Henry v MOA - Fanning, Plummer, Carson

Things started late.  Retired APD Deputy Chief Myron Fanning was the first witness.  The second witness was via video deposition - Retired (I think) Deputy Chief Plummer.  Both witnesses knew Henry a long time and both told a story of him as a good cop until the Whetsell situation came up. (Whetsell was a canine officer who got diagnosed with MS and Henry was protective of him.)

Fanning seemed to be more of a rival. (Ray Brown suggested that.)  He'd called Henry The Golden Boy who was in tight with the chiefs and could by pass the chain of command, but he always was able to make thing work.  Fanning also was the one who'd said, Henry "had destroyed more careers than anyone else in APD." When plaintiff attorney Ray Brown attributed this to Fanning and added, he was the golden boy until 2012, Fanning replied,

F:  He always had conflicts with people.  He affected a lot of careers.  

Fanning said he grew up in Alabama and graduated from the University of Alabama with a degree in criminal justice and a minor in military science.  And his concern with following rules, appropriate discipline, and chain of command seemed consistent with that.

We saw Plummer via very edited video of his deposition.  (Nothing nefarious about the editing, it seemed more a time issue, but it jumped a bit now and then.)  He billed himself as a good friend of Henry's for 27 years and called Henry his best friend.  But with the Whetsell issues, his behavior began to change.  Plummer sounded genuine to me and that he was pained to be giving testimony that might hurt his friend.
[As always, WARNING:  these are my rough running notes. I miss a lot of words or change to shorter ones so I can keep up.  I think the gist is preserved.  Some words below added in to make more sense.]

Halloran:  Was there a time frame when conduct seemed to change and began to go out of control?
Plummer:  Yes sir
H:  When?
P:  Really became hard to deal personally with Henry in time frame Whetsell being transferred out [of SAU] to canine.
H:  Time when you and others met with Dr S about his conduct?
P:  yes.
H:  Reason?
P:  Commanders, captains had experience, inappropriate behavior from Henry, discussions, similar about his emotions, not being himself.  Discussion about what we should be doing.  Concerned something would happen.  Capt ?? Had relation with Dr. Spurlock, so talk to him
H:  psychologist?
P: I think Lt ??? Invited Spurlock to talk to captains.
H:  Outcome?
P:  He listened to us, then pulled out for another meeting, never heard anything else.
H:  Tony trying to protect Whetsell as one of his….  
P:  I think he was upset, he felt the officer not being treated appropriately.
H:  Aware of Henry trying to protect others?
P:  yes.
H:  Appropriate?
P:  Couple of occasions inappropriate .
H:  Example?
P:  Swing shift pursuit,  on the street, asked H to investigate, he did, We agreed there was a violation.  He wanted to handle it as a training issue.  I didn’t agree.  He didn’t want to give the punishment.  There will be a letter.  He decided to take the letter himself and not give to the SGT.  [My understanding, Henry took the discipline for his officer, but I could be wrong] Violations officers would make, not major, not enough to fire someone violation.  In house solution rather than write up and document.
H:  You said occasions when H handling discipline in own unit instead of using dept policies and resources.?  
P:  Commander or SGT have certain amount of discretion on how to handle complaint and discipline.  But Henry made decision, somewhat in his discretion, but no documentation to show what if any action happened.  Made it so later on, if any action to take, no documentation.  

He also talked about Henry being more emotional, swearing more often, outbursts.  Said that he didn't swear and Henry tried to not swear when they talked, but in this period, Henry lost control much more often.  It was ok in their personal relationship, but inappropriate in their professional relationship.  

I typed appropriate and inappropriate a lot this morning.  Two words used often, especially by Plummer.

The picture that came out was of a technically good officer who solved problems and was fiercely loyal to his team, wanting to solve problems in-house.  This is consistent with my impression earlier in the trial.  I thought of him, possibly, of the excellent employee who contributes a lot more than most to the organization, but who also thinks he should be treated differently due to his value to the organization.  Sort of like the banks that were seen as 'too big to fail.'  But I'm also careful to categorize people because that makes it easier to stop evaluating new information, and because we tend to categorize people into available existing categories, so we may stick them where they don't really belong.  But it's a natural human activity.  It's like when FBI special agent Annie Kirkland talked about how she thought of Blaylock as a disgruntled employee.  Sometimes you're right sometimes not, but we do it without thinking.  

