Case 5:12-cv-00836-DEP Document 98-26 Filed 09/30/15 Page 1 of 10 EXHIBIT 23 to the DECLARATION OF NATHAN SIEGEL, IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENTCase 5:12-cv-00336-DEP Document 98-26 Filed 09/90/15 Page 2 of 10 DEFENDANTS? EXHIBIT JUXTAPOSING EXCERPTS OF THE TAPE AND PLAINTIFF'S TESTIMONY ABOUT WHAT SHE ASSERTS THEY MEAN The following set forth some examples that juxtapose the words ofthe tape with Pints assertions about what they supposedly mean: “The Tape: After agreeing with Davis that her husband "doesn’t think he dows anything ‘wrong,” she adds,”"You know, Bemie i also in denial. | think that he did the things he Aid but somehow rough his wn mental telepathy has erased them out of his ming, MIPEx. C3 at 53-6503, Fat 6. Plaintift She clains Bernie was in denial about “[Jhe money situation.” Siegel Dec Px. Lat 153:15-18. When asked what were “the things he did” tat he “erased”, she said “Pm confused wit that, but ito somehow “was about money and the loaning of the money.” 1d. at 1584-9. “The Taps: When Davis asks whether “he's [Bemie"] doing anything anymore” she responds: “I dan’tknow what he's upto. 1 mean, whats the point? I ean find anybody 1 ‘want io serew oF do whatever I want with them. I don’t need Bernie for that” MIP Exs Chat 2-64, Bat $6, Plaindf; When asked why, iC this conversion was supply about Homing mney, Mrs. Fine answered by talking about sex, she testified,“ could not answer that” and suggested perhaps she was distracted Because “I had one ear tothe phone and thre litle kids.” Siegel Dec. Ex. 1 at 156:8-22. She als claims her comments about extra-marital, sexual relationships meant “if looked. I didn’t, but I could've” ever have any sex with mnyone ether than her husband since wedding. 1d at 155:13-16 “The Tape: When Davis said he told her husband, “Ber, leave me alone or i going i, ‘you know, tll some people about what happened, what you did to me,” Mes. Fine responded, “I don't even think tht he acknowledges what happened. You know. think ‘hat he did it, and he might have been, I don’t know, in another.” MIP Exs, C3 at 6:50-7:10, Bat 6 Plaintiff? When asked “What is it chat you think he did, Plaintiff testified “I couldn't ven tll you right there.” Siegel Decl. Ex. | at 159:23-24 [Iie Tap: Ae Pv as “Dass nk mth only one at cer done ao?” | she reponde "No. ABB oct mine wo wet sped tine the 'Case 5:12-cv.00896-DEP Dacument 98-26 Filed 09/90/15 Page 3 of 10 home disappeared off the face ofthe earth.” She then continues, “think there's got to bea lot oF instances of you know? T really do.” MIP Exs, C3 at 7:17-33, Eat 7 laintif She claims that “he's ever done that was about loaning money because “He loaned quite large amount of money” and he was loaning people money [alot " Siegel Deel. Ex. | at 162:6-12;163:21-22. The Tags) When Davis ays that ike Lang “dis glen, bathe wor adit 0 | ime” Pla resonde, ih and kind El othe fae ofthe eah,” MIP Be. C3a 73385, E507 Plaintiff Paint laims that this response also referred to Lang seeking loans, though she didnot know whether her husband had ever loaned Lang any money. Siege! Dec. TEx, Hat 165:20-1656 The Taper Mrs. Fie tells Davis, “knew what was going on and it was uncomfortable Tor everybody involved,” and then adds, “And the kids that ame over were young kids, ‘and you know, when you're young you really don’t speak your mind, You just think that ‘maybe it's right, whats going on.” MIP Exs. C-3 at 8:17-8:28, Bat 7 Plaintiff; Mrs, Fine claimed that what “was going on” that was “uncomfortable” all ‘goes back tothe money apain.” Siegel Decl Ex, 1 at 16062, 1672.0, She also claimed that when she used the word “young kids”, she meant “anybody younger than ‘me so she was really talking about adults in their 20s. fat 168:11-21. Finally, she claimed that what ‘hese supposed adults in thelr 20s “really [didnt] speak [ther] mind about was her husband's insistence that they show him their report cards so he could ‘monitor thee performance in school, as well as “nat paying back the money!” Id at 168:22-170:19 ‘The Tape: When Davis says, “Maybe, like, I feo! bad because ofall that stuffhe did to ‘ne, like, you