yes please the court my name is david grodd burke and i'm here today on behalf of daniel greer and you shiva in new haven i was also one of the trial counsel in the district court we've raised a number of issues in our brief all of which in our view warrant a conclusion that a new trial is merited in this case there are a number of factors unique in my view in this case that inform most if not all of our arguments the subject matter in this case was very volatile sexual abuse claims against a clergy member and as a result as we've noted that raised a significant potential for passion and for prejudice to take over  courtroom we also had a plaintiff who had filed a criminal complaint that at the time of the trial remained pending that brought the th amendment very much into play in this case in a played a huge wall in the trial and in our view and in appropriately larger role and open the door to abuse also had a very unique situation involving the plaintiffs other key excerpts because he had evaded service of process and that posed a another huge hurdle for the defense because at that deposition which it was taken during the discovery phase of the case i don't think it was anticipated by anyone the testimony was being for served for use a trial mr haq was literally a he was a local resident in new haven at the time his deposition was taken so there's no reason to expect that he'd be unavailable for trial and co defense counsel did not pursue the same line of questioning that one would have at trial so again that was another way in which the defense very much had ham strong i want to talk a little bit about one of the arguments we've raised that it ties into all of those factors and that is the district court's denial of our motion for relief from judgment based upon new evidence that came to the defense attention after the time for the filing of post judge post verdict motions had passed  main point of disagreement between the defense and the district court had to do with the the significance and potential impact of the new evidence the in particular the requirement that a finding be made that new evidence probably would have yielded a different result and that it was not merely  cumulative who are competing in considering the impact that this new evidence would have had and it was from a former teacher at the shiva who had no allegiance to either party who reached out to a lawyer after reading about the verdict we have some antagonism toward hack i don't he had a disagreement during his term of employment with mr ha to be sure of employment and because of disagreements he and he ended it because he felt that request had been made of him that he was not comfortable with namely to change a failing grade to a passing grade he will i'm just questioning the suggestion that he was completely neutral and impartial i don't know that he was he he obviously would have come into the court with very well formed opinions and that would have been one of the main interest main reasons why i would have wanted to put him on but in terms of if was this someone obviously from the defense camp or the plaintiff's camp he'd been out of the school for over a decade and i mean it would be difficult to we do reopen a trial just because some witness shelves up and says i now now that i've seen the verdict and read about the case i have something to offer i mean it it i if you did that every time someone came forward you be retrying cases all the time i agree or on earth but this is not every case this is a the challenges we face under if you should go on one of your other points have three minutes left counsel this case presented the exact scenario that was raised in the dissent by judge winter and bring that was that you sat in that was a dissent with just a critical factual issue whether he sexually abused the plaintiff that's a critical factual issue so so the probative value is really high don't you agree with that point yes your honor and we didn't question that he was into the blackwater was that he's entitled to ask you questions and he's entitled to get the negative inference charge no quarrel with that what what should the trial court have done differently is my question the trial court should have cut off questioning before it did when it became clear that plaintiff's counsel was not simply trying to elicit the point that your honor noted which was that you asked about the allegation of sexual abuse if you didn't get the greer was on redirect just simply to lay the foundation for some documents with mr haq that had been presented to him by mr haq his counsel went right back to the th amendment area and had to be problematic what is the standard here is it is it what's the ultimate question whether whether or not the defendants were deprived of their due process rights because the trial so unfair happened what is what are we trying to figure out cast we've raised it as an evidentiary claim and the rule sixty b two they're both abuse of discretion standard the point we've made as three even assuming there's an abuse of discretion here it doesn't mean reversal i mean what whatever i'm trying to find out is what are we trying to decide in terms of the ultimate merits with respect to the newly discovered evidence the question oh now i'm focusing on on  beyond that in essence testify through counsel which is the example that raised my judgment or admittedly in dissent but judge she recognized prior to trial the merit in the concerns raised in that dissent and indicated that he would take steps to try to stop that in our view he let it go way too far and as a result this case became about the th amendment and not about the evidence the jury deadlocked so the case wasn't as much of a foregone conclusion as when you say they were deadlocked what does that mean the jury well it took them a while to decide the case the jury twenty four hours into deliberation on a case where the defendant had invoked his th amendment privilege on the question of did you sexually assault the point of the jury reported an inability to reach a verdict on that very question not undamaged on that very question twenty four hours i think candidly when they got the case the day before people were examined one juror holding out and then being persuaded i mean it's hard to it's hard to know really what happened so you're over time but just on the damages you know if this were new york i would i would be troubled but there do seem to