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.

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