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

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

And OAG lawyers are furious at fire department personnel.

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

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

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

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

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

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

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

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

Stern wrote:

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

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

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

Stall Tactics

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

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

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

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

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

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

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

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

It gets worse. The lawyers write:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*photo by Darrow Montgomery.

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

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

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

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

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

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

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

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

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

*photo by Darrow Montgomery