Wednesday, October 31, 2018

Henry v MOA: Before Defense Began, They Moved to Dismiss Case

Here are my rough notes.  You can see how rough.    But there was only one person talking - no question and answer.  I'll post them on the theory that this seems to go into what the MOA thinks the plaintiff has to prove and why they failed to do so.  Proceed with caution.  I don't have time over lunch to check too closely.

Sean Halloran is on the defense team with Doug Parker.  His speaking speed is between Parker's and Simonian's

Mr. Halloran, what are your plans?  Rule 50A  matter of law, judgement, no evidentiary basis for overturning termination of Henry.  No evidence of retaliation.  Conceded behavior.  Cases we can point to   listing……  Court early granted summary judgment on causation.  Plaintiff’s simply hasn’t met his burden to production of evidence at this case.
Events - move of Henry to lab, no evidence at all for elicit or retaliatory reasons.  No evidence related to opposing JW separation or EEOC plans.  Hasn’t been done.
Brown investigation, no evidence it’s pretext for retaliation.  Vikalis?  ???  no indication motivated to do that except to protect MOA.  Pointed to Carson Mc timeline - only evidence why created - Mew wanted it for briefing for Murkowski and Parnell.   Had nothing to do with opposing JW discrimination or filing second EEOC invest.
Meehan investigation   comment Henry destroyed more careers than anyone else.  Not related to anything they raised, but evidence the comment is true.  When arbitrating desire to access to witness statements in non- sustained complaints.  Union testimony, We called it Henry policy that Henry for represented employees.  No evidence had to do with JW or EEOC.  Vandegriff’s ref to toxic employees.  He attended a course called toxic employees and what to do, he just attended it and saw it related to Henry and set up buyout agreement.  This never happened.  Never approached him with such a proposal.  No evidence he even knew about this and no connection to his protected activities.  Moved in Dec 2014 - agreed it was positive move.  FB funeral investigation because he was badmouthing fellow officer, no evidence it had anything to EEOC and JW, it was not sustained, can’t be seen as retaliatory act.  Trying to reach out to him and make it everyone can get along, opposite of retaliation.
ASD training Oct 2013 - splog  common at APD.  Mr. Henry’s thin skin.  Even is that he was openly critical of Chief and SGT’s in front of public, he apology and no adverse employment action or retaliation.  After Redick through Henry under the bus, if he knew of knowing that JW wasn’t fit which he admitted.  You have to follow that up, did anyone else know about it.  Natural he called it up - didn’t tell JW anything because he knew.  So they interviewed Mr. H, no complaint, didn’t do anything, that was the end of it.  All the instances they talked about, he settled all of his claims.  All those, even if saying there’s evidence, which I don’t think you can, they are remote from his losing his job.  Can’t have it the far away, case law says needs to be closer.  No nexus.  Causation is standard.  Plaintiff has to prove that the activity caused his termination.  Citing court case   Mirage Casino Hotel example  required proof.  Here we have no evidence that Ms Usera or Vikalis had any improper motivation or pretexted.  Mr. Henry has admitted info given to Rick Brown not ????  Given facts for his being evasive or ??  - Henry has testified he was a political scapegoat, that negates the notion that he would have been terminated except for protected atiity.   Or that Hebee did it because he had affair with Henry’s wife  …… Has to prove… Decision was not actually independent because biased employee influenced.  Blamed Hebee, but he left APD in ?? 2014.  No evidence he was there trying to influence them.  Nor was Ross Plummer around to influence.  Mr. Fanning may have been biased against JW, but nothing that he’s biased against Henry.  Without that you can’t say he caused wrongful termination about Usera or Vikalis.  They had Brown Report, but nothing about biased.  Brown had no bias or did anything but act as impartial third party and no reason to be disenguous.  Jack Carson unionized employee, no authority in APD.  Asserted running a side investigation into wife’s alleged affairs.  Has nothing to do with EEOC or JW in this case.  Seth McMillan, not one shred of evidence he did anything improperlt.  He prepared a timeline with Carson.  No evidence he tried to influence decision maker.  With regard to Keven Vandegriff.  Testimony was only witness at EEOC.  Argument that he again targeting him from 4 years before.  There was nothing for him to retaliate that long ago.  Two IA investigations where he interviewed people.  BlaireChristiansen is unethical, even if we credit that, no evidence had any reason to go after Henry.  Mew has already been ?? No evidence he conducted evidence, he did anything to push Henry’s investigation.  The opposite is that Mew should have investigated according tot he Brown Report.  Decision Makers were Usera and Vikaiis and no evidence about their bias or knowledge of bias on part of Rick Brown or anyone else.  Shielded by Brown investigation, no indication any knowledge of investigation - brought in after investigation complete.  No temporal connection between protected activity and complaint filed.  2010  standing up for JW.  Aug 2013 made complaint, but termination didn’t occur until April 2015.  Anything more than 4 months between protected activity and adverse action is insufficient.  Your case 9 months is too remote.  Another case said 10 months is too remote.  ASD case said 5 months is too remote.  Brown brought in to review incident big news event.  People looked at timeline and realized issues that needed to be investigated.  Made findings of a couple of proper disclosures and that he lied to him.  He was evasive, not being candid in answers.  Those alone grounds for termination.  Nothing to suggest he didn’t lie , because Henry admitted he didn’t tell the truth and those are grounds for termination.  ….
Spent inordinate time on JW and may have show direct evidence that JW was discriminated against or retaliated against, but nothing on Henry.  Motivating factor analysis would be appropriate in this case.
Turn to good faith and fair dealing - about exhausting remedies.  Henry acknowledged he did not exhaust his admin remedies. Once he took the grievance arbitration process he had to complete it - went to ER appealed that decision, Mayor denied that appeal,  Code, very clear if you don’t take it to binding arbitration the issue is over and can’t be taken.  Even if not, simply hasn’t done it.  Subjective and Objective component.  Subjective component, speculation is insufficient.  Focus on employers true motive, not employees feeling.  Even if Mr Brown, have to show he acted in bad faith.  Simply nothing in the record that Brown or Usera or Vikalis acted in bad faith.
Objective focuses on employee conduct.  Have to treat like employees alike and can’t violate constitutional rights of employees.  Employer can fire if believes termination ….. statements to Brown untruthful.  Most of this presented for last 2+ weeks, all allowed in as background evidence - predates 2013 are barred because settled and can’t be brought in.  Anything predates May 6 2013 cannot be basis for liability.  1997 case.
Second charge with EEOC file , can only reach back 180 days.  Feb 13, 2013.  Background facts are not actionable claims.
With respect to damages, there is no evidence of damages.  Brought expert in to testify.  Made a point of resting case without any evidence of damages.  Nothing he made at MOA or what makes now.  Huge body of law, damages can not be based on conjecture, and that’s what he’s going to ask the jury to do.  No speculative basis for awarding damages.  No testimony or documentation showing damages.  Expert cannot be relied on for the data ????

Expert testimony useful , but not substitute for ??? Williams v Illinois - court said, if prosecution cannot muster independent witness of facts, expert witness cannot be relied on.  He said not considering the facts, only assumptions.  There are no facts.

Turner v Bulington Northern - Expert opinion based on hearsay doesn’t make the underlying hearsay admittable.  No basis for damages.  Even if he met burden of proof.

J:  any opposition
Just concerned about lunch.  Ten minute recess, advise jury another 30 minutes [they've been out of the court through all this]
P:  Memo from Lt

And then Meg Simonian countered.

