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

The back-and-forth continues over the Pershing Park mess in U.S. District Court. Today, AG Peter Nickles filed his response to former Councilmember Kathy Patterson‘s letter to Judge Emmet Sullivan on Aug. 20.

In his barely three-page response, Nickles provides a nearly substance-free denial of Patterson’s claims that his sworn statement had contained inaccuracies. Last week, Nickles had expressed his displeasure to the court that Patterson had jumped into the fray and that her letter had been made public. Again, it all centers around the discovery problems.

Patterson had taken issue with Nickles’ contention that the D.C. Police Department’s counsel never saw or had in their possession the now-missing running resume for the Pershing Park mass arrests. Patterson had produced a letter dated Nov. 21, 2003 in which D.C. Police Department General Counsel Terrance Ryan promised the running resume. At the very least, his letter suggests that he knew that such a document existed and that he may have been familiar with it.

Ryan wrote to Patterson:

“The department has substituted the SOCC/JOCC running resumes for the Commander’s Mass Demonstration Event Logs. The running resumes for the above listed events are being produced today.”

In Nickles’ response, he never addresses the Ryan letter. He does correctly point out that the D.C. Council had asked for the running resume during its investigation into Pershing Park and that they never received it. In fact, the department’s Deputy General Counsel Ronald Harris did send over a “running resume” just not the correct running resume. Nickles writes that Harris had “mis-identified” the document before submitting it to the D.C. Council.

Nickles writes that former U.S. District Court Judge Stanley Sporkin will be examining the issue of the missing running resume in his “independent investigation.”

Patterson also refuted Nickles’ claim that the OAG had been denied documents stemming from the D.C. Council’s investigation. [You can read the council’s final report on the mass arrests here]:

“By the conclusion of the Committee’s investigation—and the publication of the Committee report on March 24, 2004—the thousands of pages of documents gathered by the investigation were made public, with the exception of depositions taken from two undercover officers, and a portion of the deposition taken from Assistant Chief Peter Newsham.

On December 4, 2003, the Judiciary Committee voted to release from executive session the bulk of the documents received under subpoena from the Metropolitan Police Department. We made the documents public at that time because we planned to make use of the information during two days of public hearings held two weeks later….To the best of my knowledge, all of the Committee’s investigation files remain available today for public review through the Office of the Secretary of the Council.”

Patterson goes on:

“Mr. Nickles makes reference to a subpoena seeking documents provided to the Committee, but the Committee on the Judiciary was never the subject of an OAG subpoena–that would have been unnecessary, since, as indicated, the documents had been placed in the public domain.”

In his reply, Nickles still insists that he is correct. In an astonishing tactic, the AG basically states that his office may never have all the documents/information related to Pershing Park because a subpoena to Councilmember Mary Cheh had been blocked. It’s startling given the amount of OAG and D.C. Police Department failures in this case. Nickles writes:

“OAG sought to ensure by means of its Freedom of Information Act request and subpoena that the public (and OAG) had access to all of the documents that were in Council’s possession. The quashing of the subpoena directed to now Council Member Cheh denied OAG that opportunity and thereby denied OAG access to any documents that might not have been made public. We will never know with certainty whether the subpoena would have produced additional documents.”

Nickles’ jab at Cheh is made more strange considering that it was the District’s lawyers who mislead the D.C. Council. Nickles does not address at all the plaintiffs’ lawyers’ own response [PDF] to Patterson’s letter.

In their response, they write:

“One might wonder how it is that the former Chair of the Judiciary Committee, charged with exercising legislative oversight functions and having done so in the course of a formal investigation into police misconduct during mass demonstrations, could hold an expectation that the Council had received the all-critical command center running resume.

The answer is simple. The Council was misled by the District’s top attorneys and the Chief of Police.”

Plaintiffs attorneys go on to note that in the same Ryan letter quoted above, he promised the running resumes for April 200o and September 2002. And they write that the Chief of Police promised the running resume as well:

“Chief of Police Charles H. Ramsey tendered to Committee Chair Patterson on that same day his responses to the Council’s written deposition questions, submitted under penalty of perjury. Ramsey attested, with respect to three identified mass protests including the relevant September 2002 protest, that the MPD had not created a P.D. 759B ‘Commander’s Mass Demonstration Event Log’ as required pursuant to the mass demonstration manual…but rather that ‘Commander’s Mass Demonstration Event logs have taken the form of the running resumes produced by the department’s Joint Operations Command Center. The running resumes that have not been produced previously will be submitted on this date.”

The District has since conceded that it never turned over the running resume. Plaintiffs attorneys assert that Patterson had been misled to believe that she had received the running resume. Neither police department lawyers or Ramsey ever suggested that the running resume had been lost or destroyed.

The attorneys assert that the the OAG and the D.C. Police Department lawyers knew the running resume had gone missing but failed to admit as much to the D.C. Council and Patterson at the time. Plaintiffs lawyers ask an important question:

“Why did the top lawyers for the District and the Chief of Police misrepresent another document to be the J.O.C.C. running resume and fail to advised the Council of a belief that it had disappeared?”

The lawyers assert that it was not Nickles who had trouble getting info out of the D.C. Council. It was the D.C. Council who had trouble getting information out the D.C. Police Department.

“The Council was prepared to seek judicial enforcement of their subpoena if necessary. The Judiciary Committee ultimately reported that its investigation had ‘been hindered throughout’ by the refusal and failure of the executive branch to produce documents in response to Council subpoena.”

The lawyers state that if the OAG and the Police Department had come clean then, there would have been a huge investigation into the missing running resume. And it more than likely would have been found.

Instead, the D.C. Police Department produced a bogus running resume. They didn’t get caught until years later. The lawyers assert that the department had—-at least for several years—-the real running resume and just never turned it over. They cite the testimony of Sgt. Douglas Jones.

And, the lawyers state, the OAG has willfully provided false excuses for the missing running resume. In one case, they stated that the running resume wasn’t created until after Sept. 2002 and in another, they stated that running resumes were no longer generated by the police as of Sept. 2002.

They write:

“One is left with the impression that the OAG has been willing to advance whatever representation serves their immediate interest in litigation defense, without regard to accuracy, consistency or whether based upon the full or true collective knowledge of the MPD. After a series of cases, years of litigation, and an investigation by the D.C. Council, the District has become entangled by the string of false tales it has spun.”

*photo by Darrow Montgomery.