Douglas Kennedy's attorney didn't hold back at a Thursday court appearance, challenging the credibility of the two nurses who claimed he injured them during over his removal of newborn son Bo from the maternity area.
During the appearance in Mount Kisco Justice Court, which involved an oral argument over a motion by NWH to quash a subpoena, Robert Gottlieb justified his request for information such as more video footage and personnel records of the nurses by noting a need to know the truth.
"We're entitled to test the credibility, the veracity," he said, in making his argument that the defense should get medical records that could verify accounts of injuries.
One of the nurses, Cari Luciano, that she sought medical treatment after she was allegedly struck in her mid-section by Kennedy during the scuffle over Bo. The other nurse, Anna Lane, that he twisted her left arm to stop her from holding onto a doorknob.
"Where's the proof of that?" Gottlieb asked.
"There was no such injury," Gottlieb said about one of the nurses.
The defense attorney also brought up credibility in his request for personnel history of the nurses.
Gottlieb placed her request for records in a June 11 letter. He also wants to get information about the nurses' work records immediate before and after to incident to see if their ability to work was impaired by injuries.
"It would be relevent on their credibility," he said.
On the issue of video footage, Gottlieb demanded copies of what took place two hours before and after the incident, in the section of the hospital related to the matter.
"So what's the relevance of two hours before?" Village Justice John Donohue asked.
Gottlieb replied that the footage will show if the nurses were on the floor and to ascertain witnesses.
"We want the complete before and after for each of the cameras," Gottlieb said at one point. He argued that the footage, provided by the district attorney's office, may not be complete, and that only one of the clips goes substantially beyond, in time, of the incident.
Additionally, Gottlieb argued that the defense has not gotten a copy of the hospital's specific policy that covers infant removal. David Poppick, an attorney for NWH, stated that information packets are given to those checking into the hospital for maternity care, with a provision stating that infants being moved around must be held in a bassinet. However, nurses do have their own policy list.
Poppick argued that because they are not a party to the criminal case, they do not have to meet the same threshold for turning over information. Kennedy is charged with endangering the welfare of a child, a misdemeanor and a crime, and harassment, which is a non-criminal violation.
In general, Poppick argued that the subpoena information is too broad. During the arguments, Donahue appeared skeptical at times regarding the scope of the subpoena request. Gottlieb assured him that there is no intent to be invasive with privacy.
Poppick also doesn't believe that the hospital has any video to give for two hours before and after the incident. He said that footage is taped over, although he told Donohue that he would check on production.
Regarding the nurses' information related to credibility, Poppick criticized the request as violating a legal doctrine that limits using information to impeach people's credibility. The purpose of it, he argued, to to prevent there from being "side trials" and to avoid confusing juries.
Amy Puerto, the assistant district attorney present, expressed similar skeptical sentiments as Poppick. Regarding items from the DA's office, Puerto said, "everything we have has been turned over."
Regarding nurses' medical records, Puerto argued that such information is privileged and that no waivers were signed by them, adding that it would be "a significant invasion of the privacy," of the nurses to turn them over.
Puerto also said that physical injury is not relevent to the crime and that they have no intention of proving it.
In reply, Gottlieb criticized Puerto's remarks about injury proof, and in relation to if, did not rule out asking for a mistrial down the road.
Gottlieb argued that the materials requested relate to Kennedy's constitutional right to confront his accusers. Poppick disagreed, citing case law that places limits on criminal case discovery.
Both sides discussed having Kennedy's side do an inspection of parts of the hospital where the incident was alleged, with parameters for timing and security to avoid privacy conflicts with patients.
Donahue scheduled the next court date for Aug. 9, at 7 p.m., and is expected to rule on the quash motion by then.
After the arguments, Gottlieb talked to reporters and reiterated his position.
“Certainly Mr. Kennedy is no different than anybody else. We’re entitled to defend those charges and therefore we’re entitled to certain basic items."
Gottlieb also criticized the hospital for not agreeing to the subpoena.
“We don’t understand why Northern Westchester Hospital has decided to be obstructionist in this case," he told reporters. "They’re not a party to this, but for some reason the hospital has taken an active role in blocking access to us, to certain basic items that have never been denied in the past.”
One reporter asked why there has not been a plea deal in the case.
“There’s nothing to deal," Gottlieb replied.
Gottlieb was surrounded by members of the New York State Nurses Association, who came out by the dozens, dressed in red t-shirts, to support Luciano and Lane. During his press conference, some held up protest signs that turned into an unplanned background for Gottlieb.
“I so firmly believe in this country," Gottlieb replied to a reporter when asked for comment about the group, noting their right to protest.
The nurses present felt that Kennedy needs to be treated fairly in the case. A call for Kennedy to be charged with felony assault - a 2010 law has been cited for this - was reiterated.
Mary Ellen Warden, a Mount Kisco resident and NYSNA member, said she supports nurses doing their jobs, "and I wouldn't want to see justice minimized in this case."
"We'd like the law to protect us as the law reads," said Eileen Letzeiser, an NYSNA member and nurse at Westchester Medical Center, arguing that assault should be added as a charge.
Kennedy, a Chappaqua resident, and his wife Molly, came out of the courthouse moments later, as the crowd disappated. They did not hold a press conference but Douglas Kennedy briefly answered a few questions as he got into a car. He was greeted with cries of "shame on you!" by several women.