COMMONWEALTH OF MASSACHUSETTS
`
`SUPERIOR COURT DEPARTMENT
`C.A. NO: 1780CV00033
`
`HAMPSHIRE, 558
`
`PATRICK BUCHANAN AND
`TODD DODGE,
`Plaintiffs,
`
`v.
`
`TOWN OF GREENFIELD
`and
`ROBERT HAIGH,
`Defendants
`
`DEFENDANTS’ MOTION FOR A MISTRIAL
`
`As of the fourth day of this trial, April 14, 2022, the Court’s rulings regarding the
`
`Confederate Flag have placed the Defendants in an impossible position with respect to defending
`
`this case. The court has ruled that non defendant, Daniel McCarthy, exercised his First Amendment
`
`right when a confederate flag was displayed inside his garage’. This ruling necessarily meansthat
`
`the Defendants could not discipline him.It must also mean that the Department could notconsider
`(i.e. punish) McCarthy for that lawful exercise ofspeech when it considered McCarthyforeither
`future discipline or future promotions. The court had previously held that the flag could be usedto
`
`show that “McCarthy and others” harbored racial animus towards Buchanan, and subsequently
`
`struck “and others” from that ruling. Asa result, it appears that the plaintiff can argue that the jury
`
`can find that the flag can show that McCarthy harboredracial animus-towards Buchanan. Based
`
`‘ “Upon consideration ofcounsels[”] argument, I have reconsidered my order below. My decision and order of April
`8, 2022 (#74) is amended to provide that comparator evidenceas to McCarthy is inadmissible for the reasons
`substantially set forth in Defendants motion to reconsider. Invall other respects, defendants motion remains denied.”
`(Court’s Amended Order, dated April 11, 2022).
`HAMPSHIRE SUPERIOR COURT
`
`i
`
`APR 1-4:2022
`
`HARRY JEKANOWSHI, JR.
`CLERK/MAGISTRATE
`
`
`
`SUPERIOR COURT DEPARTMENT
`C.A. NO: 1780CV00033
`
`HAMPSHIRE, 558
`
`PATRICK BUCHANAN AND
`TODD DODGE,
`Plaintiffs,
`
`v.
`
`TOWN OF GREENFIELD
`and
`ROBERT HAIGH,
`Defendants
`
`DEFENDANTS’ MOTION FOR A MISTRIAL
`
`As of the fourth day of this trial, April 14, 2022, the Court’s rulings regarding the
`
`Confederate Flag have placed the Defendants in an impossible position with respect to defending
`
`this case. The court has ruled that non defendant, Daniel McCarthy, exercised his First Amendment
`
`right when a confederate flag was displayed inside his garage’. This ruling necessarily meansthat
`
`the Defendants could not discipline him.It must also mean that the Department could notconsider
`(i.e. punish) McCarthy for that lawful exercise ofspeech when it considered McCarthyforeither
`future discipline or future promotions. The court had previously held that the flag could be usedto
`
`show that “McCarthy and others” harbored racial animus towards Buchanan, and subsequently
`
`struck “and others” from that ruling. Asa result, it appears that the plaintiff can argue that the jury
`
`can find that the flag can show that McCarthy harboredracial animus-towards Buchanan. Based
`
`‘ “Upon consideration ofcounsels[”] argument, I have reconsidered my order below. My decision and order of April
`8, 2022 (#74) is amended to provide that comparator evidenceas to McCarthy is inadmissible for the reasons
`substantially set forth in Defendants motion to reconsider. Invall other respects, defendants motion remains denied.”
`(Court’s Amended Order, dated April 11, 2022).
`HAMPSHIRE SUPERIOR COURT
`
`i
`
`APR 1-4:2022
`
`HARRY JEKANOWSHI, JR.
`CLERK/MAGISTRATE
`
`
`
`on the testimonyasit camein today, April 14, 2022, there is absolutely no evidence that McCarthy
`
`had initiated or participated in this investigation in any way.
`
`There is no dispute that McCarthy received information from then Officer Clark indicating
`
`that Buchanan may have violated Greenfield Police Rules. The policies and procedures of the
`
`Greenfield Police Department require all police officers to report any behavior that might violate
`
`the rules to a supervisor. Joint Exhibit 18, Greenfield Police Department Rules and Regulations,
`
`Rule 13.5 Report Rule Violations, (“Officers shall, upon observing or otherwise becoming aware
`
`ofa violation by another officer or employee ofthe department's Rules and Regulations ofPolicies
`
`and Procedures, as set forth in this Manual or by other departmental directives or as governed by
`
`law, report said violations to their superior officer who will be responsible for appropriate action,
`
`report submission and follow-up). Buchanan admitted today that his conductas alleged violated
`the rules, Clark an officerat the time, disclosed Buchanan’s behaviorto his supervisor, McCarthy,
`
`who then reported the informationto Lt. Burge.It is undisputed that McCarthy is not a party, not
`
`a decision-maker, nor did he have any supervisory authority over the Plaintiff. Buchanan testified
`
`that the only evidence he possessed to support McCarthy’srole in this is that he is listed as the
`
`“complainant” in the ultimate IA conducted by Burge. There is no evidence to suggest that the
`
`information McCarthy passed or exaggerated was false or exaggerated; indeed, the investigation
`
`by Burge confirmed everything that McCarthy passed on.
