First the Pershing Park case. The Office of the Attorney General may have had serious trouble with another high profile lawsuit---the Georgetown Library fire case. In April 2007, a three-alarm fire gutted Georgetown's public library. Two hundred firefighters along with roughly two dozen trucks battled the blaze. That huge effort may not have translated into a thorough investigation into the fire's cause. Chief Dennis Rubin and Co.'s sloppy detective work may cost the city big time.

In a lawsuit stemming from the fire, a contractor has challenged the department's conclusions that heat guns caused the blaze. The contractor saw enough holes in the fire department's investigation to sue the District.  Whether heat guns caused the blaze or not, the lawsuit is making one thing clear: the OAG is having difficulties furnishing evidence and discovery materials.

And OAG lawyers are furious at fire department personnel.

If there ever was a fire that called out for a serious investigation, it would be the twin fires that gutted the library and Eastern Market. The Eastern Market fire continues to be a subject of debate. Apparently, according to e-mails obtained by City Desk, the Georgetown Library fire investigation was far from competent.

At one point, an OAG attorney calls into question whether fire investigators followed national standards, and whether those investigators should be punished.

On February 19, 2009, Assistant Attorney General Esther Yong e-mails two fire officials---then-Assistant Fire Marshal Bruce Faust and Lt. Craig Duck. She writes:

"Based on some of the deposition testimony, there are additional documents, photos, and information that we need from FEMS regarding the Georgetown Library fire investigation.

First, I understand from my conversation with Lt. Duck today that each fire investigator has a notebook in which he keeps notes relating to his fire investigation work. We need copies of all pages from all fire investigator notebooks that relate to the Georgetown Library fire.

Second, Firefighter Ford testified in his deposition today that he took a whole photolog of pictures that were not included in the Fire Marshal's report. Firefighter Ford testified that he did not remember to whom he gave the photos, but (presumably) he did give them to someone in FEMS. I understand from my conversation with Lt. Duck today that firefighter Ford should have created a photo log for those pictures and provided them on CD to Lt. Duck, but it appears that he did not do so."

Yong goes on to implore Faust and Co. to find those pictures. And yet, discovery issues continued to be a problem. Yong didn't return a call for comment before this story's deadline.

On April 6, 2009, OAG attorney Michael Stern e-mailed Faust, Duck and other department personnel concerning discovery problems. Stern wasn't happy with the department's foot dragging.

Stern wrote:

"This is a 13+million dollar law suit. Enough for DC to hire many firefighters, or lawyers for that matter (or avoid layoffs or furloughs). Is there nothing that can be done to get this information? The first e-mail request in this chain was sent mid-February. (Though the original discovery requests to FEMS were sent maybe as long as a year before that time). We are now facing two motions for sanctions for not providing discovery. If granted the sanctions could limit our ability to present information. We need more urgency in getting these responses than we have had so far."

Stern then zeroed in on the question of whether or not the fire investigators kept notes on their work. He wrote:

"On a related issue, we've sent many emails requesting investigator notes. We've gotten back replies that they do not exist. However, the national standards for fire investigation require all investigators on the scene document their observations with notes and diagrams. If indeed there are no notes or diagrams, both for the purpose of trial preparation and to respond to the motions for sanctions, can the investigators explain why they did not follow the national standards? Is it that they weren't trained on these standards, or they forgot, etc.? Also is there some process FEMS initiates regarding review processes and personal evaluations when they learn trained investigators do not follow national standards of care in investigating cases, or when FEMS does not get responses from their employees to the questions raised by supervisors in attempting to obtain discovery information for lawsuits?"

Stall Tactics

Stern's e-mails followed a motion filed by the plaintiffs compelling discovery responses from the District. In their 16-page missive, the lawyers more than suggest the District was stonewalling in turning over fire documents:

"The District is represented by the Office of the Attorney General, which has the responsibility to search each agency, division and department's records for responsive information. The District has not provided full and complete answers to the discovery in this case despite numerous extensions, and therefore this motion is necessary."

Discovery began in Sept. 2008, the lawyers write. The OAG responded by requesting one extension after another. According to their motion, the lawyers wrote the District on December 29, 2008 and asked for the promised documents; the response back was less than promising:

"The District responded that the majority of the documents that the District has were already produced (which was confusing because the District had produced very little documentation)."

On January 8, the District promised to send over two CDs worth of documents. But once the documents were turned over, plaintiffs lawyers argue that "it was apparent that the District's production was incomplete and superficial. [Plaintiffs were], to be blunt, shocked by the inadequacy of the District's effort after all the extensions up to that point."

