Henry v MOA: Plaintiff Closing Part 1

The court gallery had 33 people this morning.  Probably the highest number of the trial, or at least since I've been here.

Meg Simonian presented the closing for Henry.  [rough notes warning:  These are what I could type as she talked.  She was slower today so I could keep up a little better.  But this is to give you a sense of the closing statement.  It's relatively close, there here and there my mind/finger connection stopped and I missed a bit. Apologies. I did spell check and made additions or changes only when I was sure.] [After going through these, it's pretty basic.  Doesn't really catch the sense of the comments.  Sorry, it's the best I can offer you.]

Smonian split her statement.  This is the first part.  Then after Doug Parker did his closing statement, Simonian got 30 more minutes.  I'll try to put that up later.

Closing statement - Plaintiff

S:  Said [at opening?], case is simple, but complicated.  What we teach our kids to do.  Stand up against bullies.  When you came here a month ago, you showed up, in common, away from family, classroom. . .  For that sacrifice, we, society, give you tremendous power.  Judge said, Thomas Jefferson said jury is the power of our democracy.  Power to hold the powerful accountable, to give Henry his reputation back.

After Jason Whetsell (JW) diagnosed with MS,  Fanning, Vandegriff, disciplined him. Tony got upset and was removed from SAU, put in closet.  Restricted from communication, moved to Kris Miller’s command.  Restricting what he could do, gag order for 6 months.  After all that Henry didn’t file complaint, kept head down, but when he found they were secretly ??holding?? his file.   The  OEO, found against the MOA.
Discrimination claims here,    you aren’t making a decision about JW, it’s just background info, into their motive, bias, what they did to Henry.
Clear that Tony was retaliated against for standing up for JW.  OEO findings went into Mew’s safe, no one, not even Tony, could see them.  They tried to convince you Marilyn Stewart wasn’t supposed to do investigations and make findings. Mayor Sullivan sent memo saying she should.  Do that.     Didn’t dispute the policy.  They focused on part of role of solving informal complaints and ignored the part that gave her ??unmated??? power to resolve complaints.
Mayor Sullivan sent memo telling everyone she had the power.  OEO’s role to do it.  Did bring in 2006 memo, but that was different administration.  When OEO doesn’t do something they shouldn’t do, they write a memo.  Mr. Wheeler’s own statement - statutes and policies said, she had the power.
Sullivan - wrote her a glowing recommendation - though the others trashed her.

January after 0E0 findings, Henry moved to School Resources.  Others said moved too, but Henry more than most.  Before moved twice in 4 years.  After, moved 6x if ??? months.

[They wanted to?] Undermine OEO findings, find someone that will say JW was sick.  They found Jack Carson.  Kept that complaint secret, after EEOC complaint.  That policy says you don’t get to try to get someone to settle on own.  All sorts of pressure to end EEOC complaint.  No one is supposed to got outside MOA to challenge the power structure.  They asked for her complete investigation, but never got it.  Stewart’s finding.

