SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF DUTCHESS

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STEVEN A. PAGONES,

Plaintiff,

DECISION

- against -

 

Index No. 4595/88

ALTON H. MADDOX, JR., C. VERNON

MASON, AL SHARPTON and TAWANA BRAWLEY,

Defendants.

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HICKMAN, J.

On October 6, 1988, the Abrams Grand Jury released its extensive and thorough 170 page report concluding that Tawana Brawley ("Brawley") had not been abducted, assaulted, raped and sodomized as had been claimed by Brawley and her advisors. The report further concluded that the "unsworn public allegations against Dutchess County Assistant District Attorney Steven Pagones" were false and had no basis in fact. To issue the report, the Grand Jury heard from 180 witnesses, saw 250 exhibits and recorded over 6,000 pages of testimony.

Sometime thereafter, Steven A. Pagones ("Pagones") brought a defamation action against Alton H. Maddox, Jr., ("Maddox") C. Vernon Mason ("Mason") and Rev. Al Sharpton ("Sharpton") and also sought damages against Brawley. The claims in paragraphs 336 through 364 of the complaint against Brawley were based on her alleged responsibility for "the acts, statements, accusations spoken or committed by the defendants, Maddox, Mason and Sharpton" on her behalf (paragraph 339) as wellas her specific statements made on or about June 12, 1988 on WABC-TV (Channel 7 News) as follows (paragraph 347):

"Our family is very strong and we know what we’re doing and approve of everything the Rev. Al Sharpton said and our lawyers said."

"I know everything that is said in my name. I won’t actually say I’m in control, but I agree with everything they’re doing."

Plaintiff further claimed that Brawley knew that the "accusations, statements and words were false and untrue" and that she subsequently ratified and reaffirmed the acts, conduct, statements and accusations made by defendants Maddox, Mason and Sharpton who were found on July 13, 1998 by the jury to have defamed plaintiff. Brawley was also alleged to have intentionally inflicted emotional harm upon plaintiff and to have been a part of a conspiracy.

Brawley and her family left the State of New York in 1988 having intentionally failed to cooperate with the grand jury process and having refused invitations (and/or disobeyed subpoenas) to testify under oath. Her advisors, although invited to do so, also failed to cooperate and counseled the family to be non-cooperative.

Maddox, Mason and Sharpton all appeared in the action; however, Brawley failed to appear. On or about May 2, 1989 plaintiff moved for a default judgment against her. Motion papers were personally served upon Tawana Brawley and her mother,Glenda Brawley, at 549 Diamond Plum Circle, Apt. 101, Virginia Beach, Virginia 23458 and upon Matthew Strong, as guardian ad litem, at 10 Garden Drive, Monticello, New York 12761. Strong had been appointed guardian ad litem for Brawley by order dated December 20, 1989. There was, however, no consent submitted by the proposed guardian ad litem. By decision dated May 6, 1991 Justice Beisner, noting that Brawley had attained majority, entered a default judgment against her on the issue of liability, reserving damages for future determination.

At the commencement of the liability phase of the trial with respect to the three remaining defendants, this Court noted the Brawley default on the record and formally indicated that the Court would permit her to appear on the issue of damages and in general would welcome her appearance. For more than ten years she had never signed an accusatory instrument under oath, participated in a proper identification procedure, nor appeared before a grand jury or in any other proceeding to testify under oath. This Court further indicated, in early December, 1997, that the Court would consider the trial proceedings, the evidence submitted and any other information called to the Court’s attention as the equivalent of an inquest and consider same in awarding damages in favor of Pagones against Brawley. Therefore the Court will review some of the pertinent information revealed during the trial insofar as the Court deems it relevant and helpful in reaching its ultimate conclusion.

In its decision of December 16, 1997, the Court noted "that although Tawana Brawley was not noticed as a witness by any party, and is in fact in default, the opportunity exists for her to now testify under oath with respect to this matter."

Brawley did not appear during the liability phase of the trial although an affidavit dated March 7, 1998 and signed by her in Virginia was submitted, authorizing publication of certain partially nude photos to the trial jury. In that affidavit she refers to "the ongoing trial of the above-captioned defamation lawsuit". Thus, there can be no question that she was aware of the continuing trial and therefore could have asked to come before the jury and testify under oath as she was invited to do in the Court’s December 16th decision.

