Pershing Park Case: Nickles Could Have Addressed Missing Evidence Long Ago
Nickles' statement in which he was ordered to explain numerous discovery problems including a missing police document and faulty radio dispatches has come under heavy fire from Councilmember Mary Cheh, Councilmember Phil Mendelson, and former Councilmember Kathy Patterson. Last week, plaintiffs lawyers in the other Pershing Park case submitted their own critical take on Nickles' testimony. They have called for an independent investigation into the missing evidence.
Now comes the plaintiffs lawyers in the Barham class-action case. They too believe Nickles fell well short of an honest explanation of the case's numerous OAG-related problems. In its 32-page rebuttal, they focus particularly on Nickles' claim that he is only now just learning about the missing and/or tampered police evidence.
In fact, they argue Nickles was quite familiar with the Pershing Park case since Jan. 2007. You can read the entirety of their statement [PDF].
Plaintiffs lawyers quote from Nickles' statement where he writes: "I have had only two weeks since the status conference to undertake the investigation."
The plaintiffs' lawyers' response:
"Mr. Nickles implies that he did not know of the intractable and prominent discovery abuses in this case prior to the July 29, 2009 hearing date ('Immediately after the status hearing on July 29, 2009, having then been informed of the Court's concerns and recently produced documents...'). However, Mr. Nickles never states under oath that he had no knowledge of the plaintiffs' discovery concerns or filings on the subject. He does not explain why no investigation was initiated despite plaintiffs having raised these significant issues of document loss, destruction and withholding over and over again years ago, including to the attorney that he has now appointed to take charge of the case, Ellen Efros. As further discussed below, Ms. Efros has long been involved in this matter and directly apprised of the discovery abuses.
Mr. Nickles' claim of surprise and/or lack of opportunity is neither credible nor viable at this late date. These have been prominent issues in a prominent case."
Plaintiffs then quote from Sullivan at the July 29 hearing: "All these discovery shortcomings have been appropriately documented in previously filed motions by Plaintiffs, so it comes as no surprise. None of this is any surprise to the City."
Plaintiffs argue that Nickles had at least half a year from their filing for sanctions to investigate the evidence problems. They write: "Notwithstanding his claims of surprise and protestations of a lack of opportunity to educate himself and investigate the discovery violations, Peter J. Nickles has been personally involved in this litigation since his very first week in his official position as General Counsel to Mayor Fenty, way back in January, 2007."
Plaintiffs lawyers then go on to provide a bit of news concerning Nickles' involvement in the Pershing Park mess. They state that on January 8, 2007, Nickles "personally met" with mediators in the case:
"One would presume that in order to represent the District's (or the Mayor's) interest in settlement, Mr. Nickles became quite familiar with the case and the major issues that could impact its advance and defense and inform settlement posture."
Plaintiffs lawyers also state that Nickles met with the appointed mediator during a second session in 2008. They write:
"It is a matter of record that at that time, discovery had closed, the destruction of the J.O.C.C. running resume had been established, missing periods of time of the recorded police channel communications had been established and acknowledged by the District in the deposition of Inspector James Crane, the materially inaccurate Declaration of Denise Alexander had been submitted to this Court, the former Director of the Office of Internal Affairs Stanley Wigenton had admitted in deposition that that Office has a practice and unwritten policy of not investigating allegations of police misconduct if a victim files a lawsuit...the withholding by the OAG of the field arrest forms had been established, and the OAG certainly was aware of its belated production of nearly 3,000 documents on the last day of discovery and the next day after. The plaintiffs had advised the Court that a major motion for sanctions against the District was forthcoming, and a briefing schedule had been set and then suspended when the case was stayed for mediation. No doubt, Mr. Nickles informed himself of all relevant issues in order to properly represent the defendants' interests in settlement."
We will be posting more on the plaintiffs rebuttal later today and tomorrow. There's more news concerning the alleged OAG resource problems and the missing evidence.