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.

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.

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."

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

I get a tip from a colleague that Traci Hughes might be out as the D.C. Police Department's spokesperson. This morning, I call her office to get confirmation.

I'm put on hold. After two minutes, I decide to hang up and try again.

I'm put on hold again.

Finally, a pleasant voice gets on the line at the D.C. Police Department's Office of Public Information.

I ask: What happened to Traci Hughes? Is she no longer the D.C. Police spokesperson?

I am instructed that the Office of Public Information can not answer such questions. I am then given a name and number of someone in "Strategic Services." His name is Kevin Palmer.

I get Palmer's voicemail.

I e-mail Mayor Fenty's spokesperson Mafara Hobson seeking answers. After some back and forth, I ask her: "Who is Kevin Palmer and why is he replacing Traci?"

Hobson writes back: "She is no longer there?"

It dawns on me that this is a fitting end to Hughes' tenure as D.C. Police spokesperson. This is an office that doesn't know anything about FOIA deadlines (I'm still waiting for one that I sent months and months ago). It is often an office overtaken by a more powerful office (the Office of the Attorney General).

Despite our differences, Hughes handled her job well. She brought a quiet cool to a job that is one of the most stressful and demanding in the city; she always replied in a perfect NPR voice. I can only imagine how many times she got an angry phone call from a reporter or, say, Peter Nickles. There are good people that run that office. But sometimes media inquires had a tendency to die there.

I call Hughes' cellphone. The call gets routed back to the Office of Public Information. I'm told to call Palmer.

Again, I get Palmer's voicemail.

I e-mail Hughes. And I get this: "I am no longer the point of contact for the Office of Communications..."

After more back and forth with Hobson, I get this from the mayor's chief talking head: "Kevin has taken over because Traci is no longer employed with MPD."

I ask why is Hughes no longer with MPD? Hobson replies: "I don't know."

I finally reach Kevin Palmer. He says he became the acting spokesperson roughly a week ago. I ask about Hughes and why she left. "She is no longer with MPD,"  he says, adding that he doesn't know why she left.

Palmer, who has been on the civilian side for seven years, assures that he hopes to foster good press relations. "We're here to try to make everybody's life easier," he says.

2 p.m. update: Hughes e-mails me back. She says she was told that she was being laid off due to budget cuts.

2:19 update: Hobson writes in to clarify her "She is no longer there?" response. She writes: "Jason I wasn’t asking you if Traci wasn’t there, I was telling you that Kevin has taken over her duties as she is no longer the head PIO. The question mark indicates my misunderstanding of your question of why he’s replaced her when it’s clear that someone has to assume that role."

*photo by Darrow Montgomery.

Hustler wanted his own attorney present.

The deposition had to be put off. OAG lawyers used this speed bump to immediately filed a motion in U.S. District Court to bar Hustler from giving his deposition.

The detective was at Pershing Park during the mass arrest incident. It is unclear what he would have said under oath.

Whatever Hustler was going to say, OAG lawyers argued, it was going to be old news. Therefore, he shouldn't be deposed.

But then they write this: "Federal courts have broad authority to limit discovery as necessary to 'protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.'"

Plaintiffs lawyers have filed their own response with the court:

"The District's current motion is a particularly striking example of how openly baseless the District's recent actions have become. The District seeks to stymie Plaintiffs' good-faith discovery efforts on the grounds that the District is unsure whether the deposition is based on the production of late evidence despite the fact that the District was told by both Barham and Chang counsel that he will be questioned on such evidence. It is noteworthy that the District did not raise a similar objection when Detective Hustler was properly noticed by the Barham plaintiffs on November 4, 20009."

They go on to write: "In fact, if the District's sudden alarm is any indication, Detective Hustler appears to be a key witness to the protests and arrests on September 27, 2002."

One other interesting note:  Mark Tuohey, former D.C. Police Chief Charles H. Ramsey's lawyer, had shown up popped up graced everyone with his attendance attended Hustler's deposition as well.

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."

OAG attorneys argue that the order would simply and reasonably protect personal information from being made public. Attorneys even use Washington City Paper to zing plaintiffs lawyers!

Monique Daniel Pressley, senior assistant attorney general, wrote in a Nov. 5 e-mail to plaintiffs lawyers:

"Is there a public interest served by confidential information...being printed in The City Paper tomorrow?"

I guess someone has been reading all our Pershing Park blog items!

Plaintiffs attorneys argued in court---and over e-mail---that the proposed protective order's true aim went well beyond redacting  social security numbers.

Lawyers in the Chang case write:

"The District's Motion for a Protective Order, however, is not what it is represented to be. In reality, it is an unheralded effort by the District to claim the unilateral power to prevent use or disclosure of any document the District would find to be embarrassing or harmful to its defense, even if no recognizable privilege would attach. With increasing attention to newly disclosed evidence showing prior intent to clear the streets of the city and abuse of the discovery process, the District is seeking to limit Plaintiffs' use of such information."

The lawyers go to write:

"The true purpose of the District's Motion is barely concealed in the filing. The District seeks the power to mark any document---perhaps consisting of dozens or hundreds of pages---in its entirety as 'Confidential.' Thus, even if the document contains a single telephone number on a single page that the District elected not to redact, the entire document would be subject to the proposed Protective Order and its use limited."

The proposed order as written by the OAG backs up the plaintiffs' attorneys fears. The order doesn't just seek to redact personal info. It goes well beyond that to include barring "sensitive information pertaining to law enforcement personnel and law enforcement strategies and methodologies."