be connecticut cases that a poll of seven million dollars verdicts or so if there's a case with a fifteen million dollar the judge she raised during our argument questioning whether case by case comparison is continue to be appropriate our point there really is the record what they presented mr m testified to how did this impact your wife which is really the beginning of the end of his damage claim it's just not there it cannot support a fifteen million dollar fine if one takes the view that hey it's a sex abuse case no amount of money is too arguments one is that judge the trial court judge did not grant the motion that i should not be able to allow to ask any questions that would invoke a th amendment claim as to that it makes no sense given that the defendant himself proposed an adverse inference charge so you can't have some or not any question i heard that you were permitted to ask too many questions yes there's two points at which the issue of th amendment instruction and allowance of questioning came up one was the one i just mentioned which was pretrial where the defense said no questions at all tonight then we get to the trial in the trial there were two questions this is page twenty two of my brief two questions that are at issue on appeal all the other questions that make up this so called quote unquote spectacle that is described in the in the appellant's brief either the defendant answered without the court the trial court rule on or no objection was met so there is no point you just adjust the general concern that judge winter spoke to in his dissent about how when you have a long series of questions the jury is ultimately looking to the question rather than the answers right and answer the counsel what constraints are there on what you can ask and how long you can ask about how do we think about that i think that i think that's the question in that case the constraints are exactly the ones the judge say imposed on me there were strengths are you may ask a certain number of questions and at the moment that it becomes more prejudicial than probative i'm going to stop you and that's precisely what he did that's just a general feeling  well it was two questions in in this case and so so it may be did you have a proffer ahead of time to show that you had a foundation for each of those questions i don't recall if there was an official proffer but there was never an argument from defense that they weren't justified questions but so i think number one if there is a point at which it becomes unfair and we accept as winners dissent as as a governing opinion in the c concern as a kind of a commonsense matter that one might be worried that a jury would be unduly influence because actually counsel is testifying i think it's a very legitimate concern here's why i don't think it's a concern in this case not only were my questions cut off after two  questions objection invocation of privilege and then no testimony but to the extent that anything that i did during this trial was prejudicial beyond the court's ability to will on it in the moment there was no motion for mistrial there was no motion to strike there was no motion for a cautionary instruction and so in if it was as prejudicial as is now being described by the appellant something would have been done at the time it was happening and it wasn't mr goldberg and his co counsel sat there and let it happen judge shay step down and said that's enough counsel and when he said it believe you me i stopped and so that's really the record here i think the concerns your honor is expressing are legitimate and under certain circumstances it could be a very unfair situation in this case it was not and it was not only was i was troubled i don't know if this is you but there's an there and that is me and i can tell you if your honor had sat in on this trial it is my belief that every member of the court here today would have reached those same conclusions this was a man who lied through out the case who who selectively invoked his th amendment rights who kept the truth from the jury not because of a legitimate concern about a criminal proceeding that may or may not have been pending at the time that might be my concern is whether you're going too far in you very legitimate view of trump practice i don't happen to share it but i don't disrespect it either i will say that if that were perceived to have been the case in this trial at that moment there would have been a motion from the defense oh and the judge would have shut me down would be that this goes back to what i was asking you or your colleague what are we looking for i mean is there a denial of due process is that the ultimate question i think what you have to look for is that are the eviden because that's how it's been phrased by the defense i mean by the appellant so the appellant says number one i didn't get the instruction i wanted and i think that issue has been put to bed and wasn't responded to in the reply and and frankly the judge gave the brinks job so that's not an issue then the issue is what happened during the trial at the time that rabbi greer invoke the th the only way to approach it because of the way it's been framed because the way it evolved during trial is as an evidentiary question so it's an abuse of discretion standard and the question for your honour's is did it as the majority opinion in this case and it would still require upholding this verdict and so i think i think what i would say it frankly did you get to what he was concerned about yes i think you can get to it and you can say these are concerns because they are and i don't debate that and frankly if i were in this regard bruce shoes i would have been concerned too i also would have been out of my seat objecting but i think that what i think that the decision that could come out of this case could be judge winner had it right in many ways these are legitimate concerns it is not a good situation for a civil defendant to be dealing with a criminal charge at the same time invoking the th has monstrous prejudicial possibilities so therefore the courts should do what judge they did in this case  gave an instruction in the middle of grooves testimony my examination and instruction which by the way mr barber agreed with more than once on the record then gave that instruction again the adverse inference instruction saying you may but do not need to find that this is actually what is this status of the state