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When Morris County, N.J., replaced its grand jury stenographer with a tape recorder this year, it looked like another defeat for humans in the war with technology, but a suit claims the First Amendment also lost. Former reporter Kim Mahoney charges in a U.S. District Court complaint in Newark, N.J., that Morris County Prosecutor John Dangler’s switch to audio wasn’t an economy move. It was in retaliation for her outspoken accusation that Denville, N.J., police officers had brutalized her brother during an arrest, the suit says. Mahoney’s verbal attack in August 1999 prompted some Denville police officers to refuse to testify at grand jury proceedings in which she served as stenographer. So on March 15, Dangler ousted her — in violation of her First Amendment rights, according to the civil rights complaint filed in June, Mahoney v. Morris County Prosecutor’s Office, Civ-00-2738(WGB). Answers by lawyers for named defendants Dangler and Denville Police Chief Steven Boepple say the charges are false, as are some of the comments attributed to the defendants in the complaint. And pleadings by both sides suggest that the suit is more than a free-speech case and more than a sideshow to the long-running saga of recordings versus reporters in New Jersey. It raises ethical questions about the relationships between people who testify and those who transcribe their words. Mahoney of Rockaway, N.J., had yearly contracts from 1990 to 1998 to stenotype and transcribe Morris County grand jury proceedings. And though she didn’t sign a renewal when the last deal expired in November 1998, she had continued working under the previous contracts’ terms, the suit says. In April 1999, her brother, Bruce Yaeger, also of Rockaway, was arrested for having outstanding traffic warrants. Officers testified later that when they seized him, he appeared to swallow a small packet of what looked like drugs, there was a fight, and he was charged with attempted concealment of controlled dangerous substances. Records on file in Denville Municipal Court show that on Nov. 3, 1999, some charges against him were dismissed, but he was found guilty of traffic and drug concealment offenses and fined more than $1,200. Mahoney apparently felt her brother had been roughed up and deprived of his rights by the Denville police, and four months after the arrest she got a chance to express her feelings to Denville Detective Paul Nigro, the suit says. After an August 1999 grand jury proceeding in Morristown, N.J., that had nothing to do with her brother, Mahoney stepped out of her role as court reporter and began complaining to Nigro that his colleagues in the Denville department had assaulted her brother, failed to inform him of his rights, including his right to counsel, and had refused to let him use a toilet. The suit says Nigro recoiled at her accusation and said he, in turn, would complain about her to his bosses. At a subsequent grand jury proceeding involving Denville officers in September, Chief Boepple gave her a dirty look. The upshot was this: Mahoney was told by prosecutors that another reporter would be used for subsequent proceedings at which Denville officers testified. Although it’s not mentioned in the pleadings, Denville police officers were before the grand jury often during 1999. In June, police officers fatally shot a driver, Stanton Crew, who had tried to elude them wildly during a chase on Route 80, and a Morris County grand jury investigated the officers for criminal wrongdoing. Among those who fired shots was a Denville patrol officer, and he and other Denville officers were called to testify. All the officers were eventually cleared of criminal wrongdoing. In general, though she was told she wouldn’t report on any cases involving Denville, Mahoney did, in fact, serve as stenographer on some such cases in 1999. But this past February, two officers refused to testify at a hearing because Mahoney was the reporter, the suit says. On Feb. 29, Dangler himself got involved. He told Mahoney she shouldn’t have said anything to Nigro about her brother’s arrest; indeed, the complaint paraphrased Dangler as saying, “There was nothing wrong with Denville police officers punching plaintiff’s brother in order to make him cough up drugs that they claimed he had swallowed when he was arrested.” Dangler concluded that Mahoney had to satisfy Boepple, or Dangler would find someone else to transcribe Morris County grand jury proceedings, the suit says. Satisfaction never came. On March 15, Dangler told Mahoney that the grand jury “would no longer need her services because they were going to replace plaintiff with a tape recorder,” the suit says. Dangler declines to comment, and the county’s special outside counsel, Daniel O’Mullan of O’Mullan & Brady in Whippany, N.J., was on vacation last week and couldn’t be reached. Boepple’s lawyer, James Higgins, a solo practitioner in Florham Park, N.J., declines to comment. Answers filed by defense counsel suggest that Mahoney’s comments to Nigro and her service as reporter were a contentious issue. There’s also no claim in the defense pleadings that the prosecutor’s office had planned to switch to audio before the problem with Mahoney arose. The defense denied in its answers that the police chief gave Mahoney dirty looks, and said that Dangler was misquoted in the complaint. They also said police had done nothing wrong to Mahoney’s brother. Although it’s not discussed in the pleadings, one of the questions raised by the suit is whether it was right for Mahoney to even engage Nigro in a debate in the first place or to continue reporting on cases involving a police department with which she had an adversarial position. On these questions, the National Court Reporters Association’s Code of Professional Ethics is a bit vague. Point 2 of the 10-point code says reporters should be alert to situations that are conflicts of interest or may give the appearance of a conflict of interest. Point 3 says members should guard against not only the fact but also the appearance of impropriety. A lecturer on reporter ethics, Barry Wiegmann of the Edison, N.J., reporting service Schulman, Ciccarelli & Wiegmann says berating a witness about a personal matter “is kind of unprofessional, especially when you’re on the job.” “It sounds like she’s letting her personal feelings interfere with her work,” he says. “She probably should have excused herself.” The plaintiffs’ lawyer, Christopher Lenzo, says, however, that Mahoney created no conflict of interest by exercising her right to say what she felt. She certainly hadn’t hidden her feelings, and there was never an allegation that anything was wrong with any of the services she provided at proceedings in which Denville officers testified. “Nobody has accused her of doing anything wrong,” says Lenzo, of Francis, Lenzo and Manshel in Millburn, N.J. Even if there was a conflict, putting her out of work on all cases was going too far, Lenzo says. Lenzo says it is his understanding that Morris County had been offered an opportunity to switch its grand jury recording system to audio several years ago, but decided to stick with a reporter because, like many lawyers, prosecutors prefer human stenographers to tapes. Wiegmann says most county prosecutors switched to the use of audio in the grand jury in 1993 and 1994. Another issue likely to arise is whether the county owed Mahoney a duty under the civil rights law, 42 U.S.C. 1893. Morris County Counsel Ronald Kevitz says he doesn’t know much about the case, but he points out that Mahoney was neither an employee of the county, nor was she under contract. The last written agreement for her services expired in November 1998. Lenzo says, however, that the conditions of her service remained the same, even though there was no written contract, and that there are U.S. Supreme Court decisions banning retaliation by government bodies against vendors for exercising constitutionally protected rights. A case on point, he says, is B oard of County Commissioners v. Umbehr, 518 U.S. 668 (1996), which protected the rights of a trash hauler who lost a contract when he made critical comments about municipal officeholders.

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