S:  substantial evidence from to 2014 same without failing Steve Hebee, Christianson, the Mew, DC Smith, then EEOC complaint, until he was fired had a pending EEOC complaint except for two week June 2013 and 2014.  Had pending complaint the entire time.  That of itself a protected activity.  Ample evidence that Mew, MOA attorney, Command staff were highly motivated for him to get rid of EEOC complaint.  It weighed into decisions on Herny all along.  A disgruntled employee and problematic and wouldn’t come back into the fold by settling the EEOC complaint.
VAndegriff hid from him that complaint held off until EEOC settled.  Clear that Henry was the target.  You said this is a state of mind cases.  Those are issues solely province of jury.
None stop until Rick Brown hired.  Every month something new came up.  Same people and same movite.  Get him to dismiss EEOC.  That’s the protected activity.
Saying findings no big deal, don’t matter.  That’s not what the law and EEOC say about retaliation.  Remoing from others.  Removed to SRO and Special victims, outside of APD.  Trying to avoid, by saying he settled the claims based on the agreement and MOA violated even point, except one.
Adverse action, disparaging comments about employee to other, we have.  Reprimand,  Scrutinizing work more closely, action against coworkers, isolation, mis applying policy, changing the policy, not giving notice, or … Treating other employees differently - hiring consultant to get rid of him  said it had never been tried before.  Investigation as result of complaint by Carson that was solicited.  Had plan to get Carson to make complaint.  National Guard, …..????, Independent adverse employment decision not independent because of bias of support.  Even if manager is not ultimate decision maker, that employees motive ……
We know that Carson complaint was solicited by Hebee, doesn’t matter he was gone, he set it into motion.  Then rallied chief to do investigation.  Even though gone, the first person interviewed.  Soliciting complaint, MOA attorney misled EEOC, Mew not completely accurate and evidence itself not accurate.  Concerted effort that Marilyn Stewart investigation wrong, but actively mislead the EEOC.  Misleading letter was actually known and purposely hidden.  Smith admitted it and said it shouldn’t be out until settled.
Lt Henry did not lie to Rick Brown or lied to him.  He said he knew of two meetings with Katkus two years before, he mixed the dates up.  FBI agent testified and SGT Smith assigned says it was wrong…..
Mr. Halloran wants court  - state and fed - one is caution the other motivating factor.  We see them claim that they wanted him back in the fold if he drop the EEOC claim.
Direct support to case law - causation.  Discriminatory motivation more likely to be show indirectly.  About Rick Brown’s report - shown repeatedly their explanation.  Relied on Carson and McMillan and ignored everything else that contradicted them .  Policy violation unduly impacted investigation - can’t show that because can’t show there was an investigation.  Blaylock was released before the meeting.  Lots of evidence that Rick Brown targeted Henry and the direction came directly from Christiansen.  Mr. Brown said that in his deposition, spoon feeding and evidence to make connection from Christiansen.  People they should have interviewed they didn’t - Anne Kirklund.  Letter written back by FBI made it clear sharing the info was appropriate.  Left out of report or ignored.  Focused on Carson and McMillan.  Would be unusual to tell General about ongoing investigation - said not at all we do it over and over.
Idea of no evidence of bias, Report so slanted at target, not supported .
Fanning, subject of Meehan, end Aug 2014,  went to Blair Christianson and said you need to investigate Henry.  Finding that he had belittled Henry, because of his EEOC complaints.  Motive of Kevin Vandegrirr - repeatedly violated policy, conversations with Carson, recording, involved with EEOC investigation and settlement.  He was a claimant and important witness, things do not do usually.  Didn’t provide notice to employee.  Followed chief’s instructions not to tell Henry..  glossed over Carson,  suggested Henry… lost it here

Specifically ??acing what said to OEO without even know anything about what was asked what was said.  Destroying DC Smith’s notes.  Not recording conversations.  Recording and deleting recording of Haynes.  Without asking anyone.  Plenty of evidence 0- Hebbee and Christiansen.  She represented Vandegriff and Dept Chief Fanning  And Mew willing to keep findings from Henry.  Court never held decision to come to court rather than finish arbitration…..
If jury finds unfairly fired, they can find for the plaintiff.  To say there is no evidence is false description of what we did the last two weeks.
Idea that expert opinion thrown out unless we introduce every pay stub.  Never heard of case thrown out …. Cites cases.  Experts opinion based on facts and data, even hearsay, is admissible.  Rule assumes experts can rely on the facts.  Didn’t know how much Tony making or made, he was asked and said.  This is a hyper-technical argument about damages.  If court had time we’d call Henry and introduce them piece by piece.

J:  I don’t know how jury is going to resolve factual issues.  Plaintiff has submitted sufficient evidence to dismiss the motion.  Motion dismissed

Then Seth McMillan came on as the first witness for the defense.  there was a heated debate over admission of some evidence.  The mild mannered Doug Parker asked very loudly "How can it be hearsay if it's something he said himself?"

[I switched to correct while typing.  So spelling may be better, but not sure it changed things to the words I meant.]

You can get to an index of all posts on this trial at the Henry v MOA tab under the blog header at top.  Or click here.

Tuesday, October 30, 2018

Henry v MOA - Fatigue Won The Afternoon

Defense attorney didn't get his turn to question Keven Vandegriff until 2:35.  For the first hour and a quarter, Meg Simonian continued her high speed imposition of her narrative of the case onto Vanderbilt.  She sounds like someone who 'knows' the truth and can't believe her target keeps slipping away.  He wasn't as compliant as in the morning.  Simonian would ask a question and when the answer didn't come out the way she expected, she pull up a transcript of a phone call, a deposition, an interview and read long sections to the point that Vandegriff, would say:  "What exactly is the question?"  But she usually had a quote where he said, or at least sounded like he said, something different.  It was tiring, like a wild ride, and when you finally get off you realize how tightly you were holding on.

I don't even know what to pull out as examples of things.  Some of it is just how fast she spoke and the tone of her voice.  Some of it was that I thought the attorneys were supposed to ask questions, but she was telling (often reading) to Vanderbilt and then finally asking, "righ?" or "do you agree?"  Sometimes it was like she was arguing with him.  He'd say something and she'd challenge it more than ask a question.

Simoninan wanted to know what hard evidence Vandegriff had that there was a big drug thing among the National Guard recruiters.  Carson told him.  And:

V:  That fact well established.  Jumpout police reports.
S: Police reports from 2010 did not support any suggestion of investigation into recruiters in the Guard.  They talked about Guard, but no the recruiters.
S:  What documents did you have about the Guard.  Suspect?
V:  Prieto was in Guard.   What was told to me was Guards.
S:  Two officers [Carson and McMillan] from APD who couldn’t produce a single report, audio,  notes, memo that they were doing investigation?
V:  No I accepted their word for it.
S:  You said you had enough evidence to sustain a policy violation by Henry?
V:  Yes
Or, later:
V:  Payne said they (Carson and McMillan) were two of the finest officers he’d worked with and had asked them to assist him with continuing it.  Said how disappointed he was with Tony for talking to Katkus.
S:  We did ask Payne, know what he said?  “Are you shitting me?”  That’s what he said.
V:  I didn’t talk to him about Henry because not relevant to the questions I was asking him.
S:  You know he was not assigned to operational part of investigation.  Annie K was the lead and he was just administrative.
V:  No I didn’t understand that
While he sounded cooperative in the morning, in the afternoon it was less convincing.  

He gave, what seemed to me to be less than strong answers for why he didn't interview more people and why he didn't ask more questions of the ones he did interview.  Basically he had his game plan.  It seems like he'd made assumptions and thus didn't need to get more information on certain things. 

But it's also somewhat unfair to second guess every decision someone made years ago.  While there are lots of public administrators that I'd like to see made to answer questions like this, some situations don't have any good options.  

Simonian pressed him on why he and Carson kept pressing to deal with Jason Whetsell's rumored medical problems.  But had Whetsell been the cause of an injury or death, Simonian would be hounding him for why he hadn't done more.  

When Parker took over the questions at 2:35 I was having trouble concentrating.  The speed slowed way down.  This was a friendly inquisitor now, finding holes in the points Simonian had made.  But it was so hard to keep going.  

And I wasn't the only one.  Simonian had a few more questions left when the Judge tried to figure out where to stop for the day.  Let her finish her redirect and stop?  Stop now?  When he asked the witness, who had been on the stand since we started, he called it a day at 4:30.  

You should be able to read a more organized account in tomorrow morning's ADN or find something at KTUU.  

[I've considered whether I should just put up my rough notes as I have in other situations, but they are just too rough and I'm too tired to clean them up.  Sorry.  Actually, you should probably thank me.]

You can get to an index of all posts on this trial at the Henry v MOA tab under the blog header at top.  Or click here.

Henry v. MOA - Vandegriff - Lunch Break Report

This morning was all Vandegriff.  Retired Lt. Kevin Vandegriff worked at IA (Internal Affairs) and conducted several investigations on Henry and Redick and was a key source of information for Rick Brown, the external investigator hired by the APD to look into the Anthony Henry problem.  He's been portrayed by the plaintiff attorneys as one of the people out to get Henry.

As a witness, he was surprisingly even tempered and candid.  I say candid - although I can't independently know what the truth is - because he's very ready to admit things that seem to play into the plaintiff's narrative.  Other witnesses seemed to subtly change when they were asked questions that put them in less than stellar light.  Vandegriff didn't seem to have any ego vested in this.

Let me try to summarize some of the key points I heard:

  • Henry was a toxic employee:
    • Simonian:  Remember you had the idea of hiring a consultant specialize in getting rid of a toxic employee?  
    • Vandegriff:  I went to labor conference and went to session about dealing with employees just like Henry.  When I came back I said someone should be sent to conference.
    • V:  You characterized it as getting rid of him.  But [I would say it's more] about finding ways how to deal with an always angry employee and they said it's often good to offer a buyout, cheaper than litigation.
  • Vandegriff had strong beliefs about Henry and his behavior when he played the role of Henry's investigator 
    • Had spent nearly a year hearing complaints about Henry from Jack Carson, from Command, and believed that Henry had covered up Jason Whetsell's illness and performance issues.  
  • Vandegriff and the rest of the Command believed that the successful OEO/EEOC complaints of Whetsell and Henry 
    • were based on false testimony by APD officers to OEO
    • were a betrayal of APD by Henry
  • Vandegriff and Command in general didn't consider their obligations under the ACA when dealing with Whetsell

S:  You knew that you needed evidence to show OEO findings false?  Yes??? [Mixed questions]
S:   Other than Carson’s allegations of 2013, that reached back to 2011 - what else did Deputy Chief Smith give you to support that Jason Whetsell  couldn’t do his job?
V:  None
S:  What did DC Smith said you could or couldn’t do [in the investigation]?
V:  No directions
S:  Did he tell you what ADA said you could ask about?
V: No didn’t talk about ADA
S:  What you needed to know to base anything on ADA?
V:  No
S:  In deposition you testified you didn’t see any connection between IA investigation [about whether people were truthful to OEO investigator about Whetsell's health and performance] and OEO findings against APD?
V:  That’s correct.
S:  Only info you had into Redick, Henry, Whetsell and his condition about MS was what you googled?
V:  I had info I googled about MS and conversations with Carson about  what he’d observed and what he saw about Whetsell.
S:  Carson said fast moving MS?
V:  yes
S:  Didn’t ask anyone else?
V:  No
S:  Didn’t ask expert opinion about his condition or MS?
V: No
S:  Didn’t ask Dr. If what Carson said was true?
V:  No I did not

I'll add more tonight, but these are things I took away from this morning's testimony.  Plaintiffs still have more time with Vandegriff and then defense has at him, so things might look a lot different by 5pm.

