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.

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.

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.

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

Henry v MOA - 1) Sexual Assault 2) Henry I and II

Yesterday we ended listening to video of one of Henry's attorneys, Ray Brown, haranguing Rick Brown the author of the, until last week, secret Brown Report.  I thought that Rick Brown ended up looking pretty unprepared for the deposition and he was unable to handle Ray Brown's withering non-stop questions.

End Of Yesterday's Video

The last 50 minutes of the video were shown first thing this morning.  But the topic now was sexual assault and abuse.   Ray Brown worked Rick Brown  over about what evidence he had that that Anthony Henry meeting with General Katkus  deterred victims from coming forward.  I also realized yesterday that I really didn't know when the deposition took place because from my seat, I couldn't see the date label on the video.  So today I got up and walked to where I could see the date  and was somewhat surprised.  November 16, 2016.  That was two years ago!  Just after Trump was elected.  #MeToo was just starting then.

Even more than yesterday, the tape reminded me of a a movie detective trying to wear down a suspect into confessing.  The questions again were demeaning and so fast that Rick Brown barely could answer one before he was hit by another.

But the topic was different.  The questions were about why this victim or that didn't file a report?  Women have already known, and men who have been paying any attention at all, now know, that coming forward with sexual assault cases is difficult.  Ray Brown belittles Guardsman Blaylock [someone who complained a lot about problems at the National Guard] because he won't release names of women who complained to him about sexual assaults.  [I'm taking my rough court notes and adding words to make them more intelligible, but I don't think I'm distorting the meaning or the tone.]

Q:  "The Army National Guard had appeared to investigate all Blaylock’s charges, but focused on his accusations - investigations did not support any of Blaylock’s allegation.  Initial investigation did not reveal violations.  Does that indicate to you that Blaylock is a reliable source?   

A:  That indicates some problem with his reliability.
Q:  What did McCoy tell you of cases lost due to 15-6  [15-6 is type of internal investigation at National Guard] investigation?   

A:  No affect
Q:  He said didn’t affect people coming forward on sex investigations?  Did it have anything to do with dissuading people from coming forward?   

A:  No
Q:  Rape cases after disclosure, where did your number come from?

A:  No difference since 2010.   

Q:  What do you mean by that?   

A:  Trying to reconcile why numbers in OCI report and first Lt McCoy's numbers are different, need to figure it out to get accurate account.
Q:  How does this Blaylock, dressed down by Katkus, how does this affect stopping women from coming forward?   It's not there.

Q:  We have none.  [Gives initials of alleged victim] did you interview them?  AL?

A:  no 

Q:  MJ? 

A: no

Q:  KD or ST 

A:  no sir.  ST could be

Q:  ST had specifically declined for prosecution by McCoy, right?   

A: I can’t remember when he dealt with her complaint but said it wasn’t prosecutable.
Q:  You said Kaktus ordered them to disclose names of women.  So Henry had nothing he could report, except he had a rogue officer at FBI building. 

Well, many Americans now know, because of Kavanaugh, how hard it is to "prove" something happened, and how men's reputations are considered, by many, more important than women's experiences.  And how women who come forward, and the people who support them, are vilified.  So, the jury today, will probably be less impressed with Ray Brown's performance than they might have in 2016.  He was essentially blaming women for not coming forward, and dismissing any possibility of a hostile environment.

The 'truths' that Ray Brown was claiming, seemed hollow.  Since no one came forward, that proved there were no problems.  And Rick Brown, toward the end, did stand up to Ray Brown.

Ray Brown:  That’s called the truth isn’t it?
Rick Brown:  Depends on how you get there.
Ray Brown:  Truth is the truth?
Rich Brown:  Depends on how you get there

Yesteday's questions were mired in details about the case.  But showing the video deposition in front of the jury allowed Ray Brown to string together a narrative, barely interrupted by Rick Brown's answers - that painted Rick Brown as a bumbling investigator who didn't know anything about how to do an investigation like this.  It allowed him to focus on actions that he then interpreted.  Rick Brown's inability to push back, at all, made it look like Ray Brown was right in everything the way he wanted it.  But the fact that Rick Brown couldn't answer, or that he missed things in the investigation,  even many things, doesn't mean there weren't problems there, as Rick Brown led the jury to conclude.  Would a better investigator have found them?  Maybe.

Today that issue was much clearer with the questions about sexual abuse victims.  Just because Blaylock couldn't or wouldn't produce names, didn't mean those victims didn't exist.  Just because they couldn't prosecute, didn't mean the assaults didn't take place.  And in this new #MeToo reality, more people understand why victims won't come forward.  I'm not sure why the defense allowed that tape in, or, if they protested, why the judge did.  A deposition takes place in a relatively small room.  In the courtroom, the attorney could never have pulled off a harangue like that.  I can hear every television lawyer I've ever seen jumping up and yelling, "He's badgering the witness!"

