Last week, it was announced that former Metropolitan Police Department Chief Charles Ramsey will be inducted into the inaugural class of George Mason University's Evidence-Based Policing Hall of Fame. George Mason's version of a policing Cooperstown hailed the former chief with a lengthy bio, concluding on its website:

"A nationally recognized innovator, educator and practitioner of community policing, Commissioner Ramsey is known to refocus police departments on crime fighting and crime prevention through a more accountable organizational structure, new equipment and technology, an enhanced strategy of community policing and, since September 11, 2001, new approaches to homeland security and counter-terrorism."

Unfortunately, Ramsey is also known for mass arrests at Pershing Park on Sept. 27, 2002 that had nothing to do with accountable organizational structures and enhancing strategies for community policing. Just as his induction was announced, a magistrate judge in U.S. District was setting up the possibility that Ramsey just might go down in history as the Mark McGuire McGwire of police chiefs. U.S. Magistrate Judge John Facciola announced that he plans to personally question Ramsey—and many other police and OAG officials—in the court's long-running probe into missing and doctored evidence in the Pershing Park case.

At a status hearing yesterday in his second-floor courtroom, Judge Facciola outlined three possible penalties Ramsey and the others could face: perjury, obstruction of justice, and destruction of evidence. In his order outlining the inquiry, Judge Facciola writes that Ramsey and Co. should "be advised of their constitutional right not to incriminate themselves."

Ramsey is definitely not in the clear.

At the conclusion of Facciola's inquest, the entire matter could end up being investigated anew by the Feds. Ramsey has already come under considerable scrutiny for his deposition testimony in which he swore he did not order the mass arrests at Pershing Park on Sept. 27, 2002; several police officials testified that they heard Ramsey give such an order. But the thrust of Facciola's inquiry will focus on the missing or doctored evidence which includes police radio recordings that go blank during the period in which the mass arrests took place, missing video evidence of police activities, and the missing running resume—the official log of all police activities that day. Other bits of a messy discovery process could enter into the investigation.

Walking into Facciola's courtroom yesterday, Ramsey's attorney Mark Tuohey expressed total confidence that his client is no slugger who suddenly came up short under oath like McGuire McGwire. "He has nothing to worry about," Tuohey said. "But he will comply with whatever the court wants."

The magistrate judge wants: Definitive answers as to how so much critical evidence could go missing in such a high profile case. The cases is already deep into extra innings.  The judge is embarking on an investigation that has stymied veteran judges and talented plaintiffs attorneys. The Partnership for Civil Justice, plaintiffs attorneys in one of the Pershing Park cases, first discovered the evidence abuses years ago. Federal Judge Emmet Sullivan went ballistic last summer over their findings. By the end of the year, Retired Judge Stanley Sporkin issued his own report on Pershing Park in which he could not exonerate any police official of wrongdoing [PDF]. Now, it's Facciola's turn.

Facciola, who was appointed to look into Pershing Park this past March, will most likely key on three attorneys who handled or mishandled the case (and the evidence): Office of Attorney General lawyer Tom Koger, MPD's top attorney Terrence Ryan and his deputy Ron Harris. Koger has been removed from the case having already come under scrutiny. The FOP has raised concerns about Ryan. Harris may have penned a false affidavit in the case. Testimony before Judge Facciola is set to begin Oct. 12.

And of course, there's Ramsey. What did he know? When did he know it? And how did evidence—the radio transmissions, the computer files, and the videotapes—get destroyed, lost or altered?

The one thing we know is how the former chief got into GMU's hall of fame. According to Cody Telep, a GMU grad student, Ramsey had been nominated by two professors—one who worked with Ramsey in Chicago, and another who works with him now in Philly where Ramsey is the city's police commissioner. No one from D.C. participated in the nomination process.

Telep tells City Desk that he knows nothing about Pershing Park. And it wouldn't be a matter of particular concern for the Hall. "Our hall of fame is more about rigorous scientific evaluation. It's about using science in policing," he says. "That's not as relevant to the specific qualifications for the hall of fame. I don't know the details of the case so that I can't comment on that."

*file photo by Darrow Montgomery.

"Calling the District of Columbia's alleged destruction of evidence in a long-running civil suit against the city 'very troubling,' a federal district judge in Washington today appointed a magistrate judge to find out what’s happened to missing video, audio and paper files....

Judge Emmett Sullivan, who is presiding over both suits, tapped Magistrate Judge John Facciola to examine the alleged destruction of evidence, including the missing video. Sullivan granted Facciola the authority to call upon experts for the investigation. The judge expects Facciola to make recommendations to the court."

In public filings, plaintiffs lawyers had recently spotlighted the problems with faulty videotape evidence and the troubling affidavit from a government witness. In a filing on March 27, plaintiffs wrote the court alarmed that the District is still finding materials. Even more alarming: the documents seem to refute the District's assertion that only one MPD officer shot video footage at Pershing Park.

