Acting Atty. Gen. Peter Nickles

Today, plaintiffs attorneys in one of the Pershing Park cases filed their response to AG Peter Nicklessworn statement submitted to the court on August 12. The plaintiffs’ response is a 26-page takedown of the OAG’s and the D.C. Police Department’s conduct in the case as well as a refutation of Nickles’ own sworn declaration [PDF}.

At issue: the missing evidence, doctored or missing radio dispatches, and a discovery process that has lasted for years without an end in sight. Nickles’ statement apparently has done little to assure plaintiffs that they will be getting a full accounting of what happened during the mass arrests at Pershing Park—-and what happened to all that missing evidence.

The attorneys state that they were so disappointed with Nickles and Co.’s representations to the court, they can only form one conclusion: the need for an independent investigation, and “severe sanctions.”

The plaintiffs attorneys write:

“Given the District’s recalcitrance in admitting even the existence of apparent alteration of the audiotapes and the complete absence in the Declarations of any discussion of how the gaps were created or tapes were not produced, it is clear that only an independent inquiry—not aimed just at glossing over the OAG’s shortcomings or pinning all blame for others’ failings on [lead counsel Tom] Koger—-will be able to resolve this issue.”

They argue against Nickles as lead investigator into the missing evidence:

“Nickles has been responsible for this litigation—-with his name appearing on all of the filings—-since he became the Attorney General in January 2008. A significant number of the discovery abuses occurred while he was serving as the Attorney General, and he has been personally active in these cases….He would hardly be considered an impartial or independent investigator of his own office’s actions.”

The attorneys write that the declarations of Nickles and other District officials fell well short of Judge Sullivan’s order:

“The District does not explain the cause for the District’s utter failure to comply with its most basic discovery obligations in the Chang and Barham cases, or why no investigation has been conducted into the missing and apparently destroyed evidence, despite being informed by Plaintiffs years ago of these failures. What is clear from the Declarations is that Nickles provided no explanation for the gross misconduct in this case.”

The plaintiffs focus on the issue of time—-the seven years of faulty discovery, and the filibustering of the OAG. They did not take kindly to Nickles’ using OAG’s lead counsel Tom Koger as a scapegoat for the Pershing Park mess.

“It is incredible that the District would suggest that Koger alone was the only person responsible for the District’s, and particularly the MPD’s, failure to preserve, maintain and produce responsive documents. It is, as noted, a variation of teh District’s overall strategy to blame one individual for wide systematic abuse in these arrests, while nimbly shifting responsiblity away from others who share in the culpability.”

The plaintiffs go on to address the issue of the missing evidence and Nickles’ response:

“The District does not explain how the JOCC Running Resume (and the various paper and electronic copies of it) went missing. The credibility of the declarants is severely undermined by their failure even to address, much less explain how radio run audiotapes were altered—-with critical portions apparently erased—-or disappeared. Instead the District suggests that these are simply issues it plans to look into at some unidentified future point in time. They also do not explain why these allegations are being treated as new disclosures by Nickles and Efros despite their past involvement in the case on a supervisory level.”

The Radio Runs

Plaintiff attorneys highlight the issue of the gaps in the radio dispatches from Pershing Park. They take particular issue with the amazingly faulty deposition of Denise Alexander. The OAG had produced a sworn statement from Alexander testifying that the radio dispatches did not contain gaps. Even after a police official testified in a deposition that Alexander was wrong—-that there were gaps in the tapes—-the OAG never withdrew her affidavit from the court record. Nor did the OAG ever seek to correct Alexander or investigate the matter further.

“The District continues  to fail to discuss how it came to submit to the Court the patently false declaration of Denise Alexander, why it continued to defend that declaration after it became clear that it contained falsehoods, and how it reached the conclusion never to withdraw Alexander’s declaration from the record….In fact, the District fails even to acknowledge that gaps in the radio run audiotapes exist—-information that could be confirmed with only a few hours of effort.”

The Running Resume

Plaintiffs also take issue with Nickles’ accounting for the missing running resume. In his statement, Nickles appears to suggest that the running resume had been turned over to the D.C. Council during its investigation into Pershing Park. This is not so, according to Councilmember Mary Cheh. Plaintiffs confirm this in their filing:

“In an effort to close all remaining holes, Chang counsel reviewed all publicly available files held by the Office of the Secretary to the Council and Committee on Public Safety and the Judiciary and confirmed that the JOCC Running Resume from September 27, 2002 was not among those documents….Moreover, the Committee on Public Safety and the Judiciary staff told Chang counsel that several individuals, over the past couple of years, had examined the same set of documents in a search for the JOCC Running Resume and had been unsuccessful—-suggesting that the OAG’s office was likely fully aware that the City Council did not have a copy of the document. The direct contradiction of the latest series of declarations from the District should only serve to strengthen the conclusion that the Attorney General’s Office cannot be relied upon to get to the bottom of this issue.”

Bad Timing

And finally, plaintiffs attorneys address the central question: Why didn’t the District investigate the missing evidence years ago?

They write:

“This is not a new problem; the District has known about it for years. In October 2007, the Barham Plaintiffs filed a motion to compel the District to produce running resumes and recorded police channel communications. Apparently, Efros had already assumed her supervisory position over this case by this date. The Court granted the Barham motion on October 30, 2007. On November 16, 2007, the District filed the declarations of Koger and others, which concluded that the JOCC Running Resumes had disappeared. From that point forward, at least, the District was on firm notice that its document retrieval, management and production processes had failed, either through negligence or intentional acts, and some steps should be taken….No investigation was commenced by the District as to the document management practices in these cases or any other cases where similiar problems were likely to occur….Nowhere in its response does the District describe any effort by the OAG to investigate its discovery abuses or determine how and why evidence went missing.”

They go on:

“It is clear the OAG knew of these issues, admitted them in Court months ago, and still took no actions. It is only the Court’s Orders that ddroe them to commit to take actions to address the inadequate process of handling civil litigation discovery.”

*photo by Darrow Montgomery.