The lawyers then raised a point that has been highlighted in the Pershing Park matter---the OAG's lack of control over the case. They write:

"The District was sending different lawyers to the various depositions, there seemed to be no central person responsible for tracking down the number of files that the District's witnesses were identifying during the course of their depositions and which had not been produced."

By mid-February, plaintiffs lawyers had begun deposing fire investigators. They write that "it was becoming apparent that the District had not obtained those complete files either, including investigator's notes and electronic data that Lt. Duck has recently confirmed would not have been included in the case jacket."

It gets worse. The lawyers write:

"After it became clear during the fire investigator depositions that the District's origin and cause investigation was mishandled, the District's promise of production were becoming suspect...There had not seemed to be a sense of urgency on the District's part to produce its files despite multiple promises and extensions."

Finally, six months after the discovery requests were made, the District sent over the much promised documents in early March. Still, this production fell well short, the lawyers contend:

"When the District's documents did arrive, it was readily apparent that the response was again incomplete. Many of the documents that the District produced were documents that the District had simple recopied from its prior production, or it simply recopied prior agency FOIA responses, although FOIA responses are considerably more limited than the discovery that the parties are entitled to in litigation."

Plaintiffs lawyers go on to describe how serious time and money have been wasted. Incomplete depositions have been taken. District witnesses have shown up without their own files.  Among the missing documents still outstanding: photographs of the fire scene, "the complete fire investigation file," "fire investigation protocols," investigator notes and electronic files, the fire investigators'  internal communications, and the investigators' external communications with D.C. Police, the ATF or any other outside agency.

One source says that he turned over his notes to his fire department superiors. It was only after he was approached by an OAG lawyer did he realize his notes had not be turned over in this case.

The source says that the stonewalling may have had to do with who was leading the library fire investigation: Lt. Duck.

"Duck had no training in fire investigation. He definitely wasn’t a certified fire investigator. He had no training in interviewing and interrogation. And he had already had started to interview people on the scene prior to my arrival," the source says. "[Duck] clearly just copied or cut and pasted ATF’s report making a few changes to see that it looked like his. He threw away valuable evidence. He threw away items---the debris from the roof which is where the fire started."

The source adds that Duck did not properly secure evidence that he actually held on to. The heat guns were kept in the investigative unit untagged.

The sloppy investigation may have inevitably led to a mishandling of a court case any fire department official should have seen coming. "Here we go once again, the fire department was not prepared with these situations," the source says. "These cases always come up."

He calls the department's handling of the fire and the subsequent investigation and lawsuit: "unprofessional, uncaring and basically ignorant."

"Now, they’re caught with their pants down," the source says.

"It was a botched investigation," says another source close to the case. "A lot of the documents never existed because the proper investigative steps were not taken at the Georgetown Library scene. When this happens, the fire department, instead of admitting their mistakes and making the necessary changes inside of the agency, they just cover it up....Clearly, it doesn't seem to be a priority in the fire department or the attorney general's office to correct these problems. It's just a continuation of the pattern of corruption and cover up in investigations."

OAG lawyer Stern refused to comment for this story. Plaintiffs attorneys also refused to comment.

When asked if the investigators' notes and photographs had been turned over, Lt. Duck told City Desk: "I have no idea."

Duck then referred all calls to the department's public information office. Fire officials refused to allow Faust to be interviewed for this story.

"We can not discuss the case because right now it's in litigation," explains Deputy Chief Kenneth Crosswhite.

AG Peter Nickles had an equally succinct reponse to this story. “I don’t think I can help you on that," he says. "It’s not on the top of my radar.”

*photo by Darrow Montgomery.

Trash fires are again becoming a trend in Capitol Hill. WJLA has a small story on the trend and notes that investigators are looking into it. Of course, the last time trash-can fires had worried Capitol Hill residents occurred around the time of the Eastern Market fire. The D.C. Fire Department quietly dispatched a team of investigators to try and apprehend the fire bug; investigators believed that there may have been a connection between the dumpster fires and the Easter Market blaze.

Fire Department investigator Greg Bowyer was part of that team looking into the previous dumpster fires. That investigation, he says, did not come to a proper resolution. "The investigation of the trash fires in 2007 were totally mishandled," he says. "This should be an indicator to the Fire Department that these mishandled fire investigations are not going to go away."

Bowyer says that the investigation was halted prematurely. One suspect had been arrested. But investigators were not able to definitively tie the suspect to the fires or definitively clear the suspect. The man never went to trial. He disappeared and was later found dead.

