Jack Evans: Back in September, the Ward 2 councilmember told LL he'd "be interested" in running for chair if Gray ran for mayor. But Evans, in his past, has pledged mayoral runs only to think the better of it. But Evans wouldn't have to give up his seat, and he can raise cash like no one's business.

Kwame Brown: Brown has kept absolutely mum about a chairman's run. Like Evans, he doesn't have to risk his seat to run and is a prodigious fundraiser. Plus, he's only two years removed from an impressive citywide landslide victory. LL has gotten indications today that Brown is gathering support for a run.

Phil Mendelson: Mendelson's already hit the ground running for his at-large re-election campaign. Question is: Would he take the risk of running for the chairmanship? Not known for bringing in huge amounts of cash, but has an impeccable record of fending off better-financed challengers.

Kathy Patterson: The former Ward 3 councilmember lost to Gray by a decent margin in 2006, but she retains widespread respect in the city and might see a path to victory depending on who decides to run.

Vincent Orange: The former Ward 5 councilmember risked his seat to run for mayor in 2006 and lost, but he may see a path back to electoral office in the now-vacated chairmanship. But would Orange have to give up his lucrative Pepco lobbying job to run?

David Catania: The at-large independent has an impressive record to run on and a formidable fundraising machine. But his chief of staff, Ben Young, tells LL that his boss has no plans "at this time" to seek the chair.

During his tenure as police chief, Charles H. Ramsey faced countless challenges from coordinating an emergency response on 9/11 to helping to track down the D.C. Sniper. Of course, his job had other lower profile responsibilities like crime fighting and answering then-Councilmember Kathy Patterson's tough questioning.

So what can this veteran cop not handle?

Being deposed (again) about the mass arrests at Pershing Park on Sept. 27, 2002. Or at least being deposed (again) without some extra help. A few days ago, Ramsey's powerful attorney Mark H. Tuohey sought a protective order for the chief asking that Magistrate Judge John M. Facciola sit in on the deposition.

In other words, Ramsey did not want to be deposed by plaintiffs lawyers without a federal judge chaperoning the proceedings. In public filings, Tuohey laid out a lengthy argument for why Ramsey needs such protection.

Tuohey argued that police officials had been subjected to "wasteful" and "harassing" depositions. On March 12, Assistant Chief Peter Newsham was deposed.  Tuohey particularly objected to plaintiffs lawyers grilling Newsham about this snowball incident in which Det. Michael Baylor pulled a gun during a snowball fight.

Initially, Newsham told the press—including City Desk—that the officer did not draw his weapon.  Newsham soon changed his position as more video and photographic evidence became known. It was enough of a quirk to draw some heated questioning from plaintiffs lawyers.

Tuohey characterized the questioning of Newsham as harassment and abuse. He writes that he expects that the Newsham deposition was a mere "preview of the free-for-all and waste of time in store for Ramsey."

Tuohey also argues that Ramsey is a busy guy and shouldn't be subjected to prolonged questioning: "Ramsey is currently police commissioner for the City of Philadelphia. It is not easy for him to take time away from that demanding post, especially considering how inefficient and unfocused the depositions have been thus far."

Tuohey has to realize that Ramsey is not going to be questioned about a snowball fight. Nor is this deposition going to be a waste of time. No, he's filibustering for good reason, a reason not stated in his filing. Ramsey is going to be questioned about the recent testimony by two police officials who stated that Ramsey gave the mass arrest order for Pershing Park.

Plaintiffs lawyers, citing those police officials, are going to ask Ramsey: Did you tell your subordinates to "lock those motherfuckers up?"

Judge Facciola did not buy Tuohey's arguments. Today, he rejected the motion for a protective order. The judge wrote:

"I cannot believe that after seven years, the competent counsel who represent the parties in this case cannot conduct a deposition without adult supervision."

Ramsey's deposition is scheduled for March 26.

*file photo by Darrow Montgomery.

A few months ago, Det. Paul Hustler came forward and stated in his sworn affidavit that he had heard D.C. Police Chief Charles H. Ramsey give the order to arrest the 400 individuals in Pershing Park on Sept. 27, 2002. The testimony had contradicted the former chief's sworn-statements in which he denied ordering the arrests.

Ramsey has long since left the police department. He is now Philly's top cop. Kathy Patterson, the councilmember who led the investigation [PDF] into Pershing Park, is no longer in politics.

Even seven years later, the events of that day still provoke. Hustler's deposition cost the city big time. The District has agreed to pay Ramsey's attorney more than $100,000 in legal fees for three months worth of work–much of that work must concern Hustler's testimony. The AG Peter Nickles wasted more time and money filing a motion that essentially attacked Hustler's character. At the last hearing on the Pershing Park cases, U.S. District Court Judge Emmet Sullivan allowed defendants to depose Hustler. This will only cost the city more dough.

