United States District Court, D. Connecticut
OMNIBUS RULING ON DEFENDANTS' AND PLAINTIFFS'
CROSS-MOTIONS FOR SUMMARY JUDGMENT
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
prior Ruling [Doc. 46] reported at 239 F.Supp.3d 461 (D.
Conn. 2017) ("Conversion Ruling"), familiarity with
which is assumed, the Court granted in part Defendants'
motion to dismiss Plaintiffs' complaint, and converted
that motion to dismiss in part into motions for summary
conversions resulted in three motions for summary judgment,
which this Ruling resolves.
pertinent times, Plaintiffs Harasz and Wirth resided in the
Town of Glastonbury, Connecticut, and took in foster children
for adoption under the supervision of the Connecticut
Department of Children and Families ("DCF"). In
November 2011, at the initiation of DCF, Harasz and Wirth
were arrested by Glastonbury police officers on several
charges of misconduct with respect to certain adopted
children in their care. Harasz and Wirth were charged with
sexual assault, cruelty to persons, and risk of injury to a
minor. A state court bench trial resulted in the acquittal of
Wirth on all charges against him. The State subsequently
dropped all charges against Harasz.
then filed a civil rights action in Connecticut Superior
Court, which was removed to this Court on the basis of
federal question jurisdiction. The defendants were Joette
Katz, the DCF Commissioner; Elizabeth Ferreira, a DCF social
worker; the Town of Glastonbury; and James Kennedy and
William Trantalis, Glastonbury police officers. The
individual defendants were involved, in one way or another,
with the charging, arrests, or state proceedings against
Harasz or Wirth. Plaintiffs alleged federal constitutional
and state constitutional and law claims against various
individual defendants. Specifically, Plaintiffs asserted
claims for failure to train and supervise DCF employees;
false arrest; malicious prosecution; and fabrication of
evidence. The operative pleading is an Amended Complaint
Conversion Ruling dismissed all of Plaintiffs' claims
against Katz and Trantalis. As for Ferreira, the only claims
against her were for fabrication of evidence. The Court
converted Defendants' motion to dismiss those claims
against Ferreira into a motion for summary judgment. As for
Kennedy, the only claims against him (and against Glastonbury
for indemnification) were for fabrication of evidence and
malicious prosecution. The Court converted Defendants'
motion to dismiss those claims into a motion for summary
conversions led to the summary judgment motions this Ruling
resolves. Defendant Ferreira moves for summary judgment [Doc.
48] with respect to the counts in the Amended Complaint
naming her as a defendant. Plaintiffs Harasz and Wirth move
for partial summary judgment on liability [Doc. 51] against
Defendant Kennedy. Defendants Kennedy and Town of Glastonbury
move for summary judgment [Doc. 52] with respect to the
counts in the Amended Complaint naming them as defendants.
uncontested facts are drawn from the Parties' various
statements of fact, filed in the format prescribed by Local
Rule 56(a). See Docs. 48, 52-2, 59-1, 71, 73, 75-1,
the pertinent times, Plaintiffs were citizens of the United
States and the State of Connecticut. They resided together in
the Town of Glastonbury, Connecticut.
Elizabeth Ferreira was employed as a social worker by the
Connecticut Department of Children and Families
("DCF"), assigned to its Manchester, Connecticut
Town of Glastonbury, Connecticut is a municipality which
operates, directs and controls the Glastonbury Police
Department. Defendant James Kennedy is a Glastonbury police
claims against named Defendants Joette Katz and William
Trantalis were dismissed by prior Ruling [Doc. 46] of this
Court. See 239 F.Supp.3d 461, 506-07.
advised DCF that they were willing to take in foster children
for adoption, providing that none had past sex abuse issues.
Over the years, DCF was responsive to Plaintiffs' offer.
