, and what is said must have been spoken in the hush of its impending presence.” Id. at 100. Ms. Vetter’s statements to Campenella clearly do not fall into this narrow hearsay exception. There is no indication that Ms. Vetter uttered these words to Campanella in the face of her imminent death. Thus, these statements are excludable as inadmissible hearsay. 2. Testimony that Capt. Dixon and plaintiff spent hours on the telephone, rode in a car together, rode around in a golf car together, spent time behind “closed doors,” and were “always together at events.” This line of testimony is entirely irrelevant.4 How many hours Conley was on the phone with Dixon has no bearing on Chaffinch’s decision not to promote her or the retaliation taken Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 4 of 29 4 against her. Also, whether plaintiff and Capt. Dixon rode in a car together one night or rode around in a golf car together at the State Fair has no bearing on the issues in this case. Further, the fact that they spent time behind closed doors and were seen together at events is perfectly understandable as they are co-workers and have worked together for years. This testimony has no bearing on the pertinent facts of this case whatsoever and will only advance defendants smear campaign and intimidation of witnesses. Even if the evidence had some scintilla of probative value, it would be substantially outweighed by its prejudicial effect and/or misleading or confusion of the issues. 3. Sgt. Pete Fraley’s testimony that plaintiff rubbed the upper leg of Glenn Dixon in 2003 at Headquarters. Testimony to this alleged occurrence is again, irrelevant. The only plausible purpose defendants have for attempting to admit such testimony is to further their conspiracy theory that plaintiff and Dixon were involved in some alleged sexual affair. Even still, this connection is entirely speculative in nature. It is entirely possible Sgt. Fraley misinterpreted a friendly knee slap or an understanding, supportive gesture between friends. 4. Capt. Dixon’s subpoenaed testimony at his deposition in the Price, et al. v. Chaffinch, et al., C.A.No. 04-956-GMS (D.Del.), and Foraker v. Chaffinch, et al., C.A.No. 04-1207-GMS (D.Del.). On September 21st, 2005, Capt. Dixon was forced to testify under subpoena in the Price and Foraker cases. Defense counsel therein asked a number of improper questions pertaining to defendants’ intentions to smear Capt. Dixon and Capt. Conley’s names and to intimidate them and influence their testimony in this lawsuit. Q. Isn’t it true that you’re totally compromised as a witness because you had an affair with Barbara Conley? Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 5 of 29 5 A. No. Q. Have you ever had sex with Barbara Conley? A. No. * * * Q. Isn’t it true that you would say anything you had to in this deposition to keep Barbara Conley from making the fact that you had sex with her public? A. No. (Tab C - Dixon deposition from Price v. Chaffinch, at 98-101). The baseless line of questioning only reveals the concerted and well thought out defense attack and smear campaign which has the dual purpose of introducing plaintiff’s sexual history and discrediting her name, while placing fear in the mind of Capt. Dixon to influence his damaging testimony to defendant Chaffinch. C. Conclusion. Consequently, plaintiff Moves that the defense be prohibited from using witnesses to the extent they will testify about an alleged relationship between Capt. Dixon and plaintiff and that they be precluded from raising these issues in any way whatsoever in this action. Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 6 of 29 6 Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Thomas S. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 TSN@NeubergerLaw.com SJN@NeubergerLaw.com Dated: March 29, 2006 Attorneys for Plaintiff Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 7 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants. : : : : : : : : : : : : : : : : : : : : : : C.A.No.04-1394-GMS ORDER This day of , 2006, it is hereby ORDERED that the defendants be prohibited from using witnesses to the extent they will testify about an alleged relationship between Capt. Dixon and plaintiff and that they be precluded from raising these issues in any way whatsoever in this action. THE HONORABLE GREGORY M. SLEET, U.S.D.J. Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 8 of 29 CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on March 29, 2006, I electronically filed this Motion with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Ralph K. Durstein III, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901 /s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ. Conley / Pleadings / Motion in Limine - Dixon issues. FINAL Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 9 of 29 Tab A Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 10 of 29 In the Matter Of: Conley v. Chaffinch, et al. C.A. # 04-1394-GMS --------------------------------------------------------------------- Transcript of: Captain Glenn Donald Dixon July 13, 2005 ------------------------------------------------------------------------ Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: lhertzog@wilfet.com Internet: www.wilfet.com Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 11 of 29 Conley v. Chaffinch, et al. Captain Glenn Donald Dixon C.A. # 04-1394-GMS July 13, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, ) ) Plaintiff, ) ) Civil Action v. ) No. 04-1394-GMS ) COLONEL L. AARON CHAFFINCH, ) individually and in his official ) capacity as the Superintendent, ) Delaware State Police; LIEUTENANT ) COLONEL THOMAS F. MACLEISH, ) individually and in his official ) capacity as the Deputy Superintendent, ) Delaware State Police; DAVID B. MITCHELL) Individually and in his official ) capacity as Secretary of the Department ) of Homeland Security, State of Delaware;) and DIVISION OF STATE POLICE, DEPARTMENT) OF SAFETY AND HOMELAND SECURITY, State ) of Delaware, ) ) Defendants. ) Deposition of CAPTAIN GLENN DONALD DIXON taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Suite 302, Wilmington, Delaware, beginning at 9:30 a.m., on Wednesday, July 13, 2005, before Eleanor J. Schwandt, Registered Merit Reporter and Notary Public. APPEARANCES: THOMAS S. NEUBERGER, ESQ. THE NEUBERGER FIRM, P.A. 2 East 7th Street, Suite 302 Wilmington, Delaware 19801 for the Plaintiff (Appearances continued on page 2.) WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477 Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 12 of 29 Conley v. Chaffinch, et al. Captain Glenn Donald Dixon C.A. # 04-1394-GMS July 13, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 2 (Pages 2 to 5) Page 2 1 APPEARANCES (Continued): 2 STEPHANI J. BALLARD, ESQ. RALPH K. DURSTEIN, ESQ. 3 DEPARTMENT OF JUSTICE 820 North French Street 4 Carvel State Office Building Wilmington, Delaware 19801 5 for the Defendants Lieutenant Colonel Thomas F. MacLeish, David B. Mitchell, and Division 6 of State Police 7 ALSO PRESENT: CAPTAIN BARBARA L. CONLEY 8 CAMILLE M. MARTIN, Law Clerk 9 - - - - - - - - - - (Mr. Durstein not present at this time.) 10 11 GLENN DONALD DIXON, 12 the witness herein, having first been 13 duly sworn on oath, was examined and 14 testified as follows: 15 EXAMINATION 16 BY MR. NEUBERGER: 17 Q. Could you state your full name for the record. 