Settlement June 2006, 2 days later started JW coverup investigation.
Settlement was Henry’s attempt to get them to stop, get this behind us and move forward.  Stop moving him around, and move stuff from his IA file.
Retaliation began again.  Never gave OEO finding to Henry or EEOC.  Kept moving him, all to places off campus.  Out of the building.  There are good reasons for some to be off campus - sex assault unit, schools, but he wasn’t in schools, he was in ASD office.
Message, if you mess with us, we move you out
Instruction 28 - Jury instructions - Background info OEO
Dep Chief Steve Smith said, all knew Henry was target and they kept him the target.
Filed second EEOC right away because they knew they weren’t going to follow up.  The training they were supposed to do, didn’t happen until we filed lawsuit.
Spent time on EEOC complaint, because defense ???
Vandegriff said not to put OEO in - violating, treating people differently.  Sure, chief ordered him, but he was willing.  Wrote exec summary shows charges against Henry not substantiated.
Covered up info on Whetsell to make it look like Henry just didn’t understand.
After finding wasn’t substantiated.
Use of Force meeting - right after that.  Expresses displeasure.  Chief doesn’t see problem, but Vandegriff does.  Fanning ready to fire him.  Chief says no big deal.
Gave Hebbe, Vandegriff, Fanning - gave them wrong findings and told them to undermine findings. ???
SGT, Carson comes up with next complaint, bombshell guard allegations
Nov.  Carson interviewed with Fanning by FBI
Vandergriff goes on junket, how to fire problem police - how to get rid of him.  May 2014
Then Fairbanks funeral.  Hebee gone.  Carson said at funeral made vile comments about Vandegriff, no one else heard, open investigation,  un substantiated.
EEOC response to matter  - exec summary by Vandegriff and ??? Nothing to look at here, move on.
Move him to Special Victims Unit?  Why would they send him there if Carson’s charge had any merit?   Moved without consultation.  Mew asks him to drop EEOC complaint, in the same email, violating policy to do that, here (jury?) instruction, making management, shouldn’t substitute your opinion for Management.
Instruction 19  - you can disagree if you find these moves are part of retaliations
After funeral, they change policy. Won’t let Henry look at IA file.  Won’t let him see Carson complaint.
Henry filed another complaint (about being kept out of IA files on himself) because didn’t want to be treated differently others .  Big move to stop him.
Meeting about Tony Henry policy, no doubt he was targeted
Henry filed complaint about DC Fanning, DC Fanning said some really bad things about you.  Didn’t wait a year.  As soon as he found out he filed . . ??.  Meehan had to investigate because “IA tainted”   Fanning asked. But Vandegriff to be his witness.  Told Investigator he’s a malcontent, litigious, made complaint outside investigator.
Aug more communication Christianson and EEOC.  After complaint against Fanning substantiated, Vandegriff goes to City Hall.  Nothing different with timelines different from what Carson had a year before.  Only difference DC Fanning disciplined for dissing Henry.  DC Fanning and Vandegriff trying to get him back into the hold ???? for covering up Drug Investigation.
Instruction 16.
No dispute about protected complaint.
Jury Instruction 17 two ways:  More likely than not real reason fact he had participated in those protected activities.  More than 50%  Two ways
 You decide if Rick Brown report was the real reason
Or because of the protected activity - wouldn’t have been terminated if he didn’t file the two EEOC accounts.
Either or, it was #2; or #2 was part of the reason.
Rick Brown hired.  Makes money working for MOA.
Judge found Henry the policy change was wrong and he should have access to the file.
Jury Instruction 18:  Even if reasonable action, if protected activity set in motion or manipulated, or employee’s bias may be attributed to the admins who  - if you find that F V and BC had bias due to EEOC.  That intent, in bad faith, is imputed on those who made the final decision.

Set in Motion
Hebbe and Carson come up with Accusation
Multiple Meetings over a year   -
 no documentation,
no attempt to verify
Myron Fanning to Blair Christiansen
Hire Rick Brown

Claim they wanted to find out what went wrong with National Guard, really goes to EEOC
Used Vandegriff to study Henry.  Everyone got timeline, but Tony Henry.  Everyone has access to police report but Henry.  When he found out something that didn’t match timeline, he just ??? away.
Parker didn’t call Bill Miller - he said it’s ok to talk to Katkus, we have agreement
Hazelaar said they talked to Katkus all the time .  These things not in Brown Report.
It’s a white wash.  Only way you’ll know is by looking at everything.  Destroyed recordings  - Steve Payne interview destroyed, why?   What did he say to Payne that Payne said "it blew my mind."  We don’t know, it’s destroyed.  Vandegriff also destroyed Steve Smith’s notes.  The meticulous note taker.
Didn’t record key interviews - ST (anon sexual assault victim) before . . .
Evidence misconstrued, destroyed, missing.
FBI saying of course we talked to Katkus, that doesn’t make it into the report
Christenson advised Vakalis to fire Henry.
Ms. Usera provided with 17 pages, didn’t look at attachments until afterward.  Didn’t say that in deposition, that was new.