Prior to 2011, Harasz and Wirth adopted nine children, who
were born during the years 1990 though 2006.
events underlying Plaintiffs' remaining claims, which
survived the prior motion to dismiss and lie at the heart of
the present summary judgment motions, relate to disclosures
allegedly made by their youngest child, a boy born August
2006 and adopted by Plaintiffs in April 2007, identified
throughout as "Doe #9." Doe #9 suffers from
learning disabilities and developmental delay.
and four of his siblings were in DCF's care and custody
as of February 8, 2011, pursuant to an order of temporary
custody. The siblings were removed from Plaintiffs' care
following disclosures of abuse made by an older sibling, Doe
Ferreira was assigned to Doe #9's case as a treatment
social worker on or about February 28, 2011. In early June
2011, Doe #9 began receiving therapy from Dr. Carol Kagel, a
August 3, 2011, Doe #9 attended his ninth therapy session
with Dr. Kagel. Dr. Kagel reported that, during the August 3
session, Doe #9 made a spontaneous disclosure of sexual abuse
by Plaintiff Harasz. On or about August 9, 2011, Dr. Kagel, a
mandated reporter, made a report of suspected child abuse to
the DCF telephone hotline. On August 9, 2011, Defendant
Kennedy received a call from DCF, alerting him to Dr.
Kagel's report of Doe #9's disclosure.
result of Dr. Kagel's report, Defendant Kennedy arranged
for a forensic interview of Doe #9. On August 11, 2011, Doe
#9 was interviewed at St. Francis Hospital and Medical
Center, in Hartford, Connecticut ("the forensic
interview"). The forensic interview was conducted by Ann
Glaser, a diagnostic interviewer on the staff of the St.
Francis Children's Center, and was video-recorded.
Defendants Ferreira and Kennedy observed the forensic
interview from behind a one-way mirror in an adjoining room.
Glaser wore an earpiece during the interview, through which
the observers could communicate with her. Ferreira and
Kennedy were also equipped with devices which enabled them to
hear what was being said in the interview room.
the forensic interview on August 11, and according to the
reports of Defendant Ferreira, on Friday, August 12, 2011,
Doe #9 made a disclosure of sexual abuse to his foster
parent, Lisa K. That same day, Defendant Ferreira supervised
Doe #9 during a sibling visit at DCF's Manchester office.
Ferreira reports that Doe #9 made a disclosure of sexual
abuse to Ferreira during that sibling visit. Defendant
Ferreira reported these additional disclosures to Defendant
Kennedy on August 16, 2011.
September 1, 2011, Defendant Kennedy signed a five-page,
16-numbered-paragraph sworn affidavit captioned
"Application for Arrest Warrant" and addressed to
"A Judge of the Superior Court." Under the caption
on the application reading "Name and Residence of
Accused," the name of Plaintiff George F. Harasz and his
Glastonbury address are typed in. Kennedy's affidavit
supporting the arrest warrant application describes,
inter alia, the content of the August 11 forensic
interview, as well as Doe #9's disclosures to Kagel,
Defendant Ferreira, and Lisa K. Defendant Kennedy consulted
the videotape of the forensic interview in drafting his
affidavit. The affidavit concluded that there was probable
cause to believe that Plaintiff Harasz had violated Conn.
Gen. Stat. § 53a-70 and § 53a-73 (sexual assault).
November 22, 2011, Judge Taylor of the Connecticut Superior
Court, sitting in Manchester, signed the arrest affidavit,
thereby converting that document into a warrant for Plaintiff
November 30, 2011, Harasz and Wirth were arrested by the
State of Connecticut authorities on charges of misconduct
with respect to some of the adopted children in their care.
Specifically, the Plaintiffs were charged, inter
alia, with sexual assault, cruelty to persons, and risk
of injury to a minor. Plaintiffs denied all charges. In
September 2014, following a bench trial before a state court
judge, Wirth was found not guilty of all charges against him.
In October 2014, Harasz moved successfully for the dismissal
of all charges against him. Plaintiffs' state court
exonerations on these charges led directly to the federal
constitutional and state law claims they allege in the
Standard for Summary Judgment
principles governing summary judgment motions are well
established. Smith v. Champion Int'l Corp., 573
F.Supp.2d 599, 607 (D. Conn. 2008) (citing Gibbs ex rel.
Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 575 (2d
Cir. 2006)). A motion for summary judgment shall be granted
"if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(a). If, after
discovery, the nonmoving party "has failed to make a
sufficient showing on an essential element of [his] case with
respect to which [he] has the burden of proof," then
summary judgment is appropriate. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The moving party must
"demonstrate the absence of any material factual issue
genuinely in dispute" to be entitled to summary
judgment. Am. Int'l Grp., Inc. v. London Am.
Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981)
(quoting Heyman v. Commerce & Indus. Ins. Co.,
524 F.2d 1317, 1319-20 (2d Cir. 1975)).
mere existence of factual issues - where those issues are not
material to the claims before the court - will not suffice to
defeat a motion for summary judgment." Quarles v.
Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per
curiam). A fact is material if it "might affect the
outcome of the suit under the governing law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). "[I]f the evidence is such that a reasonable
jury could return a verdict for the nonmoving party,"
then a dispute concerning the material fact is genuine.
Id. All inferences and ambiguities must be viewed in
the light most favorable to the nonmoving party. Rogoz v.
City of Hartford, 796 F.3d 236, 245-46 (2d Cir. 2015).
However, "mere conclusory allegations, speculation or
conjecture will not avail a party resisting summary
judgment." Cifarelli v. Village of Babylon, 93
F.3d 47, 51 (2d Cir. 1996) (citing Western World Ins. Co.
v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)).
The court's function is to decide "whether, after
resolving all ambiguities and drawing all inferences in favor
of the nonmoving party, a rational juror could find in favor
of that party." Pinto v. Allstate Ins. Co., 221
F.3d 394, 398 (2d Cir. 2000).
principles apply even where, as here, the Court is presented
with cross-motions for summary judgment. Larsen v.
Prudential Ins. Co. of Am., 151 F.Supp.2d 167, 171 (D.
Conn. 2001) (citing Barhold v. Rodriguez, 863 F.2d
233, 236 (2d Cir. 1988)). "The movant's burden does
not shift when cross-motions for summary judgment are before
the Court. Rather, each motion must be judged on its own
merits." Id. (citing Assoc. of Int'l
Auto Mfrs., Inc. v. Abrams, 84 F.3d 602, 611 (2d Cir.
nonmoving party "must present specific evidence
demonstrating a genuine dispute." Gannon v.
UPS, 529 Fed.Appx. 102, 103 (2d Cir. 2013) (citing
Anderson, 477 U.S. at 248) (summary order). A
genuine issue of fact exists when there is sufficient
"evidence on which the jury could reasonably find for
the plaintiff." Anderson, 477 U.S. at 252. The
nonmoving party may not "rely on mere speculation or
conjecture as to the true nature of the facts to overcome a
motion for summary judgment." Knight v. U.S. Fire
Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).
The Lothstein Affidavit
filed an affidavit by psychologist Leslie Lothstein, PhD, in
support of their opposition to the Defendants' motions
for summary judgment. Lothstein Aff., Doc. 62-8. Defendants
object to certain of Dr. Lothstein's conclusions, arguing
them inadmissable under the federal rules. Ferreira Reply Br.
4-5; Glastonbury Def. Reply Br. 5-6.
Lothstein states, at paragraph 20 of his affidavit, "It
is my opinion within a reasonable degree of psychological
certainty that Doe #9 cannot tell the objective
truth and present a valid, historical recollection."
(emphasis added). Dr. Lothstein goes on to opine:
38. It is my opinion that Doe #9's lack of disclosure
about Daddy Harasz during the 8/11/2011 forensic interview
should have been a red flag that the prior alleged disclosure
to Dr. Kagel was fundamentally flawed and thus suspect.
. . . .
