Michael Lank — Voir Dire

MR. YANNETTI: No.

MR. YANNETTI: I understand.

MR. YANNETTI: Okay. So that portion that I just read, it's essentially all I'm going to ask him.

MR. YANNETTI: It's on the first page. It shows the incident number, the call number, date and time report, report date and time and reporting officer. That's it. That's all I was going to read from there, and then I was going to reference the photo. Where I'm going with this, Your Honor, is his identical information that I'll have him corroborate, the -- altered and changed. We've blocked out any, you know, compromising information. I'm not seeking any other portion of the report, but I'd like to show the jury that and then a closeup of that photo, show the jury this and then a closeup of that photo.

MR. YANNETTI: This actually shows a piece of taillight that was not in the original photo. It's a completely different photo.

MR. YANNETTI: He has not seen this yet.

MR. YANNETTI: I mean, I think I might be able to -- finish by four? No. Apparently not. I don't have that much more. Probably more than 15 minutes.

MR. YANNETTI: My concern, Your Honor, froma strategic standing and also with regard to sequestration, I have now shown my cards.

MR. YANNETTI: I get that. My point is I don't want the Commonwealth to be revealing to the witness where I'm going with this.

MR. YANNETTI: Okay. That's all.

MR. YANNETTI: I understand.

MR. YANNETTI: That's fine, Your Honor. Yes. We can do that.

MR. JACKSON: That's fine.

MR. YANNETTI: Is he here?

MR. JACKSON: May I, Your Honor?

MR. JACKSON: Thank you for joining us late in the afternoon, Sergeant Lank. I am going to direct your attention to your relationship with the Albert family and some of the members of the Albert family. Do you know who Tim Albert is?

MR. JACKSON: Do you know who Chris Albert is?

MR. JACKSON: Do you know who Brian --

MR. JACKSON: I'm so sorry.

MR. JACKSON: Could you please state your name and spell your name for the record, please?

MR. JACKSON: Michael, common spelling?

MR. JACKSON: I'll start over. Do you know Tim Albert is?

MR. JACKSON: And do you know who Chris Albert is?

MR. JACKSON: And do you know who Brian Albert is?

MR. JACKSON: How do you know Tim Albert?

MR. JACKSON: How long have you known Tim?

MR. JACKSON: What about Chris Albert?

MR. JACKSON: How long have you known Chris?

MR. JACKSON: And how would you describe your relation with Chris Albert?

MR. JACKSON: Still socialize with him?

MR. JACKSON: When did you last socialize with Chris Albert?

MR. JACKSON: What about Brian Albert? How would you describe your relationship with him?

MR. JACKSON: Friendly?

MR. JACKSON: But you're closer to Chris?

MR. JACKSON: Have you ever described yourself as being a longtime, quote, ungquote, "drinking buddy" with Chris?

MR. JACKSON: Would you describe yourself previously in years past as being a drinking buddy of Chris?

MR. JACKSON: Have you ever gone out for drinks with Chris?

MR. JACKSON: So you've socialized with him in circumstances in which y'all are drinking and imbibing?

MR. JACKSON: Your relationship with Chris certainly goes all the way back to 2002?

MR. JACKSON: Right. Back in 2002 in August while you were off-duty, were you out either drinking with Chris or in some way at a restaurant or a bar with Chris?

MR. JACKSON: Were you close in proximity to Chris when he was out drinking and at a bar?

MR. JACKSON: Was he at a restaurant?

MR. JACKSON: Were you at a bar?

MR. JACKSON: At some point, did you realize that Chris was getting into some sort of a physical altercation with somebody else in a parking lot?

MR. JACKSON: Did you jump into a fistfight in order to protect Chris Albert?

MR. JACKSON: When you say your vehicle, your personal vehicle?

MR. JACKSON: So you were off-duty; is that right?

MR. JACKSON: And you had been drinking?

MR. JACKSON: There's nothing wrong with that.

MR. JACKSON: But it just so happens that you had been drinking that afternoon?

MR. JACKSON: Tim Allen was with Chris, correct?

MR. JACKSON: Okay. Ultimately when you realized that Chris Albert was in some sort of fracas, some sort of fight or altercation, you activated yourself as a police officer at the time?

MR. JACKSON: So that would be Mark LoPilato, correct?

MR. JACKSON: And his brother, Alfred?

MR. JACKSON: Alfredo. Sorry. You got out of your car and approached the other men?

MR. JACKSON: You also called for a Canton Police backup?

MR. JACKSON: The Canton Police did, in fact, arrive, correct?

MR. JACKSON: Isn't it true that after you got involved and Canton Police arrived, you then instructed some of your colleague police officers to handcuff Alfredo?

MR. JACKSON: Isn't it true that Alfredo was handcuffed and for all intents and purposes physically incapacitated, you then approached Mark LoPilato?

MR. JACKSON: You got into a fight with Mark LoPilato, though, didn't you?

MR. JACKSON: You punched him in the face?

MR. JACKSON: So your story is he struck you first and then you punched him?

MR. JACKSON: His story, of course, is you punched him first.

