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. 

Henry v MOA: Long Pauses And Open Doors - Looks Like Feliciano/Kennedy May Be On The Table

I left at 4:30pm on Wednesday so I could get to the weekly video conference with the grandkids.  It was shortened because of the trial last week and I needed some pure joy.  And it was.

I left the courtroom as George Vakalis, the former Anchorage City Manager under Rick Mystrom and again under Dan Sullivan was being questioned by Sean Halloran, one of the hired attorneys for the Municipality. They were talking about his military background and his management experience and eventually got to how he authorized the hiring of Rick Brown to study the allegations that by Lt. Henry had leaked information about a confidential informant at the National Guard to the head of the National Guard.  (That's how the MOA (Municipality of Anchorage) characterizes it)

Halloran:  Was he bringing you known facts, allegations?
Vakalis:  Allegations.
H:  Did you authorize budgetary amount to be used?
V:  $30,000 - my authorization level without going to Assembly.  To oversee hiring and conduct of investigation. Told Wheeler to use other resources -manpowr, materials, whatever necessary.
H:  What point become aware he hired Mr. Brown?
V:  Mr. Wheeler informed me he hired an independent Investigator.  Sept or October.
H:  Did he keep you abreast of progress?
V:  I’d ask him how it was going.  Providing with info he requested.

It was stuff like this that made me think I could leave without missing too much.  At most there was 30 minutes to go.  

Today, Thursday, I had a mini-vacation from the trial.  It was the second lecture by retired Judge Karen Hunt on the Second Amendment.  I decided to go vote early first.  After five minutes scraping ice of my windshield, I voted quickly - no line that early, but other people - then to the church where the class was held, and I made it through security and into the court room by 11am.  I'd missed two and a half hours.  George Vadalis was still on the stand.  Meg Simonian was questioning him about whether the Office of Equal Opportunity actually had the authority to conduct discrimination and retaliation investigations and make findings.  

That's interesting since the office had done investigations of Jason Whetsell's complaint about discrimination over his medical condition and Henry had started an investigation there and at the EEOC.  Was the MOA saying the OEO officer didn't have the authority to make those investigations?  Lots of witnesses have said those investigations were a thorn in the side of the police chief.  And now they're saying she didn't have the authority?  This case is full of surprises.  

They were done with Vakalis shortly after I got there and as he walked out of the courtroom, I couldn't help but think that his hair was exactly the color and look that Trump is trying to achieve with his combover.  

Nancy Usera was next.  The former Employee Relations director at the MOA.  She'd had that job twice - in 2009 and then got called back from retirement to take over as acting ER director by Sullivan.  She started off, while being questioned by Halloran, by dissing Marilyn Stewart-Richardson, the OEO director who'd done the investigations.  

Usera:  Ms. Stewart us difficult, she came and went as she pleased, would not take direction.  Either unable or incapable of duties.  Very problematic for MOA.  What can you do?  Ask the mayor about finding another position for her, better suited.  Ask M Manager.  Have her report to him.  I was not effective as her supervisor.

[UPDATE Nov 4, 2018:  It wasn't until the day after I posted this that I saw the ADN article on legislative races and realized that Ms. Stewart is running for the House.]

Usera was also the person who was given the task of reading the Brown Report and making he decision whether to terminate Henry or not.  (She did.)

She got badgered this way and that over how she could have made the decision.  Dd you know that the FBI had already done two investigations and found nothing wrong at the National Guard?  Did you know this, did you know that?  I couldn't help thinking that we've spent three weeks now hearing from the writer of the Brown Report and hearing it picked and parsed by many of the people who helped him write it and who appear in it.  I really have no idea what I would have done if I were in her shoes.  I'd like to think I would have read it really carefully and looked at the attachments and that I would have found holes and raised questions.  But who can tell?

I don't think I would have made a decision just based on the report.  I would have had to have heard from Henry himself as well.  And she did during the appeal, but didn't believe him.

I'm going to skip down to the items in the title.  It's late and I want to go to bed so I an get up at 6am tomorrow.

Municipal Attorney under Dan Sullivan, Dennis Wheeler was up after Usera.  More of the same - the authority of the OEO, how he hired Rick Brown, why Usera became the decision maker.
While Halloran was asking questions, my eye-lids got heavier and heavier.  I must have had a dozen micro-naps.  Halloran talks slowly.  He pauses between words.  It's a sharp contrast to Ray Brown and Meg Simonian on the plaintiff's side who machine gun the witnesses with rapid fire words and insinuations.
But Halloran is slow.  I started noting long pauses between the witness' last word and Halloran's next question.  I counted the seconds as they ticked off on my computers.  15 seconds.  8 seconds, 10 seconds.  That's a half minute of silence already..  I counted again.  28 seconds!  No wonder I was falling asleep.

