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.

Today, former Ward 3 Councilmember Kathy Patterson submitted a letter [PDF] to U.S. District Court Judge Emmet Sullivan regarding the troubled Pershing Park Case.

Patterson, who headed up the council judiciary committee at the time of the mass arrests and spearheaded an exhaustive investigation into the incident, may be the best authority on the subject (not including plaintiffs' attorneys).  It appears she wrote the letter to refute several assertions made by Attorney General Peter Nickles in his sworn statement turned into Sullivan on August 12.

In particular, Patterson takes issue with Nickles' assertion that the Metropolitan Police Department's general counsel never received the running resume. In fact, Patterson points out that she received a November 21, 2003, letter from General Counsel Terrance Ryan in which he promises the running resume. She quotes Ryan's letter in which he states:

The department has substituted the SOCC/JOCC running resumes for the Commander's Mass Demonstration Event Logs. The running resumes for the above listed events are being produced today.

Patterson goes on to state that Nickles erred when he stated in his sworn testimony that the D.C. Council's investigative report on Pershing Park was written by "now-Councilmember Mary Cheh." Patterson says that was not the case—she wrote the report. Nickles needs a fact-checker!

There's more. In his statement, Nickles claimed that the OAG had been denied access to the police department's after-action reports, running resume, and event logs—materials used in her investigation. Patterson says the OAG had access to such materials. She writes:

By the conclusion of the Committee's investigation—and the publication of the Committee report on March 24, 2004—the thousands of pages of documents gathered by the investigation were made public, with the exception of depositions taken from two undercover officers, and a portion of the deposition taken from Assistant Chief Peter Newsham.

Patterson continues:

On December 4, 2003, the Judiciary Committee voted to release from executive session the bulk of the documents received under subpoena from the Metropolitan Police Department. We made the documents public at that time because we planned to make use of the information during two days of public hearings held two weeks later....To the best of my knowledge, all of the Committee's investigation files remain available today for public review through the Office of the Secretary of the Council.

Patterson goes further:

Mr. Nickles makes reference to a subpoena seeking documents provided to the Committee, but the Committee on the Judiciary was never the subject of an OAG subpoena–that would have been unnecessary, since, as indicated, the documents had been placed in the public domain.

Nickles could not be reached for comment.

UPDATE, 5:36 P.M.: I e-mailed Patterson regarding the issue of whether or not her committee received the running resume. It is the plaintiffs' lawyers who contend that the committee did not get the real running resume. Patterson writes:

I don't have the documents in my possession, since they are official Council records, but I assume we did receive the running resume because we stated on the record that we were releasing it publicly and we quoted from it. I have not followed minutely the back and forth in the two cases so I can't distinguish between what we asked for and received, and what the attorneys for the plaintiffs now claim they never got. We were pretty careful about documents, so I have to assume that if we had NOT received the 2002 running resume, we would have continued to object and would have followed up by going to court to enforce the subpoena. We did secure a Council vote to do that and would have if it had been necessary.  So I can't speak to 'missing evidence.'  We had materials that were severely redacted and felt that was inappropriate. But our focus was on setting policies and standards for the future, and we had sufficient evidence and documentation to issue the report and move on to write the First Amendment legislation.

Here is a draft of the report Patterson submitted on Pershing Park and other police actions.

Photo by Darrow Montgomery

Recently, the WaPo editorial board nudged Nickles to settle the Pershing Park case and figure out how critical evidence vanished. The board took great comfort in the fact that Nickles had solicited the help of retired U.S. District Court Judge Stanley Sporkin (pictured):

"It's encouraging that he enlisted former federal judge Stanley Sporkin, who is offering his considerable expertise on a pro bono basis, to advise him."

But with a day before Nickles is to turn in his sworn statement, Sporkin  says his consulting work is only just getting started. He is unclear what his work will entail. "I don't know what I'll be doing," Sporkin tells City Desk. "I'll do whatever I have to do....I really don't at this stage have any idea of where this is all going and heading....It's very new to me."