Carson was next - and will continue after lunch, and time's getting short, so I'll talk about him later.  Maybe.  Basically we've heard so much about Carson it's hard to see him without all that influencing my interpretation.  

Basically, two different Deputy Chiefs, one a friend, one not, both describing a man whose behavior got increasingly volatile as the Jason Whetsell health issues emerged as an issue.  

Carson finishes later and if there's time we may see Kenneth Blaylock this afternoon

Henry v MOA: Rick Brown Fishes [Finishes], Drew Voth, Challenges Dr. Foster

This continued from the morning with Doug Parker questioning hired investigator Rick Brown.  Nothing earthshaking, just seemed to be working on details the plaintiff had raised in the deposition they played earlier in the trial.  Why did Rick Brown  think Henry wasn't being honest? He was evasive when I asked questions about [not exactly sure sure about what, but it had to do with the drugs at NG].  He got evasive, talked about OCDETF (Organized Crime Drug Enforcement Task Force) and when I tried to redirect him to my question he went on about OCDETF.

Parker also wanted to talk about the nature of his communications with Dep. Municipal Attorney Blair Christiansen, getting the answer that they were basically routine about arrangements for travel, scheduling witnesses.  There were also suggestions for clarification of the drafts (there were 6 drafts of the report.)  There were suggestions she made about the content, but Rick Brown said he didn't take her changes.

Simonian (not Ray Brown) pitched questions for the plaintiffs in he cross-examination.  She began with his pay ($50,000 about 1/3 for expenses), then went after the fact that Brown didn't show Henry the timeline drawn up by McMillan and Carson when he wanted to check on dates.  She was now down from "thirty times he begged to see documents to fill in dates and other details" to just the timeline now.  And I wondered, as I did when this came up earlier, what investigator shows the information he has to interviewees?  He wants to hear what they know, not their reactions to what others said.  This was an investigation, not a consultation.

Them she got to the honesty issue.  Henry talked about OCDETF, because you asked him about OCDETF she told Rick Brown  He pointed out that he asked a different question and Henry started talking about OCDETF so he asked him what that was, and he took off with it rather than answering the original question.

Then Simonian put the APD IA(Internal Audit) policy for determining honesty, which warns investigator that just because different witnesses tell different stories, it doesn't mean one is lying. Then she accused Rick Brown of not following the IA policy.  He responded that he wasn't employed by APD. He said he didn't disagree with the policy but that it didn't govern him.   She kept accusing him of violating the policy.

Rick Brown:   That policy doesn’t govern me.
Simonian:  You don’t get to decide, the jury decides what governs you.  

Simonian put up a text messages between Rick Brown and Blair Christiansen.  She read from the messages (and my notes are rough but to the point)

Simonian:  Dec 17 you tell her, 3pm  You need to talk?  No Kevin and I had good interview, can show direct impact negatively.  She wrote great news.  

Simonian took this as proof that he was trying to show that there was a negative impact of Henry's disclosure to Katkus and that's why Christiansen said 'great.'  But in re-redirect Parker asked again, and Rick Brown said, Christiansen said great because there were no cases of sex abuse that were likely to still be a liability for the MOA.  

Simonian's questioning style is Ray Brown lite.   She sounds a lot like Rachel in Glee.  While she had a lot of nits to pick, I had trouble figuring out whether they were  important, or even a real issue or just something taken out of context, intended to make Rick Brown look bad in front of the jury.   So I wonder how the jury heard this.   I at least get to type notes in court and reread them and talk to people about what happened and write posts. That gives me lots of time to check and recheck what was said now and before.   The jury all get note pads and pens, but they have to leave them in the jury box and they aren't supposed to talk to anyone about the case, not even the other jurors until the trial is over and they start to deliberate the verdict.  There are a lot of facts and assertions floating around they have to reconcile.

Drew Voth, economist, dismisses Dr. Foster's analysis

When Voth was asked to give his background, he said he had an honors degree in economics.  I didn't know if I heard him right.  What's an honors degree?  Did he possibly say doctors degree?  

RayBrown, who now was pitching again for thet plaintiff, jumped all over this in the cross-exam.  OH, you mean you have a bachelors degree in economics?  Yes.  Well Dr.  Foster has a PhD!  A little bit of mine is bigger than yours.  

