Before the court was back in session on June 9 at 11:00 am, ADA Mohl provided the defense a copy of the interrogation video with enhanced audio, as well as two photographs.
Judge Freehill brought the court to order, but he had a hard time keeping it that way. The defense team had a litany of complaints about the materials they’d just received. Portale made an insincere expression of gratitude over the photographs, before lambasting the prosecutors for not providing them sooner. He was angrier, though, about the audio-enhanced videotape of Angelika’s interrogation. He wanted the judge to force the state to explain why it had taken so long to deliver.
Mohl had issues of her own. She told the judge that the defense had refused to acknowledge receipt of items and instead threw papers from her desk and a paper clip at her. She further explained that the state planned to enter the original version of the videotape, not the enhanced version, in trial, allowing the defense plenty of time to review it beforehand. Portale fired back, saying that he’d requested those materials nearly eleven months ago and accusing ADA Mohl of being dishonest.
The squabbling continued until the judge ordered everyone, including the court reporter, into his chambers. Behind closed doors, the judge made it clear that he was troubled by the 371 inaudible words in the original tape. “Do you really think that, if we render a decision that down the road is part of an appeal, and we base that decision on a tape that was not as enhanced as a later tape, we’re not going to be back doing this in a couple of years, if by chance the defendant is convicted?”
After a volley of questions from the judge and arguments from both sides, the judge decided that the video with the enhanced audio needed to be presented as evidence. He offered the defense more than a week after that day’s proceedings to review the enhanced video.
After lengthy discussion about conflicts, the judge set two days to finish up the proceedings, and after lunch testimony began anew.
The state called Kevin Gardner, a trooper stationed at the Kingston barracks in Ulster County. He’d been employed with the New York State Police for nearly twenty years. For the past thirteen and one-half years, he’d been a team leader for the Troop F segment of the dive team.
On April 28, 2015, he was in the middle of conducting a two-month dive school. On that crystal-clear day, they were performing strikes on the USS Slater, a historic battleship up in the port of Albany. Around midday, he received a call from Senior Investigator Aniello Moscato, asking if a boat was available the following morning to transport him and a couple of other investigators to Bannerman Island, down the Hudson River. He contacted two members of his team, Trooper Lance Rell and Zone Sergeant James Whittle, to see if they could assist.
ADA Julie Mohl asked, “After making those arrangements, or while making those arrangements, did you document that request for transport in any way?”
“I did not,” Gardner said. “It was just a general request to bring some members across the river. It was not involving a search or a dive operation. So, I had no need to write it down.”
“Is that, generally speaking, common practice not to document something like that, where a member is requesting transport?”
“Yes. For something like that, there is no protocol to have to do up an entire report for a brief ride on a boat. If there was something more extensive where we were diving or doing a sonar search, something along those lines that was more extensive, then I would do a dive report.
“My boss was up there with us for the training, my boss in Albany. So most likely, I believe I probably told him, ‘Hey, we’re just putting the boat out.’ That was it.”
Julie Mohl turned over the witness to the defense, and attorney Jeffrey Chartier did the cross-examination. He asked Gardner first for his personal cell number and then for the name of his carrier, causing Mohl to object. The judge sustained, after arguments from the defense.
Then he attempted to get Moscato’s phone number from Gardner but failed. In response to questions, Gardner told the court that he’d spoken directly to Rell and Whittle and they’d agreed to transport the trailered nineteen-foot Boston Whaler, one of three boats they had available, down to Newburgh for the crossing.
Chartier then went into a line of questioning about repairs to the boat on the day in question and gassing up the boat. Gardner did not recall any repairs made to the boat after the trip to Bannerman Island and said the fueling was done at local gas stations since the state police no longer had gas pumps at their barracks.
ADA Mohl objected. “As to the relevance of this line of questioning.”
“I’m hoping that Mr. Chartier is going to make that clear in a moment,” Judge Freehill said.
Chartier said, “I am,” but then proceeded to quibble about how the troopers paid for the gas and badgered the witness about not filing paperwork for the use of a state-owned, taxpayer-paid boat. “What’s the normal procedure for requisitioning a vessel for activity?” he asked.
Mohl objected again. “It’s not relevant for this. Limited scope for a specific day and incident that defense counsel was inquiring about for another witness. We brought in this witness to clarify the issue.”
“Your Honor,” Chartier argued, “he testified in this instance they did not utilize paperwork. I need to know in what instances they would utilize paperwork and why they didn’t do it in this case.”
“Your Honor,” Mohl repeated, “that’s irrelevant for this hearing.”
“First of all,” Freehill said, “the witness told you why he didn’t do it. Because he didn’t think he needed to. That’s the answer. If you want to find out what instances, I’ll give you a little leeway.”
“In what instances are you required to fill out paperwork for use of this vessel?” Chartier asked Gardner.
“Although, he answered that question already to some degree, when he said when there’s diving involved or something else,” the judge interrupted.
Chartier agreed and reworded the question. “A list of all instances in which paperwork would be required?”
“Diving operations, sonar operations, if we’re going out to do a rescue or, you know, if I was going to go out and there was a stranded boater on the river, I would do a report on it. But for just an investigator [asking] us for transport to cross to an island, I didn’t need to do one.”
After that, the proceedings became farcical. Chartier asked a question. Mohl objected. The judge usually sustained. Over and over again. At last, Trooper Gardner was released from the stand.