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.

Examples:

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