Index of all Henry v MOA posts here.

Monday, October 29, 2018

Henry v MOA: Dueling Transcripts - Schmidt, Redick, Vondolteren, Bucher's Taped Deposition

Today was Anchorage's first real snow day, though not much fell, enough to get everyone to drive slowly.  I'm guessing most people have been lulled by the warm weather and don't have their snow tires on yet.

I got to court late, in time to see the closing of questioning of Schmidt, who I'd seen Friday.

Then Darren Redick took the stand at 9am.  Reddick had been at APD  22 years including time at SWAT and SAU where Henry and others in this trial were.  In fact he headed SAU and was moved from there.

Simonian:  Is it your belief you were disciplined for what you told OEO?
Reddick:  Not just disciplined.
S:  How did you learn outcome of OEO investigation?
R:  I learned it was sustained from Capt Fanning.  He told me complaint was sustained, and he wasgoing to issue me a written reprimand and I would be removed to SWAT team.  I asked how I went from reprimand to remove from SWAT team.  He said nothing bad about my performance, it was good, but he felt I had withheld info at OEO, if he could he’d investigate everyone.
S:  Did you talk about JW’s condition did you withhold anything?
R:  No, told them as best as I could.  
This bit of the testimony captures one of the themes today and previous days:  

1.  The Municipality of Anchorage terminated plaintiff Anthony Henry in part for withholding information that one of his officers, Jason Whetsell, had been diagnosed with MS and that he and the SAU (Special Assignments Unit) were covering for Whetsell and endangering the members of the SAU and Whetsell.  
2.  The Plaintiff is presenting evidence that Whetsell was doing fine.  There were several incidents where he had reactions from his medication, but they were rare and most of the time he had no problems.  
3.  At some point Whetsell filed a complaint with the Office of Equal Opportunity (OEO) and testimony - as in the excerpt above - suggests going to OEO infuriated the Command because it made them look bad.  In this excerpt above Redick is saying winning the OEO claim was why he was relieved of his duty.  Which is consistent with the Plaintiff's claim that his termination was retaliation for Whetsell's and later Henry's own successful OEO and EEOC complaints.  

With each witness, we go over these incidents (and others) one more time from a slightly different view.  Since it's still the plaintiff's show (that should end tomorrow - Tuesday) so the plaintiff's argument looks better so far.  But the MOA's attorney does poke holes here and there in the testimony.  

Another theme the plaintiffs have is that Jack Carson has been the villain - harassing Whetsell with a series of complaints about his performance, and pushing the case against Anthony Henry for a) protecting Whetsell and b) for compromising a big drug and sex investigation at the National Guard by telling General Katkus that the had found one of the Guard members to be using drugs.  There's also been talk that he also told Katkus that this Guard member was an informant.

Each witness has been grilled over these same topics. 

Today we had a lot of reading of transcripts of what the witnesses said at various investigations - OEO, one conducted by Lt Keven Vandegriff for the Command, and for Rick Brown, the investigator brought up to write a report on this - the Brown Report.  

If you believe the plaintiffs, the Brown Report was commissioned to give Chief Mew the evidence he needed to terminate Anthony Henry.  Instead of doing a thorough and fair investigation, he was steered by the MOA - from Attorney Blair Christensen, to Vandegriff, and Carson, as the key players in this plot.

If you believe the defense (MOA) then there were lots of problems - from the coverup of Whetsell's health issues to the scandals the press was covering about the drugs and sex issues on base - that Henry was in the center of and it was necessary to have a serious investigation.  

As I'm watching this unfold, it looks like no one was without some dirt under their nails.  But back to today.  

Both attorneys had the witnesses read parts of the various transcripts that corroborated their argument.  First the plaintiffs, then MOA cross examined.  I think the real trouble was that none of this is black and white.  Sometimes the attorneys seemed to be hanging everything on a word hear of there.  

For instance, one of the issues in the case is whether there was just one investigation into the National Guard, or two.  This is important because the Plaintiffs are arguing that Carson made up an investigation into the Guard that the police were doing into drugs on the base.  That's why he was obsessed about Henry telling General Katkus about the investigation.  He thought Katkus then told the people at Guard Recruiting to hide the drugs.  Plaintiffs have provided witness after witness who have said:
There was only one investigation - run by the Safe Street Task Force (SSTF) a multi-agency unit coordinated by the FBI.
And there could be only one investigation, because APD only did short term drug busts - one or two days and take them in - while the FBI did longer cases involving larger volumes of drugs.  So, while the SAU (Special Assignments Unit) of the APD did work with the FBI, that was only as part of the Safe Streets Task Force that Carson was not  a part of.  
Furthermore, investigating part of US military was beyond the scope of the APD.  Even the FBI would have to get permission from Headquarters in DC to investigate the Guard without talking to the Adjutant General.  
Therefore, there never could have been more than one investigation, and there only was one, and Carson, if he was investigating drugs at the Guard recruiting office, was running a rogue investigation, which was further tainted by the fact that his wife worked at the Guard recruiting office, and, as Hazelaar testified the other day, was further compromised because Carson thought his 'target' was having an affair with his (Carson's) wife.  

Confused?  That's probably why the attorneys are repeating this stuff over and over.  So the jury finally gets the point.  

And all that background is necessary to understand why MOA's attorney Doug Parker grilled Redick about saying "the Guard Investigation."  He wanted to establish that, although the plaintiff's witnesses have said there was no Guard investigation, and that they said it to Rick Brown, the hired investigator and author of the Brown Report, in fact Redick told Brown there was a "Guard Investigation."

They're going over the transcript of Redick being interviewed by Rick Brown:

Parker:  Brown asked If you knew about the Guard investigation?
Redick:  Yes
P:  Are you aware of investigation into drug dealing with Army NG?  You answered?
R:  Yes, somewhat?
Simonian:  Objection
Judge:  can proceed, you deal on redirect.
P:  Towards the end of interview recall, talking about that topic?  The investigation into National Guard recruiters and drugs?
R:  It came up repeatedly, that’s how they referred to it.
P:  Your statement line 2:  "Like I said, I didn’t have a whole lot of involvement in the Guard investigation, happy to stay out of it.  You called it “Guard investigation”  didn’t you?
R:  Yes
P  As the supervisor you had contact with Carson, …. Hazelaar.   You said ‘Guard Investigation”  R: They referred to it over and over. . . . They did.  [??not sure here exactly??]
P:  line 6 - during the time, for the whole blocked out discussion between Carson and McMillan and You having to disclose confidential info to the Guard.  Did they come to you and say it was wrong.
Simonian:  You cut them off,
R:  but I know there was some contact with the Lt (Henry) and I don’t know if about the confidential informant, but I don’t recall the informant info.
P:  My point from this, the investigator not referring to Guard investigation, but you called it Guard investigation.
R"  Sorry you lost me.
P:  Rick Brown doesn’t call it Guard investigation, but you do.  He’s not using those words “guard investigation”
R"  But that whole interview.
P:  I’m talking about specifically line 6?
R" No he didn’t.???
P:  Pp 8 and 9 you were asked questions  line 13, aware of investigation of drug dealers at Army National Guard?  And you said yes.  
I thought this was a little heavy handed on Parker's part.  It was clear, to me at least, that in this interview, Redick fell into the jargon Brown was using.  Not that he was agreeing that there was a separate SAU investigation.  He even says at near the end of his time on the witness stand 
 R: No, we did not investigate the Guard, we we had a drug investigation.

The only thing - and maybe it's more important than I realize - is that Parker established that at least one person Brown interviewed, used the words "Guard Investigation" which would mean that Brown using that phrase in his report, and believing there was such an investigation, didn't just come from the APD command.  But I could also argue that Redick's use of the term reflects a common problem with interviews:  The person interviewed can start using the words that the interviewer uses, and thus the interviewer biases the interview.  

But this sort of parsing the lines of the various transcripts when on all day.  Each side finding lines that supported their narrative of the case.  

