A decade ago, District of Columbia police arrested more than 400 people in downtown Washington during protests against the International Monetary Fund and World Bank. City officials acknowledged the arrests were problematic and settled with most those who sued.
But a remaining case is expected to come to a head soon on an issue that has long consumed the litigation: alleged mishandling of evidence.
Since 2010, U.S. District Magistrate Judge John Facciola has been tasked with investigating whether police, lawyers for the city or other officials destroyed, tampered with or hid evidence. Following a lengthy legal battle this year over whether lawyers for the city could take the stand, he is now expected to hear from at least four past and present counsel.
An evidentiary hearing that Facciola halted on November 9 amid concerns about legal representation for those city lawyers is scheduled to resume November 28. The judge told the D.C. Office of the Attorney General to advise the lawyers to consider whether they needed independent counsel, setting up a potentially messy web of conflicting interests when the parties come back to court.
Schertler & Onorato partner Robert Spagnoletti, who served as the D.C. attorney general from 2003 to 2006, said situations where city lawyers needed to hire their own counsel were rare when he was in the office. “If there’s going to be a conflict with the position the employee takes about what he knew or she knew from the official position of the office, they would bring someone in,” he said.
Facciola has asked to hear from Metropolitan Police Department general counsel Terrence Ryan, whose testimony was put on hold November 9; Monique Pressley, the former lead counsel in the case from the attorney general’s office; current Assistant Attorney General Shana Frost; and Teresa Quon, a lawyer in the police department general counsel’s office.
“These are extremely serious allegations that have been raised in the testimony,” said Jonathan Turley, a co-lead plaintiffs counsel and professor at George Washington University Law School. “We appreciate the judge is proceeding in a very cautious way to guarantee that all of these witnesses, including district counsel, have representation before they testify.”
The attorney general’s office, in a statement, accused plaintiffs lawyers of using discovery issues to delay trial: “We believe that at the end of the Court’s inquiry, it will be clear that there was no destruction of any evidence, no prejudice to the Court or any party, and that the case should proceed to trial promptly for resolution.”
The police department declined to comment. Pressley, who left the attorney general’s office a year ago, is being represented by Natalie Ludaway of Washington’s Leftwich & Ludaway; she could not be reached. As of press time, no outside lawyers for Ryan, Frost or Quon had entered appearances.
Most lawsuits filed against the city over the September 27, 2002, arrests at Pershing Park settled. In December 2009, city officials agreed to pay $8.25 million to resolve a class action accusing the city of making unlawful arrests. Four plaintiffs in a separate case have not settled, however, keeping the litigation alive.
The case has been plagued for years by allegations that police and city officials tampered with evidence, including police activity logs and video and audio recordings from the scene. In May 2010, U.S. District Judge Emmet Sullivan, the presiding judge, appointed Facciola as a special master to investigate.
One of the more recent evidence-related disputes is over a record of police activity that was stored on a computer server. According to filings, a technician who pulled the data told city lawyers in May 2011 that there was an attempt to delete information at one point. District lawyers told Facciola and plaintiffs’ counsel about the technician’s finding in July of that year, about 70 days later.
According to the District, no data was deleted. The city has also said that the term “delete” is confusing, since the function would have stored such information in the program memory.
But plaintiffs counsel pushed for an inquiry into the attempted deletion and how city lawyers decided when to tell the court and plaintiffs lawyers about it. Attorneys on both sides tussled for months over whether Ryan and Pressley should testify, or whether their testimony was privileged. The city ultimately agreed that Ryan could testify, but fought the attempt to put Pressley on the stand.
In September, Facciola ruled that he wanted to hear from Ryan and Pressley. He explained that while Pressley’s “mental impressions, conclusions, opinions, or legal theories are absolutely protected from disclosure as work product,” any privilege surrounding facts she knew yielded to the court’s need for information that couldn’t be found elsewhere. The city filed objections to the order, which Sullivan denied on November 7. Ryan began testifying the next day.
On the second day of Ryan’s testimony, he was asked whether he or any other city lawyers broached the issue of telling Facciola about the attempted deletion sooner. He said he was under the impression that the attorney general’s office would tell Facciola, but couldn’t recall the details of any conversations with Pressley or Frost. At that point, Turley told Facciola that Frost was a potential witness, prompting Facciola to ask her to leave the courtroom.
Facciola then asked Ryan if he needed to consult with an outside lawyer. He said he didn’t know, at which point Assistant Attorney General William Causey asked for a break. After a brief recess, Causey said that he had advised Ryan to retain outside counsel. Facciola said he was putting the hearing on hold and would want to hear from Pressley, Frost and Quon.
Per earlier orders, technicians who handled the computer server are still expected to testify, and Facciola reserved the right to call police chief Cathy Lanier. Before Ryan, Facciola heard from a police officer at the heart of another evidence-related dispute over the existence of a hard copy of the police activity log.
“These people have the unequivocal right to consult with counsel of their own choosing,” Facciola said, telling Causey that he had ethical obligations to make sure the interests of other city lawyers were protected. He added that everyone involved should “give some thought to the applicability of the crime-fraud exception to any work product or attorney-client privilege claim.”
George Clark, a Washington solo practitioner who handles professional responsibility cases, said that as soon as there’s any mention of possible criminal activity, a lawyer should seek outside counsel. “Even though there might not be any conflict between what they’re going to say and what D.C. is going to say, once the potential for criminal action arises, they should have their own independent lawyer, not somebody who has D.C.’s interests at heart,” he said.
Bryan Cave partner and co-lead plaintiffs counsel Daniel Schwartz said it is appropriate for government lawyers to get their own attorney in the event of a possible conflict, but noted that it could make an already messy case even messier. “This case has been going on for a very long time,” he said. “Whenever new lawyers enter into the case, for whatever reason, it can add complication.”
Contact Zoe Tillman at firstname.lastname@example.org.