18 A. Yes, Glen Donald Dixon. 19 Q. Okay. And you are a captain in the Delaware 20 State Police? 21 A. I am. 22 Q. And is it fair to say you have testified in court 23 before? 24 A. I have. Page 3 1 Q. Okay. And have you ever had your testimony taken 2 in a deposition before? 3 A. Maybe once or twice. 4 Q. Okay. So you are a little bit familiar? 5 A. Yes. 6 Q. Okay. Well, what happens is the court reporter 7 types up the questions and answers. You have the right 8 to look it over when it is done to see if she made a 9 mistake in taking down an answer or something to make 10 corrections. Do you understand that? 11 A. Yes, I do. 12 Q. Okay. And then at trial, at trial, if you said 13 something different than today, I would have the 14 opportunity to point that out to the judge and jury. You 15 understand that? 16 A. Yes. 17 Q. Okay. So I don't want you to do any guessing. 18 So try to answer to the best of your ability. Or if I 19 ask a question that's a stupid question, you don't 20 understand, just ask me to rephrase it and I'll be glad 21 to do it. Okay? 22 A. All right. 23 Q. Thanks. Now, could I ask you very quickly, we 24 will just march through when you went to the academy to Page 4 1 your present assignment. When did you graduate from the 2 academy? 3 A. 1988. 4 Q. 1988. 5 A. I began in June of '88 and graduated in the fall. 6 Q. Okay. What was your first assignment? 7 A. It was at State Police Troop 5 in Bridgeville. 8 Q. Troop 5. So that was a, what do you call them, 9 patrol? 10 A. Patrol troop. 11 Q. All right. 12 A. Yes. 13 Q. So Troop 5, and how long were you there? 14 A. I was there until I was promoted to sergeant, 15 which was about nine, nine years, and then I moved over 16 to Troop 4 in Georgetown. 17 Q. Let me see. Troop 4. Was it six months in the 18 academy? Three months? 19 A. I think back then it was like a four-month 20 period. 21 Q. Four months. So would it have been the end of 22 '88 when you went to Troop 5 or the very beginning of 23 '89? 24 A. It was actually around, with the field training Page 5 1 in it, I trained in field training in Woodside, after 2 field training I went down there end of November, early 3 December, around there. 4 Q. That's when you started at Troop 5? 5 A. Yes. 6 Q. Okay. And then if we say nine years -- 7 A. Well, I was promoted in '96. 8 Q. '96, sergeant? 9 A. Yes. 10 Q. All right. So '96 is when you went to Troop 4 11 then? 12 A. Yes. 13 Q. All right. How long did you stay at Troop 4? 14 A. About a year-and-a-half, and then I transferred 15 back to Troop 5. 16 Q. Okay. So that would be some time in '98? 17 A. Mm-hmm. 18 Q. Back to Troop 5? 19 A. Yes. 20 (Mr. Durstein present at this time.) 21 Q. All right. So sometime in '98 you transferred 22 back to Troop 5. Is that still at the rank of sergeant? 23 A. Yes. 24 Q. Okay. And what happened next? Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 13 of 29 Conley v. Chaffinch, et al. Captain Glenn Donald Dixon C.A. # 04-1394-GMS July 13, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 19 (Pages 70 to 73) Page 70 1 A. Yes. 2 Q. Okay. Based on your observations, after the 3 lawsuit was filed was he mad at Captain Conley? 4 A. Yes. I believe, I'm sure he still is mad. 5 Q. Right. Do you remember any other feelings or 6 emotions he demonstrated towards Captain Conley after the 7 lawsuit was filed in the whole period of time up to the 8 present? 9 A. Nothing strikes me specifically after the lawsuit 10 was filed. He, after that, for the most part he -- well, 11 he wouldn't bring that lawsuit up specifically around the 12 troop. So no, I guess my answer is no. 13 Q. Well, you heard this remark about Trooper Scott 14 Gray. You told us about that? 15 A. Yes. 16 Q. And that the colonel was upset at not having been 17 invited to a party, right? 18 A. Yes. 19 Q. And you heard the remark the colonel made about 20 you should remember who transferred you into detectives, 21 right? 22 A. Yes. 23 Q. Did you observe the colonel to be exhibiting any 24 hostility towards Captain Conley indicating he felt she Page 71 1 was ungrateful or things like that towards Colonel 2 Chaffinch? 3 MS. BALLARD: Object to the form. 4 Q. You can answer the question. I'm asking you what 5 you observed. Did you observe -- 6 A. After the lawsuit had been filed? 7 Q. Yes, after the lawsuit, him to exhibit any anger 8 at her thinking she was ungrateful to him? 9 A. He wouldn't bring her name up around me 10 afterwards. 11 Q. Okay. So previously he would mention Captain 12 Conley in your presence? 13 A. Yes. 14 Q. And you are saying after the lawsuit was filed he 15 would never mention Captain Conley again in your 16 presence? 17 A. Not that I recall, no. 18 Q. Okay. Is the colonel, based on your working with 19 him and having dealt with him over 17 years, the kind of 20 person who a reasonable person should fear he would 21 retaliate against them? 22 MS. BALLARD: Object to the form. 23 A. He is very vindictive. 24 Q. Okay. Now, are you saying you have observed him Page 72 1 to be vindictive over your 17 years of working with him? 2 A. Yes. 3 Q. You have observed him to mention he has powerful 4 friends in political circles? 5 A. Yes. 6 Q. Are you saying that you have observed him to use 7 his rank or office in the state police to be vindictive? 8 A. Yes. You know, it is common knowledge, like I 9 said before, I think, that you don't -- you would not 10 cross him, you would not report him on anything because 11 of his vindictiveness. You knew that your career would 12 pretty much stop. 13 I mean, it concerns me now, going through 14 this, even though he is still not the colonel or not 15 presently the colonel. 16 Q. Now, I've subpoenaed you to testify today? 17 A. Yes. 18 Q. You understand that? 19 A. Yes. 20 Q. There is a court order requiring you to come here 21 today, right? 22 A. Yes. 23 Q. And I have never even met you before today, have 24 I? Page 73 1 A. No. 2 Q. Okay. I passed you in the waiting room here and 3 didn't even know who you were, right? 4 A. Right. 5 Q. So you have never met with me and discussed any 6 facts relating to this case; is that true? 7 A. No -- yes, that is true. 8 Q. I want to jump back to the up jump the monkey 9 limerick. Do you remember there was one about a monkey? 10 A. Yes. 11 Q. I'm going to give you some setting, early part of 12 2003, in Captain Conley's office, in traffic, Captain 13 Harry Downes being there, and that would make you a 14 Lieutenant Dixon there at the same time. The colonel 15 coming in at some point in time and during the course of 16 it him reciting the up jump the monkey limerick. Do you 17 remember whether that happened around that time? 18 A. Yes. I think Harry was a lieutenant. I thought 19 you said captain. I think he was a lieutenant. 