In an unusual scene, District of Columbia Attorney General Irvin Nathan took the stand this morning in Washington federal court to testify about his office's handling of a longstanding wrongful arrest case. During occasionally contentious exchanges, Nathan fielded questions about his compliance with ethics rules as the city government's top lawyer.
Nathan was the final witness in a series of hearings about how city officials handled evidence in the case, which stemmed from mass arrests in 2002 at Pershing Park in downtown Washington. Nathan, who’s led the office since January 2011, was called to testify about a document filed by his office that included inaccurate information.
Nathan said he wasn't personally involved in preparing the document, but had no reason to believe attorneys in his office acted unethically or knew they were filing incorrect information at the time. Jonathan Turley, a lead attorney for the plaintiffs and professor at George Washington University Law School, asked Nathan why he didn't order an investigation once he learned his office had filed inaccurate information. Nathan said he believed he had met his ethical obligations and had "no regrets."
After Nathan said these types of mistakes were rare, Turley noted two other cases in which judges found discovery abuses by the attorney general's office during Nathan's tenure. Assistant Attorney General William Causey objected to the questions as outside the scope of the hearing, and U.S. Magistrate Judge John Facciola told Turley to move on. Turley later asked Facciola to refer the matter to the Office of Bar Counsel for further investigation into allegations of wrongdoing by city attorneys.
Facciola was tapped by U.S. District Judge Emmet Sullivan as a special master to investigate evidence issues in the case. In recent months, he has heard testimony about the May 2011 recovery of a missing electronic record of police activity during the Pershing Park arrests and how city officials and attorneys made decisions about what to tell the court and the plaintiffs.
One hotly contested issue is the decision by city lawyers to wait several weeks before disclosing that someone used a "delete" function while reviewing the electronic record. The plaintiffs accused the city of trying to brush off what the plaintiffs believed was an attempt to get rid of evidence. The city has argued the "delete" function only moved the record to another location in the server and was a non-issue because the full record was recovered. Nathan today called it "a delay in providing a false alarm."
The information at issue in today's hearing was a document filed by the attorney general's office stating the Metropolitan Police Department was investigating the attempted deletion. Witnesses later testified there was no investigation. Nathan's name was on the filing, so he was called in to testify. He explained his name is on all filings, but that it wasn't the same as when he signed a document he was involved in preparing.
Turley asked about another filing from the city indicating the FBI was investigating the attempted deletion, when there was no FBI investigation, according to testimony. Nathan said based on representations from police Chief Cathy Lanier and attorneys in his office, he believed there was an FBI investigation.
The exchange grew heated at several points, with Turley repeatedly asking Nathan if he had complied with his ethical obligations and Nathan accusing Turley of dragging out the case. Since the record of police activity was recovered, Nathan said, there was no prejudice and the plaintiffs should move on to trying the case on the merits.
Both sides will have until July 2 to file final arguments in writing about the evidence disputes. Turley, in asking Facciola to refer the case to bar counsel, said he hoped it wouldn't be the end of the investigation. "Obviously, someone is lying," he said.