After liability was determined by the jury and during the damages phase, defendant Mason submitted an offer of proof and requested permission, which was granted, to call Brawley as a witness for the stated purpose of "mitigating" damages. That offer constituted a representation to the Court that Brawley would appear and finally testify under oath. Mason alerted the media and everyone eagerly awaited her appearance, but Brawley failed to appear.

At the commencement of the trial plaintiff had tendered an offer in open court to discontinue his lawsuit against her and thereby relieve her from any claim for damages if she would appear and testify under oath. The Court was present and heardthis more than generous offer which was clearly a good faith, non-contingent offer.

Shortly thereafter, Brawley appeared at a rally on December 2, 1997 in Brooklyn, New York, which was videotaped by Regional News Network and admitted in evidence as plaintiff’s exhibit 35. At that rally she caustically referred to plaintiff’s offer as a "bribe" and said she would not do anything to hurt her friend and attorney Mr. Maddox. She vocally maintained before a partisan audience that the things she said happened really did happen. The Court was appalled that Brawley would see fit to travel from the Washington, D.C. area to a rally in Brooklyn, but did not see fit to travel to Poughkeepsie to testify under oath before the jury.

During the early days of the trial, Mason and Maddox strongly objected that this Court’s ruling dated October 22, 1997 which precluded them from proving truth was prejudicial.1They steadfastly maintained that, if given the opportunity, they would prove the truth of Brawley’s allegations.

In the meantime, during Mason’s testimony, it became apparent that the truth was inferentially being explored bytestimony relating to his state of mind. Thus, it seemed appropriate, in light of the anticipated range of testimony from all the defendants and other witnesses, to allow Mason and Maddox to attempt to prove the truth as they had pleaded it as an affirmative defense in their answers to the complaint. For these reasons, the Court amended its prior decision on December 16, 1997 to permit them to prove the truth of Brawley’s accusations. The door was opened wide and Mason and Maddox were afforded every reasonable opportunity to produce relevant evidence including testimony from Brawley, who this Court ultimately determined during the course of pre-charge conferences was subject to Maddox’s control.

Reverend Sharpton, unlike defendants Mason and Maddox, had consistently taken the position that in a constitutional case with first amendment issues, he had no burden of proof and intended to call no witnesses. The Court honored this position and so charged at the conclusion of the liability phase of the trial.

This information has been set forth to illustrate that while Brawley defaulted and did not choose to appear at the trial, her interests to some extent were in fact represented and protected by Mason and Maddox.

The Court throughout the trial assisted Mason and Maddox in acquiring records and information from the Attorney General, the Medical Examiner, the ambulance personnel, theSheriff and many other sources. In addition, the Court issued numerous subpoenas. The Court even worked out a special arrangement with the Department of Corrections to produce Edwin Garcia from prison. He was a former state trooper and convicted felon who had been friendly with plaintiff during the 1987-88 era and whom Maddox claimed had relevant evidence. In addition, the Court arranged for the appearance of Hilda Kogut, the FBI agent in charge of the investigation into the alleged violation of Brawley’s civil rights. These are only a few of the examples of assistance afforded by the Court to insure a fair trial and to provide Mason and Maddox every reasonable opportunity to prove Brawley’s allegations were true.

Mason and Maddox continued to represent throughout the trial that they would prove the truth of Brawley’s allegations. On repeated occasions, having subpoenaed witnesses to the courthouse, they withdrew their subpoenas and the witnesses never testified. 2The attempt to prove that Harry Crist, Jr. wasmurdered by Pagones was unsupported by any credible evidence. Mason’s attempt to relate Brawley’s chlamydia infection in 1987 to Pagones’ common type urinary infection in 1993 was without any reliable basis in fact. Mason’s early claim that medical records at Westchester Medical Center revealed five separate types of sperm found on Brawley turned out to be totally false. There was absolutely nothing in those records to substantiate this claim.

Meaningful medical evidence that Brawley was raped and as Mason claimed, sodomized in two ways, was totally lacking. It is inconceivable, even to lay persons without medical expertise such as those serving on the jury, that Brawley, a fifteen year old, could have been repeatedly raped and sodomized in two ways by six men over a four day period without significant physical evidence to support her allegations. The extensive cross-examination of those who treated and those who observed Brawley after she was discovered produced nothing of substance to sustain these allegations.