Plaintiffs lawyers wrote that the District's Office of the Attorney General turned over 150 pages of "never-before-revealed" data concerning the use of rooftop-video recordings at Pershing Park on Sept. 27, 2002. Those roof-top vids have never been turned over to plaintiffs:

"The newly disclosed material makes clear that the District had in its possession, for some period of time, approximately 84 videotapes containing video footage from IMF protests that occurred in 2002...As the court knows, the District previously denied any such videotapes existed in relation to the 2002 protests."

The 84 videotapes appear to be videotapes from the entire year. All the videotapes would have concerned more events than just Pershing Park.

We will have more on this soon.

On Feb. 8, plaintiffs in the last remaining Pershing Park case filed a request that would broaden the scope of the U.S. District Court's inquiry into the case's discovery abuse. Plaintiffs attorneys are asking the judge to look into the alleged issues with the D.C. Police Department's video coverage of the mass arrests at Pershing Park on Sept. 27, 2002.

U.S. District Court Judge Emmet Sullivan is already set to hire a forensic examiner to determine how the running resume  (the department's own reported log of events) went missing, and how the department's radio dispatches went dead around the time the arrests were made.

The problematic video tapes turned over by the Office of the Attorney General may be the latest example of the discovery abuses. So far, AG Peter Nickles has thrown up some really lame excuses for why the video footage appears so corrupted.

The attorneys in the Chang case write:

"This video footage, produced in both videotape and DVD format, contains numerous anomalies that suggest it has been edited or otherwise tampered with. A forensic analysis of the original video recordings is, therefore, necessary to determine the origin and extent of any such modification or spoliation."

The District had recently testified that the video recordings had not been edited and were recorded by Sgt. Donald Yates. Yet, the District's witness, Inspector Brian Bray admitted that Yates could not have possibly filmed all the sequences since he appears in some footage.

Plaintiffs lawyers go one to dissect the video problems point by point. One of the most startling issues that has come to light is the government's use of "different time-stamps" and a "non-linear time progression." Lawyers also found that there is "an extended gap during the time of the mass arrests in Pershing Park."

The two different time stamps suggest that it's possible the tapes were altered or edited. "At worst, this discrepancy suggests that the IMF video footage has been edited and certain footage added or deleted," the plaintiffs lawyers write.

The lawyers go on to state that some of the video footage appears out of order, jumping back and forth through time (kind of like an episode of "Lost" D.C. Police-style):

"There is no apparent explanation as to how Sergeant Yates recorded events at 8:15 a.m., then traveled back in time and recorded events nearly an hour earlier from 7:21 a.m. to 7:23 a.m. and then returned to 8:15 a.m. and continued filming, unless the video has been altered."

There is also the problem with the gap in the tape. The video produced by the OAG "contains no video footage for a period of nearly 39 minutes (the longest gap in the Video other than that over the lunch hour) during which MPD and other law enforcement officers began mass arresting people in Pershing Park."

As the lawyers point out, um, this is the critical time period. It's astonishing that the government would even hand over such a video. According to the plaintiffs' filing, the District's explanation for the 39-minute gap is simple: Sgt. Yates was a really crummy director who may have been great at recording tons of b-roll of bored looking residents but failed to deliver at the crucial moment—the moment when his own department decided to arrest everyone in the park. The District has claimed that he was "distracted" and "wasn't aware the arrests had taken place."

Wow.

How could any police officer—let alone an official with a video camera—not realize that the arrests of 400 individuals were taking place?

The plaintiffs lawyers write: "the Court should order a forensic examination of the IMF Video to confirm that no video was recorded during this critical period of time."

*overused file photo by Darrow Montgomery.

In a recent hearing in the Pershing Park case, Judge Emmet Sullivan warned D.C. Attorney General Peter Nickles that he "was playing games with the wrong judge."

In a filing last week [PDF], plaintiffs lawyers suggest Nickles is not taking Sullivan's threat seriously.  Lawyers in the Chang case assert that the crafty AG is still playing games with discovery.

Nickles and Co. had handed over 3,000 pages of material to plaintiffs. The only problem: these pages were overly redacted. In some cases, entire pages were blacked out. Nickles is required by law to justify each redaction. In this case, the marked-up pages came without explanation.

This is the third time Nickles has used this redaction tactic.

The plaintiffs lawyers write:

"This Court is all too familiar with the District's discovery abuses in this case. One distressingly familiar contrivance used by the District to avoid its discovery obligations has been to redact or withhold entirely relevant documents on the basis of unsupported claims of law enforcement or deliberative process privileges. This is nothing more than a stalling tactic."

In Nickles' world, almost any document qualifies for redaction. Plaintiffs lawyers have seven years of litigation to support this claim. In a footnote, they cite one hilarious example of the AG's Sharpie abuse.

One document had been redacted for years, the lawyers write, on the basis of law enforcement privilege. The document turned out to be a  "single-page, bullet-point guide for the proper use of a mountain bike."

*photo by Darrow Montgomery.

In this morning's hearing in U.S. District Court, Judge Emmet Sullivan edged ever closer to referring the Pershing Park case to the Department of Justice—signaling he's close to handing the matter over to Attorney General Eric Holder.