MOA got some traction on the issue of retirement from Redick.  Henry had said his life had been destroyed when he was terminated and that he couldn't get another job anywhere close to what he made at APD.  And the economist mentioned his salary now, if he'd stayed in APD, with recent big raises, would be around $170K a year.  Redick said he'd been able to retire after 22 years and immediately got a job as a campus police officer at UAA, which included tuition waivers for his two daughters.  Making Parker's point that there is life after APD.

Witness Mark Thelan, 27 years at APD, was on after Redick.

He'd done an investigation of SGT Schmidt and Jason Whetsell's tested photo exchange that some had said was inappropriate.  Thelan saw the photos on the two phones and the comments.  There was nothing pornographic, he said, but it was inappropriate for a SGT to be having this sort exchange with one of his subordinates.  Before Thelan was finished with his investigation he was called in by his superior and asks what he'd found.  He said he wasn't quite finished, but he was sustaining the charge against SGT Schmidt - because as the superior, he should have never gotten involve in this with a subordinate - and he still had question about what to do with Whetsell.  (Whetsell, if you don't remember, is the guy with the MS diagnosis.)

They found out about this because Whetsell had shown the pictures to Derek Hsieh - the union president - to demonstrate that his language in a reply to Schmidt that was overheard by others, wasn't out of line.  They talked to each other like that all the time in the texts.  
 Thelan:  Plummer didn’t like my sustaining complaint against Schmidt, that it was tit for tat.  I said I needed to talk to Hsieh.
Thelan:  Day after talked to Plummer.  He stopped the investigation via email.  Said it was ‘bigger’.
Ray Brown:Do you understand why?
Thelan:  Another email next day, my feeling was they didn’t like  that I’d just sustained the complaint against Schmidt.
RB:  What does  this email depict and your interpretation?
Thelan:  Asked whether any violation by Whetsell.
RB:  Were you removed from investigation?
Thelan:  I was.
RB:  Replaced by?
T:  Vandegriff.
RB: Who behind all this?
T:  Hebee. 
This is how long it takes me to relate one tiny incident, and while I gave some context, there's still a lot left out.  The point here, I think, is to show that Command was out to get Whetsell.  When Thelan's investigation didn't give them what they wanted, he was replaced by Vandegriff who did what they wanted, in this and other investigations.  

But that's how this case has been going.  Picking little bits here and there and trying to build a case from these details.  

Witness Mikell Vondolteren, still in APD I think and wasn't there long.  My notes were getting hazier, but he was asked about sex and drugs and alcohol on base and the plaintiff's attorney, Meg Simonian got him to say, that while Carson made accusations, there wasn't enough to book anyone.  
But the MOA made a few points off Vondolteren.  There wasn't enough to charge anyone, but:
Parker:  15-6 (kind of Guard investigation) sex reports.  Nothing that rose to the level of a crime, felony?
Vondolteren:  Don’t recall anything that level.  Could be an issue in the Military.
P:  You thought what you saw was unspeakable?
V:  Yes I did those were my words.

Simonian got another shot at Vondolteren:
S:  Were there any crimes?
V:  No,
S:  What was there?
V:  Affairs, sexual conduct, things against the military code, it is punishable in the military,
S:  Are excessive drinking, sexual conduct, affairs crimes?
V:  No
S:  No further questions
Finally there was an hour video of Capt Bucher's deposition, but I just have to leave that for now. 

Vandegriff will be the witness starting tomorrow and from what I understood after that the defense begins its case in the afternoon.

It's late, and I have to get up early again tomorrow.  So excuse my typos.  My quotes are based on my notes which I typed as fast as I could in court.  The one thing that was confirmed today is that my typing skills are going downhill.  I tend to leave out unnecessary words.  For these quotes I tried to add in key missing words so it was more readable.  Don't stake any money on the accuracy of my notes.  But they give you a sense of what happened.

You can get to an index of all posts on this trial at the Henry v MOA tab under the blog header at top.  Or click here.

Saturday, October 27, 2018

Henry v MOA - Slogging Through Details - Finish Hazelaar, Peck, Foster (Economist), and Eric Smith [Updated]

Again, working here to take the deluge of words, objections, muffled sidebars and figure out how to present something that makes more sense.

The Plaintiff is finishing his case.  There were five witnesses today (Annie Kirklund finished before I got there and I don't know if there was anything new and critical.)

Basically, they were working on undercutting the reasons Henry was terminated.  I'm not sure I mentioned Lt. Kevin Vandegriff.  He questioned a number of folks and fed that information to Rick Brown.  Thursday and Friday included folks who were interviewed by Vandegriff who are testifying that either
  • they didn't say the things that he attributed to them or
  • he distorted what they said to give it a different meaning

We may get to see Vandegriff on Monday.  Hazelaar (Thursday) spent a lot of time denying how Vandegriff characterized what he said and then eventually got into the Brown Report.

I'm going to make subtitles for the rest of this and just describe points that caught my attention as well as try to convey what points I noticed (note my wording, I'm not claiming to have noticed everything important.)  And I'll try, as I do that, talk about how these things support their arguments.  And I haven't talked about the defense argument yet.  So far they have only cross examined and I haven't tried to spell it all out.  And since I've seen the plaintiff's argument so far, there's some bias in that direction.

Overall, the APD, in my opinion, would have been much better off if they could have worked this out internally, and the fact that they couldn't, is a problem for everyone in Anchorage.  It shows a lack of good administrative leadership, petty rivalries, and it's costing taxpayers a fortune, even if they win.  And I think it shows a lack of well trained officers.  I suspect that the things they consider 'police work' they are trained well in.  Shooting guns for instance.  But there are lots of other softer skills - interpersonal communications, knowledge of other administrative issues, like ethics, things like discrimination and how to build and work with a diverse set of employees, including some that are disabled.  And a lot of these people seem personally dysfunctional.  While they may do some things reasonably well, they have personal baggage that seems to come out when they are under stress.  I don't think what I'm saying about APD here is different from other organizations.  But you don't need more than a high school education to become a police officer.  A good college education teaches you how to think critically, how break out of your narrow world view and see other people's perspectives, puts our modern world into a larger perspective, to name a few things.  Plus this is a particularly stressful job.  And I'm focused on APD here because that's what this case is about.

Overview of things that seemed important that the plaintiffs want the jury to believe

  • Witnesses testify they never told Lt Kevin Vandegriff things that ended up in Brown Report (they didn't even know why they were being interviewed.)  This all to undercut Brown Report
  • Continue to 'prove' there was only one investigation into the National Guard, to undercut Jack Carson
  • Disproving claims against the Guard such as there was widespread drug use among recruiters at National Guard, so that Henry's telling General Katkus about one Guard member using drugs didn't jeopardize any investigations..
  • Members of the SAU (Special Assignments Unit) weren’t covering up Whetsell’s illness, because it wasn't a problem, undercutting the claim that they were hiding Whetsell's MS diagnosis from Command so he wouldn't be terminated
  • Showing motives for why APD wrongly terminated Henry - 'Command' was Angry at Whetsell for filing OEO complaint and for Henry’s EEOC complaint as well as a developing anti-Command attitude at SAU (Special Assignments Unit)
These are some general themes to keep in mind.  I also have a couple of additional observations about things.
  • Use of names of confidential informants
  • Did they really look into drug use at the National Guard?
Use of names of confidential informants

The Brown Report has lots of redactions of names.  We see lots of initials - E.P, D.O., K.B., J.N., E.J., etc.  But in trial, the names are now being used.  Thursday, Hazelaar told a story with all the names.  Including how these informants led him to a meeting with a representative of a major Mexican drug cartel, who talked about his AK47 in the car and flashed large quantities of drugs.

The question that hit me was, "OK, all these names came out in court; who informed on whom.  What consequences might some of these people have if the people they informed on find out?"  I asked Hazelaar that during a break.  He said, "Good question."  When I asked if some of the players were in prison, he said he couldn't talk about that.

I asked one of the attorneys who said, "They were just initials in court documents, but that's too hard to do for the jury to keep track, and even for the attorneys to keep track."

I suspect that most cases are not covered by the media and as long as the media don't publish the names and connections, google isn't going to reveal any of this.  But that leads to my next thought, which does involve how I handle the redacted names that were used unredacted in testimony.  I'm just going to give aliases for my short example.

Did they really look into drug use at the National Guard?

Hazelaar assured the plaintiff's counsel, Ray Brown, that drug use at the National Guard was restricted to one person, who I'll call Eliot   But when the MOA cross examined Hazelaar, attorney Parker pressed him about whether he actually investigated any one else at the Guard.  Hazelaar's response was no.  There was no reason to proceed with an investigation.  Basically the informants insisted there was just the one person - Jonathan.  Parker asked if he believed everything informants told him?  He said no

OK, let me relate a bit more.

There was a jumpout in the Costco parking lot.  (A jumpout, as I understand it, is when a bunch of police cars (in this case unmarked cars) pull up and undercover cops jump out to catch a drug dealer.)  I'll call the guy in the car David.  He quickly agrees to become an informant, though we didn't learn what he got in exchange.  He informs on  Eliot, who's in the National Guard.  And when they check on the car he's caught in - and he has a pretty good inventory of drugs and money - it turns out to belong to Esther, who also works at the National Guard.