Timelines important only documents that say what happened  No other documents of Carson investigation or use of Blaylock as a source.
First timeline Jack C initialed had things on that Carson said, he get taken out, and 2/26-3/10  added issue about steroids.  No one could explain.
What Brown did have, but ignored, were the 15-6 documents.  Blaylock was known before the June 3 meeting.  Blaylock didn’t say ordered??? not reported to APD.  Ordered to follow the chain command.  He said John Nieves did nothing wrong.  If anyone misleading at meeting it was Blaylock.  Shows got call from Gen K and called him back.  After he called Plummer and told him.  Told?? he said he didn’t remember.  Elaborate power point presentations.  No one said they were kept out of the loop.  Miller or Plummer didn’t say they would have stopped it if knew.
Police officers can’t lie.  Carson.  Objection.
J:  Allowed to argue evidence,  up to jury
S:  Evidence of police officers lying or violated policy.  None of them disciplined.  Carson gets promoted every time.  MOA says this is how to evaluate credibly.  Two people reports conflicting - determine if memory or other reasons, besides lying, may be those are the factors to consider.  Everyone had discrepancies.  Miller says fuzzy.  Only thing they agreed on, Kenneth Blaylock told not to ???
No one, not even Blaylock testified to that.  You make the allegations so horrible and bad, maybe people won’t see there’s no evidence.  Rape, teenage girls lured to parties.
Everyone on this table thinks sexual assault horrible and should be taken seriously.  Nothing at the JUNE 4 meeting about that.  Henry called in for assigning lower rank person to talk to higher rank.  Weaponizing sexual assault.  In the end there was only one person who didn’t want to report a crime.  Fanning.  Blaylock not credible.  Agent Kirkland said disgruntled employee put everything but kitchen sink into allegations.  Used sexual assault victims in fight against Katkus.

In hiring Rick Brown, that’s what they did.  Text messages and email.  So excited when they got evidence against Tony.  “good news!”  “Call you later”  I want to get you the beefed up findings.”  “I’ll get it cleaned up and get with your comments.  Make it smoking.”  He did, he delivered.  If about sexual assaults - but Blair C said don’t look there, keep focus on Henry.
Rick Brown said K’s laptop could be icing on the cake.  Vandegriff, I hope so. . .
Ignored findings that didn’t support their findings.  Even analysis because drug not supported.  Focus on sex, because when you say rape, people look closer.
No evidence of separate investigation.  None of them kicked out of NG by drugs.  Jane W who was hired by Katkus didn’t show anything about drugs.  Lots of bad behavior.  Only sexual assault was a women he had an affair with, who said not completely consensual.

Lt. McCoy.  Most likely - about ST - only person not reporting their finding.  Only victim Blaylock had..  Restricted report in March but had nothing to do with???  .  Rick Brown knew that but didn’t report it.  When he met with ST off the record said she spoke to McCoy and Blaylock.  Means she reported after disclosure.  Delayed reporting for other reasons.  Not the June 4 meeting.  Not what they wanted to hear.

Mia Carson.  Should be clear major drug deal at NG, everything to do with the guard.  Charges were there.  Even tho Rick Brown said weren’t.  “Quote on illegal activities in the report.”  Like Christiansen.  Stylistic changes Brown said of Christiansen.  You can see, it’s spoon fed.  You can see it here
 9:42am  - direction to make report - seems like they should have made a big finding - lying - Blair Christiansen advice why informant be bad - verbatim.
Jury Instruction 20 - good faith and fair dealing  - if you find they didn’t treat him fairly, then this would be a yes.
When they castigated him and publicly humiliated him.  In this court room justice is only about winning.  That’s all we can do.  Only way we can prove they’ve done something wrong.  And we did.  We had Dr Foster come and talk about damage calculations.  You’ll hear instructions about loss. Jury Instruction-30 includes Dr. F testimony, not some conjecture.
Instruction-31  tells you do simple arithmetic, pretty complicated.  Amount would have been earned if continued working at APD, subtracting what he earned elsewhere at comparable employment - working Iraq away from his wife 7 days a week, not comparable employment as APD - 1000 more hours.  What loss if he worked comparable work and hours.
You can figure out when he would have retired.  His wife ten years younger, if allowed to retire and rehire - Nancy Usera said no one had been denied [retire/rehire program].  Also asked if Foster - doesn’t want to keep working for 3 Canopy.  If you annualize any of these, ??% more.
Mr. Voth said no difference at 3 Canopy - none of the extra hours matter because he volunteered at APD.  Glossed over fact 3000 hours over ten years.  Not the same if he volunteered to help APD is not the same as required work.
I-33 you may award fair, and any losses reasonable experience? In the future
I-34 - we bore proof of losses.  Because he didn’t ??? Failure to mitigate damages.  He didn’t relinquish police certificate, it wasn’t voluntary.  He lost it because APD fired him and so they took his certificate.  He may never get it back.  An exemplary officer lost it.
Finally you get to decide non-financial damages.  Didn’t get to sit through trial, not based on evidence.  Lies.  Two meetings, conflating two meetings together?  Seth M did get into trouble for running his mouth.  Henry told you that and others.  Brown didn’t mention that.
How do you compensate someone who was called liar, said covering illegal activity?  What motive would Tony have not to say anything about June 4 meeting?  He said I never told them about Blaylock because they knew about him.  I didn’t tell them about ??? Said in first and second interview.  He’s not a liar  You get to decide.
That, again is a very difficult thing to do.