But first, Sullivan wants to order up one more investigative tool at his disposal: some serious tech support.

Following up on the recommendations in the Sporkin Report, Sullivan ordered that he would hire a forensic examiner to investigate the missing and/or destroyed evidence in the case. He added that the examiner would be selected based on recommendations from both parties and would be paid for by the District.

It was unclear whether the forensic examiner would study both the missing running resume issue and the gaps in the radio tapes from the mass arrests in Pershing Park on Sept. 27, 2002.

"I think it should be someone appointed at the discretion of the court," Sullivan stated. "And the city is going to pay for it."

In the days leading up to the hearing, tensions had see-sawed among the parties. Two days ago, an $8.25 million settlement was reached between the 400 or so plaintiffs in the Barham case and the Office of the Attorney General. But settlement talks in the remaining case, the Chang case, appeared to have stalled.

AG Peter Nickles submitted several filings late last night. In one, he filed a motion to halt all depositions.

Before Judge Sullivan, Nickles played up his pro-bono days when he was the one battling government corruption; he clearly hates the fact that he's now seen as the bad guy. At least twice, he stressed that his reputation is on the line.

"I'm not trying to hide anything," Nickles insisted, later telling Judge Sullivan, "I'm trying to clear the air here. You're the boss."

To which Sullivan replied: "That's exactly right. And we're clear about that."

And the Boss still wants answers to the mystery of what happened to the running resume and the radio tapes. In addition to the hiring of the forensic examiner, Sullivan made other decisions critical to this fact-finding mission.

Sullivan denied Nickles' attempt to halt depositions. At the request of the U.S. Park Police attorney, he granted that defense lawyers could depose a key witness, Det. Paul Hustler, who had testified in an affidavit that he heard Chief Charles Ramsey give the arrest order in Pershing Park.

Changing his stance from last night's filings and his recent protective order requests, Nickles suddenly warmed to the idea of more depositions. "Discovery can go on forever," he told Sullivan.

Sullivan moved up the trial to date a month–to September 2010. Chang plaintiffs attorney Jonathan Turley said he would be ready to go to trial.

Sullivan also made clear that no settlement would prevent sanctions in the case nor would it prevent him from referring the matter to criminal authorities.

Sullivan spent serious time questioning lawyers about whether he should go ahead and refer the matter to Holder. Barham plaintiffs attorney Mara Verheyden-Hilliard said it was time. Turley agreed and argued that the criminal investigation would not interrupt the civil proceedings in his case.

Nickles told Sullivan that he believed the forensics examiner should do their work first before any referrals were made. "I think it's better to have more knowledge," Nickles argued.

Sullivan agreed to wait to see what the forensics examiner finds.

No matter what happens, Turley is itching for a trial. He told Sullivan that despite all the publicity the case has generated, a new law from the D.C. Council and millions in settlement money, one recently deposed cop—Officer Michael Smith—testified that he thinks he did nothing wrong that day in Pershing Park and would do it all over again.

"We're going to fight vigorously to get these witnesses and this evidence before a federal jury," Turley said after the hearing.

*photo by Darrow Montgomery.

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After D.C. police mass-arrested about 400 people at Pershing Park on Sept. 27, 2002, they hog-tied their quarries, cuffing their right wrists to their left ankles. The restraint left the arrestees in painful, circulation-stopping positions.

Surely there was a good reason to treat these peaceful protesters and passersby like pork, right? Like, they were a threat to throw garbage cans through plate-glass windows. Or they were getting ready to storm the White House. Or perhaps they aspired to stop traffic.

Wrong, wrong, and wrong.

The cops had a much more compelling motive—to stop the arrestees from feeling each other up, and fucking. Which, of course, is what invariably happens after a mass arrest.

This particular episode in the long-running program "Reality Beats Fiction" comes courtesy of Cathy Lanier, the current police chief who at the time of Pershing Park held a top position in the department. Lanier was among the police officials who helped devise hogtying as a form of protest suppression.

In an after-action report, a police official wrote up an interview with Lanier in which she allegedly stated that the technique "was used to prevent escape, protect the protesters from one another, and to prevent them from committing sexual acts with each other."

Lanier's flexi-cuffs-as-chastity-belt defense had long been a howler among the D.C. Council, a body that has investigated Pershing Park. What has made this less funny is that other officials chose to parrot her defense.

The police department's internal investigative report on Pershing Park takes Lanier's justifications a step further—prisoners getting it on had been a problem in the past!

"According to prisoner processing officials, there have been instances in past mass arrests in which arrestees were free to roam the processing areas unrestrained, and numerous complaints of sexual misconduct arose," the report states.

Office of the Attorney General lawyers repeated these arguments in U.S. District Court, asserting that the use of flexi-cuffs were needed to prevent "mass fornication," records show. This did not fly with the judge.

"As the Court made abundantly clear during oral argument, this rationale is flatly ridiculous, and the Court lends it no credit. Moreover, the Court sharply emphasizes that it does not accept this rationale as legitimate," the judge noted.