"Fire officials just assumed the person was caught. I was convinced that the investigation was not handled properly," Bowyer says.

Of course, there may be no connection between these fires and the ones that popped up around the time of the Eastern Market fire.

The 1D listserv has been spreading the word about the latest round of trash fires.

On Sunday one resident wrote:

"We live on 3rd St. SE between C and D and have had 3 dumpster/trash barrel fires in four weeks - the most recent one last Sunday (8.10) at @ 6am. I posted on this listserv just to warn folks in the area to keep lids closed (the fires seem to be in containers that are either open or have no lid, at least these three).

One of the several members of MPD that responded last week was a member of the arson investigation team, and they are aware of these fires.

I also received replies from Diane Groomes and Diane Durbin of MPD that they would pass the word along to Chief Faust."

Another resident was less than satisfied with law enforcement's response to the fires:

"Just noticed your original post and that there seems to be no follow-up by MPD-1D, though some follow-up was promised.

http://groups.yahoo.com/group/MPD-1D/message/10566

Our lid was on, having a lid on or off doesn't seem to matter much.
Again, according to me neighbor, there have been 24 such fires on the Hill, though I cannot confirm this.

Does not seem like arson is tracked on the various crimereports:

http://www.crimereports.com/

http://crimemap.dc.gov/presentation/intro.asp

Least there is no mention of these fires.

Word from MPD-1D would be reassuring.

Bob"

Late yesterday evening, Assistant Chief Diane Groomes responded on the listserv to "Bob":

"Sir- when we get the information from the Fire Department - ARson Task Force we will post .. they are the lead agency on such cases ... Dep Chief Faust has been contacted -t hey do not have access to this listserv at this time."

DC Fire/EMS spokesperson Pete Piringer tells City Desk that the fires have been set between the 200 and 400 blocks of Pennsylvania Avenue SE. "We don't have that many," he says. "In the last month, we've had maybe a dozen or so. We have some investigators working on it. We have some pretty good leads... I know we have some resources working on this one. We have some pretty good leads.”

*photo of Fire Chief Dennis Rubin by Darrow Montgomery.

Pennington and Bowyer had been respected fire investigators until they were removed from their unit. After speaking out, they were transferred to to the Community Services Unit. And Pennington was charged with falsifying his credentials as a proper fire investigator.

For a time, Pennington was tasked with handing out snacks to firefighters. After he was cleared of the credentials charge, the Fire Department did not transfer him back to the investigations unit. Instead, they put him in Engine Company 23. He hadn't fought fires since July 2001.

Now, the department has added a new wrinkle to Pennington's punishment.

The department failed to pay him for his last two weeks of work. "Today, I did not get paid," Pennington says. "No one knows what happened."

Pennington says the payroll system is idiot proof. Time and attendance is put into a computer system which is then sent on to payroll.  Normally, he gets a check stub in the mail the day before his check is deposited into his bank account. Yesterday, he says he did not get his check stub.

"No check stub and no money in my account," Pennington says. "I'm still awaiting some type of resolution. They don't know when they are going to fix it. They just said they are working on it."

*photo of Fire Chief Dennis Rubin courtesy of DC.Gov.

Two years after the fact, Ward 6 Councilmember Tommy Wells has gone on the record suspecting that the Eastern Market fire was arson. Wells tells the Voice of the Hill:

"'I have a tremendous amount of suspicion that it was arson,' Wells told the Voice immediately after the market reopened Friday."

Eastern Market re-opened today with the expected fanfare. Which is great. But it doesn't erase the screw-ups surrounding that massive blaze. In December 2007, we wrote a piece addressing the concerns of numerous fire fighters that the Eastern Market case was arson. Two arson investigators got bounced off their beat for making their concerns known.

It will be interesting to see what Wells does after all the celebrations this weekend. If he truly suspects foul play, what will he do about it? Will he fight for the jobs of those arson investigators? Will he hold a hearing on the fire? Will he question Fire Chief Dennis Rubin who insisted on an electrical cause for so long?

"I don't know if power has been cut off...I have a serious head injury."

There are no time stamps so it's hard to tell how long it took for the firefighters to report that the crash involved two trains, that it was above ground, that it was very serious. There are several calls before the mass casualty units are requested.

(Via the amazing STATter 911)

Video of the response after the jump.

Here's video:

WUSA Reporter Dave Statter notes that most of the injuries came from the older metro train car.

"They have been getting hate-filled telephone messages about whether or not Fernandez, a mother of six, was a legal immigrant.

Her family gathered outside her Hyattsville apartment Wednesday. A crying woman who identified herself as Ana's sister said the accusations aren't true.