We'll see what comes next.  This trial isn't close to the end yet.

Anthony Henry Takes The Witness Stand- Part I

Then the plaintive Anthony Henry went to the witness stand.  We learned about him.

There was a lot of questions leading him through the being a successful long time police officer and then things started falling apart.  According to his story, it began when Jack Carson started accusing harassing Jason Whetsell after he was diagnosed with MS and Henry tried to protect Whetsell during that period.  Then Carson went after Henry.  The story he told was of the beginning of a series of of complaints about him which he characterized as Carson going after him, that eventually resulted in his being terminated.

This has led him get a security job in Iraq as the only way he can approach the pay he had as a police Lieutenant in Anchorage.  He's in Alaska about 60 days a year.  Wants to come back but says can't find job with reasonable pay.

When his attorney Margaret Simonian (he has several attorneys) asked him how this affected his life, he said "This has destroyed my life" and started started to choke up.  Then he began to cry and turned his head away from the jurors.  When he regained his composure he apologized and said, "I'm a 50 year old man and I have to go through this.  This affects everything.  Every aspect of my life."  The judge called for a break.


Anthony Henry Takes The Witness Stand- Part II

By 4 pm, the defense attorney began to cross examine.  He started picking at some of the answers Henry had given earlier.  It sounded like a gentler version of Ray Brown questioning Rick Brown as attorney Doug Parker questioned him on details and started raising questions.
He pointed out contradictions - that Henry had blamed McMillan for telling Katkus first, but really Henry had told Katkus first.  Henry said that was correct.
Parker mentioned a situation where Henry got dates mixed up and 'emphatically' insisted the others were wrong.  But it turned out Henry was wrong.  Henry agreed, he'd relied on his notes because he didn't trust the others, but his notes were wrong.  This exchange ended with this:

Parker:   You said telling the truth was one of two things that could get you fired.
Henry:   Yes.

And that was the last thing the jurors heard that day.  The judge called it a day and the jurors were excused.

As I said Friday, trials are wild rides as you hear from people being questioned by friendly lawyers and then unfriendly lawyers.  As one witness testifies, and later another one contradicts him.  You hear about terrible people and then they show up as witnesses and don't seem so terrible at all.  It's like a live mystery and the people on the jury have to take in all the clues and decide what happened


Extra For Junkies

Here's some slightly edited (for clarity) rough notes from Henry's testimony about his background. I thought it would be easier for the reader if I made it third person, but as I went along, I let it revert back to the first person.):

He grew up in Pittsburgh,
Since child always wanted to be in law enforcement.  He had family in law enforcement.  His dad took him to station, locked him in a cell. He never wanted to do anything else.  Graduated HS, His dad was a veteran, had GI benefits, so he had to go to college even though he really was not into academics. But he liked sports.  He took criminal justice classes and really enjoyed them.  He completed some sort of degree in criminal justice and then enlisted in the army.  Nine years in active duty.  Wanted to be in criminal investigation.  Started as  a military police, then CID special agent, (Criminal Investigation Div for the  Army, doing felony criminal investigation.
He had a 16 week program,  He also graduated in military police school for investigators and military police.  Army CID had 4 months residency.  Good part of training on drug enforcement.  Finished college, got BA in Criminal Justice.  Several service medals.  Meritory service.  One significant  long term undercover drug investigation in Colorado and Alaska.  Always my dream to come to Alaska.  Got opportunity to work with APD and decided where I wanted to spend life.
Returned to Colorado, reenlisted since APD not hiring then.  Went to Fairbanks.
APD 1992 - 5 months academy  - honor grad.
Full time assignment,  preferred busy areas, Spenard, mid town.  Applied for SWAT team.  Spent 18 years on SWAT.  Promoted to SRG.  Asked to take over canine unit, 4 years handled dog.  Lot of ongoing training, formal and informal.  Schools in area - Drug enforcement, DEA basic and advanced.  Commanders Academy.  Compeitive?  Drug Commanders and FBI National - I attended both.
Most significant at APD tactical team - school violence, developed for dept and ASD.

Selected as employee of year, for tactics repsond to active shooter event.  ASD superintendent.  SWAT team for agency and schools and took statewide.
Formalized through writing policies, bring folks from out of state here canine, school violence, Carol Comeau, wrote grant, bring dogs into schools, kids love them, help with anti-bullying.
S:  Relationship with Hebee - Agree with characterization with Hebee before 2012. 27 years ago. You obviously heard of relationship with my ex-wife and have love of my life, we’re never going to be friends, when he does good things, I recognize that.  Our careers crossed paths and I’ve had no issues.