Lanier has denied using the mass-fornication defense. She has claimed that her technique is actually comfortable.

One issue pending before the court in the Pershing Park cases is whether or not the District would be allowed to bar the public from embarrassing discovery material. It's hard not to sympathize with the Office of the Attorney General's position.

*photo by Darrow Montgomery.

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Late last Friday, Ret. Federal Judge Stanley Sporkin's investigative report [PDF] on Pershing Park was made public. The long-awaited document totaled 18 pages and included findings based on interviews with 14 individuals. Legal Times declared the report's conclusions "fairly modest." The report found  no smoking gun, WaPo observed. After a quick read of the report, we found much to admire in its findings.

On closer inspection, the Sporkin Report includes startling new testimony and/or conflicting statements from witnesses. The report will surely not be the last word on the missing evidence.  Let's review.

Sgt. Douglas Jones had previously testified that the running resume for the mass arrests in Pershing Park on Sept. 27, 2002 had to exist. Jones had stated that there were at least a dozen hard copies made along with two electronic copies. AG Peter Nickles had previously tried to marginalize Jones' testimony. Sporkin does no such thing.

For Sporkin, Jones elaborates further on the running-resume issue. The report states:

"Sgt. Jones said that Neil Trugman, his superior at the time, came to him around October or November 2002 and asked for the file location for the Running Resume, how to access the system, and the username and password. Trugman further asked that the information not be emailed.

Sgt. Jones found this to be unusual because no one had asked in the past for such directions. Sgt. Jones believes (but is not certain) it was at this time he provided Mr. Trugman with a hard copy of the September 27, 2002 Running Resume along with the requested directions."

Jones' testimony cries out for further inquiry. Trugman, Sporkin notes, "has no recollection of these events."

Jones states that for the running resume not to be on some MPD server is unusual. "For this to happen he said it had to be intentionally erased," Sporkin wrote. "He, however, had no basis to say that it was done for an improper purpose. No one was able to give us a reason as to its disappearance from the system."

The document destruction narrative extends beyond Jones' testimony in the Sporkin Report.

The running resume—a minute by minute accounting of police activity—was generated within the D.C. Police Department's command center. During Pershing Park, Stephen Gaffigan was charged with overseeing the day-to-day operations of the command center. Cecilia Tilghman, Gaffigan's personal assistant, stated in the Sporkin report that documents were destroyed.

After Gaffigan left the department, Tilghman believed that Rai Howell, the command center's interim director, "threw away lots of Mr. Gaffigan's materials," the report states.

Howell, the report states, "denied destroying any of Mr. Gaffigan's records." But then Howell confirms that a running resume existed for Pershing Park:

"She went on to say that she can specifically remember seeing the September 2002 Running Resume in hard copy. She could not recall when she saw it or remember anything specific about it. Ms. Howell also believes that after the event copies of the Running Resume were delivered to the Department's top officials."

Sporkin also interviewed George Crawford, a computer specialist with the D.C. Police Department. In the report, Crawford affirms Jones' testimony as well, stating that it was standard practice for at least 15 hard copies of the running resume to be sent to Mr. Gaffigan. Crawford found it "hard to believe" that the running resume had been erased from the computer system.

Crawford also admits to destroying documents at Howell's request. The admission, as recounted in the Sporkin Report,  is a stunner:

"Rai Howell asked Mr. Crawford to discard boxes containing materials formerly belonging to Mr. Gaffigan, when he, Gaffigan, left. Mr. Crawford stated that he didn't look at the documents or the tapes, but simply did as he was told. He shredded the papers and hit the tapes with magnets as instructed. Rai Howell denies giving any such instruction."

The report details former-Chief Charles Ramsey's recollections when called by Sporkin and Co. Ramsey stated that he is 99 percent sure he never saw the running resume and never instructed anyone to destroy such a document or the radio tapes. He went on to speak very highly of Gaffigan, Trugman, and Jones. "The Chief was impressed with Sgt. Jones," the report states. "He said it was Sgt. Jones who came up with the idea for creating the Joint Command Center."

The report moves on to discuss the gaps in the radio tapes from Sept. 27. Sporkin leads with two admissions from District lawyers. Both OAG attorney Tom Koger and D.C. Police Department lawyer Ron Harris admitted that they never listened to the tapes prior to handing them over to plaintiffs lawyers.

What lawyer doesn't review evidence they are turning over to opposing counsel?

As for whether there are large gaps or small gaps on the radio tapes, this is still a matter of some debate. Sporkin called for the District to hire an outside expert to review the tapes.

One person Sporkin's staff could not interview was Denise Alexander. Alexander had previously submitted an affidavit in the Pershing Park cases declaring that the radio tapes contained no gaps. Her testimony was later contradicted by a police official. Sporkin was told that she was on "personal leave."

This morning, City Desk found Alexander at her desk at the District's Office of Unified Communications. When asked why she had failed to meet with Sporkin, she put us on hold and then passed us on to another OUC staffer. "We're in the middle of something," the staffer said. "She's unwilling to speak with you."