'Right now, the whole family is in pain. She was here legally, and all her children are legal. They were born here.'

She says she's grateful for the genuine expressions of sympathy, but has a message for the people who have been making the harassing calls.

'We all work, OK? And we're going to get through this.'"

WTOP reporter Kate Ryan writes in to Loose Lips with more details of the hate calls:

"Ana Fernandez' family tells me specifically that the calls accuse them of 'using the crash' to gain legal status for Ana. Again, the woman identifying herself as Ana's sister (and Ana's daughter Evelyn) tell me that not only was Ana legal, but that all six kids were born here."

Fernandez's family had been the focus of a lot of official sympathy. Yesterday, Councilmember Jim Graham, who is the chairman of the Metro Board, said he had her family in mind when he pushed for a $250,000 emergency relief fund.

(Via DCist)

Confirms nine fatalities, the final count. "As a government and as a city" there are only four people whose identities have been confirmed.

Three of the four are residents of the District of Columbia. One lived in Hyattsville. Fenty contacted three of the four families personally. Says can't imagine the "horror and disbelief" of the families.

Fire department has completed its work as the lead agency. Debbie Hersman and the NTSB will now become the lead agency in this matter. Fenty thanks the feds for making all kinds of resources available.

Next up at the mic is D.C. fire Chief Dennis Rubin. He says that fire and EMS and various agencies have done an "absolutely incredible job" of doing their thing. Highlights---timeline begins at 5 pm, had units on location within six minutes. "Obvious this was going to be a major national event." Then they did coordination with inbound agencies. First injury person was transported 21 minutes later; last person was transported 6 hours and 51 minutes later.

Command was transferred at 1 pm. Fifty-one people that fire department treated.

"We've been busy," says Rubin, noting that there've been other fire events over this period.

Rubin, on an editorial comment here, handles himself pretty well in these moments. He has stumbled in a lot of ways since taking over the fire department but does well in front of the press.

Fenty back at the mic, saying that a grand total of eight of the nine fatalities have been identified. Two of them were David F. Wherley, Jr., former commanding general, Joint Force Headquarters, District of Columbia National Guard, and his wife Ann. Fenty said of David F. Wherley: "As fine a public servant, dedicated to the United States of America" as you'll ever find. Military is in "complete shock," says Fenty.

Now it's Metro General Manager John B. Catoe on the spot: He's saying mostly procedural stuff, talking about handing over all information to NTSB and thanking fire department for quick response. Not much here.

Now it's Jim Graham, talking about the 2 pm meeting today. He's saying there'll be another meeting Thursday. First specific action is that there's an amergency hardship relief fund and dedicated $250,000 to the kitty. It's for responding to immediate human needs. Graham says that it's not about a settlement. Will be "refining" this matter in the coming days. Also, statement: We are aggressively seeking to replace the 1000-series rail cars, which were purchased between 1974 and 1978. Also calling on the feds to make good on the commitment of $150 million per year for capital expenditures. Capital needs remain substantial, high hopes that in FY '10 budget the feds keep up funding.

Up now is Debbie Hersman, who has been easily the most interesting and informative speaker at these events. Hersman expresses condolences, sends out prayers to those who remain hospitalized. Nineteen NTSB personnel are on the case trying to determine what caused the accident.

Hersman now going into some thank-you moments for other instrumentalities that have been doing a "great job" and so on. Standard bureaucratic stuff here.

Teams have been out today collecting evidence. Summary of the work here: Track group, working closely with FBI, checking locations of the track, equipment, damage to the equipment. They're seeking an outline of what the crash looked like.

Hersman says the crash occurred on a curve, not a straightaway. It's a one-degree curve. Track speed limited to 59 mph. Feds are working to determine exact point of derailment. Once they're able to move the trains, they may be able to determine exact location of derailment.

Team is working to preserve records and collect perishable evidence. Majority of our team has been out on scene putting information together. Will need time to go through those records. Operation of the train---documentation of some of the control surfaces....now she's talking about stuff that I have no idea about, something about a dial, toggle switch in the on position. All relates to whether it was in automatic mode or manual mode---OK, I get that.

Toggle switch, dial and master controller confirm to NTSB that the train was in automatic mode. Hersman addresses braking issues---emergency mushroom was found in a depressed condition---it was pressed in. The "mushroom" she's talking about here must be the little switchy thing that hits the emergency brake.

Have conducted some interviews and Metro's ops center about the striking train's operator. The original hire date was January of '07. Was hired as a bus driver. She started training as a train operator in January '09 and started driving in March '09.

