NO. CV 09 5008537 S DANIEL GAITA VS.

GARY CHESLEY, ET AL

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SUPERIOR COURT JUDICIAL DISTRICT OF DANBURY AT DANBURY DECEMBER 1, 2011

PLAINTIFFS REPLY TO DEFENDANTS AMENDED TRIAL MANAGEMENT STATEMENT OF DEFENDANTS 1.REPLY TO DEFENDANTS Statement of the Case The Plaintiff hereby argues he, at no time prior to the alleged defamatory email, had ever been a political candidate as alleged by the defense in the defendants November 22, 2011 Trial Management Statement of Defendants. State Election Enforcement Commission records show the Plaintiff had never been a political candidate for any elected office until October 2009, nearly two months following the submission of the Defendants email.

2. Reply to defendants claim that: That the videotape is exactly or at least substantially what the allegedly defamatory email said it was.

Plaintiff contends that the alleged defamatory email claims the plaintiff violated the military code of conduct, the law, and used hate speech. However, during depositions of the defendants neither of the defendants could identify where hate speech was used, nor could they explain where they came to the determination that the video violated the military code of conduct.

3. Reply to defendants claim that: That the defendants had a black letter law absolute privilege under the common law of defamation (see affidavit of Mark Dwells, filed this date). Plaintiff contends that Defendant Chesley intentionally labeled the email a Campaign Promotion and Political Campagne Video wrongfully and intentionally. This misrepresentation was verified during Defendants depositions where each testified that the Plaintiffs video never: 1. Stated anything about an upcoming election 2. Named a political candidate 3. Told the viewers who to vote for 4. Made mention of local politics or local election related information.

Therefore, the alleged defamatory email Subject line, which was Dan Gaita Campaigned Promotion was purposely deceptive and done so to give the Defense Expert Witness Lt. Commander Dwells the impression that the Plaintiffs video was in conjunction with a political campaign. Which, as the defendants deposition testimony clearly demonstrates was not at all the case.

4. Reply to defendants claim that: That the only person who keeps drawing attention to the email is Dan Gaita. Plaintiff argues that testimony obtained during defendant depositions and discovery demonstrates clearly that the alleged defamatory email was distributed to the entire Board of Education and was done so by Defendant Dr. Chesley. This is not in dispute. Furthermore additional submissions of the alleged defamatory email to the general public was confirmed again during discovery whereby former Defendant William Hillman stated that he received the same information submitted in the alleged defamatory email by Defendant Dr. Chesley the same day the Board of Education members had received their copy.

5. Reply to defendants claim that: That the plaintiff was and remains a public figure and a vortex public figure, giving the defendants a first amendment right to express opinions about him. Plaintiff contends the First Amendment does not protect the defendants when the plaintiff has been wrongfully accused of a crime, and where the plaintiff can demonstrate malice. (New York Times Co. V. Sullivan, 376 U.S. 254.,1964)

6. Reply to defendants claim that: That the email was lawful under the fair comment doctrine in the context of a political campaign. Again, the plaintiff asserts the uncontested fact that he was never a candidate for political office at any time prior to the submission of the alleged defamatory email.

7. Reply to defendants claim that:

That there was no malice as the law defines it, notwithstanding plaintiffs contention that the defendants were his (political) opponents;

based on a decade of plaintiff accusing defendants of fraud, mismanaging the Bethel Education budget and being liars. Plaintiff continues to assert such allegations publically, by any media methods available to him. Plaintiff again asserts that at no time did politics, or political campaigns play any part in this action. Furthermore the plaintiff continues to allege that the submitted, marked and listed evidence will demonstrate a clear malicious attempt to destroy the plaintiffs credibility and reputation.

8. Reply to defendants claim that: The truth (complete defense) is that the plaintiff took a Marine recruiting video, depicting Marine exercises on the deck of an aircraft carrier, inserted an ominous rap style tune in the background, referring to defendants as liars (e.g. LIAR on the forehead of undersigned Matthew Knickerbocker) and presenting the Marines as coming back to clean up politics.