There may be enough evidence in the Sporkin Report to start calling for federal law enforcement to finally investigate. Councilmember Mary Cheh believes the case should be sent to the feds.

Plaintiffs attorney Jonathan Turley tells City Desk: "The report reaffirms the positions of the plaintiffs, this evidence was presumptively destroyed on purpose and that it was not accidental....The report contains glaring conflicts in the statements of District officials. Those allegations and those conflicts will have to be addressed in a future investigation as well as discovery in this case."

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In a few days, retired judge Stanley Sporkin will issue his report on the discovery abuses in the Pershing Park cases. It seems unlikely that he will find out just who destroyed the running resume and erased key portions of the radio communications on Sept. 27, 2002. So how will authorities get to the bottom of this alleged cover up?

During last week's hearing on the cases, Judge Emmet Sullivan suggested that he would refer the matter to the feds if there was a hint of criminal wrongdoing in the evidence destruction.

In an interview with City Desk, Councilmember Mary Cheh says she welcomes the U.S. Attorney's Office's or the Department of Justice's involvement.  "This appears to be an extraordinary cover up," she explains. "Somebody ought to be held accountable."

Cheh agrees with her colleague,  Councilmember Phil Mendelson, that holding hearings on the evidence abuses would be an empty exercise. She says the only resolution must be a criminal investigation.

"Not to have some one held accountable is a really bad message," Cheh says. "It comes in the context of our current government where the practice is to wait people out, deprive them of information....This would be a teachable moment."

Mendelson says he wants to see what unfolds in federal court.

“If the judge finds criminal wrongdoing then of course it should be referred," the councilmember says. "That’s always the question when documents aren’t produced. Was it intentional or not? If the evidence is clear that documents were intentionally held or destroyed then I think prosecution for obstruction of justice is appropriate."

*photo by Darrow Montgomery.

Earlier this week, U.S. District Court Judge Emmet Sullivan warned AG Peter Nickles: "You're playing games with the wrong judge." Sullivan was referring to the AG's near endless stall tactics in the Pershing Park cases. These tactics include attempting to preventing depositions from being taken, and fighting the release of documents to the public. But what about Sullivan's characterization that Nickles is playing games?

In an effort to answer that question, City Desk offers a play-by-play concerning the testimony of Det. Paul Hustler.

Last Friday, Det. Hustler was set to give a deposition in the case. The OAG lawyers were ready. The plaintiffs attorneys were ready. But at the last minute, Hustler decided he wanted his lawyer present and the depo was postponed.

Immediately, the OAG filed a motion asking the court to bar Hustler from testifying. In filings, they contended that Hustler's deposition was unnecessary–that it would focus on old material, not newly produced documents.

Here's where the games come in to play:

The day before, court records show Det. Hustler had met with OAG lawyers and briefed them on what he was going to say in his deposition. OAG lawyer Monique Pressley admitted in the court filing that she "knew the nature of the expected testimony."

Pressley's statement in the filing suggests she knew Hustler's testimony was anything but old news. That, in fact, his testimony would be explosive. In an affidavit later submitted to the court, Hustler asserts that then-Chief Charles Ramsey ordered the mass arrests at Pershing Park. Hustler stated in his affidavit:

"As I walked closer, about five or six feet away from them, I heard Chief Ramsey say, 'We're going to lock them up and teach them a lesson.'"

In light of this, Pressley's arguments asking to bar Hustler appear like she's, well, playing games.

At the subsequent hearing, Nickles responded to Sullivan's criticism by complaining that the plaintiffs attorneys had personalized the case, turning it into a personal attack on him. Both Nickles and Pressley also complained about the constant press coverage.

Yet today, Nickles filed another motion in court concerning Hustler. He made sure to e-mail the filing to the press.

Late this week, the plaintiffs had decided not depose Hustler and stick with his affidavit for the time being. In court documents, Nickles cried foul:

"The public manner in which plaintiffs filed the affidavit in the public record, with the invitation to the public to review the filing, shows that this entire issue was contrived—not for the purpose of searching for the truth, but for the purpose of launching a media frenzy to which defendants would not be able to respond."

Nickles now wants a deposition of Hustler to proceed. He then goes on to personally attack the detective. Here are some of Nickles' attempts to score points:

*The AG notes in his filing that Hustler's affidavit did not include a time and date for when Hustler witnessed Ramsey's comments at Pershing Park. "It is impossible, based on the Affidavit alone, to determine whether the statements Detective Hustler claims to have heard can be reconciled into the chronology of events to which several dozen sworn witnesses have already testified," Nickles writes.

One way Nickles could have cleared this up: He could have consulted the running resume. Unfortunately, the running resume is one piece of evidence that disappeared under the OAG's watch.

*Nickles goes on to question Hustler's motivations for his testimony. He mentions that Hustler had filed a racial discrimination lawsuit against Chief Ramsey. The case was eventually dismissed. He also cites a deposition Hustler gave in which the detective speculates that Lanier was out to wreck his career.

Both points have little to do with the substance of Hustler's detailed affidavit (linked above).

So is this just more games from the AG?