Hersman is going to be seeking all kinds of documents on the operator's employment history as well as the "72-hour history," to see whether the operator had sufficient rest-work balance. Will be looking for those records. Toxicology samples have been taken on the train operator and have been sent off for analysis.

Standing train---looking to see if there is usable data on the recorders. Pulling apart the married pair of the trains. WMATA is going to bring in a flatbed to pull stuff apart.

Striking train---Train 112---they're looking at the lead car, which sustained extensive damage. Fifty feet of the 75 feet in that car were lost to the accident. That is, two-thirds of the survivable space was gone because of the impact.

Cars and their age: Average age of Metro fleet is 19.3 years old. How compare to other transit operations: Metro ranks 6th among 15 transit agencies in terms of car age. 1000-series cars comprise 300 cars of Metro's 1115-car fleet.

Now she's going into all the other series, and I've totally lost her. 192, 50000, 2 million, whatever. We'll get those details later.

Accident sequence: There was a train at Ft. Totten. Were servicing the platform. The struck train was waiting on the tracks as a result. The striking train---there was a report that there was an announcement that there was a train ahead and then the striking train started again. Looking into that, says Hersman.

Know that the community is anxious to get service back. Track is safe.

Hersman appreciates support from city and other people too. Including Sal Army, which has helped with water and stuff. Also appreciates people in the neighborhood. Look forward to wrapping up this part of the investigation.

Now taking questions:

Question is about trains reported two months past due on brake service.

Hersman has seen reports to that effect and will review records. Interested in looking at those records, but interested in looking at all of those records. Just in first 24 hours of investigation.

Question: What implications of the aging of the fleet has to the rest of the system.

Hersman says agency has no position on that. Will work closely with WMATA if NTSB finds something that is an acute safety problem.

Question: Is the location of the fatalities and whether they were in the striking or struck car.

Hersman says it's premature to comment on that.

Question: NTSB's request for texting records and the like.

Hersman says hard to say. Not really sure exactly what the point is on this question, though Hersman is saying that operators of vehicles and the like should not be texting or talking on cell phones and the like.

Question: Missed it.

Hersman is responding to the question, but I don't know what the question was, so can't really figure out what to type here.

Question: What OCC might have seen displayed about the location and position of the trains in the system.

Hersman says hasn't gotten with her people on this just yet. Says they will provide additional factual information when it's available.

Fenty now back in front, celebrating the accomplishments of the first responders to this calamity. Talks about the "heroic job" of all these responders. Fenty is not so great in situations like this. Nor is he terrible. He just doesn't project the image of a feeling person. A bit robotic. He gets all the information out there, so that's good. He covers all the bases like a good mayor, including crediting the front-line workers and nodding to the feds and other agencies that have assisted.

HOWEVER: When it comes to shifting to a higher civic and emotional gear, Fenty just doesn't have the equipment to go there.

The Washington Times picked up what may become an emerging angle from the Metro Crash---the tensions between WMATA and the D.C. Fire Department. Fire Chief Dennis Rubin basically called out WMATA for initially downplaying the extent of the crash. The Times writes:

"Fire officials stated bluntly Monday night that Metro's original description of the accident understated its magnitude, and it was only when the first rescuers arrived at the scene that the sort of help needed was finally summoned.

'A little after five o'clock we responded to what was believed to be a small incident,' D.C. Fire Chief Dennis L. Rubin said. 'The first arriving company recognized the fact that apparently two trains had collided.' Fire officials eventually sounded three alarms, summoning hundreds of rescuers and implementing their mass- casualty operations."

It's unclear whether rescue work was delayed as a result or whether WMATA or 911 dispatchers made errors in communicating the severity of the crash. "[The Office of Unified Communications] is not under our purview," explains Deputy Fire Chief Kenneth Crosswhite. "We're not responsible for OUC....I would be curious to hear what the first 911 call was reporting."

Fire Department Spokesperson Alan Etter refused to say when the department sounded three alarms and summoned all those rescue workers. "It was an evolving event---resources were called as they were needed," he stated in an e-mail to City Desk. "In other words, nobody jumped up and said---this is a third alarm incident---at the height of involvement we had an equivalent of three alarms on scene---more than 200 personnel--with mutual aid, etc."

The department's own notification records point to such a response. It's unclear whether or not that response was timely.

At 5:23 p.m., the Fire Department issued what may have been its first notification noting the Metro train derailment and that it was "above ground, train involved."

At 5:40 p.m., a second notification came out describing that one train was on top of another. It listed the staging area for emergency personnel at 2nd and Nicholson.