know, and when I was younger... and ithe were capable right now, he'd still ry t do somahing, you know? He'd try to grab me,” she responds: “He doesn’t Jearn.” MIP Exs €-3 at 11:58-12:09, Bat 10, Plsigff: Plaintiffacknowledged that what he husband “doesnt... leaen is that “Bobby didn’t want to be grabbed,” but claimed that it was nothing sexual because “I didn't know ‘where he was grabbing him” and suggested Bobby was talking about Bernie “taking] your knee and squeezing i real hard” asa form of corporal punishment. Siegel Decl. Ex. Lat 1764-22,(Case 5:12-cv-00836-DEP Document 98-26 Filed 09/30/15 Page 4 of 10 “The Taps: After Davis els he, “T call him a pedophile and al this and then I sill goto Manley {a Syracuse athletic facility) and he stil tried to grab me in the office,” she responds “Because | think he thinks that maybe you accepted i¢ because you sill went ‘ack up there. You know wiat mean? You know how sometimes, ike, ean call you, "Thate you, hate you, hate you," and the next thing I'm in bed with you... So you can say whatever you vanted, but in the end you still went up. So I mean not you personally ‘Anybody can say 20, no, no, bu in their head they're going, yes, yes yes.” MIP Exs. C= 3a 12:30-13:05, Eat II. Plaintiff: Plaintiff acknowledges thatthe word “pedophile” refers to alleged sexual bus, but when she responded “think he thinks that maybe you accepted it” she "was only half listening” and didnot think they were talking about sex. Siegel Decl. Ex. | at 184:10-185:11, She also said that when she sad “the next thing I'm in bed with you” she vas “not aking about sex,” but was just “talking about nobody.” 1 at 185:16-186:6 She likewise mainned that when she said “no, no, no” she “did't mean sexy,” but rather “it was about money and Bemie was grabbing,” 1d. a 186:21-187:9 The Taper Alter Davis aks her, "Vou don't think anything ever happened with David ithe Fines’ son}, do you?” she says, “nfo,” and ater Davis responds, “See, I worry about that too, Pm lke because David's a great kid and everything,” Mrs. Fine again says, “No, no, I don’. just think it was think that there might have been others, but it was eared toward ~ there was something about you.” Davis then responds, “I'm wondering Why T was ike, the worst one" to Which Mes. Fine answers, “I don’t know.” MIP Exs.. C23 at 13:05-16, Bat 1 (Mrs, Fine testified that she did understand Davis to ask whether she thought her ‘husband had sexually molested her son David, but that when she sid “I think that there might have been hers, but twas geared toward... you" she was not talking about sex, hut rather that her 1usband “loved Bobby” and “tally felt sorry forthe kd.” Siegel Decl. Ex. | at 189:9-191:1, She likewise claimed that the exchange about Davis being “the worst ome” sh: “was not talking about sex" and ‘Ihave no idea what [the worst one] means.” Mat 191:1-2, “The Tage: Mrs. Fine responded to Davis's observation that “the only thing [her husband] ‘ever cared about was one thing, and that vas, like, touching me or whatever,” nat by sisagrecing with Lavis's characterization, but by telling a series of ancedotes about her ‘husband meant to ilustrate her husband's selfishness. MIP Exs. C3 at H:14-16:01, Eat 2. Plaintiff: Mrs, Fine claims she “didn't know" whether she understood Davis tobe referring to sexual “ouching” because “there was so much going on with the kids.” Siegel Decl Ex. 1 at 196:8-197.9Case 5:12-cv-00836-DEP Document 98-26 Filed 09/30/15 Page S of 10 “The Tape: Davis ways, “one ofthe reasons would never give i back [the money loaned] ‘him is because of what happened when he gave it to me. Like, I mean, he gave itto ime for one reason” Mrs. Fine responds, “Oh, [understand that” MJP Exs. C3 at 16:00-16:15, Eat 3, Plaintiff Plaintiff claims thatthe “ome reason” they discussed was that “Bobby said he \was eoing to pay him back” and “there's no sexual talk” i this conversation at al Siogel Decl. Ex. Hat 198:15-200:10. “ThoTaper Mis. Fne reoounis that her husband “sad 10 me, “Oh, you know, you slept ‘sith Bobby. Tsai, °Oh, realy? How do you know that? Oh, because know. He told me." I said, “No