20 Q. Okay. 2003, Columbus, Ohio, CARE conference? 21 A. Yes. 22 Q. You are attending, and I think your wife went 23 with you? 24 A. Yes. Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 14 of 29 Conley v. Chaffinch, et al. Captain Glenn Donald Dixon C.A. # 04-1394-GMS July 13, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 20 (Pages 74 to 77) Page 74 1 Q. Major Baylor is there with his daughter? 2 A. Yes. 3 Q. Teenage daughter? 4 A. I think her name is Sydney. 5 Q. Captain Conley is there? 6 A. Yes. 7 Q. Colonel Chaffinch goes, and his wife I think is 8 attending also? 9 A. Yes. 10 Q. You wear name tags? 11 A. Yes. 12 Q. Hospitality room? Was there a hospitality room? 13 A. Yes. 14 Q. So what would like your name tag say? 15 A. Normally I wouldn't wear a name tag going to the 16 hospitality room after hours, so I don't know if I had 17 one on there, but it would have said Captain Glenn Dixon, 18 Delaware State Police. 19 Q. And the colonel would have a name tag? 20 A. Yes. He actually wears a permanent -- not a 21 permanent name tag but one he stuffs in his pocket so 22 people know who he is. 23 Q. He is an officer in the organization, on the 24 board or something like that? Page 75 1 A. In CARE? 2 Q. In CARE? Maybe I've got the wrong group. Is it 3 CARE? 4 A. Yes, yes. 5 Q. You are saying he has a permanent name tag that 6 he uses that identifies him at the time as the colonel of 7 the Delaware State Police? 8 A. Yes. 9 Q. Okay. In the hospitality room did the colonel 10 recite limericks and jokes that women or minorities could 11 find offensive? 12 A. Yes. It was kind of like a dueling process 13 between him and another -- I guess the group hired a 14 magician and slash comedian, so he was sparing off with 15 him, would recite the limericks and jokes, you know, both 16 clean jokes and dirty jokes, and the limericks that we 17 discussed. 18 Q. All right. Was there a dinner that you attended 19 with Major Baylor and his daughter and Colonel Chaffinch 20 and his wife and Barbara? You all sat at the table 21 somewhere, went to Colorado Springs or something like 22 that? 23 A. That was in Colorado, yes. 24 Q. This was a different time? Page 76 1 A. Yes. 2 Q. When was the Colorado Springs thing? 3 A. That was I'm going to say around July or August 4 of 2003. 5 Q. Okay. 6 A. Around then, yes. We were there as a traffic 7 records forum. 8 Q. That's what it was, right. 9 A. And then Colonel Chaffinch, as well as Major 10 Hughes, Major Baylor were there for an FBI conference in 11 Colorado Springs. We were in Denver. 12 Q. And they all met you for dinner? 13 A. Yes. We met halfway. 14 Q. Okay. And at that dinner was the colonel in rare 15 form? 16 MS. BALLARD: Object to the form. 17 Q. At the dinner was the colonel telling jokes or 18 engaging in conduct that women or minorities could find 19 offensive? 20 A. He was -- I wouldn't say he was in rare form, but 21 he would lay some jokes out there, and I remember one 22 time when, I think it was a waitress, not a waiter, 23 picked his food up, he had some leftovers, and he told 24 the waitress that she could just feed it to the starving Page 77 1 Ethiopians in Africa. He also referred to major -- to 2 Ronnie Gaines as Ronnie Loves Watermelon Gaines in front 3 of Major Baylor and his daughter. 4 Q. Ronnie Gaines is an African American trooper? 5 A. Yes. Retired, yes. 6 Q. Retired trooper? 7 A. Yes. 8 Q. And he referred to him as Ronnie Watermelon 9 Gaines? 10 A. Loves Watermelon Gaines. 11 Q. So those were his words? 12 A. And I've heard that numerous times throughout my 13 career, because I'm fairly certain that they went to the 14 academy together and that's when he gave him that 15 nickname, whenever he started the academy. 16 Q. And Major Baylor's young teenage daughter was 17 present at the dinner too? 18 A. I think at the time she was like 12. 19 Q. Let me throw out a few other statements that 20 Captain Conley alleges she has heard from the colonel 21 over the years, okay, and see whether or not you have 22 heard them. Okay? She alleges he has said things like 23 "Women are nothing but trouble, women are a pain in the 24 ass, you can't live with them, you can't live without Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 15 of 29 Conley v. Chaffinch, et al. Captain Glenn Donald Dixon C.A. # 04-1394-GMS July 13, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 21 (Pages 78 to 81) Page 78 1 them." Have you ever heard him make similar remarks? 2 A. I don't recall the last one, but I've heard him 3 say pretty frequently "They are nothing but trouble." 4 Q. Would that remark have been made on duty? 5 A. Yes. 6 Q. And would that remark have been made off duty? 7 A. Yes. 8 Q. All right. The remark "Women are a pain in the 9 ass," have you heard him make that remark? 10 A. Yes. 11 Q. Has he made that remark on duty? 12 A. Yes. 13 Q. Has he made that remark off duty? 14 A. Yes. 15 Q. I'm going to try to focus on October 2004, Troop 16 5, in your presence and the colonel being there. Okay? 17 Do you remember him making a remark about his wife Karen 18 being "puffed up like a toad, you know how women get"? 19 A. Not specifically that date, but I've heard him 20 say that numerous times about Karen. 21 Q. All right. Around that time, is there a mirror 22 inside the closet door, inside your commander's office at 23 Troop 5? 24 A. Yes. Page 79 1 Q. And around that time in October of 2004 did 2 Colonel Chaffinch make a point of noting that he had had 3 that mirror placed there when he was a troop commander? 4 A. Yes. He basically told me, and it was a 5 situation where we were planning to go to a retired 6 trooper's funeral and both my lieutenants and he, and 7 myself included, were getting our dress blouses on and 8 would use that mirror to make sure that everything looks 9 like it should, and that's when he made the statement 10 that he -- something like, I bet you didn't know that I 11 am the troop commander who had both the mirror in the 12 men's bathroom and the one behind the closet door in the 13 commander's office placed there, and it was placed there 14 so he could watch himself jerk off. 15 Q. Have you heard him refer to his Blackberry 16 computer device as his Dingleberry? 17 A. Yes. 18 Q. Did you attend an event in April of 2004 in St. 19 Michaels, Maryland, a luncheon the FBI was giving or 20 something? 21 A. In what year? 22 Q. April 2004, FBI, St. Michaels. You were there, 23 Lieutenant Brown, Lieutenant Rust -- 24 A. I forget what town it was. I don't think it was Page 80 1 St. Michaels. We had to travel out there quite aways. 2 Q. Right. 3 A. But, yes, it was in Maryland. 4 Q. And the colonel was with you that day, right? 5 A. Yes. 6 Q. There were like two cars that went? 7 A. Yes. 8 Q. And Captain Conley was in one of the cars? 9 A. Yes. 10 Q. And somewhere on Route 404, at a bar called 11 Cohee's, do you recall the group stopping? 