It is conceivable that the facts underlying the case at hand could
support a sufficiently close relationship between Yokemick, Krumm, and
Geraghty that might warrant the admission of the deposition testimony and
the corresponding adverse inference charge against Yokemick. However,
applying the guidelines described above, this Court concludes that the
record shows insufficient evidence of the relevant relationships and the
necessary degree of control to support granting Banks's request.
Krumm and Geraghty were key figures in the litigation because they were
at the scene and presumably held discussions with Yokemick at the time of
the events at issue. Originally they were named as defendants, and thus
at the time of their invocation of the Fifth Amendment, their assertion
of the privilege could have served to advance both their own and
Yokemick's interests in the litigation. However, these witnesses have
since settled with Banks, along with the numerous other defendants named
by Banks. There is no indication that the circumstances that caused the
witnesses to invoke the Fifth Amendment originally still exist, and that
if called to testify in person, they necessarily would take the same
Moreover, Banks's request for an adverse inference rests on the
relationship between Yokemick and Geraghty as police patrol partners and
on Krumm's status as the ranking officer at the scene. Without more,
these ties do not strike the Court as sufficient to establish that
Yokemick could exercise any form of control over Krumm or Geraghty to
guide their testimony or to support a necessary inference that at this
time their interests coincide. It is conceivable that police officers
teamed on patrol could maintain a strained or even hostile relationship,
or no relationship at all.
Ties of patrol partnership are not invariably close enough to sustain a
conclusion that in offering sworn testimony one officer will always seek
ways to protect the other. In theory, the claim of a Fifth Amendment
privilege by Krumm and Geraghty may be consistent with their desire to
protect only their own interests, without regard to Yokemick's. Because
the record is devoid of a sufficient indication of Yokemick's actual
relationships with Krumm and Geraghty, the Court cannot conclude that the
introduction of the deposition evidence Banks requests and the negative
inference charge would be appropriate.
Finally, in this case Yokemick and the two witnesses were not charged
with a unitary act or common scheme of misconduct, such as conspiracy or
fraud, that would easily permit the transference to Yokemick of a
negative inference from one witness' refusal to testify under a claim of
privilege. See e.g., Brinks, 717 F.2d at 708; John Paul Mitchell Sys. v.
Quality King Distribs., Inc., 106 F. Supp.2d 462, 471 (S.D.N.Y. 2000).
The roles Banks alleges Krumm and Geraghty played in Kenneth Banks's
death are substantially different from that of Yokemick. Accordingly, as
formulated, Banks's request for the jury to draw an adverse inference
against Yokemick arising from Krumm's and Geraghty's invocation of the
Fifth Amendment naturally raises a question: adverse inference of what?
In the Court's view, such an inquiry under the circumstances presented
here would not necessarily advance the search for truth.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that defendant Yokemick's renewed motion for a stay of this
action is denied; and it is further
ORDERED that defendant Yokemick's request for a determination that he
is entitled, pursuant to G.M.L. § 50-k, to representation and
indemnification by the City
of New York is denied, subject to further
proceedings consistent with this Decision and Order; and it is further
ORDERED that plaintiff Banks's request for a jury instruction
permitting the jury to draw an adverse inference against Yokemick by
virtue of the invocation of the Fifth Amendment privilege against
self-incrimination by police officers Krumm and Geraghty is denied.