Extensive cross-examination of Dutchess County DistrictAttorney Grady and members of his staff and John Ryan, the experienced and able assistant attorney general in charge of the Abrams Grand Jury, accomplished nothing of substance to cast doubt upon the conclusions reached by the Grand Jury in its report, which determined Brawley’s allegations to be false. 3

The Grand Jury’s report indicated a thorough analysis was done of the former Brawley apartment and of Brawley’s clothes and that the tests revealed that she was in the apartment and could have written the racial slurs herself. Materials found in the apartment matched materials found on her person. Since there was no forensic evidence of rape, the Grand Jury found "nothing in regard to Tawana Brawley’s appearance on November 28 that is inconsistent with this condition having been self-inflicted" (Grand Jury report page 168).

Defendants were all afforded broad opportunity to examine former Assistant Attorney General Ryan and to otherwiseattack the efficacy of the Grand Jury report. In fact, the Court also signed a subpoena presented by Maddox for the appearance of Michael Baden, an expert in forensic pathology who testified before the Grand Jury. At the last moment, that subpoena was withdrawn. No other expert witnesses were called by Mason or Maddox to contradict the analyses of the various experts presented to the Grand Jury. Among these were psychological opinions, including one by Dr. Park Elliott Dietz, a forensic psychiatrist and professor of behavioral medicine and psychiatry at the University of Virginia. In the report at page 115, it is stated that "Dr. Dietz concluded that Tawana Brawley’s physical appearance when she was found is consistent with self-infliction and a false allegation."

Finally, all the defendants had a collective period of approximately twenty-five days to cross-examine plaintiff Pagones about every possible relevant aspect of the case.

For the reasons noted above, as well as many others reflected in the record, Mason and Maddox failed in a lengthy trial, with full opportunity to present evidence and to cross-examine witnesses, to establish the truth of Brawley’s allegations. Quite to the contrary, after a thorough review of the evidence, the jury determined that plaintiff had proved the falsity of Brawley’s allegations against him by clear and convincing evidence, an extremely heavy burden of proof.

One thing is certain, that Brawley did not foresee thatMrs. Joyce Lloray, a neighbor, would be observing her sneak around the corner of the building opposite the Lloray apartment, climb into the garbage bag and lie down. Mrs. Lloray was judged by this Court and obviously by the trial jury as well as the Grand Jury to be an extremely credible witness with no reason to testify to anything other than what she saw and observed. It was her call to the Dutchess County Sheriff, out of concern for Brawley’s welfare, which detailed her observations. These observations were entered in the Sheriff’s official records for anyone to see who took the time to request a copy of the Sheriff’s report, a public record. Mr. Lloray, her husband, testified that when he went to Brawley, she looked at him and then closed her eyes.

In this setting it is now the Court’s function to determine what damages to award against defendant Brawley infavor of plaintiff. 4

At the end of the damages phase, the jury determined that compensatory damages in the amount of Five Thousand Dollars ($5,000.00) should be assessed against each of the defendants, namely Mason, Maddox and Sharpton. This Court sees no reason to deviate from the considered judgment of the jury and therefore awards plaintiff Five Thousand Dollars ($5,000.00) in compensatory damages against Tawana Brawley.

The more difficult determination relates to the amount of punitive damages, if any, to be awarded in favor of plaintiff against Tawana Brawley. It is probable that in the history of this state, never has a teenager turned the prosecutorial and judicial systems literally upside down with such false claims. The cost of the lengthy, thorough and complete grand jury investigation was reportedly estimated at one-half million dollars. The Grand Jury was supervised ably by Justice Ingrassia who carefully reviewed over six thousand pages of testimony by 180 witnesses as well as 250 exhibits. He accepted the extensive grand jury report as being supported by a preponderance of the credible evidence.

The total costs and expenses of the lengthy trial before this Court must be staggering. All of this was presumably unnecessary had Brawley come forward to cooperate with authorities. Even absent initial cooperation, once the Grand Jury report was released and it revealed in detail that Brawley had been personally observed by a credible witness crawling into the garbage bag, it would have been most appropriate for Brawley as a young teenager to come forward, admit the allegations were not true and apologize for the pain and upset she had caused Pagones, the Crist family and State Trooper Scott Patterson by her false accusations. In all likelihood, plaintiff would not have commenced this civil lawsuit nor felt the need to hold the four defendants accountable for their wrongful and false accusations had an apology been forthcoming.

As a teenager Brawley might well be entitled to and deserve some special consideration for her actions. This Court would certainly consider judging a teenager’s actions in that context, if appropriate. However, that is not the case here. The Court is now dealing with a twenty six year old woman who isunderstood to have a college education and to be employed in a responsible position. She continues to deny the truth which has now been determined not only by the Grand Jury but also by a dedicated and committed trial jury whose members sacrificed eight and one-half months of their lives to do justice and to make our system work. Every opportunity was afforded Mason and Maddox to prove that Brawley’s allegations were true. The jury found them false by clear and convincing evidence, a high burden of proof.

