U.S. Magistrate Judge John Facciola, who was appointed in May to look into the evidence issue, said in court papers that he plans to question 14 people, including former D.C. Police Chief Charles Ramsey.
Facciola (pictured above) has ordered a hearing Aug. 16 to kick off his inquiry — although D.C. Attorney General Peter Nickles is asking to have the hearing canceled and is criticizing how Facciola is conducting his investigation. Facciola’s role is as a special master in a civil lawsuit brought by a group of protesters, who were arrested in or near Washington’s Pershing Park during an anti-globalization demonstration.
In a July 29 public order, Facciola told 14 current or former D.C. officials or D.C. contractors to appear at next week’s hearing with counsel, so that he can advise them in person of their constitutional right not to incriminate themselves during his investigation. “There is a possibility that the completion of my responsibilities will lead to a referral to the United States Attorney’s Office for possible prosecution,” he wrote in the order.
The 14 officials include figures from the city and the Metropolitan Police Department, some of them high-ranking: Ramsey; current police general counsel Terrence Ryan; and a D.C. assistant attorney general, Thomas Koger. Two private contractors are also named.
Facciola’s warning of possible prosecution is drawing a harsh denunciation from Nickles, who represents city officials in their official capacity. Nickles wrote in an Aug. 6 court filing that there’s also a possibility there will be no criminal referral, “and there are any number of possibilities of other actions in between those two actions.”
Nickles wants Facciola to cancel the Aug. 16 hearing and to close further proceedings in the investigation, including testimony and discussion of the hiring of counsel. He wrote that Facciola should not have publicly named the 14 current or former officials who might be asked to give testimony about the alleged destruction of evidence.
“This is unfairly prejudicial as it places the good names and reputation of innocent persons in a harmful light without serving any purpose of justice in this investigation,” Nickles wrote in the filing.
Two of the 14 officials have asked to be excused from appearing Aug. 16: Ramsey, now the police commissioner in Philadelphia, and Peter Newsham, a D.C. assistant police chief. In an order Monday, Facciola agreed that they could be represented by their lawyers. Brown Rudnick partner Mark Tuohey III represents Ramsey. Robert Deso of Washington’s Deso & Buckley represents Newsham. Neither lawyer could be reached for comment, but both said in court filings that their clients will cooperate with Facciola’s investigation.
U.S. District Judge Emmet Sullivan, who is overseeing the protesters’ lawsuit and Facciola’s investigation, has ordered further briefing on Facciola’s plans for the Aug. 16 hearing. When Sullivan appointed Facciola as a special master May 5, Sullivan’s written order made no mention of the possibility of a criminal referral or of other potential consequences.
The evidence in question could be central to understanding the actions of D.C. police officers leading up to and during the Sept. 27, 2002, arrests. The evidence includes the “running resume” of police action, recordings of radio communication and video recordings, according to Sullivan’s May 5 order.
In court filings a year ago, Nickles and his staff acknowledged problems handling evidence in the case. Some evidence was kept “in a cubicle commonly assigned to interns.”
National Law Journal photo by Diego M. Radzinschi.