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AG Peter Nickles has submitted his sworn statement to U.S. District Court Judge Emmet Sullivan addressing the evidentiary problems in a Pershing Park case. Along with his statement, are the statements of other District lawyers involved in the case which we will get to in a subsequent blog post.
In his statement, Nickles lays out a series of steps he has taken to fix the missing evidence problems. One of his first points he makes is that he has appointed Ellen Efros to “assume the position of lead counsel in this matter.” The only problem: Efros has long been the supervising attorney in this case.
Nickles goes on to state that he has ordered a series of investigations and reviews of evidence in the Pershing Park case. The upshot: All of them appear to be in-house reviews either within OAG or the D.C. Police Department and the Mayor’s Office except for the appointment of retired U.S. District Court Judge Stanley Sporkin, who would only be advising Nickles about how to handle discovery issues in future class-action cases.
Nickles does state this: “The discovery lapses at issues (sic) here are inexcusable and should not have occurred. Even my preliminary investigation discloses that OAG personnel responsible for discovery made serious errors in managing and producing documents in these cases.”
Nickles lays the bulk of the blame on the attorney assigned to the case—-Thomas Koger:
“As such, the responsibility for the errors here falls on him. He, and those he supervised, misplaced documents and, because they were not indexed upon receipt, lost track of them. Ths, the documents were not timely produced….I state unequivocally that significant, remedial actions will be taken to address these issues and to prevent their reoccurrence, including proper disciplinary action. I also can state that promptly upon discovery and review of the belated discovered documents, they have been and will continue to be produced to plaintiffs.”
Nickles then states this: “Without in any way excusing the unacceptable discovery lapsees in this case, I do want to express my continuing support for our lawyers and staff as talented, hard working, committed professionals who strive, often under difficult and overwhelming circumstances, to provide high-quality representation for the District.”
On page 9 of his statement, Nickles addresses the missing evidence in the Pershing Park case which includes the disappearance of the running resume and the gaps in the radio dispatches. Nickles states that he has not had the time to fully investigate the matter. But he promises to root out the problems:
“My investigation will focus on what appears to be the apparent and highly problematic failures of MPD to maintain evidence related to these cases as well as conflicting accounts as to such missing evidence. If this proves to be true, not only will I recommend disciplinary measures against those responsible, but, with Judge Sporkin’s assistance, I will conduct an evaluation of current MPD protocols and procedures for ensuring that such evidence is properly secured.”
Nickles states that the reason for the missing running resume is “not clear.” “The non-existence of such evidence, whatever its probative value may be, appears to be inexcusable,” he states. ” He says that his office did not have the running resume.
Nickles says there will be an investigation into the gaps in the radio dispatches.
Nickles appears to blame proceedure for the loss of these pieces of evidence:
“As a last point relating to discovery problems and deficiencies in these cases, including the apparent loss of evidence, let me state that the investigation of the Pershing Park mass arrest and the collection of pertinent documents within MPD commenced shortly after the October 24, 2002 public hearing of the Committee on the Judiciary. However, even as these efforts were underway, no formal litigation ‘hold letter’ was generated. Civil Litigation Division protocols in effect at that time were not as stringent as they are now regarding the issuance of hold letters. Now it is mandatory that when litigation is filed, litigation hold letters are sent directly to all affected agencies.”
Nickles concludes his testimony by stating that he is committed to “a vigorous and independent investigation of what happened and remedial action intended to ensure that the mistakes do not occur again.”
The question remains how will Nickles conduct an independent investigation when all the officials tapped to looking into the missing evidence are District government employees.
Nickles does not address his own handling of these cases since he headed up the OAG. All of the evidentiary problems were known when he became the District’s top lawyer. And he had a hand in the OAG when he was Fenty’s general counsel. Nickles appears to be coming to these problems cold. He does not address why he had not investigated the missing evidence when the issues came up years ago.
Mara Verheyden-Hilliard, an attorney for the Partnership for Civil Justice and the class-action plaintiffs’ lawyer in this case, tells City Desk:
“In reading the affidavit, they concede the massive scope of destruction and engage in a head scratching exercise as to how so many documents under their own control could have been destroyed in so many different ways. I think that the judge gave Attorney General Nickles to provide explanations and that this document fails to do so.”
Verheyden-Hilliard: “This court submission heightens the need for there to be an independent investigation or independent prosecutor to investigate the destruction of evidence and massive discovery abuse and cover up.”
You can read an item on Koger’s statement here.