40. Given the high stakes nature of this case, for Doe #9 to
give an allegedly clear disclosure the very next day on
8/12/2011, when he was not able to verbalize any such
disclosure during the forensic interview on 8/11/2011, raises
a red flag and casts doubt on the veracity of such
understand Dr. Lothstein to say, through the quoted
paragraphs, that Doe #9's conduct during the forensic
interview, in combination with Dr. Lothstein's
professional opinion that Doe #9 "cannot" tell the
truth, entirely discredits the veracity of Doe #9's
disclosures to Dr. Kagel and Defendant
conclude that the quoted paragraphs of the Lothstein
Affidavit are inadmissable. Affidavits submitted in support
of, or opposition to, a motion for summary judgment
"must . . . set out facts that would be admissible in
evidence." Fed.R.Civ.P. 56(c)(4). At trial, experts may
not testify as to the credibility of a fellow witness:
It is a well-recognized principle of our trial system that
determining the weight and credibility of a witness's
testimony belongs to the jury . . . . Thus, this court,
echoed by our sister circuits, has consistently held that
expert opinions that constitute evaluations of witness
credibility, even when such evaluations are rooted in
scientific or technical expertise, are inadmissible under
Nimely v. City of New York, 414 F.3d 381, 397-98 (2d
Cir. 2005) (citations, alteration, and internal quotation
marks omitted). See also Fed. R. Evid. 702.
"[T]he rationale set forth by the Second Circuit could
not be clearer: that the Federal Rules of Evidence do not
allow one party to call an expert to opine about the
tendencies or incentives of the other party's fact
witnesses to lie or not to lie." United States v.
Noze, 255 F.Supp.3d 352, 353-54 (D. Conn. 2017). See
also State v. Greiner, 257 Conn. 797 (Conn. 2001)
(admission of improper expert testimony vouching for the
credibility of child sexual abuse victim was reversible
Dr. Lothstein's opinions as to Doe #9's credibility,
articulated in paragraphs 20, 38, and 40 of his affidavit,
these assessments of Doe #9's credibility were admissible
as evidence, Plaintiffs have not made a compelling case for
their relevance, and admitting these paragraphs would have no
ultimate effect on my resolution of the instant motions.
paragraph 39 of his affidavit, Dr. Lothstein opines,
"This was a high stakes case and in my opinion the
8/11/2011 forensic interview was not properly used as
evidence of an alleged disclosure against George Harasz by
Doe #9. This should have been self-evident to anyone viewing
the forensic interview." Defendants object to the
admission of this paragraph, on the grounds that it draws
conclusions beyond Dr. Lothstein's established expertise.
Ferreira Reply Br. at 4; Glastonbury Def. Reply Br. at 6. I
find that the first quoted sentence is inadmissable, as not
based on any established expertise. Further, to the extent
that Dr. Lothstein's conclusion "should have been
self-evident to anyone viewing the forensic
interview" (emphasis added), the conclusion is, by the
expert's own admission, not a proper application of
expert testimony, which should be limited to circumstances
where "the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue." Fed.R.Evid. 702(a).
foregoing reasons, I find that paragraphs 9, 38, 39, and 40
of the Lothstein Affidavit are inadmissable under the rules
of evidence, and therefore may not properly be considered on
a motion for summary judgment.
Fabrication of Evidence
claims for fabrication of evidence are alleged in Counts Four
and Seven of the Amended Complaint. Those counts named as
defendants Ferreira, Kennedy and Trantalis. The Conversion
Ruling dismissed all claims against Trantalis, who
accordingly disappeared from the litigation and is not
involved in these summary judgment motions.
fabrication of evidence claims against Ferreira and Kennedy
remained, and were converted into motions for summary
judgment. As determined by this Court's prior ruling on
Defendants' Motions to Dismiss, "Counts Four and
Seven may be regarded as duplicative. They will be considered
together." 239 F.Supp.3d at 488.
claims are brought under 42 U.S.C. § 1983, for
fabrication of evidence in violation of Plaintiffs'
Fourteenth Amendment right to due process of laws, and/or
Fourth Amendment right to a fair trial. Amend. Compl.
¶¶ 198-202, 207-10. Plaintiffs allege that
The defendants knowingly created false and misleading
evidence, twisted and blatantly misrepresented the 8/11/2011
forensic [interview] into gross perversion of the facts,
fabricated new "disclosures" which were not
witnessed or corroborated, colluded with each other and
witnesses to create new "disclosures["] for the
sole purpose of winning their case, not in the pursuit of
The fabrication of evidence did not stop with the 8/11/2011
forensic but continued up through September 2014 . . . . From
2011 to 2014, the defendants colluded with each other and
with witnesses, coaching them into new
"disclosures" for the sole purpose of winning their
case . . . .
