“We are pleased with the settlement," says plaintiffs lawyer Carl Messineo. "It’s a historic settlement and it’s actually a fair deal for the District."

Legal Times reported this may be the largest payout in the U.S. for wrongfully arrested protesters. The two Pershing Park cases are still pending; AG Peter Nickles has promised to settle those lawsuits by Thanksgiving.

The case, Becker vs. D.C., revolved around wrongful arrests during the the anti-globalization demonstrations as well as the controversial police raid on the convergence center where groups were making gazpacho---not bombs or pepper spray as the police officials complained.

The Becker case also included individuals who had sat in a street already closed by D.C. Police. They had linked arms in such a way rendering them useless. D.C. cops had charged at them and beat them with batons. The activists suffered broken noses and head wounds as a result.

Messineo recalls the scene he uncovered through the lawsuit: "A [police official] shouted 'let’s do it!' and the officers charged off the bus, their badges and nameplates removed. They took the batons and smashed them into the faces of people who’s arms were immobilized. They suffered broken noses, broken teeth."

Like the Pershing Park cases, Messineo says, the Becker case had serious discovery problems.

He adds that as part of the monetary settlement, the District agreed to train all of its officers on the proper way to police demonstrations within 120 days of the settlement's approval. The city also agreed to attach a D.C. police officer to any outside agencies that are policing protests in the District. The liaison would ensure that the outside force complies with city law, specifically the bill developed as a result of the Pershing Park controversy---the First Amendment Rights and Police Standards Act of 2004.

The Office of Police Complaints had recently filed a report concerning police actions during demonstrations and found that outside agencies could still be a problem. The complaints board stated in a press release:

"PCB is concerned, however, about action taken by federal law enforcement officers who assisted MPD.  Because the Act does not apply to federal officers, they handle demonstrations differently from MPD, even when assisting with protests on District-controlled public space.  PCB believes this double standard has the potential to undermine accomplishment of the goals of the First Amendment Assemblies Act.

Based on its review of the April 2009 demonstration, PCB recommends that the District, through the combined efforts of the Mayor, the DC Council and the MPD Chief, seek to obtain federal law enforcement agencies’ voluntary compliance with the First Amendment Assemblies Act when assisting MPD officers with protests on District-controlled public space."

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.

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

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.

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."

At this point in the whole Pershing Park court mess, AG Peter Nickles is supposed to just play nice and hope the two big cases settle. Nickles offered up his problematic mea culpa and promised that settlements would be forthcoming. It appears his sweet talk has an expiration date.

Last week, plaintiffs lawyers in the Chang case filed an emergency motion to get the OAG to comply with a request to take a deposition. The plaintiffs lawyers wanted to depose a District official "regarding the District's preservation or lack thereof of electronically stored materials, including e-mails."

This deposition goes to the heart of the entire court mess. And it may be important since the D.C. Council hasn't come close to investigating the Pershing Park discovery problems or the missing evidence in the case.

But the OAG decided to prevent such a deposition from taking place. The lawyers write in their motion:

"Two days before the deposition was to go forward, District counsel unilaterally and without cause announced that the deposition was cancelled, suggesting that it continues to believe its litigation strategy of discovery abuse can continue without consequences."

More on this drama after the jump.

Plaintiffs lawyers go on to write:

"District council has also announced its intention to seek a protective order to block the deposition on the grounds that the deposition does not fall under the purview of the resumption of discovery ordered by the Court."

Last minute deposition cancellations. Protective orders. This sounds like the OAG is reverting back to the stonewall tactics that got them in trouble with U.S. District Court Judge Emmet Sullivan.

The lawyers argue in their emergency motion:

"The District appears to be making the incredible suggestion that Chang counsel cannot question District witnesses or the District itself on whether relevant and responsive documents were destroyed or tampered with through formal discovery."

The Chang plaintiffs argued in a subsequent filing:

"Only in passing does the District disclose its true intent: to prevent Plaintiffs from inquiring about the retention, preservation, destruction, or tampering with evidence..."

The OAG's stance does not bode well for its own investigation into the missing evidence. This is further proof that the D.C. Council should step in.

At the last minute, and after much back and forth, plaintiffs lawyers were able to prevail. They were able to take their deposition on the discovery abuses. Stay tuned.

*photo by Darrow Montgomery.

Nickles writes to the court that "these documents were located as part of the District's sweeps of the OAG Civil Litigation Division." Also included with the production was a privilege log reflecting documents redacted or withheld.

Legal Times' blog first reported on the filing. They write:

“We are told that these are documents that had not been produced after seven years of litigation,” said Bryan Cave partner Daniel Schwartz, who represents protesters rounded up in mass arrests in 2002. “We don’t know much about them.”

Discovery in the cases initially closed in 2007. But Judge Emmet Sullivan of the U.S. District Court for the District of Columbia extended it after the city handed over 13,000 new documents. Plaintiffs’ lawyers say important files in the case have gone missing or been destroyed.

City Desk will have more on this development later today.

They are parking lot attendants, gas station workers, people who struggle in the service economy to make ends meet. These defendants are the ones who allegedly bribed Swain for under-the-table taxicab licenses. You can find the indictments here.

We decided to do a piece on these anonymous men. Who are they? What did they really know about the bribery scheme?

The answers surprised us. You can read the full story which details what they did, what they knew, and how they were arrested.

One defense attorney framed the government's case as a really weak RICO case: “It would be as if in the Kevin Gray prosecution, the government charged the two top kingpins and 35 addicts as their co-defendants."