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 - Witnesses Done, I Got Most Of The Day Off - Tomorrow Closing Arguments

I'm not really sure what today was for.  We saw parts of the video deposition of FBI agent Steve Payne, a few minutes of his boss at the FBI, Annie Kirklund.  Then Tony* Henry took the stand for less than five minutes.

*Throughout the trial, everyone called Anthony Henry "Tony."  I was caught in the official Anthony and just stayed there, but it seems wrong, since every one seems to know him as Tony.  So, now the the trial is pretty much done, I'm switching too.

Steve Payne

Payne was the FBI agent that Jack Carson contacted when Tony Henry told Carson and Seth McMillan to stop their questioning of Guard people over sex and drugs.  Payne got allegations both from Carson and from Kenneth Blaylock - he wasn't sure which came first.  Blaylock was a contact for Carson too.
He went over events and people that we've heard about repeatedly from different perspectives.

Going back over my notes, I think the critical part the defense wanted to get on the record was was about how telling Katkus about the Guard Drug investigation and that there was an informant, made it harder to investigate.    [Here's my usual warning:  these are my rough notes.  My fingers can't keep up with the words, so I try to get the sense of what was said.  It's not verbatim  If something looks really wrong, it probably is.  Words, sometimes sentences, are missing, but it gives you a sense of what was said.] [And let me remind you, this was video of depositions taken in 2016.]

Doug Parker:  Did you do an investigation?
Steve Payne:  We tried to, but at that point not much we could do, as it was relayed to me.  Conversations with Jack C an Seth M  advised chain of command, investigation had been conducted and had been involved in Sexual Assaults  and Drug Trafficking, and they indicated that source had been compromised.  All occurred in meetings before the matter referred to us.
DP:  General at National Guard?
SP:  Yes, really whole chain, but went all the way up to Gen. K.
DP:  All this indicates it’s going to be Federal Case, agree?
SP:  Depends on relations to other subjects, factors yes, but can’t tell with 2-3 criteria, can’t tell if Fed case
DP:  What did you do to look into recruiters?
SP:  By then dried up.  [that may have been part of the question, not sure]  One meeting APD and National Guard Chain of Command, advised them of the investigation.
DP:  Who?
SP:  Only by hearsay,
DP:  Go ahead.
SP:  Henry, Seth or Jack, not sure of those people.  Couldn’t tell names of command staff - Katkus ..don’t know others.
Complaint, checked data bases for criminal records, believe negative.  Possible informants, but not effective.
DP:  Who work with?
SP:  Jack Carson, Seth McMillan, maybe Eric, not sure.
SP:  Allegation entire unit involved, tacit understanding of Chain off Command, not assisting, but turned a blind eye.
DP:  Implicated as part of overall - Including Katkus?
SP:  Correct.
P:  Main complainant Jack Carson?
SP: Most contact with him, but Seth too.
DP:  Concern both drugs and sex assault?
DP  You went to your boss Annie, why not to Tony Henry?
SP: Annie was my supervisor,
DP:  Describing I think your belief that investigation thwarted before got to FBI?
SP:  I wouldn’t personally use the word thwarted.  Now more people aware of activity, not necessarily compicit.  Connected to investigation as subjects, now aware.  Makes it more difficult.
DP:  How?
SP:  My understanding entire chain of command aware, based on meeting we talked about.
DP:  You believe because of the meeting, that Chain able to cover it up?
SP:  Probably assisted them in that.  Included people like Katkus.