12 A. Yes. 13 Q. Well, do you recall that there was a female 14 waitress in the restaurant that day? 15 A. Yes. 16 Q. She was waiting on you-all? 17 A. Yes. 18 Q. Do you recall the colonel saying to Rich Dennis, 19 "Maybe I should introduce her to the hooded merganser"? 20 A. I don't recall him saying it specifically to him, 21 but I remember him hearing it. 22 Q. You remember that being said, okay. 23 A. I was present for it. 24 Q. Okay. You remember the colonel making that Page 81 1 statement? 2 A. Yes. 3 Q. You don't know who he was saying it to? 4 A. I just felt he was saying it to everybody that 5 could hear. 6 Q. A hooded merganser is some kind of a duck; isn't 7 that right? 8 A. From what I understand, yes. 9 Q. Are you a hunter? 10 A. No, I'm not. 11 Q. Around November of 2004, around the Thanksgiving 12 holiday period, okay, perhaps right after the holiday, at 13 Troop 5, do you remember some remarks about the hooded 14 merganser at that time, referring to something in 15 Florida? 16 A. He had just come back from Florida. And I wasn't 17 in the same office. It was in the office across the 18 hallway from me. But I could hear, as is the case around 19 Troop 5, you know, you could be in one office and hear it 20 from, conversations up at the sergeant's area, but he was 21 talking with at least -- well, it had to have been both 22 lieutenants, about how his uncle was questioning him 23 about the hooded merganser and where it came from, and 24 they were laughing about it. Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 16 of 29 Tab B Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 17 of 29 In the Matter Of: Conley v. Chaffinch, et al. C.A. # 04-1394-GMS --------------------------------------------------------------------- Transcript of: Colonel L. Aaron Chaffinch June 6, 2005 ------------------------------------------------------------------------ Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: lhertzog@wilfet.com Internet: www.wilfet.com Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 18 of 29 Conley v. Chaffinch, et al. Colonel L. Aaron Chaffinch C.A. # 04-1394-GMS June 6, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, ) ) Plaintiff, ) ) Civil Action v. ) No. 04-1394-GMS ) COLONEL L. AARON CHAFFINCH, ) individually and in his official ) capacity as the Superintendent, ) Delaware State Police; LIEUTENANT ) COLONEL THOMAS F. MACLEISH, ) individually and in his official ) capacity as the Deputy Superintendent,) Delaware State Police; DAVID B. ) MICHELL, individually and in his ) official capacity as Secretary of the ) Department of Safety and Homeland ) Security, State of Delaware; and ) DIVISION OF STATE POLICE, DEPARTMENT ) OF SAFETY AND HOMELAND SECURITY, ) State of Delaware, ) ) Defendants. ) Deposition of COLONEL L. AARON CHAFFINCH taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Suite 302, Wilmington, Delaware, beginning at 9:35 a.m. on Monday, June 6, 2005, before Kathleen White Palmer, Registered Merit Reporter and Notary Public. APPEARANCES: THOMAS S. NEUBERGER, ESQUIRE THE NEUBERGER FIRM, P.A. 2 East 7th Street - Suite 302 Wilmington, Delaware 19801 for the Plaintiff --------------------------------------------------- WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477 Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 19 of 29 Conley v. Chaffinch, et al. Colonel L. Aaron Chaffinch C.A. # 04-1394-GMS June 6, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 2 (Pages 2 to 5) Page 2 1 APPEARANCES (Continued): 2 JAMES E. LIGUORI, ESQUIRE 3 LIGUORI, MORRIS & YIENGST 46 The Green 4 Dover, Delaware 19901 for Defendant Colonel L. Aaron Chaffinch 5 RALPH K. DURSTEIN, ESQUIRE 6 STEPHANI J. BALLARD, ESQUIRE DEPARTMENT OF JUSTICE 7 820 North French Street Carvel State Office Building 8 Wilmington, Delaware 19801 for Defendants Lieutenant Colonel Thomas F. 9 MacLeish, David B. Mitchell, and Division of State Police 10 11 ALSO PRESENT: 12 CAPTAIN BARBARA L. CONLEY 13 - - - - - 14 COLONEL L. AARON CHAFFINCH, 15 the witness herein, having first been 16 duly sworn on oath, was examined and 17 testified as follows: 18 BY MR. NEUBERGER: 19 Q. Could you state your full name for the record? 20 A. Aaron Chaffinch. 21 Q. Colonel Chaffinch, my staff or myself, we've 22 taken your deposition on other occasions; isn't that 23 correct? 24 A. Yes, sir. Page 3 1 Q. You've even testified in two federal court cases 2 that I was involved in; is that right? 3 A. Yes, sir. 4 Q. I called you as a witness in those cases; right? 5 A. Yes, sir. 6 Q. Now, you understand, based on that experience, 7 that if there's any question I ask you today and any 8 answer you give, and I call you at trial and you say 9 something different, I can point that out to the judge 10 and jury? 11 A. Yes, sir. 12 Q. You know that. Okay. 13 Are you taking any medications or anything 14 that would interfere with your ability to remember 15 things? 16 A. I don't believe so. 17 Q. You don't take blood pressure, heart medicine, 18 things like that? 19 A. I don't think it would affect my memory, I don't 20 believe. 21 Q. But you are not on anything odd or something 22 that affects your memory that you know of? 23 A. Not that I'm aware of. 24 Q. If I ever ask you a question that you don't Page 4 1 understand, just ask me and I'll be glad to rephrase it. 2 Is that okay? 3 A. Yes, sir. 4 MR. NEUBERGER: Let's do this. Let's mark 5 this as Plaintiff's Exhibit Number 1 and then we'll be 6 referring back and forth to this. Let me give a copy to 7 counsel. It's a copy of the First Amended Complaint in 8 the action. 9 (Plaintiff's Exhibit 1 was marked for 10 identification.) 11 BY MR. NEUBERGER: 12 Q. Colonel, I'm going to ask you some questions 13 about how long you were with the force and how your 14 career, your assignments might have tracked assignments 15 that Captain Barbara Conley had. Okay? 16 If you turn to paragraph 10 of that 17 document that's in front of you on page 4, you can see 18 there in that paragraph a listing that Barbara Conley 19 prepared at an earlier time of her assignments starting 20 as a patrol trooper at Troop 5 in Bridgeville in 1982 at 21 the bottom. Do you see that? 22 A. Yes, I do. 23 Q. Then she works all the way up to captain, 24 director of traffic control section in 2001. Do you see Page 5 1 that? 2 A. Yes, sir. 3 Q. Let me just ask you a few questions about her 4 history. 5 Now, she indicated that she joined the 6 force as a patrol trooper in Bridgeville in 1982 and 7 she'll testify to that fact. Were you assigned to 8 Bridgeville at that time? 9 A. Yes, sir. 10 Q. I think she's indicated that she believes that 11 when she started in Bridgeville, she was a patrol trooper 12 and you would have been a trooper first class assigned in 13 Bridgeville. Does that sound about right? 14 A. That's correct. 15 Q. Then she indicates she was in Bridgeville from 16 1982 to 1983? 17 MR. LIGUORI: I think it's '93, Tom. 18 MR. NEUBERGER: Yes. Thank you, Jim. All 19 right. 