So Doug Parker, the MOA attorney asks if anyone else at the Guard used drugs.  No.  Did you investigate anyone else?  No.  Why not?  Because David and Eliot assured us no one did.  So in the Redirect, plaintiff attorney Ray Brown (RB) follows up on this to make sure the jury gets the message that there was no one else at the Guard using drugs.  He's questioning Hazelaar (H).
Ray Brown:  Counsel [Parker] said yesterday you gave a free pass to Esther and the
other National Guard recruiters.  [Telling Hazelaar to look at transcript of the debriefing of Eliot by Hazelaar.  Exhibit 151] See it?  Tell us what is this exhibit?
H:  Transcription, debriefing of Eliot.
RB:  Who was present?
H:  Sgt. Carson.
H:  [reading transcript] Trooper H:  “anybody you deal with, even personal use, anyone else at military?   Who all knows what you’re doing, your wife?
RB:  You asked about [someone else’s] wife.  His girlfriend Esther?
H:  Eliot says no.  If she knows, then she’ll tell my wife.  NO No, she works in recruiting with me.  Her head is on straight, no way.  Maybe I’m sentimental, I see an attractive woman, Esther, she has her money saved, good head on her shoulders, David is nice guy, accepts her.  Son. [Probably should be “accepts her son.’]
RB:  Did Carson tell you later he has additional info on Esther?  [If I have all my facts straight, Sgt. Carson's wife also worked at the National Guard]
H:  No
RB:  Did you ever have any actionable info that Esther was involved?
H:  NO  
So after this exchange I start to wonder.  Did Esther ever find out that Eliot was caught with the drugs?  In the Costco parking lot, using her car?  Can a drug dealer really hide the fact that he's selling fairly large amounts of cocaine and marijuana and Meth Amphetamines from his girlfriend?  He never gives her weed (it wasn't yet legal in Alaska at the time) or cocaine?

Is it possible that part of the deal with Eliot was to keep Esther out of this?  To not take her car or even tell her?  But the MOA attorneys never asked Hazelaar  these questions.

Maybe she didn't use drugs and didn't know about her boyfriend's job.  But it seems worth a few more questions.  But if it would piss off Eliot and he'd stop informing, then maybe they looked the other way.

Clinton Peck and protecting Whetsell, the opposing camps at APD, Retaliation for Going to OEO

Protecting Whetsell

Clinton Peck was an APD officer who worked under Anthony Henry at the SAU (Special Assignments Unit).  He's retired now.  He testified that this was a close knit group.  There were daily morning briefings where everyone could share what they were doing. What their informants were telling them.  This is a group that did a lot of drug busts, they were focused on small dealers who would be arrested and taken in on the spot.  Bigger busts, like the jumpout at Costco were for the Safe Streets Task Force that included APD, Troopers, DEA, and was run by the FBI.  Jason Whetsell had been transferred full time to SAU from Canine, with his dog Alex.  Whetsell got diagnosed as having MS, but at first he wasn't showing symptoms, but he was going to Seattle on some of his off-duty days for treatment and experimental drugs.  The drugs had various reactions that affected his performance on a few occasions.  When the command unit found out about Whetsell's diagnosis they got angry and accused SAU of covering it up to protect Whetsell, but endangering everyone else including Whetsell.  It was one of the charges in Herny's termination.  (A lot of this was covered the previous Friday when Whetsell testified.)

  • Blood pressure and eyesight problems at shooting range
  • Missed suspect in tracking (suspect went right past him but he was too weak to arrest him, but the team did get him)
  • Hiking up the hill in Black Hawk training (he got tired going up a hill and just stopped, asked to go home.)
  • Forgot to bring the dog (His car was in the shop and he had a different car.  Took it to the shop to get his own car, then drove to Eagle River for he exercise.  Then realized the dog was still in the other car.)

Peck excused all these with:

  • These are just a few isolated incidents and generally he was fine
  • He was sick and went home.  Everyone gets sick now and then.
  • He was testing different drugs to find ones which didn’t have bad side effects - so his blood pressure and his sight problems were related to the drugs
  • Whetsell wasn’t being protected by the group.  He basically kept up.  There were a few incidents where he didn’t.

Henry's other main attorney Meg Simonian went over this with Peck.
S:  Was he ever unable to do his job?
Peck:  No
S:  Was he mentally unable to do job?
Peck:  Not at all
S:  If he was, what would you have done?
P: Intervened.
S: But he’s your best friend?
P:  Doesn’t matter, it would be dangerous to all of us.  Whetsell wouldn’t put himself in that position - Objection
MOA Attorney Parker challenged him about climbing up the hill incident

Command was hearing rumors about Whetsell - Peck and others believed the rumors were coming from Jack Carson.  Some were interviewed about Whetsell by Marilyn Steward.  Later Peck was interviewed by someone else (I think Vandegriff) and was asked why he didn't tell Stewart about Black Hawk training on the Hillside where Whetsell couldn't make it up the hill.

In testimony Friday, Peck said he was sure that he hadn’t mentioned the helicopter training problem in the interview with Marilyn Stewart because it happened after the interview.   However the date on the Steward interview summary was after the helicopter training incident.   At the very end of the cross exam:
Parker:  Are you saying the date on this [Stewart’s summary of the interview] is wrong?
Peck:  My memory is different.
Parker:  Her records show different.
Other issues came up in this topic - like whether anyone at the APD knew anything about the Americans With Disabilities Act (ADA), if there was ADA training.  It sounded to me like the SAU were treating Whetsell with care and compassion.  But it also wasn't right not to inform Command of his condition and work out some ADA plans for how to deal with it.  But they were sure Command would break up their close-knit group and not treat Whetsell well.

[Let me mention that I've been writing 'Henry' or 'Anthony Henry,' but everyone calls Lt. Henry 'Tony.']

Tony Camp v Command Camp

Parker cross examines Peck and they talk about Carson being the source of the Internal Affairs (IA) investigation of Whetsel.  Parker is reading from an interview transcript I believe.
Parker:  July in gym you and Carson were together at the station.  You say, he says, Tony’s camp and Command camp.  He said, both sides are right and wrong.  He's tired of the fighting.  I’m sick of it, they sold me a bill of goods that didn’t come true.  But you don’t say what he’s talking about?  The two camps?
Peck:  People who worked with Tony were pretty much in the Tony camp?  Carson was alone in believing we had done something wrong.
Parker:  Carson seemed to be the source of who began the IA investigation of Whetsell?
Peck:  Yes
Parker:  But you didn’t really know did you?
Peck:  We were told.
Parker:  Once that was known, he was pretty much shunned?
Peck:  Not really, but not happy with him because it [Whetsell problem] wasn’t true.  I know I wasn’t.  I believe he had a part in that and many other things.
Parker:  You can understand when he says he’s tired of it?
Peck:  Yes
Parker:  SAU was a close knit group, you said it.
Peck:  When he said he’s sick of it, he meant they sold him something but they aren’t following through.
Parker  The continued friction is just bad for everyone?
Peck: Agree
Parker:  Talking about closeness of the group.  ??? and SAU being part of that.  Even continued after Tony left SAU?
Peck:  What do you mean? [I missed something here]
P:  I wouldn’t say camps, first time phrased like that.  Commanders saying we were trying to cover up and we weren’t.  
[If you're complaining about all these details, just remember the jury is getting this 8:30am - 4:30pm every day with just a few breaks.  I'm trying to give key points, but I think it's also useful to understand the grind of the testimony.  Sometimes it goes quickly.  But there's a lot of repetition too.]  

A few more things that came up in this feud between Tony Camp and Command Camp.

After Whetsell was removed, then Tony left too.  Tony Camp was upset about the removal of Tony.  Parker asked about a rumor they were all going to resign.  Peck denied it.  But Parker put up a picture of a sticker that said, "WWTD" and asked Peck what that meant.  "What Would Tony Do?"
Peck:  We thought it was funny.  Because Tony is always right, as irritating as it was, we thought it humorous.  Tony doesn’t lose many arguments.  99 times out of 100 he’s right.  We’re working for him and should think about it.  Mostly for fun.
Parker:  Tony likes to argue.  You just said that.
Peck:  That’s true, he likes to banter.
Parker:  He doesn’t like to lose?
Peck:  No one likes to lose

Did SAU need a full time canine officer?

Peck argued that they needed a canine because they were doing drugs so much. They had originally asked for Whetsell were delighted to get a full time canine officer.  So they were were upset because now he was being taken away.

Parker, at the end, asked Peck if he knew that Whetsell testified that SAU needed the dog about a third of the time.  He didn’t.

Why did Henry Leave SAU?

Parker:  You were upset he was leaving, but did you know he was planning that himself?
P- Date of Interview with Marilyn Stewart - Peck had told her there were no problems with Whetsell.  When asked later by V why he hadn’t mentioned the trouble getting up the hill, Peck said that the Interview happened first
Parker produced the summary of Peck’s interview with Stewart and it was dated after the Black Hawk incident on the hill.

Retaliation for going to OEO?