U.S. District Judge Paul L. Friedman's ruling this afternoon overturns an Oct. 9 decision by Magistrate Judge Deborah A. Robinson to allow Syume to live in a halfway house pending trial. Prosecutors had asked that Syume be kept in jail due in part to comments he'd made on tape purportedly threatening the life of Abdulaziz Kamus, named in a Washington Post report as a FBI mole. On the tape, Syume can be heard saying Kamus will be "permanently eliminated" and that "they will come to him."

Robinson didn't see the comments as necessitating Syume's captivity; Friedman did. "The tape is clear that the intent was to kill Mr. Kamus," he said.

Prosecutors, in court today, told Friedman that Kamus and his family have been placed in protective custody because of the threats.

On Sept. 25, he wore a recording device, along with FBI agent John McNair, while meeting with alleged bribery ringleader Yitbarek Syume. The tape was played today in Magistrate Judge Deborah A. Robinson's courtroom during a hearing on whether Syume should be jailed pending trial.

Context was this: The day prior, D.C. Council aide Ted Loza had been arrested, exposing an ongoing federal investigation into taxicab-related bribes, and named in a Washington Post story as a stool pigeon in that bust was Abdulaziz Kamus---a Ethiopian community leader supposedly in thick as thieves with Syume and his crew. Syume read the WaPo article, by Del Quentin Wilber, and brought a printout of the story to a meeting with his "accomplice," Taxicab Commission honcho Swain. Tagging along was Swain's "nephew"---aka McNair. It took place in a parking lot near commission headquarters in Anacostia.

First words out of Swain's mouth to Syume: "What the fuck happened?....I thought this was your boy!"

He's apparently talking about Kamus. From there, Swain went on to sell LL that there was no way he was in with the feds. Now LL's courtroom stenography skills are not stellar (the U.S. Attorney's Office says it will be providing copies of the tape early tomorrow), but here is what he was able to pick up:

---Syume saying that he had spoken to Kamus, who had told him, "He said no. He didn't do this, he said."

---Swain tells Syume: "'Graham is still OK. But Teddy..." He goes on to say the following: "Kamus got Graham moving to do that Ethiopian deal he put out there."

---Syume says, "We don't know anything." Swain says, "We don't know shit!"

---The name "Tony" or "Toney" is all over the tape. This is almost certainly a reference to Causton Toney, Swain's predecessor on the Taxi Commission. Says Swain at one point, "Toney is OK. Toney knows about the stuff with Kamus." Later, Swain asks, "Where's Toney?" Syume says, "Nobody knows." Later Swain adds, "I know Toney knows about all these companies and all this other shit." Says Syume, "I know he knows."

---Swain tries to gauge his own vulnerability with Syume. He tells him, "I hear rumors you were pissed at me and you were going to take me out." Says Syume, "Oh, no, trust me."

---Swain, amazingly, convinces Syume to continue on with the scam. He tells him, "We'll do that class next Thursday or Friday." That's a reference to a fake "class" the feds set up to capture drivers offering bribes for hack licenses. Those busts indeed happened last Friday. Syume was arrested the same day.

---Swain ends the conversation saying, "I'll be as strong as you are." That's when Syume mentions "eliminating" Kamus; Swain talks about getting him "off the face of this earth." Syume assures him: "We will know soon; they will come to him."

OK, the matter at hand: Will Syume be jailed pending trial? Unclear: Robinson continued the hearing after prosecutor John Crabb noted that in prior telephone conversations (one of "thousands" recorded, Crabb said) that Syume had threatened to "put a bullet in Mr. Kamus' head" and had made "veiled-type threats" against Swain. Tomorrow, Crabb is expected to present those tapes. In an initial ruling, Robinson held that Syume's risk of flight alone wasn't enough to keep him jailed. She'll give a final ruling tomorrow afternoon, once she gives hears evidence on whether Syume is a "danger to the community."

ORIGINAL POST: Today, Mike DeBonis is reporting live from U.S. District Court where the issue of taxicab bribery defendant Yitbarek Syume's threats are being aired and debated. This afternoon, prosecutors played a tape of Syume talking with Leon Swain Jr. (pictured) and an undercover F.B.I. agent.

Syume is alleged to have discussed killing off Abdulaziz Kamus. Kamus is the Ethiopian bigwig turned FBI informant who allegedly bribed Councilmember Jim Graham's chief of staff Ted Loza.

On the tape, Swain does most of the talking. Syume mentions a name that is slowly becoming a player in this scandal: former head of the taxicab commission Causton Toney. Syume says Toney knows all about this. Swain expresses much concern about Toney.

Prosecutors allege that on the tape Syume says that "The one [Kamus] will be eliminated. You'll see...eliminated soon. Don't worry. Permanently eliminated."

According to court records [PDF], prosecutors state that their source asked when Kamus would be killed. Syume is alleged to have replied: "They will come to me. I will tell you."

Prosecutors argued in court documents: "This suggests that the defendant had solicited others in his efforts to harm the cooperating witness. The defendant also encouraged the source to destroy evidence. He instructed him to 'crash the computer' on which existed evidence of defendant's crimes."

Toney's house was raided last Friday by federal agents. Toney is a partner with Syume in UFM and Jet Cab. He has not been charged in this case.

The tape was made at about 10 a.m., the day after Loza was arrested, in a parking lot along Martin Luther King Jr. Avenue SE near the Taxicab Commission's office.