Z10-28-2005 KITZMILLER

1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 3 4 Tammy J. Kitzmiller, et al., : : 5: vs : 4:04-CV-2688 6: : 7 Dover Area School District; : Dover Area School District : 8 Board of Directors : 9 10 BEFORE: Honorable John E. Jones III 11 PLACE: Harrisburg, Pennsylvania 12 PROCEEDINGS: Non-Jury Trial 13 DATE: Friday, October 28, 2005; 9:00 a.m. 14 15 16 APPEARANCES: 17 For the Plaintiffs: ERIC J. ROTHSCHILD, ESQ. WITOLD J. WALCZAK, ESQ. 18 STEPHEN G. HARVEY, ESQ. RICHARD B. KATSKEE, ESQ. 19 20 For the Defendants: PATRICK T. GILLEN, ESQ. RICHARD THOMPSON, ESQ. 21 ROBERT J. MUISE, ESQ. EDWARD WHITE, ESQ. 22 23 For the Reporters: NILES BENN, ESQ. TERENCE J. BARNA, ESQ. 24 TRACI L. McPATE, ESQ. 25 OFFICIAL COURT REPORTER 2 1 INDEX TO WITNESSES 2 PLAINTIFF: DIRECT CROSS REDIRECT RECROSS COURT 3 Heidi Bernhard-Bubb -- 7 50 -- -- 4 Joseph S. Maldonado 52 91 -- -- -- 5 6 DEFENDANT: DIRECT CROSS REDIRECT RECROSS COURT 7 Heather Geesey 145 174 196 200 200 203 204 8 205 205 9 Michael Baksa (Cont'd)207 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OFFICIAL COURT REPORTER 3 1 2 INDEX TO EXHIBITS 3 PLAINTIFF: IDENTIFIED ADMITTED 4 Exhibit No. 26 -- 137 5 Exhibit No. 43 -- 138 6 Exhibit No. 67 -- 138 7 Exhibit No. 68 -- 138 8 Exhibit No. 70 -- 137 9 Exhibit No. 80 -- 138 10 Exhibit No. 81 -- 138 11 Exhibit No. 82 -- 138 12 Exhibit No. 88 -- 138 13 Exhibit No. 109 -- 137 14 Exhibit No. 120 -- 137 15 Exhibit No. 145 -- 144 16 Exhibit No. 752 -- 137 17 Exhibit No. 753 -- 137 18 Exhibit No. 758 -- 137 19 Exhibit No. 790 59 -- 20 Exhibit No. 791 65 -- 21 Exhibit No. 792 70 -- 22 Exhibit No. 793 73 -- 23 Exhibit No. 794 79 -- 24 Exhibit No. 795 82 -- 25 Exhibit No. 797 85 -- OFFICIAL COURT REPORTER 4 1 Exhibit No. 798 88 -- 2 Exhibit No. 804 22 -- 3 Exhibit No. 805 28 -- 4 Exhibit No. 806 32 -- 5 Exhibit No. 807 37 -- 6 Exhibit No. 808 40 -- 7 Exhibit No. 809 43 -- 8 Exhibit No. 810 48 -- 9 Exhibit No. 813 45 -- 10 Exhibit No. 821 -- 138 11 12 DEFENDANT: IDENTIFIED ADMITTED 13 Exhibit No. 1 -- 137 14 Exhibit No. 2 -- 137 15 Exhibit No. 3 -- 137 16 Exhibit No. 6 -- 137 17 Exhibit No. 8 -- 137 18 Exhibit No. 14 -- 137 19 Exhibit No. 15 -- 137 20 Exhibit No. 22 -- 137 21 Exhibit No. 23 -- 137 22 Exhibit No. 24 210 -- 23 Exhibit No. 25 213 -- 24 Exhibit No. 26 -- 137 25 Exhibit No. 28 -- 137 OFFICIAL COURT REPORTER 5 1 Exhibit No. 30 -- 137 2 Exhibit No. 31 218 -- 3 Exhibit No. 32 223 -- 4 Exhibit No. 33 223 -- 5 Exhibit No. 34 224 -- 6 Exhibit No. 35 224 -- 7 Exhibit No. 36 224 -- 8 Exhibit No. 37 224 -- 9 Exhibit No. 38 225 -- 10 Exhibit No. 39 222 -- 11 Exhibit No. 40 222 -- 12 Exhibit No. 41 222 -- 13 Exhibit No. 42 222 -- 14 Exhibit No. 43 233 -- 15 Exhibit No. 44 236 -- 16 Exhibit No. 45 -- 137 17 Exhibit No. 46 240 -- 18 Exhibit No. 48 -- 137 19 Exhibit No. 50 240 -- 20 Exhibit No. 51 -- 137 21 Exhibit No. 54 227 -- 22 Exhibit No. 63 -- 137 23 Exhibit No. 65 -- 137 24 Exhibit No. 67 -- 137 25 Exhibit No. 70 -- 137 OFFICIAL COURT REPORTER 6 1 Exhibit No. 71 -- 137 2 Exhibit No. 81 -- 137 3 Exhibit No. 83 -- 137 4 Exhibit No. 101 -- 137 5 Exhibit No. 102 -- 137 6 Exhibit No. 103 -- 137 7 Exhibit No. 105 -- 137 8 Exhibit No. 106 -- 137 9 Exhibit No. 116 222 -- 10 Exhibit No. 127 -- 137 11 Exhibit No. 133 -- 137 12 Exhibit No. 134 -- 137 13 Exhibit No. 135 -- 137 14 Exhibit No. 137 -- 137 15 Exhibit No. 138 -- 137 16 Exhibit No. 139 -- 137 17 Exhibit No. 142 -- 137 18 Exhibit No. 153 -- 137 19 Exhibit No. 172 -- 137 20 Exhibit No. 193 -- 137 21 Exhibit No. 283 -- 137 22 Exhibit No. 288 -- 137 23 24 25 OFFICIAL COURT REPORTER 7 1 (9:00 a.m., convene.) 2 THE COURT: Good morning to all, and we continue 3 with testimony of our last witness yesterday, and she may 4 retake the stand. 5 MR. BENN: Your Honor, excuse me, I was a little 6 remiss yesterday when I introduced myself as counsel on 7 behalf of the reporters. I would also like to introduce my 8 two co-counsel, put them on the record as well, Terence 9 Barna -- 10 THE COURT: Ma'am, you can take the stand while 11 he's doing this. 12 MR. BENN: Terence Barna and Traci McPate, both 13 from my office. 14 THE COURT: Very well, we'll note their 15 appearances. 