A big issue here is what do you do with people who get disabled?  The Tony Camp was(and Peck testified to this) very close.  When Whetsell got his MS diagnosis, it appears from the testimony, that they pulled around him and made the kind of accommodations the ADA calls for.  But informally.
The command team was angry they hadn’t been told about Whetsell’s diagnosis, and rightfully so.  However, Command Team’s, starting with Carson, were not even thinking about the ADA or its implications.  In fact that were angry that he went to the OEO (and that Henry went to the OEO and EEOC.)  We haven’t heard why, only that they were.  My guess is they don’t believe much in OEO.  They don’t like anyone going outside the group (police department)

  • It’s a breach of the brotherhood
  • It makes them look bad
  • It’s a form of challenging the command’s leadership - this is a uniformed highly hierarchical system

An example of this comes in this exchange.  Not only was Whetsell being transferred, but they made a point to take away Alex, the dog that he lived and worked with.  (It's true that Alex belonged to the APD, but it sounded like the breakup was intentionally harsh.
Simonian:  Remember Parker asked why it was unfair to Whetsell?
Peck:  Yes
S: What did Schmidt say about taking away Alex?
P:  I took Jason home.  It was pretty emotional.  [When I got back]  Schmidt asks how's Jason doing?  How do you think?  Schmidt says, Well he shouldn’t have gone to the EEOC.  He said it twice with a cussword the second time.  I went back to group and told them, you wouldn’t believe what he said.
Sounds like retaliation to me.

The Economist - Dr. Edward Foster

Foster was there to explain how he made the calculations of the cost to Henry of the termination.  While on the one hand this should be pretty routine - it’s done often and there are standard practices.  But, of course, the plaintiff is going to want a consultant who will interpret the procedures to the benefit of the plaintiff, and the defendant - MOA in this case - will want an economist who will low ball it.

 I have to admit I found it more interesting than I expected.  I wondered why they would hire someone from Minnesota, when there are plenty of competent economists in Alaska who would do the work for less.  But Dr. Foster was a good witness.  Full head of white hair, calm, clear explanations.  Given his bio, he must be in his 80’s.
  Here’s an example of the discussion. [I’ve added words here and there to make it flow better than my notes, but I don’t think I’ve changed the content.  In any case it gives you a sense of what the jury heard from 1:30pm to 3:30pm

Ray Brown (Henry’s attorney):  Did we provide you data?
Foster:  Yes
RB:  What provided?
Foster:  1st info I got was a cover letter with 19 itemized documents that came from Molly Brown from your office.  Pay stubs from APD, tax returns for Henry’s 2012 - 2017 excluding 2016.  After left police dept.  Further info from MOA, pay regulations.  Claims for retirement system.  Report from economist retained by defendant. [ I’m not sure about this]
RB:  His an accountant.  [Is this trying to make him seem less expert?]
F:  He’s doing report on economics.
RB:  Able to determine what his pay and benefits were historically?   How many hours he worked annually?  What is his pay and benefits at Triple Canopy.  How many hours he worked at MOA and Triple Canopy?
F:  Not sure I can determine how many hours, ten hour days, 8 hours.
RB:  Data for hours working at Triple Canopy?  Able to come to calculations about his economic loss?
F:  Yes.
RB:  Before get into his losses, can you tell me about assumptions to make?
F:  When calculating hours at APD to base just on the years 2010-2013, excluding 2014, claim of retaliation.  I did that.  You asked me to look at years through 2012 when he worked swing shift and getting paid more per hour for evening.  Assume that in the future he would get swing shift bonus.  Asked me to calculate losses in the future on the assumption he might have worked to age 70.  I assumed from date of retirement.
RB:  Did you give opinions on when he would retire?
F:  No.
RB:  Is that an economists job?
F:  Some would and look at stats on that.  I don’t do that.  I can give results of retiring at different years.
RB:  Did I ask about hiring and rehiring assumption?
F:  Yes, if he had continued at APD he would have an option now to retire, apply for rehire, and come back to work for APD but not be a member of the pension program.  Reason for that, after a certain age, the cost you put in to pension program, the money outstrips what you get back.  In his case that’s 2019.

Foster told the jury that he was costing Henry’s team about $40,000.  He also said that if Henry were still employed by APD, his annual salary would be $170,000.  No wonder Henry said the best job he could get in Anchorage would only pay 1/3 of that.

[UPDATE Oct. 28, 2018:  I should have also mentioned that Foster also talked about the pay Henry was getting from Triple Canopy, a company that supplies workers, including security guards in Iraq - the job Henry took after much lower paying jobs in Alaska.  The calculation of 'lost salary' included the difference between what Henry would have been making had he stayed in his police job and what he's making at Triple Canopy, but also considering that he has to work a lot more hours to make comparable pay.  As I tried to find out more about Triple Canopy, I found this article which says they paid $2.7 million to settle false claims for security guards that did not meet the required standards.]

The most interesting part to me happened before Dr. Foster took the witness stand.  The MOA attorneys argued something about a Supreme Court decision that required the facts - in this case the pay, benefits, etc. to be established already in the case, by the plaintiff.  This seemed an odd ploy to me.  Ray Brown, one of Henry’s attorneys, was shocked!  In all his many years as an attorney he’d never heard of this happening.  I couldn’t help thinking this was a little dramatic.  He talked about “all his many years”  in law before.  Was this a sneak attack by the MOA or was it a legitimate attack?  Or both?  The judge wasn’t buying it

Some extra notes:
There was one more witness - Eric Smith.  I had lost most of my ability to pay close attention by then.  He'll be back Monday and I'm sure anything he said important Friday will be repeated two or three times.

I used RB in my rough trial notes because there are three Browns:  Rick Brown who wrote the Brown Report, Ray Brown an attorney for the plaintiff Henry, and Molly Brown, another attorney for the plaintiff  .  But as I write this, I realize RB could be either Rick or Ray Brown (In my notes I wrote out the full first names when Ray was questioning Rick) and Molly really hasn’t done any official talking.  I hope by the end of the trial I’ll have figured out how to do this right.

You can get to an index of all posts on this trial at the Henry v MOA tab under the blog header at top.  Or click here.

A Ride At Sunset While I Sort Out Friday's Court Notes

I've been working on a post about Friday's court session, but it's not done.  When you read an article in the paper, remember that someone had to go out an gather the news, then they had to make sense of it, then write so it's interesting, but not pandering.  It's not that I haven't been working on it, it's just not done.  An advantage I have over reporters - no deadline, though I know there will be more Monday, and I have some background stuff I want to get up too.

In the meantime, the sun was out this afternoon and so I got out the bike and went on one of my regular rides - NOT downtown.  It's still beautiful.  Though late October with no snow in town at all, and there hasn't been any, is strange.  It was 42˚F (5.5˚C) when I took off at 5:30pm.

On the Campbell Creek Trail just east of Elmore Road.

Flattop on the right.  I'm pretty sure the snoyw peak is O'Malley 

I looked at some older blog posts for late October and going back to 2006, there really isn't any snow.  We're all talking about the strange October, but it's about how warm it is, not, as I'm reminded by my old pictures, how little snow there is.  So far there was one day this week when there was even frost on car windshields.  But it wasn't on the grass.  I think it was rain hitting the cold glass.

Thursday, October 25, 2018

Henry v MOA - Drug Day And What Is The Plaintiff Trying To Do?

[I've started a new tab on top - Henry v MOA - so you can find all the posts on this topic.]

I feel like I've walked into the tar pits and the case is sucking me under.  The still mild weather at least allows me exercise and some time with trees as I ride to and from court.  I'd show pictures, but the security at the court told me not to bring my camera any more because I'm not allowed to take it into the court section of the Federal Building and they aren't allowed to hold it for me - as they did last time I covered a trial and for the first few days.  I think it's because I got out late the other day and it was locked in overnight and others asked about it. The next day they wanted to give it back to me in the morning.  But I was going into court.  Should I hide it in the bushes in the atrium?  Sorry, can't take it to my car because I'm on my bike.  We need you to take it by noon.  I found someone in court who could take it out to his car at noon and I got it after court was over.  So now I have to leave it at home.  And no, I only have what someone called a 'smart enough' phone,  I don't think it takes pictures.  But yes, people can take their smart phones up.  I also learned they now have wifi in the court area.  I'm trying not use it.  One of the benefits of going to the trial is not having access to the internet.

I'm writing all this because it's much easier than trying to write about what happened in the courtroom.  First, I got there late, so I missed the finishing up of Ann Kirklund, the FBI agent. She was a great witness yesterday, very credible and I'm sorry I missed her testimony this morning.  I thought they were going to put on the economist to talk about how he calculated the backpay and pension award should Henry win his case.  I had gone to Karen Hunt's OLE class on the 2nd Amendment.  That was interesting.  OK, I need to get to the task at hand.

I got into court around 11am.  The new witness was taking the stand - Joseph Hazelaar.  (The name was hard for me to keep in my head so I looked it up.  It means hazel or hazel wood in Dutch.)