This is important because The Brown Report that was used to justify terminating Tony Henry said that his talking to Katkus about the informant ended any serious investigation.  The plaintiff attorneys have had witnesses say Katkus already knew and that the big drug bust - based on a Guard informant - went on successfully to nail large amounts of drugs and at least one member of a Mexican drug cartel.  One issue the jury is going to have to wrestle with is which of these two versions is true?  Henry's meeting Katkus effectively ended a serious investigation into the guard, or it didn't.  

The plaintiff's played another part of the deposition - actually a different day, still Steve Payne - where attorney Meg Simonian is getting Payne to acknowledge there was no investigation into Katkus, or even the National Guard at all.  And makes the point that there was no documentation.  

[These are really loose notes.  Simonian talks fast, and for much of it Payne just affirmed what Simonian said. I've highlighted the parts I think the plaintiffs wanted the jury to hear.]

Simonian:  Reporting to your supervisors, credible info Tony Henry and K were covering drugs and interfering with Law Enforcement.
Payne:  I wanted to believe, but couldn’t get corroboration.  
S:  Serious allegations.  Only investigation you assigned to do relating to NG.  Info is not documented in this report.
P:  Don’t know if documented elsewhere.
S:  I’ll let you know, not corroborated anywhere.  About Drug Trafficking or sexual assault. 
S:  Annie K - your not doubting her memory.  You wouldn’t have been doing an investigation into K in June without a complaint and without my supervisors knowledge.
P:  I can’t recall if Carson came to me before Blaylock or the other way.
S:  I understand, but it suggests that you were not involved until after June 24, 2010.  If you were doing an investigation into a 2 star general,
P: I wouldn’t do anything off the books.
S:  I asked if you documented what you did with Seth McMillan.  You never investigated K for interfering with a case?  So Carson didn’t assist you in such an investigation?  
S:  They said they had done an investigation.  Shocked that no documentation.  
P:  They’re good officers and can’t believe they didn’t document anything.  

They showed some very short clips of FBI special agent Annie Kirklund.  I wasn't sure what the point was.  It was maybe 10-14 seconds (less than some of defense attorney Halloran's pauses). First the played out with the jury out of the room so both parties could agree on what was allowable to be shown to the jury.
A jury on the end near me, shrugged her shoulders as if to say, "What?!!!"

Tony Henry was called to the witness stand once more by the defense.  This is the whole of his testimony:

Parker:  At sometime in 2016 you told police certificating agency you would not use your police certificate?
Henry:  Yes I did
Simonian:  Did you voluntarily relinquish it?
Henry:  No
Parker:  If you had ??? Something you would have had to ??? before.

I don't think it matters if the jury understood it.  I think they needed material from the clip and from Henry's testimony so they could mention it in their closing arguments.  

The jury was allowed to take the rest of the day off at 10:23.  There's a question about one juror who has plane tickets to somewhere for Tuesday.  The judge thinks it's better to dismiss her now, rather than leave her on the jury and make the rest of the jurors feel rushed to make a decision before her flight.  But they will only start deliberations tomorrow afternoon after the closing arguments, which start at 8:30.  

They seemed to be agreed upon the most of the jury instructions, except the part about compensation.  They were getting together to resolve that at 1pm.  I decided it wasn't critical to stay for that.  So I left and did a few of the errands and chores I've neglected for the past three weeks while covering the trial.  I've got to go now, so excuse the typos.  I'll proof this when I get back later.  

Henry v MOA - PM - Finish Carson,, Blaylock, and Hebbe (video)

The biggest news is the judge thinks the witnesses will be over tomorrow and that the closing arguments will be Thursday morning at 8:30am, and the jury will get the case Thursday afternoon. But it's a been along complicate trial and the jury is up against a three day weekend with one juror with tickets out of state next Tuesday or Wednesday.

That's all stalling as I try to figure out what and how to write about this afternoon.  The morning is posted here.  With election news it's hard to write, but I've turned things off so I can give you a sense of the afternoon.  [Now that I'm done with this post, it seems reasonable to warn you this is my sense of things as of today.  It's my impressionistic take.]