20 BY MR. NEUBERGER: 21 Q. She has indicated during that period of time 22 there was a time when you were assigned at Bridgeville, 23 also? 24 A. Part of that time, yes, sir. Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 20 of 29 Conley v. Chaffinch, et al. Colonel L. Aaron Chaffinch C.A. # 04-1394-GMS June 6, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 38 (Pages 146 to 149) Page 146 1 A. You mean that I may have inherited from the 2 previous superintendent? 3 Q. Yes. 4 A. Not to my knowledge. 5 Q. I know, for example, that with reference to 6 lieutenants and sergeants, there's testing and there's 7 bands and things like that. At that time the Delaware 8 State Police was using that process for those ranks; 9 right? 10 A. For sergeant, lieutenant, captain, yes. 11 Q. And for captain, too? 12 A. Yes. 13 Q. I remember seeing information about boards of 14 people who might interview captain candidates. 15 A. Okay. 16 Q. That's true, isn't it? 17 A. Yes, sir. 18 Q. Now, for majors there wasn't that kind of a 19 process? 20 A. No, sir. 21 Q. I think you're telling me that for majors there 22 was no process that you inherited from any of your 23 predecessors as far as filling those two major vacancies? 24 A. That's correct. Page 147 1 Q. Are you telling me that there's no process in 2 the union contract between the State Police and the union 3 that applies to filling the vacancies? 4 A. I'm not telling you that, no. 5 Q. Is there anything in the union contract? 6 A. Not to my knowledge. 7 Q. I know there's that handbook, the Delaware State 8 Police rules and regulations, it's like a two-volume blue 9 thing I've seen with rules and regulations about the 10 State Police. You are aware of that book; right? 11 A. The administrative manual and the divisional 12 manual. 13 Q. In those two manuals, was there any process that 14 guided your selection of the two majors for the positions 15 we are talking about? 16 A. I think probably there may be something in there 17 about at the discretion of the superintendent, but 18 there's not any specific process, no. 19 Q. So, for example, there was no preexisting rule 20 in writing that required that anybody selected for major 21 have a certain educational background? 22 A. No, sir. 23 Q. There wasn't anything in writing that required 24 that a person who was selected for major have any Page 148 1 specific operational background? 2 A. Well, I think it goes without saying you'd have 3 to be a captain. 4 Q. Sure. 5 A. You know what I mean. So that is one parameter, 6 you know. So you look at the captains in the agency to 7 make your selection and for the superintendent. And 8 certainly education and background and experience and 9 tenure all came into play with any selections that I made 10 for executive staff people. 11 Q. So you're saying that when you had to select 12 anybody to be part of the executive staff, you considered 13 education, background, experience, and tenure? 14 A. That's correct. Experience within the agency. 15 Q. While that wasn't found in any preexisting 16 written document, those are factors you used? 17 A. That's correct. 18 Q. I guess I'm trying to find out: Were there 19 other factors you used besides those four? 20 A. Well, by background I would mean where they have 21 been within their tenure as a trooper based on what 22 position I'm filling. I think you understand that. That 23 somebody that had been in an administrative position but 24 not necessarily in an operational position probably Page 149 1 wouldn't get an operational job. You see what I'm 2 saying? Those kind of things come into play with any 3 selections that I would make for staff level positions. 4 And compatibility with other members of the 5 executive staff certainly would come into play, as well. 6 Q. I'll put down as another factor compatibility 7 with the other members of the executive staff. 8 A. Yes. 9 Q. So that gives me five categories. Were there 10 any others that you considered? 11 A. Not that I can recall. 12 Q. I remember seeing in some of the other cases 13 affidavits or testimony talking about as people rise to 14 higher management levels in the State Police, it's 15 important that they have operational experience, meaning 16 like in patrol and actual on-the-road type experience. 17 That's a fair statement, isn't it? 18 A. That's one very important facet, yes. 19 Q. So that's important. Okay. 20 For example, with respect to Captain 21 Barbara Conley, we know from paragraph 10 on page 4 of 22 the complaint that's in front of you that she was a 23 patrol trooper for eleven years at Troop 5. Do you 24 remember that? Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 21 of 29 Conley v. Chaffinch, et al. Colonel L. Aaron Chaffinch C.A. # 04-1394-GMS June 6, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 46 (Pages 178 to 181) Page 178 1 promotion from the Secretary of Safety and Homeland 2 Security James Ford, no. 3 Q. So if I asked you for the record what were the 4 reasons for selecting Hughes, what would you explain as 5 the reasons why you selected Hughes? 6 A. I don't know if I can tell you exactly the five 7 that are there. Tenure, background, education -- 8 Q. The five are: First was education, second is 9 background, third is experience within the Delaware State 10 Police, fourth is tenure, and fifth is compatibility with 11 other members of the executive staff. Okay? 12 With that as a help, what were the reasons 13 why you selected Major Hughes? 14 A. Okay. Well, his tenure within the agency was 15 very well rounded. He -- like I explained earlier, he 16 had been to the academy as the assistant director of the 17 academy, so he had been involved in training. He'd been 18 in special investigations as a drug officer, so he had 19 experience in criminal investigations. He had been a 20 patrol sergeant and run a shift at Troop 7. He had been 21 a traffic lieutenant at Troop 5. He had been a troop 22 commander at Troop 5. He was a graduate of the FBI 23 National Academy. He attained a master's degree in 24 public administration. And he had worked his entire Page 179 1 career in Kent and Sussex counties and he was familiar 2 with the area and the other troopers and the other 3 administrators of those troops. 4 Q. Are there any other reasons? 5 A. I thought he would be compatible with the other 6 staff members. I think I've hit -- I hit on experience. 7 I hit on his background. I hit on his tenure and his 8 education. So I guess that there's not any others. 9 Q. I'm just trying to be thorough. 10 A. Loyal to the superintendent. 11 Q. Excuse me? 12 A. Loyal to the superintendent. 13 Q. Is it fair to say that that's an additional 14 factor, or is that just within the other ones? 15 A. That's within the others. 16 Q. So loyal to the superintendent. What do you 17 mean by that? 18 A. Well, I had worked close with him and I knew 19 that he would support me in my position as 20 superintendent. He would also do a good job. He's 21 always been a go-getter. He was one of the biggest 22 workers on the road when he was on the road. He wrote 23 his share of traffic citations. And he -- you know, he 24 did a lot of criminal work. And I'll put his record up Page 180 1 against anybody in the agency as far as work and 2 experience on the Delaware State Police. 