`
`The Plaintiffs have called Sgt. McCarthy “patient zero” who turned a “complimentinto a
`
`complaint.” But this is not true, and not what Buchanan testified to. Theletter itself states that
`McCarthyfelt, “in ofitself, I did not find a problem.” (Exhibit1to Motion for Reconsideration).
`In fact, McCarthy indicated that he was “notsureifthis is an issue.” Ja. McCarthy did not advocate
`
`
`
`for any action to be taken as to PlaintiffBuchanan. Jd, McCarthy had no further involvement in
`
`the investigation, did not participate in the decision to discipline, nor is it disputed that the
`
`investigation uncovered independent facts to support Plaintiff Buchanan acted inappropriately in
`
`the performance ofhis duties, and an independentarbitrator decided that a written warning and a
`
`demotion were the appropriate ways to discipline Buchanan, rather than a suspension and a
`
`demotion. Buchanan testified that Burge, who made factual findings in the IA, was not motivated
`
`by racial animus, and that Mayor Martin, who upheld the Chief’s decision and felt that Buchanan
`
`deserved worse discipline, was also not motivated by racial animus.
`
`The court’s decision to admit the evidence of the flag to show the racial bias of McCarthy
`
`constitutes reversible error and has incurably prejudiced the jury. The confederate flag fs an
`
`extremely divisive issue in today’s society; however, the Constitution allows citizens to displayit.
`
`Allowingthe plaintiffs to suggest that McCarthy has racial animus towardsthe plaintiff because
`
`the flag was in his garage is entirely improper. It is also highly confusingand misleading.? The
`
`central issue in this case is the state of mind of the Chief Haigh when making decisions regarding
`
`discipline and promotions. The court hasruled,rightly, that the City could not punish McCarthy
`
`for engagingin protected speech. The Plaintiffs now wish to use the flag to show that McCarthy
`
`harbored racial animus when hepassed a report from anofficer up the chain of command.This is
`
`reversible error.
`
`As hasalready been briefed extensively, McCarthy is, at best, a peripheral participant in
`
`oneeventin this case. He expressly took no position on the matter; in fact, he said he did nor think
`
`it was an issue.
`
`
`2 Particularly where the Plaintiff also testified that someoneelse in the Department drove around with a confederate
`flag on his car and that the Plaintiff did not consider them to beracist.\=]
`
`
`
`Finally, the only legal support that the court has providedto sustain its decisions is Bulwer
`
`v. Mount Auburn Hospital, 473 Mass. 672, 684-88 (2016). As the Defendants have pointed out on
`
`a numberof occasions now, Bulwer is wildly inapposite; in Bulwer, individuals in the workplace
`
`were leaving white supremacistliterature in the workplace andthe plaintiff complained about the
`
`literature to the employer, who refused to investigate. This case is entirely distinguishable; 1) the
`
`speech at issue was displayed nowherenear the workplace; and 2) the Plaintiffnever complained
`
`about the flag or requested an investigation. Notably, while the Buiwver court considered the
`
`evidence for purposes of summary judgment,
`
`it took no position on the admissibility of the
`
`evidence, highlighting that its admissibility was a question forthetrial judge. id. atn.16. Applying
`
`the holding in Bulwarto the facts of this case is not appropriate.
`
`For these reasons, the court should grant the Defendants’ Motion for a Mistrial and this
`
`matter should be resetfortrial with any inflammatory evidence of McCarthy’s private display of
`
`the Confederate flag inside ofhis residence properly excluded.It is certain that the Defendants can
`
`no longer receive a fair trial because the Court allowed into evidence an irrelevant and
`
`inflammatory issue, and the prejudice caused cannot be cured. The Defendants expressly
`
`incorporate by reference their previously filed Motion for Reconsideration and Motion in Limine
`
`preemptively addressing in painstaking detail the harm that would result from the admission of
`
`such evidence, and the numerouslegaljustifications for why it should have been excluded.
`
`CONCLUSION
`
`For these reasons, the Defendants’ Motion for a Mistrial should be allowed.
`
`Respectfully submitted,
`
`
`
`The Defendants,
`Townof Greenfield and Robert Haigh,
`Bytheir attorneys,
`
`fs/ Leonard FL. Kesten
`Leonard H. Kesten, BBO No. 542042
`Erica Brody, BBO No, 681572
`Brody, Hardoon, Perkins & Kesten, LLP
`699 Boylston Street, 12th Floor
`Boston, MA 02116
`617- 880-7100
`Ikesten@bhpklaw.com
`ebrody@bhpklaw.com
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that the foregoing document was served this day via email to the Court
`via email to [Patricia.shepherd@jud.state.ma.us and hampshire.clerksoffice@jud.state.ma.us and
`
`to counsel of record Timothy J. Ryan [tjr-@efclaw.com] and Michael G. McDonough
`
`[mgm@efclaw.com]. Theoriginal ofwhich will be hand delivered to the Court for docketing and
`
`filing on Tuesday April 19, 2022.
`
`Dated: April 14, 2022
`
`
`/s/ Leonard H, Kesten
`Leonard H. Kesten, BBO No. 542042
`
`
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