Henry v MOA: Questioning Styles, GPS, Best Practices, And Sexual Assault Cases

Sorry this has taken a while for me to get this post about Friday up.  I figured it could wait til Saturday, since there's no court over the weekend.  And the more time I took the less confusing my post would be.  Though the attorneys have to write briefs requesting this and that and opposing what the other side wants as well as prepping for their questions for the witnesses.  Judge Beistline has piles (literally) of documents to read as well as writing jury instructions.

Witnesses - Friday, Nov 2, 2018

Dennis Wheeler, former Municipal Attorney cont from yesterday Aaron Whitt - APD GPS expert Philip Deming - Outside Expert on Workplace Investigations Kenneth McCoy - Dept Chief, was in SVU (Special Victims Unit

Plaintiff's Goals

Each day the goals should get more in focus.  But often new lines of reasoning are introduced.  So I keep writing these in hopes that at the end, I can use them as notes to mesh them all.

With Friday's witnesses, plaintiff continues to hammer away at the credibility of the Brown Report.  Here are some of the lines of logic the plaintiff attorneys seem to be trying to embed in the minds of the jurors:

• The Brown Report was one-sided and incomplete
• Brown got the 'bombshell' (a word they like to tack on a lot) allegations, but not the eventual outcomes.  Those outcomes showed there was really little or nothing behind the allegations (this is all according to the plaintiff)
• All the information Brown got was provided by people who wanted to get rid of Henry - APD Command, the Law Department, SGT Jack Carson and his perhaps unwitting sidekick Seth McMillan, and Lt. Kevin Vandegriff
• What Henry told Sen. Katkus didn't stop any investigations because 
• there were no big drug or sex rings in the National Guard
• Katkus knew these things before Henry told him
• The media attention to the National Guard abuse allegations was implicating the lack of action by APD and it was impacting the gubernatorial race, which included Anchorage Mayor Dan Sullivan running for Lt Gov, so finding a scapegoat (Henry) was the real reason for going after him.

They're also trying to get the jury to believe that

• Jack Carson was the source of much of the 'salacious' (another plaintiff favorite word) allegations about the Guard Recruiters because he suspected his wife of having an affair with a recruiter.  This led him to go after Anthony Henry 
• first, for 'leaking' information about a 'confidential informant' to Katkus.  
• Then other complaints about Henry, mainly around protecting Jason Whetsell when he was diagnosed with MS.
• Then feeding Rick Brown, the investigator, false and/or incomplete stories about Henry during the investigation.

Remember, I'm not saying these allegations are true or false, but merely listing what the plaintiff is trying to prove.  The defense is working to demonstrate these allegations are false.  Mostly, the plaintiffs have made their case, since they went first.  But that ended Wednesday, and now the defense is bringing its witnesses forward.  

This overview doesn't include lots of the twists and turns I'm still trying to sort through to figure out where they belong or whether they really matter.  There is no video of someone committing a crime.  No dead bodies.  So each side has been trying to recreate what happened and what was inside people's heads, by going through forests of  documents - police reports, memos, transcripts of interviews, GPS data to determine where a police car (or its driver) were at different times, depositions (most about two years old) - to prove or disprove what witnesses say in court.  And as important as the computer is, both sides have real volumes* and volumes of notebooks with all the briefs filed in this case.

I think the above is probably the important stuff for casual readers to know.  Going through the maze of claims and counterclaims and the documents and videos they're using to argue their cases is not only impossible for me here (no way I can recreate three weeks of trial (so far) that goes eight hours a day), and is probably not worth your time.  What is worth your time is:

1.  Understanding the basic narratives of both parties
2.  Understanding a few of the battles over details
3.  Getting a sense of how the attorneys are doing this

So the rest of this post is going to dip into parts of the trial to help me illustrate my impressions.

Wheeler - Questioning gets more [Fill in the blank], Wheeler stands his ground a little better.  