MR. JACKSON: Well, you were sued in federal court and he told you his story in that lawsuit, correct?

MR. JACKSON: I will never ask you what the nature of any settlement in that case was, just the fact that you were sued and a public document, which a federal lawsuit is a public document, you were sued in federal court over this incident I'm talking about, correct?

MR. JACKSON: And ultimately it was settled. I'll never ask you what the terms of the settlement are because that's confidential.

MR. JACKSON: Ultimately, you said that the criminal case was adjudicated. We'll get to that in just a second. Did you testify at that criminal case?

MR. JACKSON: I want to sort of tailor this a little bit because we are on a little bit of a time crunch and I want to be sensitive to the Court's time and your time. The allegation that Mark LoPilato made against you is that you punched him, took him to the ground, continued to beat him and bit him to the point of drawing blood, correct?

MR. JACKSON: It then indicated that once the police officers that were there pulled you off of him, you then turned and walked over to Alfredo while he was still incapacitated, meaning physically handcuffed, and spat in his face?

MR. JACKSON: Ultimately, both men after this altercation were allowed to leave the location, correct?

MR. JACKSON: Okay. You're telling me now that Mark LoPilato punched you first, a police officer, correct?

MR. JACKSON: And are you aware of any circumstance in which an individual would be able to punch a police officer on duty or off duty in the presence of other police officers and just be released? That wouldn't happen, would it?

MR. JACKSON: Did you tell them that you got punched?

MR. JACKSON: They certainly let Mark go, correct?

MR. JACKSON: Okay.

MR. JACKSON: So the next day, Mark and Alfredo showed up at Canton P.D. to file a complaint against you and some of the other police officers that were involved, correct?

MR. JACKSON: You didn't file a report for assault or battery or anything like that, correct?

MR. JACKSON: My question is on that night, did you file a report?

MR. JACKSON: The next day did you file a report?

MR. JACKSON: It was actually three days later; wasn't it?

MR. JACKSON: Okay. Does it sound like it's in the time frame? It probably was about three days later?

MR. JACKSON: But between the time this fight happened and you filed a report, Mark LoPilato and his brother, Alfredo, came into Canton P.D. and asked to swear out a complaint against you and fellow officers, correct?

MR. JACKSON: And they were told to go away on that day?

MR. JACKSON: By the time they came back to file the complaint, then police reports had been written, right?

MR. JACKSON: Once those police reports were written after they indicated that they wanted to file a complaint, ultimately charges were brought against them, correct?

MR. JACKSON: After charges had been brought and both brothers ended up having to go to court and defend themselves, you ran into both brothers at a Mobil gas station?

MR. JACKSON: You confronted both brothers, correct?

MR. JACKSON: You approached both brothers?

MR. JACKSON: Isn't it true that you walked up and said, how you doing, to the two guys and one of them responded, not so good. You attacked me, and now I've got to go to court. Wasn't that the conversation?

MR. JACKSON: Did you say, how are you doing?

MR. JACKSON: And did they respond something to the effect of I'm not doing so good because you attacked me and now I've got to defend myself in court?

MR. JACKSON: And then, based on that interaction, you arrested them for witness intimidation, correct?

MR. JACKSON: So your claim now is that they made threats against you, a sitting police officer at the time? A working police officer.

MR. JACKSON: Okay. And you reported that threat to the D.A.'s office?

MR. JACKSON: And charges were brought against them? I'm sorry. A report was brought against them for that witness intimidation, correct?

MR. JACKSON: Ultimately, with regard to the assault charges for which they were arrested and tried, they were found not guilty in a public adjudication, criminal case, correct?

MR. JACKSON: And the D.A.'s office threw out the witness intimidation charges because they were meritless; isn't that right?

MR. JACKSON: And all of this history that we've just talked about came on the heels of you assisting Chris and Tim Albert ina fight they said they'd been in earlier in the evening; is that right?

MR. JACKSON: You just told us that the reason you got involved is this melee, this fight to begin with, was because Chris Albert approached you and said, I was in a fight with some guys earlier tonight and here they come?

MR. JACKSON: My mistake. Let's just leave it at Chris.

MR. JACKSON: Okay. So all of this situation emanated from you coming to the aid of Chris Albert, your friend, longtime childhood friend, correct?

MR. JACKSON: Isn't it true that it had everything to do with it being Chris Albert?

MR. JACKSON: So just a regular random guy off the street, you would have conducted yourself the exact same way?

MR. JACKSON: Isn't it true that what you actually did, Sergeant Lank, in that particular circumstance was you came to the aid of a friend and you used your position as a police officer to further that assistance and that protection?

MR. JACKSON: That's all I have, Your Honor.

MR. JACKSON: I have one slight area to cover, with the Court's permission?

MR. JACKSON: Concerning Tim Albert and this issue or the investigation where charges were brought against Tim Albert, that was a circumstance in which Tim Albert, in broad daylight, slammed into a parked car belonging to a woman and then fled the scene, correct?

MR. JACKSON: Didn't you follow a trail of transmission fluid or something to find where he had gone?

MR. JACKSON: And he fled directly to 34 Fairview, correct?