3 Q. It's just that today is the time for you to give 4 all the reasons. 5 A. I suppose it is. 6 Q. So are there any other reasons why you selected 7 him over the other people? 8 A. Not that jump right out at me. I think I've hit 9 on them all. 10 Q. Now, if we go to Major Eckrich, how about giving 11 me the reasons why he was selected for the position? 12 A. Okay. From education standpoint, he's got a 13 master's -- a bachelor's and a master's degree. He's a 14 graduate of Southern Police Institute in Louisville, 15 Kentucky, which is a command school for law enforcement 16 administrators. He's -- he had worked patrol. He had 17 worked as a patrol supervisor, a shift commander. He had 18 worked at both as a criminal lieutenant and a traffic 19 lieutenant. And he'd been a troop commander. And I had 20 worked closely with him and I knew that he would be loyal 21 and -- loyal to me and we would be a good team to be a 22 part of the executive staff. 23 Q. You mentioned loyal two times, so I do want to 24 ask you about that. Page 181 1 You worked with Barbara Conley over your 2 career, too? 3 A. Yes, I have. 4 Q. Is there any reason for you to think she 5 wouldn't be loyal to you if she was selected? 6 A. No, there's not. 7 Q. So are they all the reasons for Major Eckrich? 8 A. The other reason that we talked about earlier is 9 the fact that he had been in that position as a 10 lieutenant and that is a -- that is a large factor in my 11 decision. 12 Q. So just so you understand I'm being fair with 13 you, if there's anything else you said earlier, we'll 14 include that in reasons why he was selected. Okay? 15 A. Yes, sir. 16 Q. Is there anything else that you remember was a 17 reason why he was selected? 18 A. No, sir. 19 Q. Did you look into his disciplinary record? 20 Let's say Eckrich right now. Did you check and see 21 whether he had any violations, suspensions, or things 22 like that in his record? 23 A. I'm pretty sure he doesn't have any, but I 24 couldn't tell you exactly for sure, but if he has Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 22 of 29 Tab C Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 23 of 29 In the Matter Of: Price v. Chaffinch, et al. C.A. # 04-1207 --------------------------------------------------------------------- Transcript of: Captain Glenn D. Dixon September 21, 2005 ------------------------------------------------------------------------ Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: lhertzog@wilfet.com Internet: www.wilfet.com Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 24 of 29 Price v. Chaffinch, et al. Captain Glenn D. Dixon C.A. # 04-1207 September 21, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CORPORAL B. KURT PRICE, ) CORPORAL WAYNE WARREN, ) and SERGEANT CHRISTOPHER ) D. FORAKER, ) ) Plaintiffs, ) ) v. ) C.A. No. 04-1207 ) COLONEL L. AARON CHAFFINCH,) individually and in his ) official capacity as ) Superintendent of the ) Delaware State Police; ) LIEUTENANT COLONEL THOMAS ) F. MacLEISH, individually ) and in his official ) capacity as Deputy ) Superintendent of the ) Delaware State Police; ) DAVID B. MITCHELL, in his ) official capacity as the ) Secretary of the Department) of Safety and Homeland ) Security of the State of ) Delaware; and DIVISION OF ) STATE POLICE, DEPARTMENT OF) SAFETY AND HOMELAND ) SECURITY, STATE OF ) DELAWARE, ) ) Defendants. ) Deposition of CAPTAIN GLENN D. DIXON taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Suite 302, Wilmington, Delaware, beginning at 10:00 a.m., on Wednesday, September 21, 2005, before Kimberly A. Hurley, Registered Merit Reporter and Notary Public. WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477 Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 25 of 29 Price v. Chaffinch, et al. Captain Glenn D. Dixon C.A. # 04-1207 September 21, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 2 (Pages 2 to 5) Page 2 1 APPEARANCES: 2 THOMAS S. NEUBERGER, ESQUIRE THE NEUBERGER FIRM, P.A. 3 2 East 7th Street - Suite 302 Wilmington, Delaware 19801 4 for the Plaintiffs 5 ROBERT J. FITZGERALD, ESQUIRE MONTGOMERY McCRACKEN WALKER & RHOADS, LLP 6 123 South Broad Street Avenue of the Arts 7 Philadelphia, Pennsylvania 19109 for the Defendants 8 ALSO PRESENT: 9 CORPORAL WAYNE WARREN 10 - - - - - 11 CAPTAIN GLENN D. DIXON, 12 the witness herein, having first been 13 duly sworn on oath, was examined and 14 testified as follows: 15 BY MR. NEUBERGER: 16 Q. Captain Dixon, I subpoenaed you to be here 17 today; is that correct? 18 A. Yes, you did. 19 Q. And I had subpoenaed you in another case called 20 Conley versus Chaffinch to give testimony on July 13th, 21 2005. Do you remember that? 22 A. Yes, I do. 23 Q. Prior to that date, July 13th, 2005, you had 24 never met me before, had you? Page 3 1 A. No. 2 Q. Since then, except for answering some questions 3 on how to get here and sending the subpoena to you, you 4 and I haven't spoken, have we? 5 A. The other day, whatever day it was, was it 6 Tuesday, I called in reference to another prior meeting 7 that I was going to request a continuance in this. But 8 it didn't work out. But that was the only time. 9 Q. And I refused to give you a continuance? 10 A. Yes. 11 Q. You're being forced to testify today, right? 12 A. By subpoena. 13 Q. When I took your deposition on July 13th, 2005, 14 I explained the process. You remember that? 15 A. Yes. 16 Q. Since that time are you taking any medications 17 or anything that would interfere with your memory? 18 A. No. 19 Q. If I ask you a question today that you don't 20 understand, just ask me to rephrase it. Is that okay? 21 A. Okay. 22 Q. Just to quickly skip over something, back in 23 July I asked you a series of questions about your 24 contacts with Aaron Chaffinch over the years. Do you Page 4 1 remember that? 2 A. Yes. 3 Q. You sort of explained about approximately 4 17 years during your career the various kinds of contacts 5 you would have with him, right? 6 A. Yes. 7 Q. And presently you're the troop commander of 8 Troop 5 down in Bridgeville, Delaware? 9 A. I am, yes. 10 Q. And he was the former troop commander there, for 11 example? 12 A. Yes. 13 Q. And he lives within a couple miles of the troop, 14 right? 15 A. Two miles. 16 Q. So to set the stage, what I'm going to do is 17 show you a yellowed copy of the Delaware State News dated 18 Wednesday, April 7th, 2004, and it's got a story on the 19 front page that then goes into page 6 about a media tour 20 given the day before by Aaron Chaffinch and Gloria Homer, 21 the Secretary of Administrative Services back at that 22 time. 23 MR. FITZGERALD: I'll object only to the 24 characterization that it was a tour given by Chaffinch. Page 5 1 BY MR. NEUBERGER: 2 Q. Let's just simply say it relates to an event at 3 the Firearms Training Unit the day before. Okay? 4 A. Okay. 5 Q. And this is in the record as some sort of an 6 exhibit. I don't know the number right now, but I think 7 that's a sufficient reference to it. 8 What I will do is we will just take a 9 minute and I'll ask you to read through the story. 