Plaintiffs lawyers are expected to file a response to Nickles tonight. We will post an update.

Photo by Darrow Montgomery

On November 17, U.S. District Court Judge Emmet Sullivan confronted AG Peter Nickles on his recent attempts to bar witnesses from being deposed and for general feet dragging in the Pershing Park cases  [PDF].

Sullivan ordered depositions to take place. He then stated that there would be serious penalties levied against the District if it failed to cooperate:

"If any depositions are canceled, I'm going to start imposing fines of $1,000 per day for any depositions that the City sua sponte cancels, and I will impose additional sanctions as well. But that Hustler deposition will take place in this courthouse and be under the supervision of a magistrate judge and there will be marshals present as well. I'm not going to play games."

With that, Sullivan turned to the attorney general: "Mr. Nickles, you're playing games with the wrong judge....I'm telling you, you're playing games with the wrong judge."

Nickles responded with a vague defense that his wide-ranging protection orders and stall tactics were "justifiable." He then couldn't help but jab plaintiffs attorney Jonathan Turley:

"The manner in which Mr. Turley continues both to play in the press and before the judge the personalization of this matter—I have brought in a team of very good lawyers who are seeking appropriately to present reasonable arguments."

Sullivan did not buy Nickles' defense. He replied:

"I didn't put any limitations on discovery, and I'm very concerned about what's taken place over the last several years. I'm very concerned that arguably there's been noncompliance with court orders. Has it been willful? I don't know, but we're going to find out."

Sullivan raised the idea that the U.S. Attorney's Office may have to get involved. If evidence has indeed been destroyed, he stated that he would refer the matter to the U.S. Attorney' s Office or the Department of Justice for a criminal investigation. "I'm not playing games with this," Sullivan said again.

Nickles told the court that Judge Stanley Sporkin would be filing a report that would address the missing evidence. He made clear that the report would be made public.

Still, Nickles couldn't help but complain about the press coverage of this case. He stated to Sullivan: "Counsel and particularly in the Chang case [that means Turley] have waged a war in the press about the District's conduct. That is not appropriate."

Sullivan wasn't buying this. "It's not that they waged a war in the papers," he told Nickles. "They filed pleadings. They filed pleadings, and the press is going to pick up on the pleadings, and the press is going to pick up on your own statements."

With that, Nickles went into full crybaby mode: "It's more than pleadings. Indeed, you could hear counsel for Chang talk from this very rostrum, Mr. Nickles didn't do this; Mr. Nickles didn't do that; Mr. Nickles is deceiving the court; Mr. Nickles is not complying with his declaration. That is not appropriate conduct by counsel."

OAG attorney Monique Pressley stepped in to complain about... Washington City Paper:

"With respect to the releases to the press, actually counsel's e-mails—my e-mails have been released to the City Paper and were part of a blog."

Sullivan wasn't too interested in all this.  He reiterated that the plaintiffs lawyers were entitled to discovery and then added a new twist: the District would be entitled to "zero discovery." "Your discovery is over," he added.

An affidavit filed today in U.S. District Court raises questions as to whether former D.C. Police Chief Charles H. Ramsey may have committed perjury in his sworn testimony about the Pershing Park fiasco. Ramsey had repeatedly stated in depositions that he had not ordered the mass arrest of approximately 400 people during the Sept. 27, 2002, World Bank/IMF protests.

Yet the affidavit, by Det. Paul Hustler, a 22-year D.C. Police veteran, maintains that Ramsey indeed ordered the arrests.

Hustler's affidavit, taken Nov. 16, [PDF] is just the latest shock in a pair of Pershing Park class-action civil suits in U.S. District Court. In recent months, the case has been dogged by allegations of massive discovery violations. Judge Emmet Sullivan has called for an outside investigation into how basic evidence in the cases had gone missing.

On the day of the protests, Hustler's squad had been dispatched to Pershing Park to assist with crowd control. At the time, the police had surrounded anyone in the park whether they were IMF protesters or innocent bystanders. Hustler states in his affidavit that officers were ordered to funnel people into the park. Hustler was standing near Ramsey and various police officials at the time. He then goes on to state:

"As I walked closer, about five or six feet away from them, I heard Chief Ramsey say, 'We're going to lock them up and teach them a lesson.'"

Hustler's testimony had been the subject of an intense legal war between plaintiffs attorneys and AG Peter Nickles. Last week, Hustler's deposition was postponed. Nickles immediately filed a motion in U.S. District Court to bar Hustler from testifying in the nearly seven-year old case.

Yesterday, Judge Sullivan ruled that not only should Hustler's deposition go forward but that it had to be taken in the presence of either U.S. Marshals or a magistrate judge.

By then Hustler had already given a sworn affidavit to the plaintiffs lawyers. It is easy to see why Hustler's testimony is so explosive, given the light it sheds on Ramsey's credibility.

The former chief had plenty of opportunity to give his side of the story:

*On Feb. 25, 2003, Ramsey testified before the D.C. Council's Judiciary Committee. Then-Councilmember Kathy Patterson asked if Ramsey had been in on the decision to make the mass arrests. Ramsey replied: "No. When I came up on the scene, actually, that was already practically in progress."