MR. JACKSON: He didn't live there. He went to his brother's house, Brian?

MR. JACKSON: He lived there at the time?

MR. JACKSON: Okay. So you followed the trail of whatever it is, fluid trail, all the way to where Tim Albert had fled to. And you basically had no choice. He had just slammed into the back of a car and then fled the scene; isn't that right?

MR. JACKSON: The vehicle that he hit?

MR. JACKSON: His vehicle had heavy damage, but so did the vehicle that he hit, correct?

MR. JACKSON: Oh, he hit a moving car?

MR. JACKSON: Okay. Irrespective of whether the engine was running or it was parked or not, he hit a car --

MR. JACKSON: -- with a woman in it, fled the scene. Then you find him trying to hide out at 34 Fairview, correct?

MR. JACKSON: And you didn't have much choice. I mean, there you have it. The evidence is right in front of you. You can't really cover that one up, right?

MR. JACKSON: Okay. Did you engage in any kind of a DUI investigation?

MR. JACKSON: Did you give him FSTs?

MR. JACKSON: Did you give him a Breathalyzer?

MR. JACKSON: Did you ask him for a blood test?

MR. JACKSON: So no DUI investigation was really undertaken, correct?

MR. JACKSON: But you didn't do it? You didn't do what I just suggested, a full-blown DUI investigation?

MR. JACKSON: Even though he hit another car and then fled the scene?

MR. JACKSON: And that explanation, coming from Tim Albert, was, I'm really sorry, I panicked, right?

MR. JACKSON: And he turned around -- well, I'll just cut to the chase. Y'all ended up charging him with a misdemeanor, correct?

MR. JACKSON: And he was given diversion?

MR. JACKSON: And his record was wiped clean?

MR. JACKSON: That's all I have.

MR. JACKSON: Thank you, Your Honor. I'll be very brief. I spoke about the Aguiar case a couple of days ago, and I think it's still attendant to our conversation today or discussion today. That case stands for the proposition that it doesn't matter if the evidence reveals something other than -- something that's otherwise inadmissible as long as the material elaborates on or establishes that there could be some kind of bias or prejudice. There doesn't have to be a bias or prejudice. I don't have to prove beyond a reasonable doubt or to a clear and convincing evidence that there is a bias or prejudice. But, if the evidence suggests that there could be bias or prejudice, that is proper fodder for the jury to consider, and that's what we're asking. In this case, Sergeant Lank's willingness to activate himself as an officer, get involved with Chris Albert, although it was in 2002, and I know that that's something that Mr.

Lally is going to say and he's going to harp on that this was so long ago, that actually cuts against the Commonwealth's case. That shows how long these folks have been involved with each other and how deep their relationships run. For him to sort of deputize himself in that Situation in order to help out his longtime friend whom he socializes with, drinks with, grew up with, establishes a bias and a prejudice in this case against Ms. Read and in favor of the Alberts. And it's not like he had a tangential part to play or role to play in this investigation. He was the very first officer to walk in that front door. He absolutely knew what he was going to find when he walked in the front door, which was the homeowners and possibly other witnesses. He engaged in an interview or a series of interviews that were not recorded. I have no idea what was said. The jurors are never going to find out exactly what was said other than to take his word for it.

The jurors have to be able to weigh and balance his credibility against an officer that, for instance, even like Sergeant Goode, for instance, who seems to come across far more unbiased, just sort of a straight shooter. Sergeant Lank is not that person. He never should have walked in that front door. He should have said to his supervisors, I have a relationship with the Albert family. I've known these folks for too long. I grew up with his brother or brothers. I've known them my whole life. I am probably not the right person to make the decisions about this investigation. And unless and until the jurors know that and can weigh and balance it, they can toss it out if they want to, or they can adopt it if they want to. The point is, they need to be able to hear the evidence.

MR. JACKSON: Yes.

MR. JACKSON: So the LoPilato brothers I think --

MR. JACKSON: I disagree. I think they are the ones that are closest to the situation. So we would ask the -- who's better to tell the jurors that they walked in -- I can get the police report. TI can tell the Court when it's dated. It's dated September 2nd or September 3rd, and the LoPilatos walked in on August 3lst to make a complaint.

MR. JACKSON: Right.

MR. JACKSON: I think --

MR. JACKSON: Sure.

MR. JACKSON: I would probably seek to do it with the Court's permission through two pieces of evidence. One would be Mark or Alfredo, but I don't think I would use both of them.

MR. JACKSON: I would not. I would seek to ask Mark to join us. He would testify to the altercation. He would testify to the complaint. And then I would seek to either get a stipulation to the date of the police reports. I don't even need the police reports in. If I can't get a Stipulation, then I probably would just ask the Court to be able to establish that the police report is a business record --

MR. JACKSON: That would be fine, if I have them. I will do my best to get them to the Court. I can't get them to the Court tonight. We don't have them.

MR. JACKSON: So I will start working on that immediately.

MR. JACKSON: No, Your Honor.

MR. JACKSON: We will do our best.

MR. JACKSON: Thank you, Your Honor.