Ray Brown comes from the "when did you stop beating your wife" school fo interrogating.  There is a similarity to Trump's bullying style.  And today he abruptly stopped and said, "I can continue this tomorrow" right after getting Wheeler to whimper.

He was questioning him about the Brown Report, which Wheeler had commissioned.  Each question Ray Brown flung at Wheeler was a poison dart, striking Wheeler, but aimed at the jury.

RB:  Didn’t anyone tell you that FBI already investigated twice and said there was nothing there?  Wheeler:  No  I don’t recall.
RB:   Didn’t you know about Blaylock?
RB:  Mayor running for LT Gov,  and Sullivan's running mate, the Governor, was taking heat over the Guard scandal.  You had to do something.
W:  Issues went to  Henry.
RB:  You know Henry was the target?
W:  Regardless,
RB:  Based solely on this report by Fanning, who went around Mew’s back, made these salacious.   

W: I  take issue with the word  salacious.

Then there was a bit more and Brown says, threateningly:

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

At that point, after calling Wheeler a liar in legalese in front of the jury, he pivoted to the judge, and said in a much cheerier tone, I think I can finish this up tomorrow morning your honor.  

I've been told by several lawyers that Ray Brown and Doug Parker are considered among the best Anchorage lawyers.  Ending questioning with the witness wounded seems to be a specialty, like scoring a basket at the buzzer.  

Then when the jury had left, he commented to the judge

RB: The door’s open, Feliciano/Kennedy case,

He said, there are two doors open.  The judge answered, "I'm aware of one open door."

I missed how the door was opened - I'm sure we'll get told tomorrow.  But I do know what the Feliciano/Kennedy case is.  I've been rereading Judge Pfiffner's angry decision on attorney's fees after the second Feliciano/Kennedy case.  It excoriated the Municipality and APD for intentionally hiding information from the court and the plaintiffs.  It accused them of setting up the plaintiffs.  But most relevant  to this case, Anthony Henry was the star witness against the two minority officers.  The APD had held up the investigation so he could testify.  

So far, all the jurors in this case know is that the Chief held up the investigation of Henry because Chief Mew wanted the EEOC case to be settled.  Clearly the Feliciano/Kennedy case has been ruled out of bounds for this trial.  Until now.  Maybe.

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: Before Defense Began, They Moved to Dismiss Case

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

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


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

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

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

10:48
J:  any opposition
Just concerned about lunch.  Ten minute recess, advise jury another 30 minutes [they've been out of the court through all this]
P:  Memo from Lt

And then Meg Simonian countered.