And yet, Hustler's testimony concerning Ramsey's alleged order is really, really old news. Another police official had pretty much said the same thing on Nov. 5, 2003.

Here is what Hustler stated in his affidavit in mid-November:

"I was standing about 8 to 9 feet away from Chief Ramsey and Assistant Chief Fitzgerald, with Assistant Chief Jordan and Assistant Chief Newsham standing around. At this time no arrests of those protesters had been made. As I walked closer, about 5 to 6 feet away from them, I heard Chief Ramsey say we're going to lock them up and teach them a lesson."

Here is what Captain Ralph McLean stated about the arrests at Pershing Park  in his testimony before the D.C. Council on Nov. 5, 2003:

"I remember a group that was involved in discussions, Chief Ramsey, Chief Jordan, Assistant Chief Fitzgerald, Chief Newsham. There were several other people. I think Joe Gentile was there for a while, but I'm not sure at what point he came and left. He came and went several times....The main discussion I remember was OK, we've got them, what are we going to do with them?"

McLean goes on to state:

"It was—in my mind—it was a lengthy discussion. It could have taken a minute or less, but there was a lot of back and forth between Chief Ramsey, Chief Newsham. Chief Jordan was particularly vocal."

McLean was then asked what Ramsey's said during the discussion:

"[Ramsey] ordered Assistant Chief Newsham to lock the protesters in Pershing Park up....It is very vivid in my memory....My recollection is pretty much that Chief Ramsey said, lock them up."

After the discussion broke up, McLean questioned Newsham about having to arrest everyone in the park:

"I said, 'OK, Chief, exactly what are we going to lock them up for?' And he stopped and he turned toward me and said, 'Well, what do we have?' I said, 'Well, the last group, they were definitely off their permit. We can lock them up for parading without a permit.' I said, 'But there were other people in the park. I don't know what we can do about that.' And he said, 'Well, you heard [Ramsey], we're locking them up.' I said, 'OK.'"

McLean said that no one conducting the department's internal investigation into Pershing Park interviewed him. "I thought it was kind of odd," he told the Council. "But, you know, that's not—that's not my place....I didn't understand why nobody had spoken to me."

*photo by Darrow Montgomery.

It's one of the tried-and-true plays in the crisis-management playbook. Think about the history: the Warren Commission, the 9/11 Commission, the Iraq Intelligence Commission.

This past summer, D.C. Attorney General Peter Nickles had reached pretty much the same stage. As the city's top lawyer, he was entrusted with defending the indefensible Pershing Park case. Nickles was hoping to persuade his critics that he was determined to get to the bottom of the missing and/or botched evidence in the case. After getting thoroughly grilled by U.S. District Judge Emmet Sullivan in July on the matter, Nickles came up with a solution: Hire a retired federal judge, Stanley Sporkin, to investigate on a pro bono basis.

But is his investigation going to be worth a damn?

Sporkin is certainly qualified to handle the task. Before becoming a federal judge, he headed up the enforcement division at the Securities and Exchange Commission, and later was general counsel for the CIA.

A WaPo editorial praised Nickles' decision to hire Sporkin.

In a September status report submitted to the court, Nickles assured that Sporkin would be leading an investigation into the missing "running resume" and the Sept. 27, 2002 radio tapes that went blank at the time of the mass arrests at Pershing Park—the two biggest mysteries yet unsolved.

At last week's hearing, Nickles told Sullivan that Sporkin's final report was just days from completion. Sporkin tells City Desk that his investigation was "much harder and longer than I thought it was going to take."

"I do things thoroughly," Sporkin says. "I talked to a lot of people."

Perhaps. Just not all the right ones.

Sporkin did not interview Robert J. Spagnoletti, who headed up the District's law unit from May 2003 to November 2006. It was under his watch that many of the discovery abuses started coming to light.

When asked about Spagnoletti, Sporkin confessed he did not know who he was.

“Robert Spagnoletti? Who is he?" Sporkin asks before confusing him with a D.C. Superior Court judge.

Sporkin also did not interview former Ward 3 Councilmember Kathy Patterson. She had headed up the first investigation into Pershing Park, and the city's stonewalling tactics started during Patterson's probe.

"Kathy Patterson? That was the internal affairs person for the police department?" Sporkin wonders.