You can see a picture of Voth and read his qualifications at his firm's website.  He's a professional expert.  Basically, he

• Reiterated the argument Halloran made when the plaintiff rested, that since the plaintiff didn't present any factual data about his income, pension, and health benefits, there's no data on which to base potential compensation, so there's no need to talk about compensation.  But this hadn't been brought up with the jury present before.  (Is this a Federalist Society legal theory to deny payments to terminated employees?  If this gets introduced often enough in trials, are they hoping some judge will rule in their favor and set a precedent?)
• Said Foster's wrong in saying Henry has a loss, since he's earning more at Triple Canopy than he did as a police officer in Anchorage.  He dismissed the idea that he's working more hours at Triple Canopy since "Henry testified that he donated 3000 hours" to APD.  Ray Brown said there was a big difference between required work and  volunteered time.  
• Posited that the retire/rehire policy that Foster used to calculate lost retirement was bogus since no one at APD would rehire Henry.  Brown asked Voth if he knew that no one who had taken that option had NOT been retired.  I guess I would add no one who took that option had been terminated and sued the APD either.  (The retire/hire option arose when the APD was moved form the old Police Retirement System to the State's public employee retirement system.  It didn't make economic sense for experienced, retirement eligible APD officers to keep working under the new plan.  So they set up a way for them to retire and get their pension, and then be rehired, but not be part of the new pension plan.)

All this ended at about 4:19 and the judge decided there wasn't time for another witness so he dismissed the jury.  Then the judge and the attorneys discussed witnesses, time, jury instructions, and when they could get done.  The judge reminded them again that Monday is a holiday.  Parker said something about being able to finish with his witnesses by Wednesday, and the judge, said they could schedule closing arguments for Thursday then, with a smile.  Could they limit losing arguments to 30 minutes?  No?  An hour?  

So closing arguments could be on Thursday. (Don't hold your breath.)  I don't know if the jury could stay Saturday if they thought they were close to a verdict, or if they would even want to give up any of the three day weekend to be finished earlier.  This won't be an easy deliberation.

Tomorrow's tentative witnesses:  Jack Carson, Kenneth Blaylock,  Myron Fanning.  Carson is the SGT that the plaintiff's have made one of the key villains in their narrative.  And they talk about Blaylock's web posted allegations of problems with the National Guard as the 'Blaylock Manifesto.'  Henry talked about Blaylock as crazy, "he believes in aliens.'  Fanning was part of command.

Others mentioned - and I thought they said these might be video of depositions - include FBI agent Annie Kirkland (who has testified already) , Payne, Plummer, and Hebee.

It's natural for a trial to lean one way, when the plaintiff  case gets made before the jury, and then shift back over when the defense gets to call their witnesses.  Plaintiff painted some of the players pretty grimly, and as they testified in court, they turned out not to have horns and a tail - Rick Brown, Vandegriff, for instance.  If Carson and Blaylock turn out to not seem evil or crazy, then the credibility of the plaintiffs - Henry and the attorneys - will certainly] dip.

Tomorrow should be an interesting day in court if anyone isn't busy hoping to get voters to the polls or working or other normal activities.  Federal building.  The court is in the west end.  First you go through the regular building security, then the court security.  It's upstairs in Courtroom 2.

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. 

[Damn autocorrect - changed whatever I typed to Rick Brown Fishes instead of Finishes.]

Henry v MOA: Tide Turning? Rick Brown On Witness Stand

Rick Brown was hired by the MOA to investigate allegations that the APD had jeopardized cases of drugs rings and sexual assault at the National Guard.

I first saw Brown in a video  of his deposition with plaintiff attorney Rick Brown.  It was just my second day at the trial (I missed the first four days).  I was taking everything in.  My reaction that day to the deposition was that Ray Brown destroyed Rick Brown.  That was two weeks ago.

Since then, I've seen Ray Brown interrogate a number of witnesses and gotten used to his style and remarked on it here a couple of times.  He asks rapid fire clusters of questions embedded in questions encrusted with assumptions and insinuations.  This might be a reasonable tactic with a witness who isn't forthcoming at all.  It might work, or it might get false confessions and rattled testimony.  It may be good to raise doubts in the minds of jurors about the credibility and honesty of the witnesses.  But, if the witnesses are anything like me, if they see this style enough, they start to see through it.  And start to get sympathetic to the victims of Ray Brown's verbal assaults.