But before getting into details, let me try to outline what I'm starting to see as the strategy of Anthony Henry's attorneys  Since I didn't get to the first several days of the trial,  I missed the opening arguments which, presumably, would have spelled this out.  So I have to tease it out from the myriad details that my gut says we are hearing repeated way too much.  Today I heard Ray Brown ask the exact same questions about an hour apart.  But I'm sure there's a reason that I don't yet fathom.

Anyway, here's my overview based on what I've seen since last Friday.

Basically, Henry’s legal team is trying to disprove the allegations against Henry that came out in the Brown Report.  They are doing it by:

  1.  Disputing facts:
    1. That telling Gen Katkus about a National Guard member who was a drug suspect did NOT make the drug investigation ‘go sideways’
      1. Showing that the drug investigation continued very successfully after Katkus was informed 
      2. Informants continued cooperating
    2. That what Henry did (informing Katkus) was completely normal and followed procedures
  2. Trying to show that certain APD officers - particularly Jack Carson - ran a rogue investigation of the Guard and filed false allegations against Henry
  3. Showing that Investigator Rick Brown was NOT an independent investigator, but rather was a captive of people in the Muni who wanted to get evidence to terminate Henry, particularly Jack Carson and  Asst Municipal Attorney Blair Christiansen.  AND that Rick Brown wasn’t competent to do the study.
  4. Showing that Carson had personal reasons for wanting to go after the National Guard and harass Henry with complaints.   

These are things that seemed likely based on (mostly) today's testimony.

The Municipality of Anchorage is the defendant, but in a sense, Anthony Henry is on trial, or perhaps on appeal of the decision the Municipality made to terminate him.  So, he has to prove MOA made an incorrect  decision.

To do that, they have to drag  the jury through a mire of details.  And the jury has to see how each of the seemingly random bits of information come together to make the case.  The problem I'm having is figuring out which of the many details we're going through are directly relevant to proving their points, which are necessary to understand those directly relevant points, and which are just distracting.

For example, here are a few of the details I got to sit through today:

  1. Technical stuff about how FBI, APD, DEA, State Troopers coordinate through the Safe Street program and a program that seems to overlap with Safe Streets called OCDETF. (They pronounce it something like “Ocidet”).  It stands for Organized Crime Drug Enforcement Task Force.   This seems to be in there to make the point there was only one investigation of drugs at the National Guard, and thus Jack Carson's claims that there was a separate one at SAU (Special Assignments Unit) at APD (Anchorage Police Department) would be false.  
  2. Understand more about how the task force with different jurisdictions work.  Again this seems aimed at delegitimizing Jack Carson.
  3. Technical details for processing suspects and requirements for recording interviews. Aimed at showing why Carson's claims were false.
  4. Jurisdictional issues like APD wouldn’t pick up $7000 in drug money in Glenallen, because it’s outside their jurisdiction, so troopers would do it, or why they would be collecting the money.  I’m not sure, but I understood it to be related to working with informants and supplying drugs for an outlying area that can’t afford to buy large amounts, so they wait to collect it after the person sells it.  Someone (Carson again?) claimed an APD officer did this.
  5. How much cocaine would stay an APD case, and how much would go to the FBI Task Force.  Little stuff stays in Anchorage, big stuff to FBI.  To delegitimize Carson's claims the SAU was also investigating.
  6. FBI would have to get permission from Headquarters to investigate a high level official like a General.  Why Henry, as part of the FBI run task force, couldn't do an undercover investigation of General Katkus on his own.  I think.
  7. Drug deals happening more in parking lots, because police get search warrants for houses. Random, not essential for the case, I think.
  8. Background on Jack Carson  To explain his motive.
  9. Undercover agents don’t see the confidential informants they manage in person very often, but frequently by phone. Random? And they don’t last long in that relationship. To dispute Carson's claims that telling Katkus ended the informant's cooperation.
  10. A jumpout is a drug bust with lots of unmarked cars. There was a big one at the Debarr Costco parking lot in 2010.  Show that the operation didn't die after Katkus was informed.
  11. You need a Glass Warrant if you are state or local law enforcement before you do an audio recording of someone who doesn’t know you’re law enforcement.  I think again to dispute Carson.

I'd note, I made the list of details, by going through my rough trial notes from today. But then I added the italics as I tried to see if I could connect the detail with one of their goals.  The exercise was illuminating to me.  It's mostly aimed at Jack Carson.  I did hear Herny's attorney say they will not call Carson as a witness.  Is he also on the defense's list.  He's someone I want to see for myself.  He's turning out to be the villain of the plaintiff's story.

Today, from a different perspective.  As I said somewhere up above, when I came in Joseph Hazelaar was being sworn in.

I think it's easiest to just give you my rough notes for his background.  They're abbreviated, but a much better option than the long tedious testimony that dragged out until 4:30 when the judge dismissed the jury.  I've combined the questions and the answers so I could keep up.

"Born?  grew up? in Virginia,  HS diploma
14 years in law enforcement
State Troopers, DEA, FBI
4 years in Fairbanks, patrol officer.
Transferred out to Bethel 2004, first drug ring
Training?  Canine handler, OJT, then started sending me to academies
Undercover or as detective?  Both
Dependent on case  - rural Alaska no real undercover, might bring people in temporarily as undercover
DEA 2006 transferred to major offenders, high level drug, the 2007 assigment with DEA to 2010.  Transferred to APD.  Coming out of DEA, not wanting to go back to troopers, Capt. Mallard thinking of assign with cooperation with APD.  To work under Lt. Henry at APD.  Into SAU Special Assignment Unit
Clearance, deputized for DEA, doesn’t cross over to FBI
How long in SAU til full fledged? - on paper around April, still had limited access, still reporting to Annie Kirklund, About April 2010.
Stil police officer?  No.  Self- employed, Fire arms industry.  [I think that's what he said]
Still have contact with law enforcement.  Yes
Terminated?  No
Terminated from Troopers?  April 13, 2011
Rehired?  April 2013
Investigation going on?  Rehired you following investigation?  Remained trooper a while?  Year and a half?
Terminated again?  Yes, I could not hold my Alaska Police Standards Certificate.
Finding against you of dishonesty?  Yes sir."
OK, so he lost his Alaska Police Standards Certificate for dishonesty.  When I looked up the meaning of his name I also got the decision about his certificate.

He also talked in detail about his undercover work, including a meeting with a representative of a Mexican drug cartel.

When he was questioned by Ray Brown for the plaintiff Henry, he was a very credible witness, answering quickly, articulately.  Seemed to know a lot of details.  But when he was questioned by the defense attorney Doug Parker, his yesses and nos got crisper and tighter.  And he couldn't remember as well. He looked like he was trying to calculate what Parker was tricking him into saying. And a couple of times he seemed to get riled a bit and pushed back with attitude.  Nothing remarkable, but enough to show that calm facade wasn't who this person always is.

And as he testified, I began thinking.  Here's a guy whose job (as undercover agent) depended on his ability to lie convincingly.  But also outside that job, he'd lied enough to get caught and to lose his police certificate.  Jury, be careful here.  (Of course, that's rhetorical since the jury aren't allowed to listen to any news about the trial.)

How much more detail do you want?  Because I'm running out of steam.  I hinted at a lot with my list of details.  Here's something that got me thinking.  Hazelaar told the story of having a confidential informant connect hm up the chain to a high level drug dealer. The names of the people who gave names and the people who were named were discussed in court.  I don't know what happened to the people involved (I asked and was told he couldn't reveal that.)  But I wondered what would happen if word got out to the guy who was informed on.  The names were originally redacted in the documents filed with the court before the trial, but in the trial they are all being discussed.  One attorney told me they had to because using initials was too confusing for the attorneys and the jury.  But I wonder.  I suspect no one is going to publish the names (I'm not) and they will never find out.

He also explained why the drug investigation had to be sped up around the time Henry told General Katkus there was a drug dealer in the National Guard.  It wasn't because  Katkus tipped people off to hide the drugs.  Rather, they had put a tracker and gps on the target's car.  But he found out right away.  How?  He took his tires in to be changed and the mechanic found it.  So lesson learned;  don't put trackers on cars when it's time to change to or from snow tires.  The mechanic thought it was a bomb.

This post sort of wanders from subject to subject, and from one style to another.  In that sense, it gives you an idea of what court feels like.  But I hope it was easier to follow.  It's certainly takes less of your time.

Wednesday, October 24, 2018

Henry v MOA - "It Is What It Is"

It's lunch break.  Since yesterday's post, I've been trying to figure out what I should be doing here. What parts of the trial to focus on.  The ADN and KTUU are also attending the trial, so I should do what they aren't doing.  But that still leaves a lot.  It's easier to take notes when Doug Parker is asking the questions because he speaks slower than Meg Simonian.

This morning was Anthony Henry being cross examined.  Parker (the attorney for the Municipality of Anchorage - MOA) is trying to give the jury a different view of Henry than we saw yesterday when his attorney questioned him.  Some lines of questioning were:

1.  Questioning the image we were presented yesterday of this long time officer with a spotless record.  Parker raised  prior complaints and internal investigations of Henry.  He asked how many there had been.  Henry didn't know.  Parker said ten and started asking about each.  Henry dismissed them as routine things that all police officers have - like investigations after a vehicle collision.