The failure of Tawana Brawley to appear before this jury cannot be condoned nor can her actions of leaving the state, changing her name and still as a mature adult avoiding the truth and perpetuating a lie. These acts alone are very serious, but it was an absolute affront to this jury for Brawley to appear at a rally in Brooklyn during the trial and not to appear in Poughkeepsie to testify under oath.

In papers submitted by plaintiff to the Court on the issue of damages, it appears from an article in the Poughkeepsie Journal of August 15, 1998 that Brawley received an award of some sort in Brooklyn on or about August 14, 1998. Brawley is quoted as still claiming "a crime was committed on me". She also claimed "it’s not over, it is just beginning". It is indeed a sad day when one receives an award for seeking to perpetuate lies and falsehoods.

Brawley is further quoted as stating "[w]e will not stop trying to get justice until we get it". This is also an absolute affront to the citizens who gave of their time andtalent to sit as members of the Grand Jury and especially to the members of the trial jury, who afforded a fair trial and rendered a true verdict at great personal sacrifice while Brawley literally thumbed her nose at the jury by not appearing to testify under oath.

Punitive damages are appropriate to deter others from wrongdoing. To wrongfully accuse plaintiff Pagones and others of serious crimes that never occurred cannot go unpunished. The benefit that this Court might accord a teenager who makes a mistake cannot be accorded to an educated twenty-six year old who will not admit the truth and who accepts the role of a heroine after the grand jury and the trial jury have determined she was not telling the truth. Nor can consideration be given to a person who leaves the jurisdiction, seeks to avoid and does avoid the trial process. This Court therefore determines that punitive damages should be awarded to send a clear message to others that false allegations of abduction, rape and murder or any other crimes against innocent persons will not and cannot be tolerated.

In determining the amount of punitive damages, the Court could well award a very high amount in the hope that such award would assure that never again will individual citizens and the people of the State of New York be subjected to such false
claims. 5

A countervailing consideration is the sense that on a continuing basis, Brawley may well have been subject to manipulation by her parents and her advisors who have used herfor their own purposes. Tawana Brawley appears caught up in her own fiction and unwilling or unable to recognize the grief and hurt she caused those she wrongly accused, especially the Crist family, who the Court hopes has found solace in the verdict of the jury after all their suffering.

In establishing the amount of damages, the Court believes it would be inappropriate for the reasons noted to award a huge sum. On the other hand, Brawley is the one person most responsible for the false charges; therefore, the Court believes she should be held at least as accountable as Mr. Mason, the defendant held most responsible by the jury. Accordingly, the Court makes a punitive award in the amount of One Hundred Eighty Thousand Dollars ($180,000.00) against Brawley in favor of Pagones.

At the end of the trial this Court stated "Let us hope after 10 ½ years, the Tawana Brawley matter is finally laid to rest and we can move forward at last to promote healing and racial harmony." Unfortunately, the continuing rhetoric by Brawley and her supporters refusing to accept the verdict does nothing to further racial harmony. In fact, in this particular case it is a disservice to the African American community since it diminishes credibility and may adversely affect other viable complaints. This Court recognizes that it is perfectly proper in appropriate circumstances to speak out against any legitimate racial injustice. In this case, the injustice was against those wrongfully accused of heinous crimes that never occurred. Thejury did justice by righting that wrong. Brawley and her supporters have no right to claim that justice was not accomplished by this jury.

So ordered.

_________________________

S. BARRETT HICKMAN, J.S.C.

DATED:October , 1998

Carmel, New York

TO:

William Stanton, Esq..

P.O. Box 1252

Millbrook, NY 12545

Stephen C. Jackson, Esq

Mr. Alton Maddox, Jr..