Id. ¶ 199-200.
ruling on Defendants' Motions to Dismiss, this Court held
that "[i]n the circumstances of this case, and on the
record generated by the present motion to dismiss, it is
apparent that if Plaintiffs are able to prove that the
fabrication of evidence they allege actually occurred,
Plaintiffs have established all the elements of a
constitutional claim against some Defendant or
Defendants." 239 F.Supp.3d at 492. Therefore, to defeat
Defendants' motions for summary judgment on this claim,
Plaintiffs need only establish a material issue of disputed
fact as to whether either Defendant actually fabricated
discussion that follows, the fabrication claims against
Kennedy and Ferreira are considered separately. Kennedy's
case has generated cross-motions: Kennedy moves for summary
judgment on Plaintiffs' claim against him for fabrication
of evidence; Plaintiffs cross-move for partial summary
judgment on liability on that claim against Kennedy. Ferreira
moves for summary judgment on Plaintiffs' claim for
fabrication against her. Plaintiffs oppose that motion, but
do not cross-move against Ferreira for summary disposition.
As to Defendant Kennedy
Defendant Kennedy, much of the Amended Complaint's claim
for fabrication of evidence relies on his alleged
falsification of the arrest affidavit. Specifically,
Plaintiffs assert that Kennedy misstated or misrepresented
statements made by Doe #9 at the August 11, 2011 forensic
interview, which Kennedy observed: "Plaintiffs'
claim is that the statements Kennedy made in his arrest
affidavit in regard to the forensic interview were fabricated
in that they were affirmative falsehoods in which he
deliberately mischaracterized what Doe #9 said, combined with
misleading statements and omissions." Pl. Br. in Opp. to
Glastonbury Def. [Doc 62] at 19.
Conversion Ruling summarized the claim against Kennedy thus:
If when Kennedy drafted the arrest affidavit he knowingly and
deliberately misstated or misrepresented what Doe # 9 said
during the August 11, 2011, forensic interview, with the
intended effect of inculpating one or both Plaintiffs in
criminal offenses in order to obtain a judicial warrant,
Kennedy is probably liable for fabrication of evidence.
. . . .
[T]he merit of Plaintiffs' claim against officer Kennedy
for . . . fabrication of evidence will depend, at the end of
the day, upon two pieces of evidence whose contents cannot
reasonably be disputed. . . .The tape [of Doe # 9's
forensic interview] is available. . . . Kennedy's
affidavit is in the record. . . .Whether the contents of the
affidavit accurately recite the substance of the interview,
or materially misrepresent those contents, is a question
forming the stuff of summary disposition by a trial judge or
fact finding by a trial jury.
239 F.Supp.3d at 496-98.
explained in that Ruling, while these two key pieces of
evidence were both technically available to the Court,
consideration of the tape of Doe #9's forensic interview
was inappropriate on a Rule 12(b)(6) motion to dismiss. The
case has now reached the summary disposition stage, where the
tape, as well as the affidavit, may be considered. In
addition, the Court has received a certified transcription of
the August 11, 2011 forensic interview, filed under seal
[Doc. 50]. The transcript does not substitute for the viewing
of the tape; it cannot convey the "physical setting and
actions" accompanying the words of the interviewer and
interviewee. See 239 F.Supp. at 497-98. Nonetheless,
the transcript, whose accuracy is uncontested, is a useful
common ground of understanding, from which this opinion will
quote at will, considering it an accurate representation of
the words, if not the complete context, of the
August 11 interview.
their Opposition Brief to the Glastonbury Defendants'
Motion for Summary Judgment [Doc. 62] and the supporting Rule
56(a)(2) Statement [Doc. 73], Plaintiffs make repeated attack
upon the third-party sources upon whom Defendant Kennedy
reportedly relied for portions of the arrest affidavit.