2.  He spent time on the discussion yesterday of the Rick Brown investigation.  He tried to discredit Henry's claims that he repeatedly asked Rick Brown to show him the documents so he could refresh his memory of events several yeas old, but that Brown wouldn't show him even when he had them.  He quoted Henry's attorney Ray Brown on the video deposition with Rick Brown, saying "He repeatedly begged you, 30 times, to share the documents so he could refresh his memory."  Henry denied that he ever begged, but Parker said, "Your own attorney said that."   He needed this access to documents, Henry had said yesterday, because the APD had taken away his access the computer and to all the records so he couldn't refresh his memory.
Parker went through the transcripts of the two interviews with Brown and pointed out that instances where Henry asked Brown if he had one document or another and told him he (Brown) should get the documents and read them.  Not that Henry wanted the documents.  In fact he got Henry to acknowledge that he did have access to most documents on his own computer which seemed to contradict his claim yesterday that he had no access to anything.  Henry's repeated response was - An investigator should have all this material, it's where he should go first to get the facts of each event.  To police reports, to the informant records that would show much of what he needed.

3.  Trying to pin Henry down on inconsistencies in his testimony.  There were a lot of times when Henry said, "correct."  But there are also times he would not give a yes or no answer.  I have sympathy there because often such an answer has no context.  Here's one exchange: [Note, any citations like this come from my rough notes which I took in court.  They are close to what was said, but not verbatim and there may be missing bits]

Parker:  You agree now, you were collecting for investigation.
Henry:  Correct
P:  Yesterday you denied it.
H:  No I don’t remember.  Yesterday I wasn’t clear headed.
P:  Have to be clear headed to tell the truth?
H: I was emotional
P:  Do they get a pass if emotional or not clear headed?
H:  I agree.
S:  ???
H:  The Truth is the Truth.
P:  Did you tell Rick Brown in your interview, if you had records, I can come up with emails.
H:  Yes.
P:  You never told him at any time you didn’t have access to computer?
H:  confused  I was confused yesterday, I didn’t have access on my computer, but had on other computers.
When Parker tried to pin him down - sometimes Henry agreed like he did here, but often refused and said something like he does here with "the truth is the truth."  In fact I counted in my notes that four times in this exchange between Parker and Henry, Henry said "It is what it is" or "It says what it says."  These responses came when Parker would compare what Henry said at one point (like in yesterday's testimony) and what was written in the transcript from, say, his interrogation with Rick Brown.  He'd point to the words on the page and ask, well, isn't it right here?
P:  but you don’t say that [in the document]
H:  It says what it says.
Here, Parker was trying to refute Henry's claim that he repeatedly asked to see documents to refresh his memory, say of a date.  Parker was countering that actually, most of the time Henry wasn't looking to refresh his memory, but was simply asking whether Rick Brown had seen this document or that one, because BROWN needed the information.
P:  For discussion Ex 835 - first day interview - about Prieto - lines 24 25, "you need to go back and look at the paper work it lays out the National Guard involvement.  You need to look at paper work" - you aren’t asking for documents
P:  Fr discussion Ex 835 - first day interview - about Prieto - lines 24 25, [reading transcript] "you need to go back and look at the paper work it lays out the National Guard involvement.  You need to look at paper work" - you aren’t asking for documents
H:  It says what it says

4.  Selective Memory - Sometimes Henry could remember things in great detail.  Other times he had no memory.  Of course that's fairly common.  But it seemed that he had a better memory for things that helped his case than things that didn't.  And he even spoke of three phases of memory.

H:  There are 3 phases, 2010,  what I knew during my interviews [2014], what I remember now. 
I understood this to mean, there are things I remembered back in 2010.  Four years later when I was having my interviews with Rick Brown, I remembered less than in 2010.  Now, I've had my memory refreshed by reading transcripts and documents, sitting in on all the depositions, and generally preparing for the trial.  It seemed that the 'now' memory was a mix of things that he actually remembers personally after having heard others talk about things, or reading about them, and things he still doesn't actually remember himself, but which he knows from the record.


P;  You never took action to send to Tim McCoy anything after June 4 meeting?
H:  That’s broad statement talk to him a lot.  If there was something I needed to report.  I don’t have a direct memory.  If something had happened.

P:  You learned something about Nieves ?
H:  I don’t have an independent memory.P:  I don’t want to build your memory, just your memory.
H: I don’t remember.

P:  Sean Cockerham wrote long letter [article?] in Alaska Dispatch News that talked about sexual assault in the Guard and Blaylock’s blog
H:  I don’t recall, may have read it.
P:  Talked about Blaylock saying brought sexual assault victims to Police and Gov and got in trouble with chain of command there. You don’t remember that?
H:  No,  Don’t remember the article.
P:  Likely you read it?
H: I read the paper, but don’t recall

P:  You know there was sig increase of National Guard sex assault being covered.
H:  I knew it was around the Gov’s election, sexual assaults
P:  You thought it was all political?
H:  That’s what ??  told me  I thought it was all political.
P:  Reports about drugs and young women being lured, that was all political?
H:  Don’t know what you were reading from.
P:  You knew there were all sorts of articles coming out.
H: I knew it was political
P:  Blaylock was saying things about you?
H:  I knew he was writing and gave him no credibility.
P:  You’re aware of all this? [a meeting Henry attended with Blaylock and Katkus where Blaylock said there were sexual assault victims but he wouldn't reveal the names to Katkus.]
H:  I don’t have memory of meeting, but nothing bad at the meeting,  It was appropriate for Katkus to discuss those things.  I don’t have that memory.  If it had been, I would have take action,  That’s certain.

P:  June 3 you get call, repeatedly told Rick Brown that Katkus asked why Seth doesn’t trust me?  H:  I remember call, but no memory.
P:  You don’t recall telling Katkus about Blaylock and Seth?
H:  No, the first knowledge I had was when I got the blog.
P:  You have no memory of this crazy Blaylock, unbelievable right?  I believe is not credible or believable.

P:  You can’t tell us when KatKus called you on June 3 and asked why Seth didn’t trust you you had no idea if Katkus knew about Blaylock?
H:  I don’t have a memory of that, but it’s likely that Katkus knew that.  I don’t have an independent memory of that meeting now.  

5. Retirement - Parker seemed to be questioning  Henry's talk about how the termination had destroyed his life, when he said he couldn't get a job now that paid more than 1/3 of what he made as an APD  Lieutenant and so now he's working in Iraq in security for the US Embassy (where presumably he's getting pretty good pay compared to what he can get in Alaska.)  Parker suggested that Henry could have retired under the police retirement plan.

P;  Are you an expert on retirement system?
H:  I wouldn’t all myself an expert
P:  You talked about this retire and rehire, you could have done that before, but didn’t.
H:  Correct.  There was a change in the system that made it better to wait longer
It was always in my plan, wanted 30 years and retire, the state’s Plan 4 and I wasn’t edible for that which was a 401K plan so I wanted to wait to 30 or 32 years.
P:  Mark [Mew, Chief]  said you wanted to retire at age 50.
H:  He may have told you that.  My wife and I have not planned retirement, we have no children and our work is our ives. 
Redirect  11:28
Simonian:  When do you plan to retire.
H:  I’m 58 now, my family has longevity my wife is 12 years younger, I plan to work until I’m 70
What I took from this, was that Parker was pointing out Henry could retire, get his retirement pay and pursue other work.  Even if he got paid less, he'd still have his pension on top of it. I don't think there are very many APD officers who work until they are 70.   [I'd note that I heard 58 here as his age, but yesterday I thought he said he was a man of 50, so I must of gotten something wrong.]

It's much later now.  The afternoon began with Derek Hseih, former president of the Anchorage Police Union and now representing sheriffs in San Diego.  His key function was to show that the Municipality changed their policy of allowing Police Officers to see their own IA (Internal Affairs) electronic records.  He said that after Henry won his arbitration over his right to have are access to his files,  the MOA imitated this change. When asked how he knew this was in response to Henry's case, he said, "We informally called it the Tony Henry rule."

Hseih was followed by Ann Kirklund. (Spell check is telling me it should be with an 'a', but I really thought I heard her spell it with a 'u' when she was sworn in.)  Kirklund is a FBI agent who was in charge of the joint task force that included the FBI, APD, State Troopers.  Her function here was to:
1.  Say that there was only one investigation into the National Guard, and it was under her.  If there had been others, she would have known.
2.  She also said, that if Carson and McMillan said they were connected with the FBI investigation or were running such an investigation as part of the APD Special Activities [Assignment] Unit (SAU) then that would not be truthful.  
There were other issues she addressed - like the large drug bust that was not hampered by anything Henry was alleged to have said to Gen Katkus.  

There simply isn't enough time in the day for me to do this justice.  Tomorrow I'm going to miss most of the morning.  I've signed up for an OLE class on the Second Amendment that retired Judge Karen Hunt is giving over four Thursday mornings.  

Note to me - Role of investigator and investigated  Henry needs to be in control