10 A. Okay. 11 Q. I have scratched in red some references to 12 Colonel Chaffinch himself and some things, some 13 references to him in there. But you just take your time 14 and just read through the story and then I'll probably 15 ask you a few questions. Okay? 16 A. Okay. 17 MR. FITZGERALD: Before you ask the 18 questions, Tom, I'd like to look at just your markings on 19 it. 20 MR. NEUBERGER: Please. 21 MR. FITZGERALD: After you read it. Go 22 ahead. 23 MR. NEUBERGER: Why don't you just read 24 through it. Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 26 of 29 Price v. Chaffinch, et al. Captain Glenn D. Dixon C.A. # 04-1207 September 21, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 25 (Pages 94 to 97) Page 94 1 MR. FITZGERALD: It has to do with this 2 case in that this witness has testified that defendant 3 Chaffinch has made certain comments. Our client denies 4 those comments. We don't think that those comments were 5 ever made. We think his testimony is false, and we're 6 putting it on the record and that would question his 7 credibility and whether or not what he's saying today is 8 accurate. 9 I'm not asking anything that isn't already 10 on the record in the Conley case. So it's not discovery 11 outside the scope of this. These questions have to do 12 with the reaction of this witness, not any party in the 13 Conley case. 14 MR. NEUBERGER: I'm saying I'm going to 15 recess this deposition. The procedure I think with 16 Judge Sleet would be to call him and to schedule a time 17 to talk about this. I'd like to ask the court reporter 18 how quickly she can prepare this part of the deposition 19 and we can take that to the judge in an orderly fashion. 20 Perhaps you would want to go on and cover other areas. 21 MR. FITZGERALD: I will go on, and that's 22 fine. I will not ask questions about his testimony in 23 the Conley case and the credibility of that as it relates 24 to his credibility today, but I will go on and ask other Page 95 1 questions related to his credibility. 2 MR. NEUBERGER: Please try to. 3 BY MR. FITZGERALD: 4 Q. Isn't it true that your testimony today is a 5 total fabrication, that Colonel Chaffinch never came down 6 and said "I'm going to stick it to fucking Foraker" prior 7 to going to the range for the media tour? 8 A. Well, he didn't say he's going to stick it, but 9 your general question is no. 10 Q. Isn't it true that Barbara Conley has concocted 11 your testimony in the case today to maximize her chances 12 of success in her lawsuit? 13 A. No. 14 Q. Isn't it true that you and she have conspired to 15 damage Chaffinch's reputation? 16 A. No, absolutely not. 17 Q. Did you report Colonel Chaffinch's alleged 18 wrongdoing through any other channels other than 19 depositions and lawsuits? 20 A. Well, I didn't seek a deposition, have not 21 sought a lawsuit. So I'm not seeking that here now 22 today. I'm called as a witness. But have I gone to any 23 other measures? No. 24 Q. Isn't it true that your testimony today, Page 96 1 regardless of the testimony you gave in the Conley case, 2 only came up during this deposition and was not shared 3 with anybody else prior to this lawsuit and the 4 deposition that resulted from the lawsuit? 5 A. Can you repeat that, please? 6 MR. FITZGERALD: Can you repeat that 7 because I can't? 8 (The reporter read back as instructed.) 9 THE WITNESS: So the question is what's the 10 basis of the question? 11 MR. NEUBERGER: I didn't really understand 12 it myself. 13 MR. FITZGERALD: I'll rephrase. 14 BY MR. FITZGERALD: 15 Q. Isn't it true that this story of Chaffinch 16 coming down and saying "I'm going to put it on Foraker 17 and I'm going to put the blame on Foraker" was not told 18 to anyone except Counsel here today as a result of your 19 subpoena for a deposition? 20 A. You're saying that -- basically is what you're 21 asking is that conversation did not happen? 22 Q. No. I'm asking if you ever told anybody about 23 that conversation before today. 24 A. We talked about it the day it happened with Page 97 1 Major Baylor and Captain Conley. As far as that -- 2 Q. Isn't it true you're not sure you talked about 3 it with Major Baylor? 4 A. I didn't say that. The overall atmosphere, the 5 overall summation of the conversation was talked about 6 with Major Baylor. 7 Q. Then I have to ask this again. Did you tell 8 Major Baylor what Aaron Chaffinch allegedly told you in 9 Barbara Conley's office that morning? 10 A. Specifically? 11 Q. Yes. 12 A. I can't say that I did. But the conversations 13 were to the point where it was understood what was said. 14 What we talked about specifically, I can't say verbatim. 15 Q. How can those things that Aaron Chaffinch 16 allegedly said have been understood generally? 17 A. Based on any conversation that Major Baylor had 18 with Colonel Chaffinch and anything that was discussed 19 between the three of us about the morning conversation. 20 Q. Then isn't it true absent that general 21 conversation and the conversation you may have had with 22 Barbara Conley after Colonel Chaffinch came down, that 23 you haven't told anybody what Colonel Chaffinch said 24 except for today during this deposition? Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 27 of 29 Price v. Chaffinch, et al. Captain Glenn D. Dixon C.A. # 04-1207 September 21, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 26 (Pages 98 to 101) Page 98 1 A. Right. 2 Q. Isn't it true that these allegations of 3 Colonel Chaffinch making a threat were only being offered 4 in this deposition because Barbara Conley has sued 5 Chaffinch? 6 A. No. 7 Q. Isn't it true that your testimony here today is 8 as a result of Conley instructing you what to say and how 9 to say it? 10 A. No, absolutely not. 11 Q. Isn't it true that you would continue to say 12 whatever Barbara Conley told you to say for her case? 13 A. No. 14 Q. Isn't it true that you would say whatever 15 Barbara Conley told you to say in order to destroy 16 Chaffinch? 17 A. No. 18 Q. Isn't it true that you consider it necessary to 19 say what Conley tells you to say because she's 20 blackmailing you? 21 A. No. 22 Q. Isn't it true that you were totally compromised 23 as a witness because you have had an affair with 24 Barbara Conley? Page 99 1 MR. NEUBERGER: Objection. Do you have 2 foundation for a question like that? My question is: Do 3 you have a foundation? Has somebody represented to you 4 who was an officer of the court something that would 5 legitimize you're asking that question or are you making 6 that up out of whole cloth? 7 MR. FITZGERALD: That's a fair question. 