Aren't law enforcement strategies and methodologies at the heart of this case? Isn't that line just vague enough to bar just about any police document?

The scope of the order would not only apply to e-mails and government documents. It would ban even disclosures made in depositions. There would also be a blanket press blackout on all depositions whether the material was confidential or not. The proposed order states:

"All deposition transcripts shall be treated as CONFIDENTIAL INFORMATION subject to the Protective Order for a period of twenty (20) days after receipt of each of the transcripts." Challenges could be made as to whether or not the deposition could be made public.

Imagine if every other deposition was subject to a new set of motions, a new round of classic Nickles stonewalling?

Pressley insisted to the plaintiffs attorneys in the same Nov. 5 e-mail that the protective order was a standard OAG document. "No time wasted drafting one," she wrote. "Contrary to your repetitious litany with respect to delay and obstruction, a general protective order would enable the District to produce documents faster, as there would be no need for many of the time-consuming redactions."

Plaintiffs lawyers aren't buying it.

"We believe the sweep of the protective order is positively breathtaking," plaintiffs attorney Jonathan Turley tells City Desk. "The order would have succeeded in most of the embarrassing information being withheld from the public and the media. Such an order would not only hamper any disclosure of misconduct by the District but hamper the litigation itself."

The order is still under consideration in U.S. District Court.

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.

LL and other local observers have gotten plenty of mileage out of comparing Mayor Adrian M. Fenty's executive-power-aggregating habits to those of President George W. Bush.

Let the comparisons continue!

Early in October, the D.C. Council passed the fiscal 2010 city budget, after months of wrangling over how best to deal with a late-breaking drop in city revenue. The process had not exactly been a model of interbranch cooperation, with the council jawing about Fenty's methods of closing the $660 million budget gap and Hizzoner threatening a veto over school-governance matters.

But even with the final vote, the bickering hasn't ceased. On Oct. 15, Attorney General Peter J. Nickles dispatched a 13-page memo [PDF] to Fenty, who in turn sent it to Gray. The document lays out no fewer than 16 provisions included in the budget legislation that Nickles and his lawyers found to be objectionable---including six measures, he announced, that the executive branch should ignore completely due to "problems, including separation-of-powers and other Home Rule Act violations, that prevent lawful implementation."

The practice mirrors Bush's embrace of "signing statements"---messages sent to lawmakers accompanying the presidential signature. The practice, certainly, did not begin with Bush---presidents as far back as James Monroe have made them, but the practice saw a halcyon era under Bush 43. According to one professor's analysis, Bush by the end of his term ended up challenging some 1,100 provisions in federal law---more than doubling all those issued before him.

Where Bush's memos addressed matters such as affirmative action programs and the treatment of military detainees, Fenty's memo deals with matters like taxi rates (the council has no power to set them), budget directives for the deputy mayor's office (an "unlawful management of Executive Branch affairs"), and grant reporting requirements for the Children and Youth Investment Trust Corp. (the home rule charter says the council only gets to review contracts, not grants).

But just as Bush's use of the maneuver sent Congress over the edge, Nickles' memos are driving council types crazy.

Ward 3 Councilmember Mary Cheh says Nickles "is channeling Alberto Gonzales on an unsupported theory of executive power" and says he "doesn't really understand" the doctrines he cites. At-Large Councilmember Phil Mendelson says "much of the logic is tortured" and that it's "part of this continuing pattern of picking and choosing which laws to follow." Even At-Large Councilmember David A. Catania of all people, increasingly peeved by Fenty overreaching, calls them "an exercise in creative writing without the force of law."

As on the federal level, mayors have issued legislative memos before, but usually to accompany vetoed legislation, says Brian Flowers, the council's chief lawyer. And since Fenty has taken office, he says, the memos have been flying faster than ever before, with increasingly broad legal claims.

As for the claims in Nickles' budget memos, "Some of them are quite laughable," Flowers says. He is drafting a response.

Nickles has a fine retort to the Bush comparisons: "Why don't they criticize President Obama, who's engaged in the same practice?"

Indeed, Barack Obama said during the 2008 campaign that he and his lawyers "aren't going to use signing statements as a way to do an end run around Congress." Since taking office, however, Obama has issued dozens of his own, and Nickles says he's read them: "He ensured that Congress knows the president's view…that he's not going to interpret legislation to interfere with the Constitution."

Nickles explains his legislative memos this way: "I think the executive has the duty to stand for the executive's prerogatives. Otherwise, in our tripartite system of government, one part will run over the other part."

Photo by Darrow Montgomery

In my item (linked above, please read it!), I quote from two OAG lawyers' e-mails to the fire department. The two attorneys call out the department for their potentially damaging stonewalling on the discovery, and question whether fire investigators followed basic national standards when they worked the Georgetown library case.

In my calls to the OAG prior to publishing the piece (linked above, please read it!), I got nowhere. Nothing much beyond no comment, it's pending litigation, the usual.

A few hours after my item ran (linked above, please read it!), OAG's Kimberly Matthews called to say she really, really wanted to see those e-mails. Could I please send them to her?

I wondered aloud to Matthews: Why would you need me to give you e-mails your own people sent? Couldn't you get the e-mails another way like by asking the attorneys that sent them? After all, the e-mails were sent by her people.

I told her no dice.

I wonder if this is a ploy to try and figure out who leaked me those e-mails? Or am I just being paranoid?

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.

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."

Ugh.