At 5:41 p.m., a third notification was sent out noting that the command center had been established to support the emergency efforts. All off-duty battalion chiefs were to call in placed on standby.

At 5:54 p.m., a fourth notification was sent out announcing that different radio channels had been established for the rescue.

Crosswhite says the scene was not chaotic, adding that the department has two mass casualty units that responded. He is not sure if they were on the scene when he arrived at 5:30 p.m. "I really don't know," he explains. "I seem to think they were already there---I want to say in the staging area."

Crosswhite ended up driving an ambulance.

Rubin responded to the Washington Post's questions on the WMATA issue this afternoon:

"Firefighters on their way to the Metro crash site yesterday they were unaware that there was a horrific fatal collision and thought they were responding to a 'small incident,' D.C. Fire Chief Dennis L. Rubin told The Post's Allison Klein.

They initially were dispatched to the two Metro stations -- Takoma Park and Ft. Totten -- before they located the mile marker of the crash. But responders got to the scene within six minutes, Rubin said, and 'performed in an exceptional way.'

'The instant we laid eyes on it, this was declared a major operation,' Rubin said.

At Fenty's press conference just after 5 p.m. today, Rubin says Fire Department responded quickly to disaster.

*photo by Darrow Montgomery.

"The Metro train car that slammed into another on the Red Line yesterday evening was two months past due for scheduled maintenance on its brakes, and the car was an older model that federal officials had recommended be replaced because of concerns about its safety in a crash, officials said today....

According to a Metro source knowledgeable about railcar maintenance, the first car of the striking train was two months behind on a scheduled maintenance for changing out brakes and brake components."

The identities of some of the dead have also been identified. According to WTOP's account:

"Metro has identified them as: 59-year-old Mary Doolittle of Northwest D.C.; 40-year-old Ana Fernandez of Hyattsville; 64-year-old Dennis Hawkins of Southeast D.C.; 23-year-old Lavanda King of Northeast D.C. and 42-year-old Jeanice McMillan of Springfield, Va., the operator of one of the trains involved in the collision.

Metro spokeswoman Candace Smith says four bodies were recovered from the wreckage Monday after the rush-hour crash. Five more were removed Tuesday.

The crash sent 76 people to hospitals. Metro officials said two men and seven women, all adults, were killed."

So how did the Red Line metro crash death toll jump to nine last night then fall back to seven this morning and then back up to nine? Last night, City Desk reported that three news outlets---WUSA9, WTOP, and WJLA---had confirmed that nine had died in the crash. WTOP cited the D.C. Fire Department as its source. WJLA had cited Metro.

This morning, Fenty stated that the number of confirmed dead was actually seven. That number soon increased back up to nine.

At least one fire department official is trying to figure out how and why there was so much confusion. One reporter City Desk contacted speculates that it may have to do with just the gruesomeness of the scene.

Deputy Fire Chief Kenneth Crosswhite says the death toll should not have gone up to nine last night. "I don't know how that number got out there," he says. "I'm very disappointed. We had no idea that there was nine. I called the command post and said, 'Are we at nine?' They said, 'No, we're at six.'... [They said] we have not recovered any more bodies."

Crosswhite is trying figure out who leaked the increased death toll last night. "Maybe you could help me out," he says. "Where should I look? I talked to Metro's PIO and I talked to NTSB, their PIO. I don't know where that number came from. If you find out please let me know so it doesn't happen again."

The Fire Department's own spokesperson, Alan Etter, says he isn't the source for last night's number. "I didn't talk to anyone at all last night," he says. "Nor did I get any new information---they might have talked to someone at the scene."

Dave Statter, the runs the STATter 911 blog and is a reporter with WUSA, says it may have come down to body parts. "My impression is that last night's information which came from sources around 11:20 PM was based on what the camera saw or parts of bodies being seen," Statter says via e-mail. "They had not gotten to those bodies in time for the 8:00AM press conference so the official count was left at 7. After the press conference access was made and five bodies came out bring the official toll to 9."

Councilmember Jim Graham appears to side with Statter for an explanation on the confusing death toll numbers. "I think it has to do with the way the car was crushed," he says. "There was a lot of uncertainty about what was in that crash. That's just pure guess work on my part having been on the scene."

Graham says he plans on asking about the death toll issue at this afternoon's Metro Board hearing on yesterday's crash.

*photo by Darrow Montgomery

"The number of people killed in last night's deadly Red Line crash has risen to nine, Metro's general manager said this morning, shortly after five bodies were removed from the mangled wreckage...