8 MR. NEUBERGER: You're telling me you're 9 speculating and you want to ask that question because 10 it's speculation and nobody's represented that to you. 11 MR. FITZGERALD: Tom, before you get on the 12 record about speculation and everything else, that's 13 clearly not what I'm saying. You asked if I had a 14 foundation and a basis for doing -- you mentioned 15 officers of the court and everything like that. I don't 16 know what you mean by officer of the court. I don't need 17 officers of the court. I have a basis for asking this. 18 We have information about this and so it's not pure 19 speculation. 20 MR. NEUBERGER: That's what you're saying. 21 MR. FITZGERALD: That is what I'm saying 22 your representation that it's pure speculation. 23 MR. NEUBERGER: I was asking if it is pure 24 speculation. If somebody says that to you or whatever, Page 100 1 ask the question. 2 MR. FITZGERALD: I would like to say that 3 and I said it was a fair question because it is not pure 4 speculation. I'm not making this up for the pure purpose 5 of asking an embarrassing question of this witness. 6 BY MR. FITZGERALD: 7 Q. Isn't it true that you're totally compromised as 8 a witness because you had an affair with Barbara Conley? 9 A. No. 10 Q. Have you ever had sex with Barbara Conley? 11 A. No. 12 Q. Isn't it true that you would say anything you 13 had to in this deposition to keep Barbara Conley from 14 making the fact that you had sex with her public? 15 MR. NEUBERGER: Now I'm going to stop. He 16 has answered. He's answered those two questions. Now I 17 think you're trying to conduct this to embarrass and 18 annoy, and, if I recall, this kind of questioning might 19 even have been asked in the Conley case of another 20 witness. Okay? And he's answered the questions. 21 Once again, I'm going to say I want to 22 recess the deposition. We can stop after your two 23 questions and if you want to put on the record other 24 questions you want to ask on this line of authority, we Page 101 1 will ask the judge to decide whether or not it is now 2 being conducted to harass and embarrass and annoy. You 3 have got two denials from him. 4 MR. FITZGERALD: Clearly, as you recognize, 5 you can't instruct him not to answer. This question is 6 different from the two denials. He can answer it if he 7 wants to. I'm going to ask it again. This is the last 8 question on my list. 9 MR. NEUBERGER: The last one. Let's hear 10 your question. 11 MR. FITZGERALD: This is all I have. 12 BY MR. FITZGERALD: 13 Q. Isn't it true that you would say anything in 14 this deposition to keep Barbara Conley from making the 15 fact that you have had an affair with her public? 16 A. No. 17 MR. FITZGERALD: That's all I have. 18 BY MR. NEUBERGER: 19 Q. We will stop it there. At least we got that out 20 of the way. 21 I think I am going to have to ask you a 22 question. I didn't intend to. 23 This whole concept of Aaron Chaffinch being 24 a powerful man, for example, are you aware that Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 28 of 29 Price v. Chaffinch, et al. Captain Glenn D. Dixon C.A. # 04-1207 September 21, 2005 Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477 27 (Pages 102 to 105) Page 102 1 Aaron Chaffinch testified in the Chris Foraker case from 2 the stand, he said he was the colonel of the State Police 3 and he can do anything he wants, transfer anybody at any 4 time, assign anybody -- 5 A. As a result of the lawsuit. 6 Q. No. He's the colonel and he can do anything 7 that he wants. Are you aware that he said that in that 8 case? 9 MR. FITZGERALD: I would only object, to 10 the extent that the testimony is what the testimony is. 11 Any characterization that is different from the testimony 12 is objected to. 13 BY MR. NEUBERGER: 14 Q. First of all, you weren't at the trial? 15 A. No. 16 Q. You wouldn't know if he took the stand and said 17 I'm the colonel of the State Police, I can transfer 18 anybody at any time? You weren't there? 19 A. I wasn't there, but I think I remember somebody 20 saying it. It could have been him. 21 Q. Over the years has Colonel Chaffinch ever 22 indicated in your presence that, as the commander of the 23 State Police, he could transfer you or anybody else at 24 any time? Page 103 1 A. I think I remember him stating something like 2 that. 3 Q. And over the years you've indicated that, since 4 the very beginning, he bragged about Thurman Adams being 5 a powerful protector of his. 6 A. Yes. 7 MR. FITZGERALD: We're not going to talk 8 about that because that is subject to the discussion that 9 you've -- we can if you want to, but that's part of the 10 topics of the Conley deposition that we suspended this 11 element of the deposition on. 12 MR. NEUBERGER: You asked him questions 13 about Thurmanator. 14 MR. FITZGERALD: That's right, which was 15 part of the Conley deposition questions. You don't have 16 my outline, so you don't know that. 17 MR. NEUBERGER: Okay. I'll just keep 18 going. 19 BY MR. NEUBERGER: 20 Q. You were asked a lot of questions about this 21 message that was sent to you to lie down about a criminal 22 matter. Right? 23 A. Right. 24 Q. Is it correct that a trooper under your command Page 104 1 you thought had committed a crime or a trooper in the 2 State Police? 3 A. It was involving a trooper that was assigned to 4 my troop, Troop 5. There was a victim of another crime 5 by another trooper. 6 Q. A trooper under your command had been the victim 7 of a crime, right? 8 A. Yes. 9 Q. And it was a violent crime? 10 A. It was reported as, yes, a violent crime. 11 Burglary and breaking into a residence. 12 Domestic-related. So, yes, I would consider that 13 violent. 14 Q. And the crime was committed by another trooper 15 assigned somewhere else? 16 A. Yes. 17 Q. You thought it was your obligation to see that 18 the law was enforced and that the trooper be 19 appropriately investigated and punished, who was the 20 perpetrator. 21 A. When I discovered of the incident, about five to 22 six months had expired without it being reported -- well, 23 it was reported, but it wasn't dealt with properly. So 24 that's when it was brought to my attention. So, yes, I Page 105 1 just wanted to follow it through with the investigation 2 to make sure it was done properly. 3 Q. Members of the executive staff were blocking the 4 investigation? 5 MR. FITZGERALD: Objection to the form. 6 BY MR. NEUBERGER: 7 Q. Based on your knowledge, members of the 8 executive staff were blocking the investigation? 9 A. Yes. 10 Q. You thought it was an appropriate subject for an 11 Internal Affairs investigation? 12 A. Yes. 13 Q. It's your understanding that Aaron Chaffinch did 14 not want the matter to be handled the way you were 15 suggesting? 16 A. That's correct. 17 Q. Did Internal Affairs investigate the matter as 18 you suggested? 19 A. From my understanding, eventually they did, yes. 20 MR. FITZGERALD: I thought you were going 21 to object to any discussion of Internal Affairs anything. 22 Q. You received this message from Barbara Conley 23 that you have described earlier, right? 24 A. Yes. Case 1:04-cv-01394-GMS Document 181 Filed 03/29/2006 Page 29 of 29