In an October filing, plaintiffs attorneys in the Chang case questioned the independence of Sporkin's investigation after meeting with the retired judge. They wrote:

Judge Sporkin has not been tasked with and does not intend to try to find out how or why the discovery abuses occurred. In fact, he informed Chang counsel that he "would prefer not to" examine whether the OAG had committed ethical violations in relation to the discovery abuses.... When pressed by Chang counsel as to whether he was just a counselor to Nickles, Judge Sporkin replied, "yeah, that's what I do—I counsel. I am here to help this guy get out of a problem."

In a footnote to the filing, plaintiffs attorneys report Sporkin's real mission may be to help Nickles settle the cases. The judge stated as much to the attorneys during their meeting: "Judge Sporkin described the charge to him as follows: 'Out of the blue I got a call from Nickles and he asked if I could be of help. I asked how and Nickles said anyway I could...I also want to help settle the case.'"

In their own filing, plaintiffs' lawyers in the other Pershing Park case suggest Sporkin's report will be a whitewash. They wrote of their own session with the retired judge: "Judge Sporkin has directly expressed to plaintiffs' counsel that his efforts are not comensurate [sic] with a thorough investigation...and that such an endeavor is not his intention."

Sporkin would not say whether he figured out how police radio tapes were erased or how the running resume vanished. Just wait for the report, he says, adding: "We followed the evidence."

Both Spagnoletti and Patterson tell City Desk that they would have gladly talked to the retired judge.

Few fought harder to get at the truth of what led to Pershing Park than the former D.C. councilmember. Seven years later, Det. Paul Hustler comes forward to say out loud what a lot of people knew: Ramsey was directly responsible for Pershing Park. What did Patterson think?

Patterson responded to Hustler's affidavit with an e-mail. "I'd like to see the District settle," she wrote. "I'd like to have some assurance of lessons learned."

Patterson went on to write that Hustler isn't the only cop who has come forward with a critique of the Pershing Park mass arrests.

She wrote:

"In the course of our investigation of the wrongful arrests in 2002 and the preemptive actions in 2000 we learned about a lot of things done wrong.  But we also identified quite a few MPD officers and officials who tried to do the the right thing — who tried to do their jobs correctly, respecting the rights of DC residents. We also reviewed the after action reports by several officials who risked their own careers by raising concerns with the actions of MPD leaders in and around Pershing Park. We highlighted the internal investigative report, and the fact that the original report was critical of MPD actions — before it was sanitized by the leadership, a step that violated MPD policies and best practices on internal reviews. We obviously knew of Chief Ramsey's role in the arrests based on our depositions and his own testimony so I am not surprised by the newly-released deposition, nor do I know why anyone would seek to supress it!"

To answer that question, I called Peter Nickles. Multiple times. He has yet to respond to my calls nor my e-mails seeking comment.

Ramsey has refused to comment as well. One of his press people up in Philly responded to my interview request this way:

"Police Commissioner Ramsey is well aware of the accusation. However he has no comment at this time."

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.

Soon, the letter made its way to the press. Nickles does not approve of this leak. He may have a point. But it seems a little petty in light of the AG's promises of a full investigation into the case's numerous evidence problems. Also, Patterson corrects several errors that she believes were made in Nickles' sworn statement. Is this really the moment Nickles should go back to playing the bulldog lawyer?

Nickles suggests he wanted time to oppose the public release of Patterson's letter. In a filing yesterday, Nickles raises the issue with Sullivan:

"Since Ms. Patterson is not a party to this case, the purpose of the Court's August, Order was to make Ms.Patterson's correspondence available to all parties and also to inform the parties of the Court's inclination to post the correspondence on the public docket and to provide the parties with an opportunity to respond publicly. The Court's Order, however also provided that any objections to the posting of the Patterson Correspondence on the public docket be filed by no later than August 26 and that the Patterson Correspondence would not be made a matter of public record until the Court so ruled."

Nickles suggests he really wanted to raise objections to Patterson's letter before it made its way to the press:

"Defendants fully appreciate the Court's effort to protect the integrity of the judicial process and to give the parties a chance to object to the public disclosure of non-party, unsoliticed comments before making them a matter of public record. It appears, however, that events beyond the control of the parties hereto have overtaken this judicial process. Almost simultaneously with the Court's receipt of the Patterson Correspondence, it was released to the press and has been widely circulated by the media. Thus, that portion of the Court's Order concerning the filing of objections to the public posting of the Patterson Correspondence now essentially is moot, and accordingly, any concerns or objections that a party may have lodged with the Court as to such public disclosure would be to no avail."

Nickles states that he intends to respond to Patterson's critique "by no later than September 4, 2009."