So, today, Rick Brown took the stand.  Defense's attorney Doug Parker asked him slowly about his background.  It's impressive.  He went into policing after the Navy with the Pennsylvania State Police and had years of experience in investigations.  After retirement he was called upon to participate in independent monitoring of federal consent decrees of different police departments - Oakland, Maricopa County, Detroit - and one in the state of New York.  

Not only was I impressed with his experience, but also his demeanor.  In an interesting move by Doug Parker, he was asked about his own interrogation style.  [below my rough notes from this morning, so words are missing, I tend to type the gist rather than the exact words.]

Parker:  What’s your style when you interview?
Rick Brown:  I’m very open, easy going, I know hard assignment for people you are interviewing.  Non-threatening approach, treat respectfully, with respect for work they’ve done.  Based on interviews etc.  focus, on inconsistencies  Ask non-threatening  Don’t want to shut officer down,  So I get whole story.
P:  Did Anchorage interviews, and Henry that way?
RB:  I did.

I immediately heard this to be a counter to Ray Brown's style, but Parker, apparently wanted to make sure the jury got the point.

P:  Feel like your style was used in the deposition?
RB: Not used.

From there he went into the substance of the case and his report.  Parker led Brown through some of the key points the plaintiffs have made about the inconsistencies, about how Henry had repeatedly asked to see documents to refresh his memory over dates, etc., about how many meetings there were with Katkus, who initiated them, whether sexual assaults were discussed.  He asked him how he reconciled the inconsistencies.  Essentially he compared Henry's accounts to all the other witnesses' accounts.   He played clips of Rick Brown's interviews with Anthony Henry.  [Again - these are rough notes from this morning.  I'm typing this at the lunch break so I don't have much time to clean up my notes.  Read to get a sense of what happened, not verbatim transcript.]

P:  Get to question Henry about being present June 4 in Gen Katkus office?
RickB:  He said there was no meeting.
P:  Asked about sexual assaults?   ????
RickB:  Exactly, he said no.
P:  [835  telling RickB to read the transcript on the screen of his interview with Henry]
RickB reading: “Also drug and also sexual assault allegations?  H: By then I would have known about it and had I known I would have communicated with McCoy.    RB: So you knew nothing in 2010? "
P:  Henry continued to deny any knowledge of sexual assault and to deny being at a meeting where it was discussed?
RickB: He did.
P:  IN this frist interview, did Mr. Henry ask you to [let him] look at any documents?
RickB:  No
P:  Remember being questioned by Mr Ray Brown that he told you that Henry had asked you to look at docs 30 times?  Remember?
RickB: I do.
P:  Surprised?
RickB:  Yes.
P:  Was it true?
RickB:  No
P:  Had chance to review transcripts of those meetings?
RickB: I did.
P:  Did he ask to show him documents?
RickB:  No
P:  You were asked several times, about the 30 times?
RickB: Yes, not true.
P:  How did you feel?
RickB:  Unnerving because it was false information.  I felt it was unfair to suggest that in th….
P:  Was Mr. Henry making suggestions to you about docs you should look at?
RickB:  Yes.
P:  Did you?
RickB:  Yes.
P:  By second meeting?
RickB:Yes
P:  What did Mr. H say about docs he had?
RickB: He said he had many and I said that whatever he had he should provide them.
P:  Did he?
RickB: yes.
P:  Was Henry the last interview you conducted before leaving Anchorage?
RickB: Best of my memory, yes.
P:  Talked about one meeting with K and sexual assault never came up.  Consistent with what others said?
RickB: No.
P:  That meeting SAU looking into drug allegations????  Who said that in interviews?
RickB:  Jack Carson.
P:  Hearing two different things?
RickB:  yes.
What did you hear about the second meeting?
RickB:  Meeting at K office and he was trying to get names of sexual assault victims.
P:  From?
RickB: McMillan.
P:  Did you know that Henry’s version was wrong?
RickB: No.
P: So?
RickB: I had a lot of work to do.
P:  Did you think what Henry told you might be true?
RickB: I did  

It's getting time to get back into court.  But this gives you a sense.  The Rick Brown we saw in court today was nothing like the Rick Brown we saw in the deposition.  Doug Parker still has more questioning to do.  And then we'll see how the plaintiffs deal with Rick Brown in front of the jury. Will Ray Brown question him again?  Or Meg Simonian?