Henry v. MOA - Henry's Attorney Destroys Author of Brown Report

A trial builds.  A victory one day seems less important after a few more witnesses.  But this afternoon in court I heard a withering barrage of disparaging questions that Rick Brown didn't have good answers for. This was a bit confusion, because Ray Brown - one of Anthony Henry's attorneys - asked the questions of Rick Brown, the 'consultant' hired by the Municipality in 2014.  Also, this didn't happen live in court.  It was a video of Rick Brown's deposition.  Also, we haven't heard the Municipal Attorney's cross examination of Rick Brown.

Basically, at the end of the day - and there are 50 minutes of that tape left for Tuesday - Rick Brown appeared:
1.  Unprepared for an investigation this complex.
2.  To rely on a few people as his trusted guides to the APD and Alaska National Guard
3.  Set up to target Anthony Henry as though his job was to show he was the bad guy and so he was biased from the beginning to believe things said about Henry, but not believe Henry
4.  Reliant on interviews for information
5  Not to have sought much verification
6.  Overly reliant on Dep. Municipal Attorney Christiansen and reworded the final report to reflect things she wanted him to put in, even though, as Ray Brown asserted, and Rick Brown didn't answer very effectively, he hadn't actually found information to support the allegation

Some possible explanations for Rick Brown's poor performance:
1.  He was jet lagged from flying to Anchorage (I don't recall any details of when the deposition took place.  I suspect it might have been on the video, but from where I sat, I couldn't read it - or how long he was here for the deposition.  I'm even assuming it took place in Anchorage.
2.  He just was out of his depth in doing an investigation like this
3.  He was here to collect a fee and give the MOA whatever they wanted
4.  Other?

Just to give you a sense of the deposition, I've copied just a short snipped of my rough notes.  I cleaned them up a bit - it went really fast and I didn't label which Brown was talking, hoping I'd remember from the context.  And in this section I think it worked.  Remember this is not verbatim or complete, just as much as I could get in the rapid fire questions. Q=Attorney Ray Brown, A= Witness Rick Brown.  I've missed some exact details, but this gives a sense of what the deposition was like:

Q: Did APD reports you received mention the Natl Guard?  Did they mention investigation into other members of the Natl Guard?   Did you ever see documents provided by anyone besides Carson, McMillan, Steve Payne that they were investigating anyone in NG other than EP?
A: Yes.  Not investigating but going to look to see if anything was there.
Q:  Your report says Henry was being deceptive to you because he had stopped one case going forward because he disclosed it to Katkus.  You say the case that dried up.  What part dried up?
A:  EP said he had the ability to transport drugs in military vehicles.
Q:  Did you ever hear that from EP?  Only person you heard that from was Jack Carson, right?
A:  Can’t remember if him alone or also McMillan.  Not 100% sure.  All audios of all EP contacts tape recorded.  Listened to all the interviews.
Q:  To explanation of scope of his drug dealing?  Nothing in any of these audios that suggests he could move drugs in NG vehicles.  If you're investigator, that’s pretty big stuff to know.  Never saw it from EP’s mouth.  Wouldn’t that be important to document?  Especially if others ….
You talked to "P" directly, could have asked him when it occurred, if he continued to cooperate with the investigation.  Was there any info that he stopped cooperating with SAU, FBI, Safe street?
A:  Early March he stopped cooperating.
Q:  Who told you that?  Let me guess - Jack Carson.
A:  Carson or McMillan.  He quit cooperating with SAU investigation.
Q:  What did he stop cooperating in?
A:  I had no ability to investigate the NG.  Cooperating with SAU investigation
Q:  Any evidence that he cooperated?  Wouldn’t it be helpful to have evidence?
Did you look at the police report?
A:  Yes Reports with # Feb 23, 2010.
Q:  What did EP stop doing?
A:  Early March stopped cooperating.
Q:  From Feb to March?  Did you interview - Carson and MacMillan wasn’t a rogue investigation - they were working with SAU.  Interview SAU people.  Eric Smith former SAU.  Why didn’t you ask if there was a separate investigation.
Q:  Did you ask EP if he stopped cooperating?
A:  No
Q:  Why not?  Did you ask Redick if there was a separate investigation?  I
A:   don’t know.  

Ray Brown's tone was derisive the whole way - implying, and sometimes saying explicitly - that a good investigator would have asked this question or asked for proof or would have done this or that.




I'm thinking this through as I write here.  I want to get something up.  Tomorrow there will be new things to report.  And it's getting late and court starts at 8:30am tomorrow.

 I've gone back to the Brown Report (Part 1, and Part 2) to make a list of all the names.  And as I skim through it this time, after hearing today's testimony, it's making more sense.  That is, I'm more familiar with the names and activities described.

I've concluded that my notes are too sketchy to put up.  I've tried to capture the general nature of the questioning  and how it appeared to me.

