Acting Atty. Gen. Peter Nickles

For D.C. Attorney General Peter Nickles, Pershing Park isn’t over. Though the city’s top lawyer had just settled a big lawsuit with 400 plaintiffs over the mass arrests that took place on Sept. 27, 2002, there is another, more stubborn suit sitting out there.

Attorneys in the Chang case represent just four plaintiffs. But these folks are serious: They were the first to file suit over Pershing Park in federal court, and they have already signaled that they won’t be content with $18,000 bucks per plaintiff and a few stipulations that city lawyers will safeguard evidence in future cases.

Yesterday afternoon, Nickles met with the Chang principals in the hope of reaching a settlement. It was the first meeting between the parties, and Nickles had a lot riding on the outcome. If he could make a deal, he could save the District millions of dollars in attorney fees and court sanctions, and save his people from defending a tough set of facts at a trial scheduled to start in October 2010.

Could Nickles make Pershing Park go away for good?

No. The meeting was a brief one. Plaintiffs lawyer Jonathan Turley would not comment on the substance of the meeting but says a trial appears inevitable.

“It is unlikely that we will see a resolution of these issues without a trial and a verdict,” Turley says. “We have assumed that a trial would occur in this case for years. All I can say is we continue to look forward to Oct. 2010, when we can put these witnesses and this evidence before a jury.”

Late last night, Turley and Co. filed a motion [PDF] in U.S. District Court that made their intentions all too clear.

The papers ask to amend the Chang complaint to include the allegations over the discovery abuses.

What does this mean? They want to put the destruction and alternation of evidence before a D.C. jury. It’s possible that lawyers under Nickles and in the D.C. Police Department’s general counsel office would be compelled to testify about how critical evidence went missing or was destroyed. Already, at least one official appears to have given a false affidavit.

The evidence problems range from the withholding of documents for years, to D.C. Police film and radio recordings containing mysterious gaps to the infamous missing running resume, the play-by-play documentation by the police concerning the mass arrests at Pershing Park.

At this point in the seven-year-old litigation, the discovery abuses have become way more than a sideshow. The plaintiffs’ filing reads:

“These proposed amendments are obvious and represent a well-founded response to the flagrant efforts by the District defendants to obstruct both Plaintiffs’ rights to recovery and the civil processes of this Court. While these discovery violations have arisen at every stage of this litigation, starting with the District Defendants’ failure to preserve documents immediately after the arrests or even after the commencement of this litigation a month later, some of the most serious transgressions came to light only recently.”

Plaintiffs reference the Sporkin Report and the allegation that the police department’s general counsel withheld relevant documents for the past five years. They claim that the withholding of documents and discovery materials had been a tactic from the very beginning.

The plaintiffs lawyers quote from an e-mail in which Assistant Chief Peter Newsham wrote in the aftermath of the Sept. 27, 2002, Pershing Park arrests: “I am very reluctant to share our tactics and strategies with defense attorneys.”

The plaintiffs attorneys go on to list some of the subsequent discovery problems aside from the missing running resume and faulty radio tapes:

*A witness testified in deposition that Chief Ramsey’s computer was never searched for relevant documents and was destroyed or wiped clean when he left the department.

*In 2004, the District performed a very limited search of police e-mails.

*It was only after the discovery process ended that the District then produced more than 22,000 pages of relevant documents; they were only produced after Judge Emmet Sullivan slammed Nickles in open court. Even these documents contained gaps and unjustified redactions.

*Plaintiffs are still waiting for the District to turn over all relevant video footage. They write: “The District has produced only two unique videotapes that contain footage of the events on Sept. 27, 2002—-both of which contain crucial gaps in the footage that correspond to the timing of the arrests at Pershing Park.” Six cameras were designated to shoot footage of Pershing Park that day.

*Nickles has failed to live up to his promises to the court. The plaintiffs lawyers write: “Despite his stated commitment to do so, Attorney General Nickles has failed to undertake a comprehensive investigation of these discovery abuses.”

When asked about the filing, Turley wrote in an e-mail to City Desk:

“The amended complaint describes growing evidence of the intentional effort of high-ranking District officials to destroy or alter evidence related to the unlawful arrests during September 2002.  The amended complaint would allow a jury to consider evidence of obstruction, spoliation, and perjury.  Regardless of whether the Court now refers this matter for criminal investigation in light of the Sporkin report and recent witness statements, we believe this matter should be put before a jury to render its judgment on the conduct of these officials.”

*Photo by Darrow Montgomery.

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