*On Dec. 18, 2003, Ramsey conceded during a D.C. Council investigatory hearing that he did approve of the decision to arrest everyone in Pershing Park.

*On Sept. 18 and 19, 2007, Ramsey was deposed as part of the class action lawsuits stemming from Pershing Park [see video]. He reverted back to previous denials. He stated: "I did not order any arrests at any scene during the course of that day." Even when confronted with his testimony before the D.C. Council, Ramsey stuck with his denial that he had approved the mass arrests.

Hustler's affidavit was filed in U.S. District Court this morning. The Pershing Park matter has long been an embarrassment for the police department as well as the attorney general: The false arrests of hundreds of innocent citizens, the missing evidence and discovery abuses, and now the possibility of the former chief lying under oath.

As part of their filing, plaintiffs lawyers wrote: "The affidavit has obvious relevance to the missing evidence and any motivation for alleged destruction of such evidence."

Hustler's testimony also reveals the unease among authorities who were on the scene that day:

"Officers started to surround the park and push people back into the park. At this time I along with Sgt. Buethe started to walk away. A man from the press stopped me and said, 'Hey I'm from the press and I want to leave.' I called Chief Jordan over and said 'Hey Chief, this guy is from the press and he wants to leave.' Chief Jordan came over and said 'nobody leaves.' At this time Sgt. Buethe told me, let's go this isn't right. And we went to the truck and watched as the crowd was pushed back into the park. At this time, a U.S. Park Police Lieutenant also stated that they were not going to participate in this, and that they were going to pull out."

Photo by Darrow Montgomery

In late July, U.S. District Court Judge Emmet Sullivan called for an investigation into the discovery abuses in the Pershing Park case. Sullivan suggested that the D.C. Council should get to the bottom of how evidence went missing or got botched.

Councilmember Mary Cheh called for AG Peter Nickles to resign. Councilmember Phil Mendelson, who heads the Judiciary Committee, stated that he "definitely" would be considering an investigation into the matter.

Now, a D.C. Council investigation appears unlikely.

Mendelson tells City Desk that he hasn't ruled out holding hearings on the mass arrests and troubling OAG response. But considering Nickles' relationship to the council, he says it might be a waste of time.

"The difficulty with holding a hearing is Nickles may not show," Mendelson says. "He might even claim privilege....I'm not sure what I could get out of a hearing."

Mendelson counters that the bulk of any investigation into the disappearing evidence is already coming from the plaintiffs attorneys. He's just not sure what more he could discover from holding a public hearing on the case. "I just don't know how we could have an effective hearing given Nickles' obstructionism," he explains.

Mendo says he's still trying to get police documents related to the DeOnte Rawlings case. Pershing Park could be another never ending document chase.

Still, Mendo assures: "Pershing Park is not off my radar screen in terms of Nickles' bad behavior. I'm not sure how I'm going to follow up on it....In some way, and I don't know how right now, all that's going to come back to haunt him."

*photo by Darrow Montgomery.

While Nickles may not be such a goodwill ambassador, he did promise the courts that plaintiffs would see a nice payday soon. In late September, Nickles told U.S. District Court Judge Emmet Sullivan that he would personally direct settlement talks. He boasted of making huge breakthroughs in the negotiations, and stated that he expects the cases to be wrapped before the Macy's Parade. Yesterday, Nickles announced a settlement in an unrelated protester case, and again expressed hope that the Pershing Park cases would be resolved within weeks.

Turley, who represents plaintiffs in one of those cases (the Chang case), says Nickles has actually shutdown talks. "Despite the statement by AG Nickles that he was going to settle these cases," Turley explains, "he canceled all settlement negotiations with the Chang plaintiffs soon after leaving Judge Sullivan."

Turley says: "We have yet to even meet with him. In the meantime, the city is spending copious amounts of money fighting a case where the merits have already been established."

Attorney General Peter Nickles & Co. fought over whether plaintiffs could depose a government witness. They lost that battle and the deposition provided devastating evidence of more discovery abuses.

The losing fight over the depo has yet to put a dent in Nickles' M.O. The AG has not backed down from further stonewalling in the cases. In a curious move, the OAG argued in federal court filings that plaintiffs should return 211 pages of documents claiming that they were "mistakenly produced." The OAG contended that these documents were attorney-client work product.

Last night, Legal Times reported that U.S. District Court Judge Emmet Sullivan ruled against Nickles on the matter.

So what are these mystery docs?

Legal Times wrote in its piece that Sullivan's ruling "followed a flurry of filings" asking the judge to "stop the plaintiffs from using the documents in discovery or to issue an order that would keep any information related to the documents out of the public eye."

Legal Times cited one filing in which city lawyers argued: "In addition to the privileged nature of the communications, several of the documents include statements by high-ranking officials in the District of Columbia Government which, if disclosed to the public, would only serve to embarrass while not shedding light on any matter of controversy in this case."