16 Court Street

Brooklyn, NY 11241

Michael A. Hardy, Esq

Scheurer, Wiggin & Hardy

250 West 57th Street, Ste 515

New York, NY 10107


1 This ruling was based on two factors. First, an estoppel by reason of the defendants counselling Brawley and her family not to testify, thusly impeding the pursuit of truth during the criminal investigation by the Grand Jury. Second, the offers of proof submitted by the defendants in their pre-trial memoranda revealed that it would be virtually impossible for them to prove truth without Brawley’s testimony and her name was not on the list of potential witnesses submitted by any party.BACK

2 In the course of the trial, videotape vignettes were introduced in evidence, namely, Maddox exhibit I and J produced by one Curt Stewart, and apparently prepared as part of a contemplated future production to be entitled “Is Justice a Joke?” Mr Stewart was a witness at the trial. Defense counsel took the position that defendants were aware of the content of the tapes and based upon information gleaned therefrom, they believed their alleged defamatory statements to be true or, at minimum, that these tapes were a good faith basis for their statements, which were therefore not malicious.
In one of these tapes, a couple is interviewed and the female states in effect that there is “a lot more I could say but I won’t”. Mason and Maddox testified they were aware of these tapes, but at the trial they never produced this woman who may well have shed light on what really caused Brawley to be found in the condition she was in when discovered.
There is another tape with a silhouette of a woman who mentions the name Masopus. This indicated that there may be someone else who could shed light on what happened. This woman was subsequently identified and appeared at the Courthouse at the request of Mason. His attorney spoke with her and then excused her without calling her as a witness, leaving the distinct impression that her testimony would not support Brawley’s claims. The person she had mentioned never was identified or called as a witness.BACK

3 During the Grand Jury investigations as well as the trial, one of the main contentions of the three defendant advisors involved an alleged cover-up. Vituperative exchanges had taken place between the advisors and then Governor Cuomo and Attorney General Abrams in early 1988. A particularly obscene accusation was made against Abrams. Some of these same allegations were repeated during the trial and the advisors sought to subpoena and to present the testimony of these former officials. The Court quashed the subpoenas and throughout the trial never saw nor heard any credible evidence that District Attorney Grady and/or Attorney General Abrams ever did anything other than to dedicate their best efforts and those of their staffs to fairly and impartially carry forward an investigation under most difficult circumstances, these being the refusal of Brawley and her family to come forward and testify under oath and the failure of Mason and Maddox as her legal counsel to cooperate. BACK

4 In doing so, the Court is mindful of its June 26, 1998, Decision and Order in which it dismissed the causes of action for intentional infliction of emotional distress as against defendants Sharpton, Mason and Maddox. The basis for that dismissal was the principle expounded in Fisher v Maloney, 43 NY2d 553, and Sweeney v Prisoners’ Legal Serv. of N.Y., 146 AD2d 1, that such cause of action will not lie when the acts of which the plaintiff complains fall entirely within one of the commonly recognized torts - here, defamation. However, the complaint does not allege that Brawley said anything defamatory about plaintiff to anyone. The complaint, though not artfully drawn, appears to allege that Brawley aided, abetted and condoned the acts of the other defendants, who acted as her agent, in their defamation of plaintiff by not revealing the truth and “refusing to cooperate with law enforcement authorities in resolving the alleged rape and abduction while permitting the co-defendants, Maddox, Mason and Sharpton to falsely accuse the plaintiff of participating in the alleged crime” (complaint paragraph 376). That failure to cooperate and reveal the truth does not fall within any of the commonly recognized torts so as to non-suit the plaintiff with respect to this cause of action against her. That is what distinguishes the claim against Brawley from those against the other defendants. BACK

5 At the end of the trial it was clear from reaction in the courtroom by Brawley supporters that they are unable or unwilling to accept that these were false claims. It is worth noting that during the course of the trial, District Attorney Grady, on January 6, 1998, was asked the following questions and gave the following answers on re-direct examination concerning an alleged racial incident in Wappinger Falls that turned out to be untrue:
Q. Mr. Maddox asked you if you recall whether or not there were any similar incidents in Dutchess County before or after the Brawley incident with respect to the smeering (sic) of feces on people or objects; do you recall that question?
A. Yes, I do.
Q. And you gave an answer, something about there was one case. Do you recall that?
A. That involved a lady by the name of Lane Desnique of Wappingers.
Q. Do you recall when that was?
A. Late 80's, I believe. D-E-S-N-I-Q-U-E.
Q. Do you recall the outcome of that case?
A. Well, she had made a complaint to law enforcement that someone was smeering (sic) feces on her front door and in response to that complaint law enforcement sets up surveillance cameras on the pole across the street from her home and surveillance disclosed that she in fact was doing it herself so she was arrested and charged with falsely reporting incidents and resisting an arrest when she was arrested. At the time she eventually pleaded guilty to disorderly conduct and received credit for three days that she had spent in the Dutchess County Jail.

The above is an example of a false claim indicating that such false claims are in fact made from time to time. BACK

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