Late last week, I got an anonymous letter gently complaining about our coverage of the Pershing Park mess. A few times a week, we've posted critical pieces concerning the sloppy work of the OAG or pointed to discrepancies among D.C. Police personnel over how basic documents could either disappear (the running resume) or be tampered with (the radio dispatches containing gaps). The writer wanted to know why the plaintiffs in the case didn't just settle.

The facts are really not in dispute–the mass arrests were bad, violated due process, etc. Other Pershing Park plaintiffs have settled.

I can't begin to guess why the plaintiffs in this case have not settled. But one thing that appears driving the plaintiffs is the simple quest of getting to the truth of what happened on September 27, 2002.

Why is this important? Because immediately following those bad arrests, D.C. Police officials lied and manipulated information about that day.

When it investigated Pershing Park, the D.C. Council hit a wall. I found a telling Q+A excerpt from Sgt. Michael Thorton in its final report.

At the time, Sgt. Michael Thorton's work included driving then-Chief Charles Ramsey around. He was with Ramsey on Sept. 27. His responses to counsel questions are quoted in the report. His answers are either total bullshit or symptoms of dementia:

Q: Did you go from that location [Vermont Avenue and K Street] to Pershing Park?

A: I went to Pershing Park. The sequence of events I don’t remember…

Q: Would you have walked from Vermont and K to Pershing Park?

A: Could be.

Q: Did you go back into the car?

A: From Vermont and K? I don’t remember. I mean at some point I would have had to go, but I don’t remember from that location or where we went next…

Q: At some point you left Pershing Park, did you not?

A: Yup.

Q: How did you leave Pershing Park?

A: I don’t remember.

Q: When you got to Pershing Park you said one of your assignments was to keep an eye on the crowd, right?

A: Uh-huh….

Q: And you would do it to the best of your ability, correct?

A: I would, yes, ma’am.

Q: And you would be alert, right?

A: Uh-huh.

Q: And attentive, correct?

A: Uh-huh.

Q: Okay. So now you’re at Pershing Park and tell us having been alert and attentive, what do you see?...

A: Demonstrators standing around, police officers standing around, and a lot of horses. I was in back of the horses… I wasn’t right beside the Chief there. So, you know, I felt like it was a safe situation, that I didn’t feel like that he was, his personal safety was in, I didn’t feel his personal safety was in danger at the location...

Q: Was it an unruly crowd?

A: Was it – what do you mean unruly? What do you mean?

Q: Were there skirmishes? Were people pushing and shoving? Was it loud? Did it seem out of control? What was your assessment? You’re a police officer, I assume you can make assessments about the nature of circumstances you find yourself in, so I’m asking you to describe them for us.

A: I was behind the line of horses and I did not feel that there was a threat to the Chief of Police…

Q: Did you see him confer with others?

A: He was standing in close proximity to other police officers but I don’t know who they were. I mean, they could have been line officers, they could have been park police. I mean, I don’t know. I don’t remember who they were. I don’t recall any specific person that he spoke to at that location.

Sgt. Thornton also was asked about the arrests. Despite the fact that approximately 400 people were arrested while he stood at the corner of 14^th Street and Pennsylvania Avenue, Sgt. Thornton testified that he could not remember any specific details about those events. His responses:

Q: When you arrived there – were arrests being effected yet?

A: I don’t recall any arrests, being on the scene for arrests…

Q: You don’t recall any arrests at Pershing Park on Friday September 27^th?

A: You know, I’ve learned through the media reports that, yeah, there was numerous arrests, but I don’t recall seeing anyone being arrested…

Q: We’ve see news footage of you and Chief Ramsey removing the bicycle of an arrested demonstrator from Pershing Park. Do you remember that?

A: Me removing a bicycle from Pershing Park? No. But, okay.

Q: You were removing it from someone who had been arrested and I ask to see if that would jog your memory to see if you remembered people being arrested at Pershing Park.

A: [no answer]

After reading that officers statements, the need for the running resume—the document that chronicles in real-time all orders and cop movements—is obvious.

And the need for accountability remains a strong motivation. Especially since Chief Cathy Lanier had a hand in developing policies that lead to Pershing Park.

Lanier had a hand in developing the hog-tie technique. The 400 arrested that day were shipped off to the police academy where they were then hog-tied. In a deposition, Lanier discusses the technique. She claimed that it was comfortable: “[I]t was not uncomfortable. In fact, I recall sitting on a couch in the commander's office with my cuff to my ankle and to my wrist, and was able to not only sit and stand but could also lay down with relative ease.”

Photograph by Darrow Montgomery.

On August 12, AG Peter Nickles submitted his sworn statement to U.S. District Court Judge Emmet Sullivan. By now, the statement has been read by several Pershing Park experts. Their verdict: Nickles' statement needs a re-write! Councilmember Phil Mendelson and Former Councilmember Kathy Patterson caught several possible errors.