I first wrote 'hyperbolic' in the blank, but it's not the right word.  Ray Brown, and to a lesser extent, Meg Simonian,  Anthony Henry's main attorneys, use a technique that is similar to Donald Trump's.  It's full of insinuations, mischaracterizations, and name calling delivered in a demeaning and often sarcastic tone.  While I think there are some witnesses who are so evasive and guilty that this technique may be the only way to break through their facade, it's also a way to confuse and intimidate most witnesses who are basically  honest and decent. It also makes the witness look unreliable.  It's a way ruthless interrogators get false confessions.  And in this case, it's a way to plant ideas into jurors' heads, like "Crooked Hillary" and "Lyin' Ted" and they work for the same reason.

My second day experience in this trial was the video deposition of Rick Brown, the author of the Brown Report.  Ray Brown, the attorney, was using this technique on Rick Brown, who essentially fell apart.  But now that I've had a chance to see this technique used repeatedly, I'm no longer so sure about my assessment of Rick Brown.  Was it based on an accurate perception or was I, like Rick Brown, bamboozled by Ray Brown's garage of insinuations and mischaracterizations.  I don't know.  I understand we will see Rick Brown again - I'm not sure if he'll be in court in the flesh or in the defense's video deposition.

Dennis Wheeler, Dan Sullivan's Municipal Attorney, didn't do well on Thursday afternoon.  But he must have gotten some coaching on how to stand up to Ray Brown for Friday morning's attack.  I'd note here, before looking at a bit of Friday, that I found out what the Ray Brown's comment was all about.  I was getting fatigued  - this trial and these posts are costing me sleep and by the afternoon I'm losing my concentration at times - and I stopped typing.  And, apparently, stopped listening carefully.  But I did turn myself back on and typed:

RB:  You’re testifying under oath today, sir!

Just before this, Wheeler had been asked about Deputy Municipal Attorney Blair Christiansen's role in helping Rick Brown write his report.  Was it just editorial or more substantial?  Wheeler apparently said, just editorial, but then corrected himself and said, more substantial.  (Sorry I don't have the exact exchange.) That's when the admonishment about being under oath came in.  

Now, for Friday, here's an example of a bit of Brown's questioning of Wheeler.  Remember, Brown talks about three times normal talking speed, and my fingers do ok when someone talks half normal talking speed - like the defense's attorney Sean Halloran.  So I'm only capturing the basic idea of the question, not all the insinuations and questionable assumptions embellishing the question.  So where Wheeler says, "I disagree with everything you said" you have to imagine a lot more was packed into the question than I captured.

RB:  Did you tell Vandegriff to start a parallel investigation?  W:  My charge was to assist Mr. BrownRB:  He started a parallel investigation,  you should have read the report.  W:  Disagree with everything you said. RB:  IA (internal Affairs)  policies didn’t apply to this?  W:  Wasn’t an IA investigation.RB: Did you know Chief Mew was asked to make a time line?  W:  I didn’t know he was asked to make a time line.  I know he made one.RB:  You were too busy with all the other stuff you were doing, weren't you?RB:  He was making a Toohey request asking to see K’s phone log and emaiL Did you know that? You didn't did you?  W:  I RB:  Did you know that ??? Being advised the whole time?   

W::Didn’t know that.RB:  Did you know Carson and McMillan made the Chief's time line?  W:  I didn’t know thatRB:  Did you know that they relied on the Blaylock Manifesto?  [Manifesto is Brown's description.  Blaylock is supposed to be a witness next week so we'll see if he's the crazy guy that Brown's described him as, or a legitimate whistleblower. Here are the allegations he made early on, or, as Brown says, The Manifesto.]
W:  I didn’t know that.RB:  Did you know that Blair Christiansen did day-to-day help with Brown? W:  I assigned her to do thatRB:  Four years is a long time to remember.  So you can't remember thisRB:  It should be clear that if this was a large scale national guard drug ring and transport of drugs, that you would remember wouldn't you?   RB:  There was no evidence, none, it should be clear, it should be clear this should have been about the Guard.  W:  You’re making assumptions that I can’t speak to sir.

You can see Wheeler has picked up some strategies for responding.  I had thought about how would I answer if I were questioned like this on the stand.  I think you have to stay calm and say variations of, "which  of those questions do you want me to answer?"  To the extent that jurors start putting themselves into the shoes of the witnesses, Brown's attacks may start eliciting sympathy for the witnesses.  I also couldn't help but think, "Wow, being a trial lawyer is one of the professions that allow bullies to practice their skills and get rewarded for it.  Like drill sergeants." Let me be clear here, I have no evidence that Brown is like this outside the courtroom.