Plaintiffs attorneys argued in their response:

This is yet another bald attempt by the District to forestall and stymie Plaintiffs' discovery efforts. Faced with only six months of resumed discovery, the District has unleashed a torrent of objections and privilege assertions, including forcing the Court to issue an emergency order to force compliance with a deposition demand.

The plaintiffs' attorneys go on to contend that the OAG is only pressing for those documents because they would be used during a deposition of city lawyer Stacey Anderson, set to be taken this Thursday. They call the document request "farcical" and illustrative of an "effort to continue its prior delaying and dilatory tactics."

Among the documents the OAG wanted back were documents the office turned over on July 22.

Plaintiffs' attorneys contend that the documents were used in exhibits and discussed multiple times between the parties; to prove their point, they produced e-mails in which OAG attorneys discuss the documents.

The documents in question may point to then-Chief Charles Ramsey's direct involvement in ordering the Sept. 27, 2002, mass arrests, and the ensuing cover-up (the D.C. Council concluded in its investigation that Ramsey had participated in a lame attempt to obscure his involvement).

One Mystery Doc Revealed!

The attorneys point to one document in particular as the cause of Nickles' latest fight: "Prosec 00055." It's a handwritten entry that shows Ramsey's involvement in the decision to make the Sept. 27 mass arrests. The entry appears to be a lawyer's record of an assistant chief's statements concerning that day's events. It appears to place Ramsey in the middle of the decision-making—that he either ordered or "needed to make arrests."

To put "Prosec 00055" in context, the attorneys had filed excerpts of Ramsey's deposition along with testimony from several other police officials. The excerpts focus on the decision to make the arrests, why that decision was made, and who was involved in that decision.

Read then-Executive Assistant Chief Michael Fitzgerald's testimony before the D.C. Council's Judiciary Committee. Fitzgerald states that he was OK with the mass arrests.

Read Ramsey's deposition from September 2007. Ramsey states that he thought the arrests were OK.

Read then-Assistant Chief Alfred Broadbent Jr.'s deposition from October 2007. Broadbent states that he advised against the arrests.

What are those new abuses?

During discovery over the cases, District employees culled e-mails related to Pershing Park. There were so many e-mails found that they needed a flatbed dolly to transport the documents. Those thousands of pages were carted to the office of the D.C. Police Department's general counsel.

Years later, the documents have not yet been turned over to plaintiffs attorneys. Even after the U.S. District Judge Emmet Sullivan slammed the city for its discovery failings this past summer. Even after AG Peter Nickles promised a thorough case review and document dump.

How do the lawyers know this? The District's own witness—Kimberly Thorpe—told them in last week's deposition.

Thorpe has the credentials to speak on the discovery screwups. For 14 years, Thorpe worked within the police department as the Deputy Director for Operations and Information Technology. She had also served as an Supervisory IT specialist.

In 2002, at the time of the Pershing Park mass arrest, Thorpe says:

“I was responsible for day to day operations of the Department’s wide area network, and therefore all of [the MPD’s] computers, computer systems and agency-centric applications.”

Under her direct supervision were “hardware technicians, there were server technicians, there were email technicians, and there were application technicians.”

Here is what Thorpe said about the e-mail documents:

Thorpe: "There were quite a few boxes."

Lawyer:  "Could have been more than 3 boxes?"

Thorpe: "It could have been."

Lawyer: "Could have been as high as 10 boxes?"

Thorpe: "It may be."

Lawyer: "Do you recall how the boxes were transported to Counsel's Office?"

Thorpe: "On a flatbed dolly."

Lawyer: "Was that because of the size and number of boxes?"

Thorpe: "Yes."

And here's the other zany detail: D.C. Police only searched the subject lines of the e-mails. They could not or did not know how to search the body of the e-mails. For example: search terms like "Pershing Park" or "IMF" or "mass arrests" or "hogtying" had to be in the subject line. If those terms were not in the subject line, District employees wouldn't have culled the e-mail:

Plaintiffs attorney Carl Messineo: "So then if there was an email for example from Charles Ramsey, and the subject line said September Arrest, and in the body of that email it said, 'After I gave the order to make the mass arrests at Pershing Park," and then continued. Am I correct to understand that the search that the MPD engaged in would not produce that as a result?"

Thorpe: "Correct."

And then later in the deposition, there is this:

Messineo: "For all those emails, for whatever set of emails might exist that said Pershing Park in the body but did not have any key search terms in the subject line, what happened to those emails, should they have existed at one time?"

Thorpe: "At this point in time, they are gone."

Messineo: "Destroyed, correct?"

Thorpe: "I can't say they are destroyed. I can say that these backup tapes have been overwritten, and I can say that those hard drives of any machine that had them, have been surplussed at this point in time, yes."

The upshot? The D.C. Police conducted an incredibly poor search. They still found thousands of pages of documents. They carted them over to the general counsel's office. The documents then were never turned over to plaintiffs lawyers. The ones that they missed in their search are now gone.

As the lawyers write in their filing: "The persistent fact remains: The scope of spoliation and destruction is massive."