Updated 5:06 p.m.
District of Columbia Attorney General Irvin Nathan could make an appearance in a messy and, as a federal magistrate judge recently called it, "bitterly contested" case over alleged mishandling of evidence in litigation over mass arrests a decade ago.
According to an order (PDF) filed today by U.S. District Magistrate Judge John Facciola, testimony in recent weeks revealed potential problems with information that city lawyers filed with the court. Anticipating that plaintiffs' lawyers may accuse the city of violating federal rules of civil procedure, "Nathan's personal and professional honor may be called into question," Facciola wrote, noting that Nathan had signed a document in question.
Facciola has asked Nathan to submit a statement in writing about whether he would want to testify. If he declined, Facciola said he would allow oral argument on whether the court should compel Nathan to take the stand.
"I will therefore give him the opportunity to speak to whether the District’s supplemental response to the interrogatory violated Rule 26(g) and is potentially sanctionable under pertinent ethical rules," Facciola wrote.
A spokesman for the attorney general's office, Ted Gest, said in a statement that they "will respond to this order in due course in court."
"We continue to believe there is no merit to these allegations about discovery and we hope that this collateral proceeding will soon end so that we can finally deal at trial with the merits of the underlying litigation," Gest said.
In recent months, Facciola heard testimony on how city officials made decisions about disclosing information about evidence in the case to the court and plaintiffs' lawyers. City attorneys waited several weeks to disclose that someone had tried to delete information from an electronic record of police activity during the mass arrests around Pershing Park in downtown Washington in 2002.
After the attempted deletion was discovered in May 2011, city attorneys said in writing that the police department's internal affairs division was investigating what happened. But testimony during recent hearings before Facciola seemed to indicate that there was no internal affairs investigation.
Facciola wrote in his order that plaintiffs' lawyers were likely to argue that the information the city provided "was at best inaccurate, or at worst, false and purposefully deceptive." Since Nathan signed the document, Facciola said he would give the attorney general the opportunity to explain.
Metropolitan Police Department Chief Cathy Lanier is expected to testify; the evidentiary hearing will resume on March 19. Facciola recently heard testimony that on the day the technician discovered the attempted deletion, Lanier told Nathan that there wouldn't be an internal affairs investigation and that it should be reported to the court.
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