More tonight.

Why I Fear Dunleavy As Governor - What I Saw In 2015

I'm excerpting the title and beginning of a post I published May 22, 2015.  It's about how Dunleavy, during a special session, tried to hijack a bill to required age appropriate lessons on child molesters in Alaska schools.  It's a classic tale of abuse of power.

"TO DUNLEAVY" (v) "When a situation unexpectedly comes along giving you the power to help another in need, you instead try to extract some gain for yourself while harming the other." 

 EXAMPLE:  "He dunleavied HB 44." As in when you find yourself as the chair of a committee in a special session with just one bill with strong bi-partisan support, and instead of quickly passing the bill, you water down its key provisions, and then add a lot of unrelated amendments that you had tried to pass in the regular session, but couldn't.

This is not how I intended to begin this post, but it seems to encapsulate a lot of analysis in a few words.  Below is the whole post which will show how I got to this point. "  

Here's the link.  

You can read the detailed analysis of what he tried to do to the bill - including banning Planned Parenthood from doing any education work in schools.  

John Creed, who saw Dunleavy close up as teacher, principal, and Superintendent in Kotzebue, has his own take on  Dunleavy's values.   Here's an excerpt:

"I genuinely enjoyed his company," said Jans. "We hung out when I was passing through Kotzebue. As he moved up the food chain, though, he became increasingly authoritarian, easy to anger, and generally inaccessible on a personal level. An aloof, bullying side in him emerged, which I witnessed and heard many others comment on. Not to mention he got strange at times in a way I can't quite quantify but made me uncomfortable about him in a leadership role."

The Caravan Is A Steve Bannon PR Dream

The Henry v MOA trial has taken up a lot of my time lately, and monopolized the blog, but there are other things I've wanted to say.  I'll try a couple non-trial posts today.


A while back I wrote about a book I found on a list of Steve Bannon's favorite books, The Camp of the Saints.   In it a flotilla of nearly a million Indians leaves India for the South of France.  Here's how that post started:

"It's a disgustingly racist novel about 1000 old ships that leave India for Europe with 'the Ganges horde' of nearly 1 million people, led by the giant 'turd-eater' who carries the monster child on his shoulders.  I did try hard to read this book to see if it would help me understand something about Bannon and others who supported Trump.  I wasn't able to finish it - it's really hard to read this stuff - before it was due back at the library.  But I think I got enough to get the gist."

But the post also looks at the insightful analysis of the left wing news media at that time and how it was probably one of the guidelines for Fox and other far right media.

What better image could the Trump folks have that a caravan of wretched refugees coming to invade us?  While the 'caravan' is only 1000 or (compared to the book's 1000 ships) the imagery enables Right Wing fanatics to fan the anti-refugee flames and maybe get more of their voters out by next week.

This caravan comes ready made with an origin story that puts George Soros in the role of God.  That's all too perfect for me.  One of the Right's tactics is to accuse the Left of all the things it's doing itself.  (Think about accusations of Democratic voter fraud as the excuse for real Republican voter suppression, for example.)

Given that such a caravan is the main character of one of Steve Bannon's favorite books, I wouldn't be surprised if conservatives helped organize this group.  I'm not making the accusation, since I only have the circumstantial evidence of their past behavior and the plot of a book.  But I sure hope someone looks into this and finds out how the caravan really got started and who first called it 'a caravan.'  It just seems far to convenient a talking point to accidentally happen just before the elections.

The book itself has an interesting, if disturbing, analysis of post 60's Europe and how the political lines were drawn.  You can read my original post on it here:  The Camp Of The Saints Is a Mean And Racist Diatribe But Given It's A Steve Bannon Favorite, Worth Knowing About

It will also help people understand where a lot of the virulent anti-immigrant sentiment is coming from.  Not that that many people have read the book, but they are getting propaganda themes right out of the book.

[UPDATE Dec 6, 2018:  This piece at Buzzfeed offers some evidence supporting my suspicions here, though to be clear, this is still speculative.  It's about a hijacked FB account used to promote the caravan early on.]

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.