Several of the dead were crushed, their bodies not located until a crane removed part of the striking train this morning."

Last night, three local news outlets had reported that nine had been confirmed dead. The news orgs had cited the fire department and Metro as sources. [The Fire Department refused to confirm that number late last night when City Desk called]. The Washington Post would only say the death toll was expected to rise to nine.

"9NEWS NOW has confirmed there are nine dead from the collision, and officials say there are 67 people injured. The Fire Department Chief said that up to six of those people sustained life-threatening injuries, another 14 have less threatening injuries and more than 50 people have what officials call 'walking injuries.'"

WTOP confirms nine dead.

The New York Times has President Obama's statement on the crash:

“Michelle and I were saddened by the terrible accident in Northeast Washington, D.C., today. Our thoughts and prayers go out to the families and friends affected by this tragedy. I want to thank the brave first responders who arrived immediately to save lives. My staff has been in touch with Mayor Fenty’s office and will continue to monitor the situation.”

As of midnight, both the Times and the Washington Post have yet to report on the increased fatalities.

WJLA now confirms that nine passengers have died. Its source: Metro.

"The official death toll rose to nine from six about 11:30 p.m., Metro confirmed.

Crews will remain on the scene overnight, using cutting tools and the jaws of life to disentangle and separate the twisted cars which were ripped open and smashed together by the force of the collision."

Just after midnight, City Desk contacted D.C. Fire Department Deputy Chief Kenneth Crosswhite who says he called the command post regarding the death toll. He says the death toll is still listed at six. "They are still at six," Crosswhite says. "I don't know where they are coming up with that number."

Are they still going through the crash? Crosswhite says rescue workers are still going through the crash site. "They are still going through the process just verifying and checking out the train, making sure their are no patients now. I don't know where they're at. I was on the track, looked at the crash site."

Crosswhite was at the scene earlier, he says one of the big problems was the huge hill that lead to the tracks: "Gaining access to the injured to the scene there, the topography of the land is not the best. They had to cut the fence away, and use a ladder to make steps....They searched the area around to make sure nobody wandered along the track bed. They checked the area out."

That area included the nearby woods. Crosswhite says he ended up being tasked to drive the ambulance to transport two of the injured to a waiting helicopter.

"I had to drive the ambulance carrying the two [most severely injured] to the helicopter, to the land site at New Hampshire and Peabody." There was nobody at that moment available to drive the ambulance, he explains.

"When was the last time I drove an ambulance? Wow. Wow. Probably 10-15 years ago," Crosswhite. "I can drive them. I can even drive a ladder truck and a fire engine. They were very severely injured. The original landing site was on the bridge."

In late May, D.C. Fire Department brass tried to hose down a local reporter's Emmy nomination. Deputy Chief Kenneth Crosswhite lobbied to have a story produced by WJLA disqualified as a local Emmy nominee. The story in question was a three-month investigative piece that ran on Nov. 11. It chronicled the saga of arson investigators-turned-whistleblowers Gerald Pennington and Greg Bowyer. The two had argued that there were serious holes in how arson cases were being handled. The two had gotten demoted for saying so.

When that story got nominated for a local Emmy, Crosswhite decided to pick his fight. Show business was not impressed. Local Emmy honchos overruled Crosswhite's efforts. And this past weekend, the WJLA piece---by veteran newsman Jay Korff---won an Emmy in the investigative category.

Surely this will go down as a devastating blow to Fire Department brass. City Desk reached Crosswhite this afternoon for a response. He tried to be gracious in defeat.

"I want congratulate him that he won the Emmy," Crosswhite says of WJLA's Korff. "I wish him luck. But I still believe deep down that the story was not fair and accurate. Those guys have shopped those stories around to the other news agencies....I wish Jay well."

Korff says that he stands behind the his three-month investigative piece. "We just went where the facts took us," he says. "We were interested in nothing else other than making sure that our story was fair and balanced."

Crosswhite insists Korff did not have all the facts. "I just feel that being such a prestigious award, it should be awarded correctly," he explains, adding that not all the facts are out because Bowyer and Pennington face disciplinary hearings.

When informed by City Desk that the charges against Pennington were dropped last week, Crosswhite admitted he hadn't heard about that fact. "I don't know anything about that one," the deputy chief replied.

"The District of Columbia Fire and EMS Department met with the Washington Nationals to identify additional measures to ensure spectator safety during pyrotechnic activities at Nationals Park. These new measures will be put in place to serve as an additional layer of protection to reduce debris when fireworks are used during the National Anthem, when the team takes the field, and during the Nationals' homeruns and victories. Normal pyrotechnic activities will resume for the next home game."