See, e.g., Pl. R. 56(a)(2) Stmt. ¶ 3 ("Doe
#9 was forced to attend inappropriate 'therapy'
sessions with Dr. Kagel . . . Doe #9's lack of disclosure
about Daddy Harasz during the 8/11/2011 forensic interview
should have been a red flag that the report of the
alleged disclosure to Dr. Kagel was fundamentally flawed and
thus suspect." (emphasis in the original)). See also
Id. ¶¶ 3, 9-11. To quote this Court's
Conversion Ruling, "Kennedy may have included in his
affidavit unpersuasive or valueless evidence, but he is not
liable for the tort of fabrication of evidence unless he
made it up." 239 F.Supp.3d at 497 (emphasis added).
this opinion will limit its evaluation of the Plaintiffs'
Rule 56(a)(2) Statement to those allegations of fact which
pertain directly to alleged falsehood and misrepresentation
by Kennedy. Factual disputes as to "actual
fabrication or falsification of evidence" are material;
factual disputes as to whether Defendant Kennedy merely
"omitt[ed] potentially helpful information," such
as "interviews with important witnesses and potentially
exculpatory video evidence," are not material, because
such omissions, standing alone, do not state a claim for
fabrication of evidence by Kennedy. See Amory v.
Katz, No. 3:15-CV-01535 (VAB), 2016 WL 7377091, at *9
(D. Conn. Dec. 19, 2016) ("Rather than accusing
[detective defendants] of creating false evidence against
him, Mr. Amory accuses them of omitting potentially helpful
information; namely, interviews with important witnesses and
potentially exculpatory video evidence," accusations
insufficient in law to suggest the detectives
"fabricated evidence in violation of Mr. Amory's
constitutional rights" during the preparation of an
analysis of the fabrication claim against Kennedy will
therefore focus upon Plaintiffs' several assertions that
the affidavit Kennedy drafted, as his application to Judge
Taylor for a warrant to arrest George Harasz, contained
significant material misrepresentations or distortions of
what occurred during the August 11 forensic interview of the
child Doe #9, as revealed by the tape and transcript of that
consider separately Plaintiffs' several criticisms of the
rendition in the Kennedy affidavit of the contents of the
forensic interview. But I preface that analysis by quoting
¶ 8 of the affidavit in its entirety. While the
affidavit describes other incidents at other times and in
different places, ¶ 8 is the place where Kennedy
undertakes to describe the substance of what transpired
during the interview. ¶ 8 states:
THAT the affiant observed the forensic interview of the
victim through a one way glass mirror. The victim was asked
who he lives with and he said, "Daddy" and
"Dad." The victim said that "Daddy" is
"Daddy Harasz." The victim identifies his penis as
his "Weiner." The victim complains of a headache
when he starts to talk about what "Daddy" does to
him. The victim says that he gets in trouble and has to sit
on the steps. The victim then pointed to his
"Weiner" and he said that [name of a sibling, Doe
#5, redacted] made him touch his "Weiner." The
victim said that "Daddy grabbed his weiner" and the
victim yelled, "stop it daddy".
should also be taken of ¶ 14 of Kennedy's affidavit,
which recounts a number of incidents leading Kennedy to the
conclusion that "the victim in this case remained
consistent in what he discloses," and says about the
forensic interview: "During the forensic interview on
08/11/11, the victim stated again, 'Daddy grabbed his
weiner, then the victim yelled 'Stop it Daddy.'"
order to evaluate Plaintiffs' claim that Kennedy
fabricated evidence against Harasz, the Court must carefully
compare the video tape and typed transcript of the Doe
#9's forensic interview. on the one hand, with what
Kennedy said about that interview in the arrest affidavit
submitted to Judge Taylor, on the other hand. That necessity
arises from Plaintiffs' principal contention: the
affidavit repeatedly falsely portrayed what was said or done
during the interview, each time to Harasz's disadvantage.
contend on this motion that ¶ 8 of the affidavit, and
its reprise in ¶ 14, contain a number of instances of
fabrication of evidence by Kennedy. I consider
Plaintiffs' charges separately.
arrest affidavit states at ¶ 8: "The victim
identifies his penis as his 'Weiner'" Plaintiffs
criticize this statement as "misleading" because
"in fact, the term 'weiner' was suggested to Doe
#9 by the interviewer - it does not appear to be a term that
Doe #9 was even aware of." Suppl. Br. [Doc. 60] at 3.
interview transcript at page 8 documents the following
ADULT: Okay. Okay. Now, back to this part, this part
that's circled and you didn't give me a name for it.