16 And you may commence your cross examination. 17 CROSS EXAMINATION 18 BY MR. WHITE: 19 Q Good morning. 20 A Good morning. 21 MR. WHITE: I'm sorry, Your Honor, but the screws 22 just popped out of your microphone. 23 THE COURT: Technical malfunction. We could ask 24 Mr. Thompson to hold the microphone, but that would probably 25 be beyond the call of duty. OFFICIAL COURT REPORTER 8 BERNHARD-BUBB - CROSS 1 (Pause.) 2 MR. WHITE: Job for GSA. Maybe if I can just rest 3 it. 4 THE COURT: That will probably work. We re all 5 set. After that auspicious start to our Friday, you may 6 proceed. 7 MR. WHITE: I promise I won t touch anything else. 8 THE COURT: All right. 9 BY MR. WHITE: 10 Q This is a continuation from your testimony 11 yesterday; you re still under oath. 12 Your full-time job is stay-at-home mom, correct? 13 A That s correct. 14 Q And you have two young children, a three and a half 15 year old and an eight month old. 16 A Right. 17 Q And your freelance writing is a way to supplement 18 your income. 19 A That s correct. 20 Q The Dispatch pays you about 40 or $50 per story? 21 A That s correct. 22 Q And you write about six to ten articles a week? 23 A Yes. 24 Q Now, you read the editorial page of the York 25 Dispatch, correct? OFFICIAL COURT REPORTER 9 BERNHARD-BUBB - CROSS 1 A Yes. 2 Q So you understand the position the Dispatch takes 3 on various issues? 4 A It would depend on the editorial but, yes, and on 5 the writer. 6 Q So the answer is yes? 7 A I would say that I understand positions taken by 8 the various writers, the various editorial writers. 9 Q You get your assignments from the editors of the 10 York Dispatch also, correct? 11 A In a sense. I have general assignments wherein I 12 cover the meetings of, like I said yesterday, two 13 municipalities and a school board. It s been varying 14 amounts of school boards and municipalities. So in that 15 sense I have the general assignment I go to the meetings and 16 report on what happened. 17 Sometimes I will be assigned particular things by 18 the editors. Those are usually features. For instance, I 19 did a story on a girl that was doing a motorcycle ride for 20 Cystic Fibrosis that she put together in honor of her father 21 who just died, that kind of thing. 22 Q But sometimes the editors tell you what they re 23 interested and what they re not interested in as it relates 24 to stories, correct? 25 A Only in the sense that -- like, for instance, after OFFICIAL COURT REPORTER 10 BERNHARD-BUBB - CROSS 1 a meeting, I m call them and say hey, this is what happened 2 at meeting, and they ll tell me what they re interested in, 3 what they have space for the next day in the paper, what I 4 can wait to write the next day; in that sense they do. 5 So that s more of an issue of planning and how much 6 space they have in the paper, that kind of thing. 7 Q And then you write the stories that are of interest 8 to the editors as a result of that. 9 MR. BENN: Objection, Your Honor. I think the 10 nature of your Court order relates to the fact that we re 11 supposed to be asking questions as it pertains to the 12 articles in issue, and not in terms as to what the editors 13 think, what the newspaper s position is, but rather what it 14 is that Ms. Bernard-Bubb wrote. 15 MR. WHITE: Yesterday there was some questioning 16 about her assignments and her beat, that s why I was asking 17 these questions. 18 THE COURT: Well, you re right on the line, 19 Mr. White, as it relates to my order and the parameters of 20 your permissible areas of inquiry. 21 I ll allow that question, but I think colorably 22 you re getting into what I think may be a bias type of 23 examination. And I m going to sustain objections if it goes 24 much farther. But I ll overrule that objection, I ll allow 25 an answer. OFFICIAL COURT REPORTER 11 BERNHARD-BUBB - CROSS 1 BY MR. WHITE: 2 Q So the answer -- the question was then that you 3 sometimes write -- you write stories that are sometimes of 4 interest to the editors after you ve had these meetings with 5 the editors, correct? 6 A I wouldn t say that would be a correct 7 characterization.

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