11:01
S:  substantial evidence from to 2014 same without failing Steve Hebee, Christianson, the Mew, DC Smith, then EEOC complaint, until he was fired had a pending EEOC complaint except for two week June 2013 and 2014.  Had pending complaint the entire time.  That of itself a protected activity.  Ample evidence that Mew, MOA attorney, Command staff were highly motivated for him to get rid of EEOC complaint.  It weighed into decisions on Herny all along.  A disgruntled employee and problematic and wouldn’t come back into the fold by settling the EEOC complaint.
VAndegriff hid from him that complaint held off until EEOC settled.  Clear that Henry was the target.  You said this is a state of mind cases.  Those are issues solely province of jury.
None stop until Rick Brown hired.  Every month something new came up.  Same people and same movite.  Get him to dismiss EEOC.  That’s the protected activity.
Saying findings no big deal, don’t matter.  That’s not what the law and EEOC say about retaliation.  Remoing from others.  Removed to SRO and Special victims, outside of APD.  Trying to avoid, by saying he settled the claims based on the agreement and MOA violated even point, except one.
Adverse action, disparaging comments about employee to other, we have.  Reprimand,  Scrutinizing work more closely, action against coworkers, isolation, mis applying policy, changing the policy, not giving notice, or … Treating other employees differently - hiring consultant to get rid of him  said it had never been tried before.  Investigation as result of complaint by Carson that was solicited.  Had plan to get Carson to make complaint.  National Guard, …..????, Independent adverse employment decision not independent because of bias of support.  Even if manager is not ultimate decision maker, that employees motive ……
We know that Carson complaint was solicited by Hebee, doesn’t matter he was gone, he set it into motion.  Then rallied chief to do investigation.  Even though gone, the first person interviewed.  Soliciting complaint, MOA attorney misled EEOC, Mew not completely accurate and evidence itself not accurate.  Concerted effort that Marilyn Stewart investigation wrong, but actively mislead the EEOC.  Misleading letter was actually known and purposely hidden.  Smith admitted it and said it shouldn’t be out until settled.
Lt Henry did not lie to Rick Brown or lied to him.  He said he knew of two meetings with Katkus two years before, he mixed the dates up.  FBI agent testified and SGT Smith assigned says it was wrong…..
Mr. Halloran wants court  - state and fed - one is caution the other motivating factor.  We see them claim that they wanted him back in the fold if he drop the EEOC claim.
Direct support to case law - causation.  Discriminatory motivation more likely to be show indirectly.  About Rick Brown’s report - shown repeatedly their explanation.  Relied on Carson and McMillan and ignored everything else that contradicted them .  Policy violation unduly impacted investigation - can’t show that because can’t show there was an investigation.  Blaylock was released before the meeting.  Lots of evidence that Rick Brown targeted Henry and the direction came directly from Christiansen.  Mr. Brown said that in his deposition, spoon feeding and evidence to make connection from Christiansen.  People they should have interviewed they didn’t - Anne Kirklund.  Letter written back by FBI made it clear sharing the info was appropriate.  Left out of report or ignored.  Focused on Carson and McMillan.  Would be unusual to tell General about ongoing investigation - said not at all we do it over and over.
Idea of no evidence of bias, Report so slanted at target, not supported .
Fanning, subject of Meehan, end Aug 2014,  went to Blair Christianson and said you need to investigate Henry.  Finding that he had belittled Henry, because of his EEOC complaints.  Motive of Kevin Vandegrirr - repeatedly violated policy, conversations with Carson, recording, involved with EEOC investigation and settlement.  He was a claimant and important witness, things do not do usually.  Didn’t provide notice to employee.  Followed chief’s instructions not to tell Henry..  glossed over Carson,  suggested Henry… lost it here

Specifically ??acing what said to OEO without even know anything about what was asked what was said.  Destroying DC Smith’s notes.  Not recording conversations.  Recording and deleting recording of Haynes.  Without asking anyone.  Plenty of evidence 0- Hebbee and Christiansen.  She represented Vandegriff and Dept Chief Fanning  And Mew willing to keep findings from Henry.  Court never held decision to come to court rather than finish arbitration…..
If jury finds unfairly fired, they can find for the plaintiff.  To say there is no evidence is false description of what we did the last two weeks.
Idea that expert opinion thrown out unless we introduce every pay stub.  Never heard of case thrown out …. Cites cases.  Experts opinion based on facts and data, even hearsay, is admissible.  Rule assumes experts can rely on the facts.  Didn’t know how much Tony making or made, he was asked and said.  This is a hyper-technical argument about damages.  If court had time we’d call Henry and introduce them piece by piece.
11:27

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

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

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

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

Henry v MOA - Fatigue Won The Afternoon

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

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


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

V:  That fact well established.  Jumpout police reports.
S: Police reports from 2010 did not support any suggestion of investigation into recruiters in the Guard.  They talked about Guard, but no the recruiters.
S:  What documents did you have about the Guard.  Suspect?
V:  Prieto was in Guard.   What was told to me was Guards.
S:  Two officers [Carson and McMillan] from APD who couldn’t produce a single report, audio,  notes, memo that they were doing investigation?
V:  No I accepted their word for it.
S:  You said you had enough evidence to sustain a policy violation by Henry?
V:  Yes

Or, later:

V:  Payne said they (Carson and McMillan) were two of the finest officers he’d worked with and had asked them to assist him with continuing it.  Said how disappointed he was with Tony for talking to Katkus.
S:  We did ask Payne, know what he said?  “Are you shitting me?”  That’s what he said.
V:  I didn’t talk to him about Henry because not relevant to the questions I was asking him.
S:  You know he was not assigned to operational part of investigation.  Annie K was the lead and he was just administrative.
V:  No I didn’t understand that

While he sounded cooperative in the morning, in the afternoon it was less convincing.  

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

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

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

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

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

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

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

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

Henry v. MOA - Vandegriff - Lunch Break Report

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

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

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

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

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

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

Index of all Henry v MOA posts here.

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.