Sporkin adds: ""Right now, I'm just getting into it. Obviously, I don't have any conclusions at this stage other than what I saw and read in the transcript."

Sporkin suggests that his role may not be directly dealing with the Pershing Park case—but figuring out how to fix the OAG.

Sporkin says his job would figure out: "How to make the city responsive and a great place, and how to make the law department an outstanding law department."

Sporkin had nothing but praise for the city's top lawyer. "I do know Peter," he says. "I know him to be a person, a highly committed person....He's trying to give back....You got a great talent in Peter Nickles."

*photo courtesy of Sporkin's consulting group, Gavel Consulting Group.

On Wednesday, a federal judge weighed in on the Office of the Attorney General's conduct in a Pershing Park civil suit. Plaintiffs attorneys alleged that critical pieces of evidence had been destroyed, doctored and lost as a result of the AG's incompetence or worse.  Judge Emmet G. Sullivan's ruling was clear: he called the evidence problems "abuse" and wondered if residents could even trust the District government.

“It raises serious questions about when, if ever, can anyone trust their government," Sullivan stated.

Sullivan promised that the sanctions he would impose would be painful. He has ordered AG Peter Nickles to submit a sworn statement explaining how the evidence could have gotten lost and turned up severely doctored. The judge also called on the D.C. Council to get involved.

Today, Councilmember Mary Cheh tells City Desk that Nickles should resign.

“I think he should resign," Cheh says. "I don’t think he should have ever been appointed...You start messing with a federal judge in a case where you are hiding evidence or destroying evidence—that’s gone to a new level.”

Cheh would like to see the council investigate the Office of the Attorney General's conduct in this case.

"I had a conversation with [Councilmember Phil Mendelson]  after the judge had his encounter with the AG’s office," Cheh says. " I do believe he is also interested in it. How it will proceed, what we will do I’m not sure. This is a really shocking breach of faith…It’s lawless. I can’t get my jaw up from the ground it’s dropped so far."

When reached for comment, Mendelson says he is "definitely" looking into opening up an investigation.

"The D.C. Attorney General is supposed to be protecting this city not increasing our liability," Mendelson says.

Nickles failed to return phone calls seeking comment.

*photo by Darrow Montgomery.

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.

We wrote  a cover story on the arrests. Cathy Lanier had a hand in developing the hogtie tactic.

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.

That's what LL heard from a fellow spectator in Courtroom 24 of the E. Barrett Prettyman United States Courthouse this morning, while we waited for the greatest thief of public funds in District government history, Harriette Walters, to enter, along with man who had her future in his hands, Judge Emmet G. Sullivan.

Truth be told, Sullivan's role was not quite that dramatic. Walters and her attorney, Steven C. Tabackman and worked out a plea deal with federal prosecutors, so it was left to Sullivan only to decide whether Walters would get 15 years of incarceration or 18 years. Still, those three years were debated, quite passionately at times, by Tabackman, Assistant U.S. Attorney Timothy Lynch, and by Walters herself.

Walters entered the courtroom dressed in a blue garment, her hair short and braided. She wore glasses that she took off and placed on the table for most of the proceeding. At the beginning of the hearing, Sullivan brought Walters, 52, up to a podium answer a few perfunctory questions; she then sat back down while Tabackman did what he could to spare three years of her life.

What Tabackman had to do was somehow convince Sullivan that a crime of great heinousness deserved something other than the 18-year maximum—a term that seemed already light to many, given that it came a day after Bernard Madoff was handed a 150-year federal sentence for a fraud similar in nature if not scope. Tabackman's strategy was a combination of being perfectly direct ("She took the money of the District of Columbia when it was not hers, and that was a terrible things to do") and attacking prosecutors for their "demagogy" for pointing out, in their sentencing memo, all of the things that the city could have bought for the $50 million Walters and her accomplices stole—AIDS clinics, schools, so on.