I'm still not comfortable with the plaintiff's depiction of Katkus as this great administrator who was on top of issues of sexual abuse and other improprieties in the Guard.  Ray Brown made a big deal of the fact that there was this close relationship between the APD and the Guard  and FBI and the State Troopers when fighting drugs.  And thus there was every reason to share the information with the Guard.  But if Katkus and the Guard were out of control, then sharing the information might have enabled the people in the Guard to clean things up, hide evidence, etc.  And so there were only one or two actual convictions.  If Katkus was wrongly terminated, why haven't we seen his lawsuit?  There are still lots of unanswered questions.

But what's clear is that there was a lot of conflict going on in the APD.  Feuds, vendettas.  The morning session witness was  Jason Whetsell (I think I've got the spelling right but I'm not completely sure.  I used the Brown Report to find a lot of names, but there were still some I wasn't sure about.)  I'm still figuring out where he fit into the bigger picture.  He testified Thursday they said.  (I didn't get to court until Friday.)  They spent all morning on Whetsell, so one would think it's important to the plaintiffs' theory of the case.

Basically Whetsell was an officer who worked with a dog named Alex.  He was in the canine unit, but also worked with the SAU (Special Assignment Unit).  He worked with Anthony Henry over the years and was directly reporting to him for about five months.  But generally he was supervised at the Canine Unit and had a long, poor relationship with a supervisor Sergeant Jason Schmdtt. From what I could figure out, Whetsell felt hounded by Scmidt.  A key factor was that Whetsell was diagnosed with MS and was taking serious drugs that were affecting his performance.  An issue was that allegation that Henry and the other officers in the SAU had tried to protect Whetsell from Schmidt and the various complaints about his erratic behavior.

Some larger issues that came out in the testimony raise serious question about how well the APD was operating then  And of course questions about whether it's any better now.  There were serious divisions.  At one point Chief Mew calls Whetsell into his office to try to work out a deal with him.  He wants him to drop his EEOC complaint (based on discrimination based on his medical condition I'm assuming).  From Whetsell's testimony:

"He wanted me to drop the EEOC complaint.  He said it was causing a fire.  The fire had spread to second floor (admin) and now the whole building is on fire." 

Mew told Whetsell that if he settled the EEOC complaint, then Mew would guarantee that if he laid low and kept his head down, he'd make ti to retirement.  (From what Whetsell said, he made it to a medical retirement, but they wouldn't extend the retirement date a day so his APD health insurance would cover an MRI test.  

Whetsell's record got pretty spotty and it's not clear how much of that was the MS, how much the drugs he was taking for the MS, and how much was the pressure he was feeling from the series of complaints Schmidt was making against him.  There were several incidents that were written up where he had problems performing his job.  Should the APD have made accommodations for him and moved him into a position that allowed him to continue working with his disability?  The did move him to other positions.  One could see that Whetsell, a basketball player and as the MOA attorney characterized him - a good athlete' once - must have been going through hell on several levels.  He was seeing his health deteriorate and he'd been diagnosed with a serious disease.  And with that deterioration, his livelihood was being threatened.  His family live suffered as well.  As portrayed today, Henry and the SAU staff were supporting him and the Canine Unit head was hounding him.  

Other issues came up.  Whetsell was asked about missing lots of work time.  He responded that he took flextime.  The attorney for the Municipality pointed out that the union had given up flextime. Whetsell said that everyone still took it.   I believe that flextime can be very useful as a way of dealing with uneven work loads, allowing people to take time off after a period of heavy workload beyond one's regular duty.  But it has to be carefully monitored and it runs into conflicts with paying people overtime.  What Whetsell seemed to be describing was an unofficial flextime.  But, of course, we don't know whether everyone was doing it.  But it's something to follow up.  

The fire on the second floor was also described as lots of yelling on the second floor - it was hinted that Henry was fighting over how Schmidt was treating Whetsell.  

And Chief Mew's hardball to get Whetsell to drop the EEOC suit was another issue.  Did he not want an outside agency looking to closely at the APD?  What else was he hiding?

And the questioning of Rick Brown raised questions about whether the Brown report was really a custom made report in order to support the position of the MOA legal department?  The impression I got of Rick Brown today was NOT of a competent, independent investigator.  It's a reminder of an old definition of an expert - someone who lives more than 100 miles away.  

And how does all this relate to the discrimination case two police officers won against the Municipality two years ago?  

There's good reason the MOA tried to keep this report hidden.  Today it didn't stand up well to scrutiny.  

I'm afraid this is going to be an active think piece, rather than a well thought out conclusion.  There just isn't time to do more now and I need this up before tomorrow's notes swamp me.


One last thought.  I have great respect for court transcribers.  If you saw my rough notes, you'd know why.