Testimony resumed today on allegations of mishandled evidence related to mass arrests in Washington in 2002, after a judge halted the evidentiary hearing on November 9 amid concerns about legal representation for witnesses.
Litigation over the mass arrests at Pershing Park during protests against the World Bank and International Monetary Fund has spanned more than a decade; the plaintiffs, most of whom have since settled with the city, claimed the arrests were unlawful. Since 2010, U.S. District Magistrate Judge John Facciola has been tasked with investigating allegations that police and lawyers for the District tampered with, destroyed or withheld evidence.
Facciola stopped Metropolitan Police Department General Counsel Terrence Ryan during his testimony on November 9 and advised city lawyers that Ryan might need to hire his own attorney to avoid potential conflicts. According to a recent filing, Ryan wasn't ready to resume his testimony today so Facciola heard first from Marc Bynum, a technician brought in by the Metropolitan Police Department to recover an electronic report of police activity.
How lawyers for the District decided when and how to disclose to Facciola that there was an attempt to delete certain information from the police activity report has been the subject of recent court proceedings. Plaintiffs' lawyers have pushed to hear from Ryan and other city lawyers about the approximately 70-day period between when they learned of the attempted deletion and when they notified the court and opposing counsel.
Bynum testified this morning that on May 3, 2011, he was brought in by the police department to recover the police activity report. At the time, he said he noticed an "anomaly." Someone had attempted to delete information, he said, but because the "delete" function actually stored the information elsewhere, he was able to pull the full report. He said three city lawyers were present at the time – Ryan, Assistant Attorney General Shana Frost and Monique Pressley, a former assistant attorney general who has since left the office.
P.J. Meitl, an associate at Bryan Cave and a lawyer for the plaintiffs, asked Bynum about the fact that the user name associated with the deletion was a former employee of NC4, the company that provided technical assistance for the computer software. Bynum said it's unlikely the employee would have deleted information without being told to do so by someone at the police department.
A lead counsel for the city, Assistant Attorney General William Causey, pointed out that there were other deletions around the same time that were unrelated to the Pershing Park arrests. Causey asked Bynum to explain further how information that was "deleted" could still be retrieved; Facciola noted that the term "delete" seemed like a misnomer.
Facciola was expected to hear this afternoon from another technician who worked with the data.
Other witnesses expected to testify this week include Teresa Quon, a lawyer in the police department general counsel's office. The plaintiffs want to hear from Pressley on Friday; she is being represented by Natalie Ludaway of Washington's Leftwich and Ludaway. It wasn't clear from court filings when Ryan or Frost would testify.
On November 9, Facciola not only recommended that Ryan consider hiring independent counsel, but told the attorney general's office to consider whether Frost and Quon would need their own lawyers as well. According to a filing yesterday from plaintiffs' counsel, Frost and Quon will not be hiring outside counsel. Jeannie Rhee, John DeGenova and Howard Shapiro, all of Wilmer Cutler Pickering Hale & Dorr, entered appearances yesterday to represent Ryan.