Can you give me a name for that, what you use for that part
of your body? Or do you want choices again?
CHILD: I want choices.
ADULT: Okay. Some people call that a penis, some people call
that a wiener, some people call that a pee-pee.
CHILD: (Laughing) A wiener?
ADULT: Yeah. What would you like to call that part?
CHILD: A wiener.
CHILD: (Laughing) That's a funny name.
seem to contend that it was the interviewer, not Doe #9, who
"identified" Doe #9's penis as his
"wiener," given that the interviewer suggested to
the child the use of that term (among others) to signify that
body part. The verb "Identify" is capable of
several applications or meanings.
interviewer presented to Doe #9 three nouns to apply to a
body part, and the child chose "weiner," a word
that apparently amused the child because he prefaced his
choice by laughing. That is the exchange recited by the
transcript and visible on the tape.
fabrication of evidence by Kennedy is discernible in his
description of it in his affidavit. Just as a statute (or a
legal opinion) will be careful to define critical terms,
Kennedy's affidavit accurately defines, for the reviewing
judge, the terms Doe #9 used in the forensic interview. For
the purposes of Doe #9's statements that follow,
"Daddy" means Plaintiff Harasz, and
"weiner" means penis. On this particular point,
Defendant Kennedy has neither fabricated nor falsified any
issue here arises out of references to headaches in
the arrest affidavit written by Kennedy.
¶ 8 of his affidavit, where Kennedy undertakes to
describe the August 11 forensic interview, it is said:
"The victim complains of a headache when he starts to
talk about what 'Daddy' does to him." ¶ 13
of the affidavit says: "The victim complains of a
headache just prior to disclosing things about
'Daddy.'" ¶ 14 says: "The victim
consistently would complain of a headache just prior to him
disclosing a new piece of information." Judging by the
affidavit's phrasing, the references in ¶¶ 8
and 13 relate to utterances made during the forensic
interview. The reference in ¶ 14 to headache complaints
appears to relate to occasions other than the forensic
these summary judgment motions, Plaintiffs "deny the
references to headaches have to do with Daddy as they are
deliberately mischaracterized and taken out of context."
Pl. R. 56(a)(2) Stmt. ¶ 7. Plaintiffs' main brief
[Doc. 51-1 at 4] argues that the quoted sentence from ¶
8 of the Kennedy affidavit "is false and misleading.
From the video it is clear that the 'headache' was
engendered by the interviewer." Similarly, the brief
criticizes the quoted sentence from ¶ 14 as "again
false and misleading, as there was no observable link between
headaches and Harasz from viewing the video. Again, the
headaches are logically induced from the conduct of the
interview." Plaintiffs' supplemental brief [Doc. 60
at 4] returns to ¶ 8 of the affidavit, and says of it:
"Kennedy claimed the victim complains of a headache when
he starts to talk about what 'Daddy' does to him.
misleading and not accurate, as Kennedy attempted to tie
headaches into sexual abuse when in fact Doe #9 referenced
headaches in several contexts. Doe #9's first reference
to a 'headache' is about dad's headache, not his
point of fact, there were three occasions during the forensic
interview when the interviewer asked Doe #9 questions about
physical abuse and/or Plaintiff Harasz and Doe #9 responded
with references to headaches:
ADULT [social worker Ann Glaser]: Okay. You know what,
it's probably better if you show me on the drawings what
happens when you get hugs and kisses .
CHILD [Doe #9]: It gives me a bad headache.
ADULT: It gives you a bad headache? ...