[UPDATE Sat Nov 3, 2018  8:45pm:  I forgot to mention, that Ray Brown tried to get Wheeler over to the Feliciano/Kennedy trial again Friday.  He asked Wheeler how Anthony Henry first came to his attention.  Wheeler said, Another case.  Brown asked, "Which case?"  Wheeler got out "Feliciano/Kennedy" when Parker objected and the had a sidebar with the judge.  When Brown resumed his questions it was on a different topic.  I don't know what the judge said, but it would seem he told him to move on.]

Aaron Whitt:  Thorough Knowledge Of Technical Topic Gets Whitt Past Brown

Writing that title, made me think of this as a video game, and Brown is one of the obstacles you have to get past before you go on to the next level.  

Whitt is the APD expert on the GPS tracking systems in the APD patrol cars.  Jason Whetsell's awol charges were based on GPS data.  In his testimony Whetsell claimed that the system wasn't all that good 

Whetsell:  There were errors of other people showing 4 hours at intersection.  (Oct 22, 2018)

So the defense brought in Whitt to explain when the data became reliable.  He knew his stuff and responded in a strong, confident voice.  He was not intimidated by Brown.  Brown used his appearance to try to find out why there were no data to be able to confirm Henry's claims of where he was at specific times.  Brown said that Henry asked for the GPS data, but was told it wasn't available.  So Brown tried to figure out the timing compared to what Whitt was saying about when the system became useable.  For Henry's request the parts of the system weren't all linked - you needed to know the car number, the modem number, who was assigned to the car, and who was actually driving it on a particular day, and that information wasn't all connected or captured anywhere according to Whitt.


Philip Deming - Outside Expert on Workplace Investigations

Mr. Deming was brought in to prove that their hired investigator, Rick Brown, did what he was supposed to do.  Deming listed all his degrees, special trainings and certificates, and national associations.  You can see for yourself at his consulting website.  One of his jobs is to give expert testimony like this.  He was dressed and spoke well and his hair was perfect. It was as though the make-up people got him ready before he came into the room. 

Deming outlined the best practices for an internal investigation like this.  He told the jury to imagine he had a split screen in front of him - on one screen, gestured with his hand, would be the best practices and on the other what Rick Brown actually did.  Then he went through the steps of the best practices to compare.  

Step 1:  should org conduct?  In this case allegations about Henry's behavior
Step 2:  whether org should undertake, if so certain procedures,
Step 3:  selection of investigator or fact finder - looking for qualities of investigators for this kind of engagement - workplace investigation MOA, police department - different skill set from someone not familiar with police - they did one, and then two  Mr. Vakalis charged Wheeler to get investigator based on quals - law enforcement background, aware of practices of investigation
Step 3:  the interview  - making sure has best practices protocol - this fact finder, interviewed 

As you can see I lost a step or two of this.  For each step after saying what you should do,  he described what the MOA actually did.  And he blessed the investigation.

Simonian (for Henry) then began to ask what parts of the Report Deming had actually looked at.  The 97 pages and some attachments.  Did he look at the tapes or transcripts?  No.  Then how do you know he said the required things for an interview?  Stepping back, here's what he'd told the defense attorney Halloran:

Step 3:  the interview  - making sure has best practices protocol - this fact finder, interviewed 17 people, identical in how introduced self and allegations - whether disclosure to non?? Personal   had impact in terms of victim participation.  Then he followed a prescribed process for govt orgs - Garrity pre interview admonishment - advisory of what required of employee: 1.  Must cooperate with fact finder , truthful not evasive  2.  They have constitutional rights not to incriminate themselves.  Doc signed by interviewee and fact finder.  Interview recorded.  Format with formal questions What is your name? You're aware I’m recording? How long a police officer?. 

But, asked Simonian, if you didn't look at the tapes, how do you know he did all these things? And then in what I thought was a good touch, Simonian asked him to look at the split screen, and she moved her hands like he had to point out the two imaginary screens.  