I've been in court long enough now to get a sense of how the details fit into the overall picture.  I have no idea what the jury is thinking, but I can tell you where I am.  I really didn't know enough about the case to be rooting for one side or the other.  I knew there was a connection to the Feliciano/Kennedy case but I didn't know how.  And there was a connection to the National Guard scandal of 2013/2014.  The Brown Report was cited by the judge in that case as showing the MOA had hidden important information in an attempt to win their case. (It was hung jury the first time around and the plaintiffs won the second round.)  Was the plaintiff, Anthony Henry, who'd been terminated by APD, a good guy who got mistreated or did the APD act in good faith when they terminated him?

What I've learned is that the APD was a hot bed of problems.  There's been talk of Tony Camp and Command Camp.  There's an internal investigation unit for investigating police.  I understand a police department having a unit - preferably independent of the police - to investigate complaints by citizens.  But what I'm hearing at the trial, it was used to resolve complaints between officers.  And punishments and reprimands seem to be fairly common.

The plaintiffs started off calling witnesses and the attorneys - Ray Brown and Meg Simonian - had a story to tell and the browbeat and disparaged witnesses whose stories didn't confirm to their narrative of the case.  In in there narratives there were names we heard over and over again.  This afternoon's witnesses for the defense were villains in this narrative.

• Jack Carson, in their narrative, set up a rogue investigation to go after the National Guard recruiter who was having an affair with his (now ex-) wife.  He filed complaint after complaint against Jason Whetsell, an officer in the canine unit, who was diagnosed with MS. 
• Blaylock was the crazy National Guard Lt. Col who published the Blaylock Manifesto on a website  which made wild allegations about abuse of sex, drugs, and guns at the National Guard.  Henry had no use for him.  He said he was just not credible and even accused him of being a conspiracy theorist who believed in aliens.  And all his accusations turned to nothing.  
• Steve Hebee was a former friend of Anthony Henry who had become his boss.  We learned early that he'd had an affair with Henry's wife and that they tolerated each other, but more recently he'd been one of the sources of investigations and accusations against Henry.  (When Henry testified he did explain that it had been an affair with his ex-wife and was 27 years ago and he was no happily married).

So today the jury got a chance to see them in the flesh, as they did Rick Brown yesterday.  And they turned out to be much more reasonable and credible that we'd heard.  

Carson was perhaps the least sympathetic, to me he came across as someone who wanted to be somebody, was idealistic, and who was pulled in different directions.  He was disturbed by Jason Whetsell's MS diagnoses and reported that Whetsell wasn't performing like he should.  That Tony Henry seemed to be protecting Whetsell was a problem for him.  He told us that Henry was a father figure for him.  In this very hierarchical and military like (several described it that way including attorney Ray Brown) organization, broke the rules and went behind his supervisor's back  (Henry) to pursue leads from Blaylock.  My sense was he saw this as an opportunity to break open a big case of drugs and sex parties at the National Guard.  He saw his boss tipping off the head of the National Guard who Carson believed was part of the problem and would thus cover up the problems.  Carson's story contained all these contradictions, which we already had heard about.  He didn't come off particularly well, but probably the human being on the witness stand was more sympathetic than the theoretic villain we'd been hearing about.  

Then we got Kenneth Blaylock.  The crazy didn't match what we saw.  He knew his stuff well, spoke strongly, and was able to fend off Ray Brown's questions. We learned, when he was questioned by Doug Parker, for the defense, that he'd spent time in Iraq, which we knew from Seth McMillan's testimony already.  We also learned that Gen. Katkus never had an overseas assignment.  When he got back from Iraq he was put in charge of the recruiting office, the Alaska Guard was ranked last among all US states and territories and in the nine months he was there, it had overtaken one other state.  But he reported discrepancies in financial transactions in, reported these to Katkus, and was immediately removed from his position.   Which was a plausible reason why he was suspicious of the commander, and possible a reason others with problems in the Guard went to him.  They knew he'd been punished for doing his job.  He also got called up to the General's office the very next day after a meeting APD officer Sean McMillan asked him to talk to one of the recruiters.  And disciplinary action was taken against him at that meeting when he refused to reveal the names of the women who'd confided in him.  And he knew the policy on not revealing the names of victims, and the plaintiff's lawyers never challenged him on that.  We know that if he were wrong on this we would have seen the policy up on the screen.  