kidding. Oh, yeah, he told me everything that you id together. I said, “Oh, really?” Davis asks, “When did he tell you that?” and she responds, “Oh, last, | yeac” MIP Exs. C3 at 1623-16335, Eat 13, Plaintif Plantif acknowledges that her husband said ths to her, but denies thet she slept with Davis. Siegel Decl Ex. 1 at 200:13-22. “The Tape: After Davis observes that her husband “needs help" and that “he Tikes boys.” She veponds, [hil doen't think he needs help” and then sae she told hse husband “Bobby and I talked, and I know some things about you that, if you keep pushing, are ‘going tobe let out” adding in hat regard, “he [Berne] thinks he’s above the law” MOP FExs. C3 at 17:30-18:24, Eat 15. Plains: Plaintiff claims that she [didnot respond to ‘he likes boys.” Instead, she claims that what “Bobby and [she] talked” about were NCAA recruiting violations her husband had committed, which Davis purportedly knew about, Siege! Decl Ex. I at 206:21-209:20. She further elas she did not mean “above the law inthe sense of the law/la,” but rather meant NCAA rules, J at 209:23-210:25, Tie Taper Davis ells her that when Bemic Fine loaned him money «few years earlier, [Bernie would “mace me do something, you know.” When Mrs. Fine responds, “Well, ‘what did he want you to do?”, Davis responded “well, what do you think, what he always does.” Mrs Fine responds by demanding explicit details: What? He wants you to grab him, or blow him?” When Davis responds, no, he tried to make me grab him ... but at first when he would grab me and start, you know, touching me,” she replies: “Right.” MIP Eas, C3 at 25:32-47, Bat 2.Case 5:12-cv-00836-DEP Document 98-26 Filed 09/90/15 Page 6 of 10 Pisin Mis. Fire claims this proves she "knfs]w nothing about” any sexual felationship between Davis and her husband because “I'm fishing” and “I'm asking him all ofthese, jst to see what he was talking bout.” Siegel Decl. Ex. | a 215:7-215:21. | ‘When asked why she volunteered the word “grab since she had earlier denied she understood Davis-o use that word ina sexual way, she responded “I sometimes say something just because i's a word.” Ut 216:1-6 “The Taps: Mis, Fine asks, “So when he — when he gave you the money, what does be ‘vant for that? Ie wants you to grab him, or he wanted to do you?” Davis replies, “He wanted todo me... Yeah he wanted me to touch him, t00. He tried to make me touch him a couple times. He would grab my hand, and then I would pull away, and then he'd pate in your bec and then, you know, pin me down, And I woud try to go away, and he'd put is arm ontop of my ches, and he goes,“ you want this money then stay right her,’ you know To this, she replies: “Right.” MIP Exs, C-3 at 23:49-24:08, Eat 20. | Plain: Mrs, Fine claims “it could bo" that Davis was taking about her husband ‘grabbing his penisbut “I know nothing about his,” and “I'm just asking questions." Siegel Decl. Px. lat 216:9-21 ‘The Tape: Davis sys, “And I told you about this before. He'd grab you if you were luying to walk away, he would say, “Oh, you know, I'll pull it off,” she responds “Right, Fight... but you sever had any’ oral Sex vith hiss?” Davis replies “No. Think he would ‘want "to which she exclaims in response, “Oh, ofcourse he would! Why wouldn't he?” MIP Exs. C3 at 24:12-27, E at 20-21 lainiff; Mrs. Fine claims “l was being sarcastic there,” Siegel Decl. Ex. I at 2175. “TheTang: Mis. Fine says to Davis, “He lured you withthe money" and “The sue at ind i that he had no business doing what he did with you, And you knoss what? [Neither did I because I really helped serew you up alle more too.” MIP Exs. 3 at 24:50-25:20, E21 Plaintiff: Mrs. Fine claims she meant by this that “when Bernie wouldn't give him ‘money, L vould give him money.” Siegel Decl, Ex. | at 225:3-225:7 The Tape: Davis ells her, “In retrospect [now he didn’t care about the money. He was just trying to get ove thing.” Mrs. Fine’s response, “You know, onee did’ the ever think ‘4s euy in is position, that he eould possibly he blackmailed?" MIP Exs. C-3 at 25:23- 25:37, Eat 22(Case 5:12-cv-00896-DEP Dacument 98:26 Filed 09/90/15 Page 7 of 10 Plan: Mrs. Fire claims se is “not sure” what “one thing” Davie refers to, bul that her {query about black referred to Davis's knowledge of NCAA recruiting violations Siegel Decl. Ex. Lat 226:2-6, ‘The Tape: Davis esponds to er question about blackmail by saying “T don’t think T ‘ould have [come forward] because it would! be so embarassing”. Mis. Fe responds, “I's embarrassing fr everybody .... He knows that you probably won't come forward because you'd be horitied to... when I was with you, it wasn't Because of the money. Teas because I wanted to.” MIP Exs, C-3 at 26:30-26:50, Eat 22, Plaintiff: Mes, Fite denies that she was referring to any sexual relationship between her and Davis, Siegel Decl. Fx, 1 a 229:16-230:1 ‘The Tape: Davis asks, “am T the one who was in the wrong, like, when I was younger? ike you know, should Ihave said something or" Mis. Fine responds, "No, you didn't do anything -I mean, you were aki” MIP Exs. C3 at 33:08-33:17, Fat 30 Dlainif; Mrs Fie denies this relates to when Davis was a minor, laiming “He was a [Kid Because anyone younger than me isa kid” and “it could have been when he was in his 208 and Berne loaned him money.” Siegel Decl Ex. [at 33:1-15. “The Tape: Mis, Fie continues, “care about you, and | didnt want to see you Being ‘weated that way... And i's hard for if twas anothor girl, like Hold you, it would be cagy forme fo stp in because you know what you're up against. Put when someone is, another guy, you n't compete with that. It's just wrong, and you were a kid. You're a ‘man now but you weee a kid then,” MIP Exs. C-3 at 33:20-33:45,E at 29, Plaintiff: Mrs Fre claims “it had nothing todo with any sexual thing” and she mean “if loaned money toa grt or he loaned money [toa git] its easier to ak toa gil”, ‘whereas “a guy evuldn't compete to come up and ask you forthe money.” Siegel Decl Bx, 1234423515. As for what as “wrong” when Davis wasa kid”, she again claimed it was “not anything sexual”, but rather she meant “Lobby couldn't pay him back.” ld at 295: 4.23653, The Tape: Mrs. Fie says, “Scott Ave. fs gone ... 20 realy there's no place For him 10 ‘un and drag peop. “Let's go over to Seott Ave. inaudible)" Davis responds, Oh, i "Scott Avenbe eer to tte home the Fines ne for afew years after they moved fom the Wilson Steet residenceCase 5:12-cv-00836-DEP Document 98-26 Filed 08/90/15 Page 8 af 10 doesn't matter. He would do it downstairs when you were upstairs cooking sometimes, 1 ‘mean, and he woutd be, like, at Manley, ‘Shut the door, she then explains that, when Davis was living with them, her husband used to ty to get he to go upstairs to check on their young son David, and she says, “I'd come down. He'd be out ofthe living room in the basement. He used to think of ways to get me out ofthe room, Like, 'm nat an idiot, Bobby.” MIP Ex, C-3 at 34:48-35:1 1, Bat 30. Pail: Mrs. Fire initially claimed, “I don’t even know wit that means. 1 just kind of threw it in there.” Siegel Decl. Ex. I at 238:8-15. When pressed, however, she acknowledged tha “T understand it's not about him lending him money [in the basement" and “at this point” Davis was talking about sex. But “I don't know anything hats taking place, obviously, because I'm cooking.” fd. at 239:8-25, She also claimed 1 don’t have any idea” why her husband tried “to get me out of the room” but “I didn’t, find it suspicious inthe least” fat 240:3-245:12. ‘The Taps: Davis ells Mis. Fine, “when T stayed therein your Basement, he would come down there every aight, Pm, fke, ‘What the heck? What’s Laurie thinking?” she geen What dink? He ithe wes doing he sane ng i ET another miner who used to spend time at theirhome], and then he gov erraeresea in And ther he'd come down to where you were every night and he'd say to me, "Go cheek David"... anything to get me out oF the room, And T knew... when Twas ‘walking down the sats at night I'd say to myself, guaranteed he's not in there. And when I look in, his papers would be spread out all over, and he'd be gone... Right slown tothe basement, door closed.” MIP Fs. C- a¢ 38:11-35:41, Eat 30-31 lain? Mrs. Fine claims there was nothing sexual about her husband trying o get her ‘ut ofthe room