Mendelson took issue with Nickles' claims that the D.C. Council had prevented him from instituting reforms at OAG and had cut OAG's budget. Patterson found fault with Nickles' assertion that his attorneys had been blocked from getting materials discovered in the council's Pershing Park investigation. Patterson says the majority of those materials were made available to the public along with her detailed  final report.

Today, City Desk reached Councilmember Mary Cheh. Cheh had helped lead the D.C. Council's investigation into the mass arrests at Pershing Park.

Her take on Nickles' statement: "This is an attempt to exonerate himself from any liability," she says. "From what I can tell, he has misled the court....This is just an erroneous, unreliable self-serving statement on his part."

Cheh also found fault with Nickles' claim that the OAG was denied access to the council's Pershing Park materials (page 10 of his statement). She also took issue with Nickles' claims that the council had received the running resume—a major piece of evidence in the case that has gone missing. The council did not get a copy of the running resume despite requesting one from the D.C. Police Department.

And Cheh backs up Mendelson's complaint that Nickles shouldn't blame the council for OAG's file mismanagement. "To lay things back on the council is actually laughable," she says. "There was money in the OCTO budget for document management. Nickles and the executive office never came forward with a plan, never sought that money to reform their office. This is a guy who can't run his own office. It's a mess... and he ought to own up to it."

Nickles' statement did nothing to shake Cheh from her recent statement calling for the attorney general to go. "The man should resign," she says.

*photo by Darrow Montgomery.

U.S. District Court Judge Emmet Sullivan had ordered the city's attorney general to submit a sworn statement explaining the evidentiary problems in a Pershing Park case. Nickles and OAG attorney Tom Koger submitted their statements on August 12 [read their statements in full].

This week, Patterson sent a letter to Sullivan outlining the various factual problems she had with Nickles' statement. Now comes Mendelson writing to Nickles. Mendo points out several mistakes in Nickles' statement to Sullivan.

All of the errors are both obvious and unnecessary. The take away:  Does Nickles really care about the Pershing Park case? Should he be the one leading an investigation into the missing and botched police evidence?

Mendelson tells City Desk that he is undecided on whether to open an investigation. But he says there will be oversight hearings on the controversy.

"What troubles me besides the hot water the city is in with Judge Sullivan, what troubles me is we repeatedly have these problems with getting accurate information," Mendelson says, citing the DeOnte Rawlings shooting case and the Fire Truck dustup.

Mendelson says the council will be looking into the missing evidence in the Pershing Park case.

Now on to the letter.

Nickles had claimed to Sullivan that the D.C. Council had rebuffed efforts by the Fenty Administration to allocate money for a "District-wide document management system that also would have addressed OAG document management needs."

In his letter, Mendo points out that his Judiciary Committee oversees the OAG and, well, the need for a new document system has never been brought to his attention during oversight hearings.

Mendo goes on to quote Nickles' own statements during oversight hearings from April 4, 2008 and March 26, 2009. In the March testimony, the AG concluded his statement with this: "We are grateful that the Mayor, the Committee, and the Council support our important work and that this budget allows us to continue our operations."

Mendo points out that on page "A-162 of the FY 2009 Proposed Budget and Financial Plan for the Office of the Attorney General," there is a one-line entry for an electronic management system costing $400,000. He writes that the proposed $400,000 managment system was left in tact by the Council. "It is funded in the current fiscal year," Mendelson states.

Another graph in Nickles' statement stumped Mendelson. Nickles wrote to Sullivan:

"I am disappointed to report that for Fiscal Year 2009 the Council reduced the OAG budget by over two million dollars, and for Fiscal Year 2010, the Council reduced the OAG budget further by almost three million dollars, which certainly will result in a reduction in force of present staff."

Mendo's response: "These statements are also incorrect." He points out that the council adopted Fenty's FY2009 budget request for the OAG "without reducing it one cent." Even the revised budget did not reduce Nickles' budget. He goes on to detail the FY2010 numbers:

"The Council's actions regarding the FY2010 budget are more complicated, but the total OAG budget will be about 3.5% greater than FY2009. This increase includes $315,000 which the Council added—above the Mayor's request—to fund non-personal expenses related to litigation support."

Mendelson goes further. But the conclusion is this: Nickles' claims that OAG's budget got cut or will get cut are false. "The bottom line is that the Council did not cut $3 million from the OAG's FY2010 budget, the OAG's budget will grow in FY2010, and the OAG's litigation support budget will grow," Mendelson wrote.

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

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.