More details after the jump.

The District now moves at super-sonic speed to fix major safety problems. Or the fireworks problem wasn't much of a problem at all. Alan Etter, the spokesperson from the fire department, says the angle in which the devices were being deployed had to be changed so the fallout would end up outside the stadium. "They did tell me that the product itself is being revised so that there's less debris that is subject to fall on people," Etter says. But adds: "None of this stuff is on fire."

What if it's windy? "That will be something the experts ... will consider," Etter says. "The wind is the huge determination."

What fell on Rubin? Paper debris---the wadding. "There was no fire, no fire that landed on anybody," Etter says.

The new precautions were ironed out during a meeting held today between the Nationals and the Fire Department. Etter says Rubin was in attendance.

Etter says he does not know why Rubin had overruled the department's fire inspector at Nationals Park yesterday.

On Feb. 5, the department charged Pennington with falsely claiming that he is a certified fire investigator. In the charging document, the department writes: “The agency became aware of these facts on November 25, 2008.” Pennington insisted that he had the proper credentials.

"I knew the charges were groundless. It was retaliation," Pennington says.

If the charges lacked a certain shallowness, the motivations behind them had a deep history. For the past few years, Pennington and fellow fire investigator Greg Bowyer had become outspoken on the subject of their department, alleging that serious fire cases had been botched by inexperienced investigators and that the bad cases had been essentially covered up by top brass.

The two had sent countless e-mails up the chain of command. When those e-mails and subsequent meetings failed to produce results, they talked to the press.

Pennington and Bowyer had keyed on the controversial investigation into the Eastern Market fire. The two had spoken out last November to WJLA. By then the two had been transferred off the arson beat and put into details that had Pennington serving snacks to crews at fire scenes and Bowyer checking hydrants. We profiled Bowyer's plight.

The department appeared to ratchet up its efforts to remove the two once the Post took notice. The day after Courtland Milloy published a column on Bowyer and Pennington, the fire department served Pennington with charges that he had falsely claimed to be a certified fire investigator. A full timeline of the whole saga can be found here.

"It's extremely insulting," Pennington says. He had been a fire investigator since late 2001. "I'd written well over 500-to-600 reports." He adds that he and Bowyer have close to a 100 percent conviction rate.

On June 1, Pennington's attorney David Marshall wrote a letter to Assistant Attorney General Charles Tucker outlining why the the charges against his client were bogus. Marshall describes the charge as "patently frivolous and intended only to retaliate against Mr. Pennington for his exercise of his legal rights."

The charges stem from the fire department adopting a new policy over certifications. The new policy meant that a certified Pennington was not quite certified under the department's new regs. It then charged Pennington with violating this policy. Here's the catch: they charged him with violating the policy two months before they had adopted it. Marshall goes on to write:

"The due process violation grows out of the fact that the fire department seeks to penalize Mr. Pennington for violating a policy that did not exist at the time of his supposed infraction. The department first promulgated its policy against using the designation 'CFI' absent certification by the International Association of Arson Investigators ("IAAI") on December 9, 2009---two months after the October 9, 2008, incident that forms the basis for the charges....Because the rule was not in place when Mr. Pennington designated himself a CFI on a FD Form 23 on October 9, 2008, it would violate due process to apply the rule retroactively and to prosecute him on these charges.

In addition to accusing Mr. Pennington of violating a non-existent policy, the fire department seeks to punish him for listing his CFI credentials accurately and in a way that the relevant accrediting authorities agree was completely acceptable."

In the Milloy piece, AG Peter Nickles attacked both Bowyer and Pennington. He was in full war mode:

“It’s quite an effort that these two guys are making, giving TV interviews, filing complaints," Nickles told told Milloy. "We dispute almost everything they claim, including that they are individuals of distinction.”

So the OAG's turnaround comes as somewhat of a surprise. Marshall praises the OAG for not going forward with its case against Pennington. "The department was so eager to victimize Pennington, that they went out of their way to charge him with false stuff," says Marshall. "It was such a blatant attempt to railroad a fire fighter for having spoken out about wrongdoing at the top that the Attorney General and the fire department decided to do the right thing."

Bowyer faces his own set of charges and is scheduled to go before a trial board on June 15 and June 16. "Those charges are false," Bowyer says. "I'm really happy for Pennington. I hope the OAG does the right thing in my case as well."

Pennington is still on hydrant detail in the community service unit. He says the fire department still won't admit that he is a qualified, certified fire investigator.