Simonian:  He used proper - Split screen - . . .
Deming:  in the summary it describes what he did in the interview process
S:  Doesn’t show how he opened the interviews etc.
S:  Today as witness you only get to . . .
S:  Based on what was in the report, you took his word for it without looking to see.
D: Read the report multiple times, professional interviewer.
Done.  No redirect
1:31pm
Judge to jury: Expert witness not providing opinion that’s for you to determine.  

He was just there to assure that Brown used the 'best practices' procedures, but not to voice an opinion on what he found and concluded.

Simonian asked how much he charged.  What I understood was $23,000.  That sounds like a lot.  Well it is.  But in the world of professional consulting, it's not all that much.  Expert witnesses charge anywhere from $200 on up per hour.  At, say, $500 per hour, he just needed to spend 46 hours on this.  Reading the report really carefully could take ten hours or more.  Analyzing it and writing up a report - well I've already spent several hours on this post you're reading alone.  Then flying up and testifying in court.  It goes fast.  The irony is that it's only $7000 less that Rick Brown was paid for the whole investigation and report.  I've always thought that organizations should bargain better with 'experts' about their rates.  I don't think they got $23,000 worth from Deming.  Maybe as consultants go, but not compared to other things the MOA could spend its money on.   Even though he did a good job of presenting, I think Simonian raised enough questions to leave some doubts in jurors' minds.

Kenneth McCoy - Dept Chief, was in SVU

The last witness of the day was the APD deputy chief.  He has spent a lot of his career specializing in sexual assault and rape investigation.  He was there to present a list of 27 reports of sexual assault and/or rape cases that came out of internal National Guard 15-6 Investigations.  The details describe in some related to getting alcohol for underage girls who were potential National Guard recruits and luring them to parties and sex.  They were pretty lurid and supply some factual basis for the allegations we were all hearing through the media (or from Guard members we knew) back then, and counter the plaintiff's early arguments that "there's nothing here, keep walking."

But as Simonian went through the cases with McCoy, he wasn't able to identify which cases were prosecuted.  Some of the victims didn't want the case to go forward.  Others were outside of Anchorage so were sent to the State Troopers.  I understood, though I'm not sure from what, that many of the perpetrators were separated from the National Guard.  And McCoy, very professionally, said he from the documents available he couldn't tell more.

So what we got here was further information on the cases that came out of the investigations of the sexual abuse at the National Guard.  While the plaintiff's arguments to various witnesses that "there were no prosecutions form any of this"  may not be wrong, per se, it doesn't reflect that there were 27 seemingly credible complaints, even if the victims didn't want to take them further, ("I'd just gotten divorced, I had kids, I was working in the Guard, it just didn't seem like it was a good idea to pursue this"  McCoy quoted one victim.)

In some cases the conditions for a good prosecution weren't there.  Other cases were too old.  After McCoy was finished being a witness, and the jury was out of the room, Simonian argued to the judge that she needed more police reports to document what happened in each case, because she didn't want the defense to argue that they weren't prosecuted because Henry's meeting with Katkus caused the investigations to be delayed.  The documents, she said, had been asked for in discovery, but never came.

Monday witnesses  

Rick Brown and Myron Fanning.  I'm not sure if Brown is coming in person or we're just going to see a video of the defense's deposition of Brown.  We saw a lot of Rick Brown in the video of the plaintiff's deposition.

Myron Fanning is was a Deputy Chief who has been mentioned frequently in the trial.  He was part of 'the Command' that was feuding with Lt. Henry.

OK, that gives you an overview of what I got out of Friday in Courtroom 3 at the Federal Building.  (Writing that reminds me that the trial goes on next week and anyone who can get through security, can attend, if you want to see what it's like.  It starts at 8:30am and goes on til 4:30 or 5:00.  Don't bring a camera or audio recorder that's separate from your phone to get through security.)

*something I learned writing this post:

"Volumn used to be the correct spelling for a series – such as a series of movies or books. Therefore Volumn 1, Volumn 2, Volumn 3, etc.
Volumn is now not used at all and volume now covers all scenario’s. In fact volumn is no longer in any dictionaries and as I type this the spell checker flags it as an error. The ultimate proof of its extinction is type volumn into Google and it will come back with… Did you mean volume." (from WHYHOWCOME?)

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.