Acting Atty. Gen. Peter Nickles
Acting Atty. Gen. Peter Nickles

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In this morning’s hearing in U.S. District Court, Judge Emmet Sullivan edged ever closer to referring the Pershing Park case to the Department of Justice—-signaling he’s close to handing the matter over to Attorney General Eric Holder.

But first, Sullivan wants to order up one more investigative tool at his disposal: some serious tech support.

Following up on the recommendations in the Sporkin Report, Sullivan ordered that he would hire a forensic examiner to investigate the missing and/or destroyed evidence in the case. He added that the examiner would be selected based on recommendations from both parties and would be paid for by the District.

It was unclear whether the forensic examiner would study both the missing running resume issue and the gaps in the radio tapes from the mass arrests in Pershing Park on Sept. 27, 2002.

“I think it should be someone appointed at the discretion of the court,” Sullivan stated. “And the city is going to pay for it.”

In the days leading up to the hearing, tensions had see-sawed among the parties. Two days ago, an $8.25 million settlement was reached between the 400 or so plaintiffs in the Barham case and the Office of the Attorney General. But settlement talks in the remaining case, the Chang case, appeared to have stalled.

AG Peter Nickles submitted several filings late last night. In one, he filed a motion to halt all depositions.

Before Judge Sullivan, Nickles played up his pro-bono days when he was the one battling government corruption; he clearly hates the fact that he’s now seen as the bad guy. At least twice, he stressed that his reputation is on the line.

“I’m not trying to hide anything,” Nickles insisted, later telling Judge Sullivan, “I’m trying to clear the air here. You’re the boss.”

To which Sullivan replied: “That’s exactly right. And we’re clear about that.”

And the Boss still wants answers to the mystery of what happened to the running resume and the radio tapes. In addition to the hiring of the forensic examiner, Sullivan made other decisions critical to this fact-finding mission.

Sullivan denied Nickles’ attempt to halt depositions. At the request of the U.S. Park Police attorney, he granted that defense lawyers could depose a key witness, Det. Paul Hustler, who had testified in an affidavit that he heard Chief Charles Ramsey give the arrest order in Pershing Park.

Changing his stance from last night’s filings and his recent protective order requests, Nickles suddenly warmed to the idea of more depositions. “Discovery can go on forever,” he told Sullivan.

Sullivan moved up the trial to date a month—to September 2010. Chang plaintiffs attorney Jonathan Turley said he would be ready to go to trial.

Sullivan also made clear that no settlement would prevent sanctions in the case nor would it prevent him from referring the matter to criminal authorities.

Sullivan spent serious time questioning lawyers about whether he should go ahead and refer the matter to Holder. Barham plaintiffs attorney Mara Verheyden-Hilliard said it was time. Turley agreed and argued that the criminal investigation would not interrupt the civil proceedings in his case.

Nickles told Sullivan that he believed the forensics examiner should do their work first before any referrals were made. “I think it’s better to have more knowledge,” Nickles argued.

Sullivan agreed to wait to see what the forensics examiner finds.

No matter what happens, Turley is itching for a trial. He told Sullivan that despite all the publicity the case has generated, a new law from the D.C. Council and millions in settlement money, one recently deposed cop—-Officer Michael Smith—-testified that he thinks he did nothing wrong that day in Pershing Park and would do it all over again.

“We’re going to fight vigorously to get these witnesses and this evidence before a federal jury,” Turley said after the hearing.

*photo by Darrow Montgomery.

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