After all, Tabackman pointed out, the District did run a sizable surplus many of those years. "They built a stadium!" after all. Surely no particular project went in need thanks to his client's pilferings?

"She has never tried to justify or excuse or mitigate in any way the seriousness of her conduct," Tabackman pointed out, and indeed Walters has taken full responsibility for her thievery. But the whole role of a defense lawyer at a sentencing is to justify in some way—to mitigate.

For instance, defending her record as a public servant: "Fact of the matter is, of all the units over there [at the Office of Tax and Revenue], when she was running it, it worked better than anything." Or her supposed munificence ("She said, giving away money helped me sleep at night"). Or describing how he became friends with his client. Or pointing out her "pretty complex psychological needs." Or laying out her drug abuse; how she once weighed 400 pounds and is "enormously insecure." Or contrasting her with the likes of Enron villain Jeffrey Skilling.

Walters herself, asked to make a statement, also was perfectly direct: "On Nov. 7, 2007, I accepted full responsibility for the part I played in the commitment of this crime....I stand before your honor in full repentance," she said in her soft Caribbean patois. "I made a decision not to lie anymore."

In the end, none of that remorse got Walters much anywhere.

Lynch, for his part, emphasized the scale of the fraud, and Walters' place in it at the "top of the pyramid." How she was "sophisticated"—a word he must have used a dozen or more times. How she "corrupted her friends...corrupted the Office of Tax and Revenue...corrupted a federally chartered bank...corrupted her family." How the investigation into her crimes spent untold manhours and government dollars. That sending Walters to jail for the full 18 years "sends an important message to those 34,000 people" working for the D.C. government.

And Lynch prevailed upon the notion that her years of punishment should equal her years of wrongdoing, dating back to 1989: "Eighteen years is something that has justice to it...There is a sense of justice here that someone who has corrupted out city for 18 years would have to serve 18 years in prison."

While Lynch made his arguments, Walters stared at the wall, then started writing notes to Tabackman.

Powerful arguments, but Tabackman and Walters, actually, did hit upon a mitigation that appealed to Sullivan: Walters' willingness to sit in a conference room for two days and explain to a panel of lawyers, accountants, and other investigators engaged by the D.C. Council, and explain exactly how she has able to perpetrate her fraud, across a span of time that Sullivan described as "shocking."

"Harriette Walters," Tabackman said, "helped them understand as well as anyone could."

Sullivan asked Walters at length about the information she provided and how it helped the city understand how she did what she did. At one point, the judge asked her to describe how investigators reacted to the information she provided. "They kind of sat back in their chairs, and said, 'Well...,'" she said

Walters' hometown cooperation apparently pulled on the civic heartstrings of Sullivan, long a resident of Shepherd Park.

Lynch, in his presentation, argued that the information that Walters provided the District investigators "was not materially different" from what she told the feds—the information that led to the plea deal in the first place. "That would be double-counting," Lynch argued. "It's a good thing; it's a nice thing...but it's not materially different."

Sullivan didn't buy that; he appreciated that his fellow citizen of the District of Columbia—his fellow corrupt, thieving, greedy, "extremely intelligent, extremely sophisticated" citizen—had helped make the city a better in the small way that she could.

For those two days helping District authorities, he knocked six months off that 18-year maximum sentence. And Sullivan, knowing this city's government all too well, acknowledged that it might not do much good.

"The scheming is not going to stop," Sullivan said. "It's going to continue."

Speaking for herself, Walters said, "I stand before your honor in full repentance. I never blamed anyone for my part in what I did." She went on to detail the cooperation she'd given to authorities investigating the scam and insisted that without her assistance, the scam could have been perpetrated all over again.

Once Walters finished up, Sullivan said, "It's a shame you couldn't have used your talent and your brilliance to help the D.C. government."

At that, the hearing recessed. After the break, the prosecution will make its case as to why Walters should serve the max. We'll have another report later.