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On Wednesday, U.S. District Court Judge Emmet G. Sullivan slammed the District’s lawyers for how it has severely mishandled evidence in a civil case brought by plantiffs who were arrested in Pershing Park in September 2002.
Sullivan focused particularly on AG Peter Nickles. The Post writes:
“Sullivan ordered D.C. Attorney General Peter Nickles to submit a sworn declaration detailing his office’s shoddy work and the steps he was taking to fix the problems.
Sullivan said he would impose ‘severe’ monetary sanctions on the D.C. government and urged Mayor Adrian M. Fenty (D) to ‘settle this case soon.’ ‘This kind of conduct is not acceptable,’ Sullivan said, calling the actions of D.C. government lawyers ‘abysmal’ and urging the D.C. Council to investigate the attorney general’s office.'”
You can read Sullivan’s full statement to the court here. So what provoked the judge’s anger?
Pershing Park is the scandal that just won’t go away. On the morning of September 27, 2002, D.C. Police had set about to monitor anti-IMF/World Bank demonstrators. By then, the protests and the policing of the protests had become routine, almost boring. There were no major acts of violence, vandalism or unrest that day.
But then the police decided to move on people in Pershing Park. They had funneled protesters into the park. Video taken of the park shows the protesters looking bored, sitting around. There were also other non-protesters in the park including nurses in town for a convention, and lawyers on their way to work. Without warning, police rounded them up and arrested them all.
Police then transferred the mass to its training academy in Blue Plains; each citizen was then hogtied and left on a mat for hours. They were all arrested for “failure to obey” an officer’s order.
The controversial arrests hounded then-Chief Charles Ramsey. Then-Councilmember Kathy Patterson conducted an investigation into the incident and issued a devastating report.
The report concluded that Ramsey and Co. did not have probable cause to arrest anyone in Pershing Park, failed to give any orders to the people in Pershing Park (they were arrested for “failure to obey”), and went on to question whether Ramsey lied to the council in his testimonies.
For the past five years, plantiffs attorneys had been asking for the most basic documentation of the Pershing Park incident. They had been requesting items that should not have surprised anyone at the Attorney General’s Office or the D.C. Police Department.
The attorneys had asked for the radio runs concerning Pershing Park—-the back-and-forth communications between officers and officials on the scene. And they had asked for the running resume from the command center which would have amounted to another very basic back-and-forth database documentation of what all police officials knew at the time and what orders were given. This is basic accountability stuff.
For the past five years, plantiffs attorneys could never get these items. Even worse, the radio runs they did receive appear to have been doctored.
The Running Resume
In its motion for sanctions, plantiffs attorneys write:
“The District has destroyed or lost the Joint Operations Command Center ‘running resume,’ which is the central repository of all acts taken and events observed and decisions made by law enforcement on September 27, 2002. While the District falsely claimed it never existed, the [plantiffs] were able to prove that there were no less than 12 hard copies of this electronically generated document provided to key command in the MPD, including then-Chief of Police Charles H. Ramsey.”
The motion for sanctions goes on to state that not only were there 12 copies made of the running resume but there were also “two redundant electronic data file or data base back-ups created.” These electronic versions have never been turned over to the plantiffs.
The plantiffs go on to state that the loss or destruction of the resume occurred after a police official—-Sgt. Douglas Jones—-turned over the data dump to his superior.
From there, the trail for the running resume goes cold. No one will say what happened to the data. There is no evidence that it was not received by the general counsel’s office.
In an earlier protester lawsuit stemming from the anti-IMF/World Bank activities on April 2002, D.C. Police denied that the running resume’s existence. The denials stopped after Sgt. Jones testified in deposition that he handed the resume over not once but twice to the police department’s general counsel. He also was able to recover his own e-mails to the counsel’s office as well as the data base. At that point, D.C. Police suddenly disclosed that its counsel had the data base all along.
In that case, Judge John D. Bates sanctioned the District for “a clear case of sanctionable discovery misconduct.” He ordered the District to pay roughly $100,000 for the misconduct. The running resume showed that the FBI had interrogated the activists.
Bates ruled: “It is clear that the District not only should have known about the existence of the running resume, but individuals with the District did know about the running resume.”
It’s not like MPD did not know the lawsuits related to Pershing Park were coming.
Plaintiffs state that within one week of the mass arrests, MPD Inspector James Crane stated in deposition that General Counsel Harris “called me up, and it was shortly after the protest and said he’d like to, in advance of any litigation, he wanted to get copies” of the recorded police communications.
The D.C. council had requested the running resume during its investigation. Plantiffs argue that D.C. Police tried to pass off to the council a different document as the running resume. “The Council was never given this crucial document nor told it was destroyed or withheld,” the lawyers state. “The running resume is the key to all claims. It is gone, and the prejudice is massive.”
The attorneys go on to state: “It is remarkable, even unbelievable, that the MPD could ‘lose’ all of the many hard and computer copies of the running resume.”
“I think that this is an astonishing destruction of documents,” plaintiffs attorney Carl Messineo tells City Desk. “That responsibility lay at the doorstep of Peter Nickles. This indicates misconduct that permeates the entire legal representation for the District of Columbia and MPD in other protest cases.”
The Radio Runs
District lawyers did hand over radio runs across multiple channels to the Pershing Park plantiffs. But there was a catch.
Key segments of the radio communications had been erased. What was erased? The critical minutes leading up to the arrests and any communications during the arrests themselves. On one channel, there was a gap of at least 45 minutes. There were gaps on the other channels as well during the period of the decision making and execution of the arrests.
“The District has not accounted for these erasures or gaps, which were uncovered after intensive discovery efforts by Plaintiffs. In response to a discovery order ordering an accounting, the District submitted a materially false sworn statement to the Court regarding the radio runs,” lawyers state.
On October 30, 2007, the District was ordered by the courts to account for “any technical difficulties, questions regarding authenticity, or unaccounted for periods of time in the produced audio tapes.”
Plaintiffs argued in their sanctions motion that the District never complied with the 2007 order.
Plaintiffs got a sets of tapes three to four times—each set was different and incomplete. With each set of tapes, the lawyers still noticed gaps at the most crucial times (say when the people were arrested in Pershing Park) but the gaps varied in length. In other words, each set of tapes appears to be doctored in a different way.
Denise Alexander, communications technication employeed by the D.C. Police, submitted an affadavit in which she stated that there were nothing deficient about the tapes.
In Crane’s deposition, he admitted that there was indeed issues with recordings. “I believe that there is an issue that not all the recordings are present,” Crane admitted. “I do recognize there’s an issue with the lack of recordings.”
After the Crane deposition, the District produced a new set of audio tapes. Again, the tapes have gaps—-not the same gaps—-but similar critical gaps around the time of the arrests.
“This is a case that has been transformed from a case which revealed a willingness of the MPD to engage in mass civil rights violations into a scandal that reveals the willingness of the MPD and its legal representatives to destroy documents after those documents are clearly relevant in litigation,” Messineo says. “It’s now a case about a cover up.”
Veteran city attorney Thomas Koger, who is handling the case, refused to comment for this story. “I’m not authorized to speak about any topics. Mr. Nickles is authorized,” Koger says. “Mr. Nickles would be handling any questions about that.”
Nickles did not return calls seeking comment.