The plaintiff argues that the content of the alleged email, which accuses the plaintiff of violating the Military Code of Conduct, and using hate speech, relies upon the Defendants assumptions that:

1. The plaintiff was a political candidate. This assumption is false and not in dispute 2. That the video mentioned in the alleged defamatory email is a campaign promotion, which is also false and not in dispute. 3. That the Marine Corps came to the determination that the video was a violation of the Military Code of Conduct, which is also false, and not in dispute.

Therefore truth as a Defense does not apply.

Furthermore, the plaintiff obtained the video from an online, free, and legal video sharing website. The video the plaintiff used was never labeled a Marine Recruiting Video but was available for download, at no charge, and with no determination of owner or usage limitations. Furthermore, the plaintiff contends that his use of the video is protected under Fair Use.

Additionally, the use of the word Liar in the video was followed by two definitions of lie and liar according to Websters dictionary. The segment of the video whereby Defendant Knickerbocker has the word liar over his head was in coordination with a video whereby Defendant Knickerbocker was, according to Websters definition, lying about the Bethel High School accreditation status. This was later confirmed during defendants deposition testimony and in an earlier email exhibit whereby Mr. Knickerbocker admitted to misstating the schools accreditation status in the video clip. Therefore the reference to Mr. Knickerbocker as a liar was truthful and therefore protected free speech.

9. Reply to defendants claim that: After Consultation with Lt. Commander Mark Dwells, Dr. Chesley sent the subject email to the Board of Ed., and members, Mr. Craybas and undersigned defendant Matthew Knickerbocker asked if there was some way to keep Plaintiff from using this Marine Corp. video, a darned good question any sane and reasonable person would ask. Plaintiff contends that the use of the small segments of the Marine Corps video are well within Fair Use, that the plaintiff obtained the video not knowing it was a Marine

Recruiting Video, that the use of the video segment depicting Marines (with which the plaintiff is one) took up a fraction of the videos entirety, the video was not a political campaign video, does not make mention of the Marine Corps, does not claim the endorsement of the Marine Corps, nor does it seek any type of personal or financial gain for the creator (plaintiff) of the video.

Plaintiff further contends that Lt. Commander Mark Dwinells, was purposely misinformed by Defendant Dr. Chesley that the video was a campaign promotion in order to receive a favorable response (against the plaintiff) for his very minor use of an alleged recruiting video. Specifically by telling the Lt. Commander that the video was a campaign promotion.

10. Reply to defendants claim that: Plaintiff per his list of witnesses, seeks, in the guise of a frivolous defamation case, to air out the results of his self declared investigation of the Bethel Board of Education budget presentations to the general public and the failure of the defendants to provide accurate information prior to multiple budget referendums throughout their professional tenure

and going back at least 10 years. (see plaintiffs order item 1#, page 3 of his TMC report). The plaintiff continues to contend that the Justice System of the United States of America remains his last viable alternative to: 1. Obtain justice and remedy for the damage the defendants accusations have had on his small business, his reputation and his income. 2. Demonstrate and prove malice by showing the surrounding elements via documentary and electronic evidence, which led to the publication of the alleged defamatory email and the plaintiffs video. 3. Establish legal precedent that the type of communication transmitted from the Superintendent of Schools and current First Selectman is neither appropriate for a professional of their caliber and position of responsibility nor tolerated by our Justice System.

11. Objection to Defendants Motion The Plaintiff hereby objects to the following defendants motion:

Motions in limine to preclude testimony of witnesses as to plaintiffs contentions about the education budget of the Town of Bethel; immateriality, irrelevance and redundancy. Plaintiff contends that testimony from the witnesses is vital to demonstrate both, Defendants credibility and motive toward malice.

Plaintiff, Daniel R. Gaita, Pro Se By_________________________ Daniel R. Gaita 121 Dodgingtown Rd Bethel CT 06801 (203) 994-2987

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CERTIFICATION This is to certify that a copy of the foregoing has been emailed and also mailed on 12/1/11 to: Jeffrey G. Schwartz Law Offices of Charles G. Walker P.O. Box 2138 Hartford, CT 06145-2138 (860) 277-7480 _______________________________ Daniel R Gaita

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