Harder seeks to question credibility of charges at latest hearing

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By SETH STERN

The 20 or so people who sat through the entire six hours of testimony in last Thursday's termination hearing of Sgt. Dan Harder likely left with three words stuck in their heads like a bad holiday commercial jingle: Murphy, objection and collateral.

Over and over again, attorney Jeanine Stevens, representing Harder, attempted to question witnesses regarding the conduct of Sgt. Mike Murphy. Stevens has argued that Harder is being targeted by the village for, among other reasons, refusing to keep quiet about Murphy's alleged violent temperament and abuse of prisoners.

Each time, attorney Patrick Lucansky, representing Police Chief James Ryan, objected to Steven's line of questioning arguing that it has no relevance to the charges for which Harder is facing termination. And nearly every time, Charles Hervas, the attorney for the Board of Fire and Police Commissioners who has ruled on issues of admissibility throughout the hearings, upheld Lucansky's objection, stating that collateral evidence would not be admitted.

Lucansky also reported to Hervas that a DVD had been circulated in town of Ryan's testimony at the previous hearing, and that one of the individuals who viewed the DVD had transcribed portions of the testimony, along with his own critical analysis, on the web site www.forestpark.com.

Hervas declined Lucansky's requests to disallow testimony from people who had seen the DVD or the web site, but did question witnesses who acknowledged having seen the web site regarding whether it had led them to form an opinion.

Ryan, who was briefly called to testify again on Thursday, refused to have his testimony videotaped.

Officer Michael O'Connor was the first police officer to testify on Thursday. He acknowledged that in April, he received a phone call from Deputy Village Clerk Sally Cody asking if he had seen Harder passing out flyers while on sick leave.

He affirmed that Cody had asked if he would be willing to testify against Harder in a trial, which Stevens argued, over Lucansky's objection, proved that the village had been looking for a way to fire Harder.

Stevens then questioned O'Connor regarding whether he had ever said he was afraid to testify against Murphy. He acknowledged that officers on the department's midnight shift refer to the 45 minutes that Murphy's shift intersects with theirs as the "bewitching hour."

Asked why officers attempt to avoid Murphy during that time, O'Connor paused for several moments before asking for clarification on the question. After another long pause, he said that he did not know if he could answer the question.

Before Stevens could continue questioning the witness, Hervas ruled that the discussion of Murphy was a collateral argument and would not be allowed. Stevens argued that the questions should be admissible, as Harder was given a written reprimand by Ryan in February 2004 for writing a memo to Lt. Steve Knack stating that several officers had expressed a fear of Murphy.

Among the charges Harder is currently facing is an accusation that he fabricated an encounter with Murphy during which Murphy allegedly threatened him in response to remarks posted on forestpark.com, which he suspected Harder had authored.

Stevens questioned Ryan regarding his reasons for believing that Harder had fabricated the conversation. Ryan said that according to a record of officer activity, Murphy was away from the police station at the time the incident occurred, though he acknowledged that the discrepancy amounted to only 15 minutes.

He said that Murphy had emphatically denied that the incident took place, and that he believes Murphy to be more credible than Harder.

Officer Scott McLintock then testified, shifting the focus of the hearing to the June 4 incident during which Harder has admitted to swearing at Officer Young Lee. McLintock was the first officer to testify that he had heard Lee swear at Harder as well.

During Lucansky's cross examination, McLintock acknowledged that he had not told investigating officers that he had heard Lee swear until the second time he was questioned by investigators regarding the incident. He said that he had not recalled the details of the conversation at first because he did not think the incident was "a big deal."

Stevens also called Officer Tom Hall, who testified that he had complained to Harder about Murphy's alleged behavior, but said he did not know whether his complaints led to the memo Harder wrote to Knack.

"We're trying Sgt. Murphy here â€" we've lost our entire focus," objected Lucansky, and Hervas agreed, telling Stevens that she would not be allowed to put Murphy on trial.

The last officer to testify was Lt. Steve Johnsen, who said he believed that Ryan was retaliating against Harder for speaking up against officers using excessive force and filing a sexual harassment lawsuit against the village in 2002. The remainder of Johnsen's testimony will be heard on Thursday, Dec. 8 beginning at 4 p.m.

Also during Thursday's hearing, the Fire and Police Commissioners voted unanimously to reject a motion filed by Stevens seeking Harder's reinstatement. The motion was filed on the grounds that Harder had been suspended for over 90 days at the time of the hearing, while the board's policy manual states that the board may not suspend any officer without pay for a period exceeding 30 days at one time.

In its response to the motion, the village argued that the majority of the time that Harder had been on unpaid suspension was due to extensions requested by his attorneys.

According to information obtained by the Review through a Freedom of Information Act request, the termination hearing of Sgt. Dan Harder had cost the village just over $35,200 as of mid-November.

The sum includes $27,875 paid to prosecuting attorney Patrick Lucansky's law firm Klein Thorpe and Jenkins, LTD; $1,285 paid to Board of Police and Fire Commissioners attorney Charles Hervas; and $6,046 paid to village attorney Michael Durkin's law firm Storino Ramello and Durkin.

Durkin represented the village in federal court when Harder filed a suit seeking a temporary restraining order to prevent the village from continuing the hearings.

That suit, which was recently dismissed, alleged that the village had violated the Family Medical Leave Act by including sick days taken by Harder while on Family Medical Leave in the charges against him.

Mayor Anthony Calderone said that the fees have been escalated by Harder's attorney Jeanine Steven's insistence on calling an excessive number of witnesses.

He said that he has been approached by lieutenants within the police department who have asked whether it is possible to limit Stevens' witness list, as the department must pay overtime to officers who are called to testify while off duty.

"We're going to be criticized for high legal fees, and I'm going to have to blame Jeanine Stevens," he said, noting that he suspects Stevens might be intentionally boosting the legal fees in order to make the village look bad.

Asked about these allegations, Stevens said that her focus is on building her case, and noted that "it's not my job to protect the village from attorney's fees…people in the village should be lambasting the village board for allowing this to continue."

 

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