He was also able to clear up the allegations we'd heard earlier that he brought many victims to meet a phony FBI agent in Spenard.   [From my rough courtroom notes - regular warning here - these are clearly not verbatim, but get the gist.]

Parker:  In this report there is a discussion about allegation that you took a victim to someone impersonating an FBI agent.
Blaaylock:  Bill Fulton, said I could take someone to his office any time.
P:  How did this happen?
B:  Victim talked to me briefly was nervous.  I said lets go to Appleby’s, but she did't was to talk  in public area  We went to his office to talk.  Her fiancé's  there too.  He was in Natl Guard.  She’s wearing an ankle monitor.  Mr. Fulton was a bounty hunter,   Saw her, punched her name in his computer and gave her a pep talk [I think about he could help her.]  He left the room.
P:  Did he have any association with the FBI,
There was an objection and sidebar, and then this resumed
P:  Col Blaylock, the sum total of visit to Bill Fulton’s office is you interview the victim?
B:  yes.
P:  Did you claim he was an FBI agent?
B: No.
P:   Did he?
B:  No.
P:   Ultimately the FBI  said there was no evidence there?
B:  Right.  

In cross exam, RB tried to catch Blaylock lying because there was a discrepancy in what he said today and in the FBI report.  But Blaylock said the FBI agents wrote the report and it was their account, not his (Blaylock's).  He never verified or signed that report.  

The Blaylock we saw in court was very different than the one that had been portrayed, and he was adept at avoiding Ray Brown's verbal traps.  

Finally we got Deputy Chief Steve Hebee. This was a video of his deposition with the plaintiff's Meg Simonian.  And it was offered by the defense.  Hebee came across to me as thoughtful, sincere, and very reasonable.  He, like Plummber (previous post) just wanted to find a way to get Henry cooled off and back on his game as a very good police officer.  

It starts off (these are excerpts of the deposition, so it didn't start at the beginning) talking about the high tension level as the APD is dealing with the Israel Keyes case and the time trying to find the 18 year old barista who'd been abducted.  Simonian says something about this being a high profile case.  Simonian argues that was the last thing on his mind. 

Hebee:  Don’t know if high profile, it was high stress.  Wasn’t looking at profile,  worried about 18 year old girl.  Very stressful, demoralizing, and brutally tragic.
Simonian:  News every day?
H:  yes.  

It was in the middle of all this that Tony Henry is reacting badly about Jason Whetsell's being returned to the canine unit full time from the SAU.
Hebee can't understand how in the big picture - with this murder case going on - how Henry is being so difficult about moving a dog and his handler back to his original unit  - the canine unit.

He talks about how he'd wanted someone he could trust and asked Henry to take over the crime unit and with it the Keyes investigation.  It was an important case and he wanted Henry because he got along well with the FBI with whom the APD were working on the case.  He said he knew it had been discussed with Henry, but they hadn't told him in advance because it never occurred to him that it would be a problem.  He acknowledge they should have  talked to him but again talked about all the stuff going on at the time, particularly the Keyes case.

The image I saw wasn't an evasive witness who callously treated Henry.  He had a strong regard for Henry and he was disappointed at what was happening with Henry.

Hebee and Plummer (previous post) combined was a powerful counter to the repeated stories we had heard of the isolated and backbiting Command that was seeking to retaliate against Henry.

I think we have some more video deposition of Steve Payne and some video to clear up some concern of the plaintiff's attorney tomorrow

I'd note that the plaintiff's attorney's have been hampered by a time restriction.  The court allots both sides an equal amount of time.  The plaintiffs burned through theirs at a faster rate than the defense.  So the judge ruled the other day that there cross could be, at most, 50% of the time of the defense's direct.  That was not something Brown handled well.  He did request that the judge explain to the jury why they were going so fast in a way that didn't prejudice their side.  So the jury knows, but I know they would have worked over Blaylock much more if they'd had more time.

That's the best I can do.  Closing arguments are scheduled tentatively for Thursday morning for anyone who wants to see these players live.  

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 - 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.