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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo by Darrow Montgomery

In our running poll of the D.C. Council's Judiciary Committee members regarding AG Peter Nickles' conduct, we finally reached Councilmember Yvette Alexander.

Nickles has come under fire recently for his office's conduct in a Pershing Park civil suit. District evidence has either been destroyed or lost and discovery continues to be a problem in that case. The discovery process has dragged on for years. The U.S. District Court judge in the case slammed the OAG, ordered Nickles to submit a sworn statement explaining his office's actions, and called on the D.C. Council to investigate the OAG's handling of the case. The issues before Nickles include one very false affidavit.

So far Councilmember Mary Cheh has called for Nickles to resign. Yesterday, Councilmember Phil Mendelson joined Cheh in pushing for Nickles to rejoin the private sector.  Councilmember Jack Evans still fully supports Nickles.

Alexander says she is reserving judgment on Nickles for the time being. She would like to see the council take up the matter. "I wouldn't have a problem with requesting an investigation," she tells City Desk. "You are innocent until proven guilty. I would want to know what happened with the evidence."

If there was purposeful or criminal mishandling of evidence, Alexander says, then Nickles should be ousted.

Alexander says that Nickles still hasn't accepted his role as the attorney general. "I have not seen the distinction in his role as the general counsel and attorney general," she explains. "It troubles me. That was one of my concerns during the confirmation."

*photo courtesy of Alexander's awesome website.

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.