sole could talk to these boys and she assumed he just preferred privacy. Siegel Decl Ex. 1 at 244:21-2473. The Tape: After Davis then responds, “He did that every night, though, fora long time,” ‘he continues: “I sid, "You know what? Go toa place where there's gay boys. Find ‘youself gay boy and nail the shit out of him, Get your~ you know, get your rocks off ‘and have it be over with. You know, he just needs a that male companionship that can't give him. Nor she interested in me and vice versa." MIP Exs. C-3 at 4:45.34:54, Ewa Plaintiff: Mrs. Fine claims the reference to “yey boys” was purely “sareastie™ and didnot imply any suspcien of sexual activity with Davis. Siegel Decl Ex. I at 24710-24933 ‘She acknowledged thatthe reference to her husband's lack of interest inher was about ‘2X, but maintained that her reference to “male companionship” did not mean anything sexual, 1d. at 24722,Case 6:12-cv.00836-DEP Document 98-26 Filed 09/90/15 Page 9 of 10 The Taper Davie minds Mrs. Fine, “And always told you abou, lke, how hod Always uy and get me inthe shower,” she says, “Veah, I Sill ave graphic memory of that. Thank you.” Davis responded, “Wel ike, he would ~ Tike, you know, just ‘whenever you were’t there, you know, he'd would always try and, like you know, in in your Jacuzzi, foo“, o which she added, “Oh, you know, he'd say, you know, ‘Bobby andl are going to goin the Jacuzzi,’ and ike, got the bathroom. And Td ty to come in, and the door would be locked.” MJP Exs. 3 a 36:02-23, Fat 31 claims she had no suspicion of anything improper occurring inthe 1d her “graphic memory” was of Davis ance alleging to her that her husband groped him there. Siegel Decl. Fx. 1 at 250:13-258:1 1 The Tape: She ills Davis, “Vou dd nothing wrong and you were «child, and he took ‘advantage of that.” MIP Exs. C-3 at 36:50-56, Eat 32 Plaintiff: Mis. Fins says that “taking advantage” was perhaps “a poor choice of words” bbeeause she realy ust meant that Davis prefered more privacy when in the bathroom, ‘She also again claimed that Davis was not really “a child” inthe sense of being a minor at the time fame she was discussing. Siegel Decl. Ex. 1 at 253:14-255:18. “The Tape: Mrs. Five says that “as far as having any sexual love relationship [with her inssband]? That ienonexictent Totally.” and adds “I have nothing.” MIP Ex. C3 at 3742-53, Bat. Plaintf Plant aims that her remark that “I have nothing” did not refer to her lack of | any current “sexua love relationship,” but rather meast “I have nothing more to add” Siegel Decl Ex, 1st 260:21-262:12, The Tape: Mis, Fie immediately follows that exchange about her carent sex life by Saying “I'm kind ef stuck in, you know, a bad place. But when you eame over to see me, he was abanloningyou ... And then we tied to keep it separate, without him ~ just never. . to which Davis responds, “And that's why itnever worked.” MIP Es. C-3 at S7:S3-38:10, Eat M, Plainttl Plaitff-Senies this refes toa prior sexual relationship with Davis. Siegel Del. Ex. [at 262:17-26655 “Thea _Thg conversation ton ro other boys er husband wok in and Mis. Fine Sys the QB ssn nan out of drug read Yo aw, he's Fucked up nd yo 8Case 5:12-cv-00896-DEP Document 98-26 Filed 09/90/15 Page 10 of 10 wonder: What did he [Bernie] do to him?” She then says, “I asked him if Bernie ever «id anything, and he told me no, ... Do boieve it? No." Davis agrees. MIP Exs. C-3 a1 38289-3920, Eat 33-3, Plainff; Plant’ frst claimed that she was not referring to “anything sexual” but was talking about the fet that “Beenie gave him money”, that" MMIMBWas having sox with sone gil tat we found out about”, and that Herne may havea jon the shoulder, but not sxually. Siegel Decl. Ex. 1 at 2673-24-270:15. She then reversed herself and suid she did asi QQ whether anything sexual ocurred. fe 271:10-14 “The Tape: Diseusting Mr. Fine's demande for sex in exchange for loans to Davis, she ‘esponds to Davis's statement tht “it’s not just the money” for her husband by saying, “Ws about the dic.” MIP Exs, C3 at 42:24-26, Eat 37. intff Plaintffclaims she was being “facetious” and just “thrshw i in there.” Siegel | Deol. Bx. at 2748-27534