criminal prosecution it is it has not resolved and i know  from communications with the state's attorney's office and the new haven police department that it is an ongoing where where in the in the process i just i'm just thinking about how this might unfold in a future matter and whether a civil action such as this one would be postponed i was i was surprised at that had been the request in this case there was no request to stay the civil case there was nothing the criminal charge there was not there was an agreement in fact and the opposite judge i asked the question and it was agre pending at the time of the civil trial your honor was correct had there been a pending criminal charge absolutely there would have been a motion to stay filed a complaint had been made to the police charges had not been initiated charges were not initiated till about two mo of complaint but no nothing with no indictment no correct no document that's correct nd the idea that we didn't object is absolutely false and is belied by the record i expressed concern about the point your honor raised about what are we to do in fact in the pretrial discussion about this issue in the argument on the motion and women and when judge ruled against me one of the things i suggested in this appears at pages a sixty five and sixty six i suggested that let's agree on a script of sorts so we know we all know going in he's going to invoke what's agree on what questions can be appropriately asked get the invocation and we move on judge shay said i don't want to do that you have to do a question by question i then said to judge shay i don't think i should be in the position of having to pop up repeatedly appear obstructionist in front of the jury when everyone not in the jury box knows that there are going to be indications in response to specific questions so we raise that but the judge didn't do  that you would have like one big question did you ever sexually abuse him and then he would invoke the th and then that would be the end of it in your in your i would have preferred one but i could see if the courts allowed two or three but this piecemeal thing where most importantly plaintiff's counsel was given rein free rein to formulate his questions is really where the problem comes from and it's not just one question you know this came up early on a seventy eight question so you're not denying today that you sexually abused an assaulted on many occasions over a period of years when he was a child i objected both to the form of that question and raised the th amendment court overruled the objection as the form he invoked his privilege and similar questioning came up  when the issue arose again a little bit later you know the complaint alleges that you forced us when he was a child to have sex with a metal motel in branford is that true invocation of the privilege  you know the i think the real problem with where the mind set that this open door permitted is set out in the portion of abused and molested a child they know ellie shira and dr ford are telling the complete and full truth and they know that ellie's mental and emotional injuries are catastrophic and permanent that's in a brief before this court that an absolutely inappropriate and it is reflective indicative of the mindset that infected the trial by trying to leverage the th amendment not in the way they were legitimately entitled to but in a way that was exactly foreshadowed by judge winter in and three and unfortunately came true it had an impact on this case they got affected the case and a new trial should be more knowledgeably had an impact the question is whether it was you know so unfair that there was a deprivation and that's right get back to the dead like you're on a given that this case really did hang in the balance we believe it's appropriate thank you your honors i hear from a stress pounds failed to point out in their briefs that the presumption they have to overcome in the two cases of c b s and the us vs graham is a strong presumption of the right to public access not just the presumption but a strong presumption connecticut and even in the new york area very closely and i write about it in the blog that i have online and people contact me all the time but what they learn from the video that they don't know ready from the transcript public bring for example would with victims that come forward as you see in the media other victims become empowered to come forward when they see actual victims talking about their experiences you know especially victim like  in that people can publish on you tube or anywhere videos that will be disseminated around the world easily right correct and the fact that there's so much to see them a nation makes it even i think today is the fact that knowledge knowing wafer do you believe that by participating in the deposition that mr haq consented to the dissemination on the internet of a video and you didn't file any motion no he didn't file anything it wasn't it was a judge who actually issued an order that he be notified and he had an attorney at the time and it's all public information once notified he did he did submit something is not right yeah some point you  and the video you're seeking is the redacted videotape that was admitted at trial is that correct yes and you've reviewed the redacted transcript of that video yes isn't the video largely a significant and if that was the video the video was actually received into evidence it was shown to the jury it wasn't marked or listed as a moderate of that which was not actually received into evidence it wasn't just a technical is an account of an intimate and lifelong damaging event such as occurred here participates in that this will encourage other people to come forward with the possible downside of having a record of their own humiliating and horrible event be disseminated around the world could you could you explain what i'm missing in your i think victims feel a lot of shame from coming forward especially male victims w really rarely hear about feel incredible she is and speaking of things i requiring the victim who doesn't want his image disseminated to have it disseminated that will dispel the shame it's hard to say that mr hacker didn't object really throughout the trial before the trial after the trial was and he avoided the trial as you know he avoided service they tried both sides tried to bring the men you don't want to get involved it seemed like he wasn't i had