Eagle attorneys: City won’t produce the boots

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imageThe legal back-and-forth over the Atlanta Eagle raid continued on Monday, with attorneys for the men detained in the botched police action saying the city continues to gloss over its charges of deleted and disappearing evidence and failure to turn over records.

That came in a 43-page response to the city’s 42-page brief, filed Oct. 22, that denied charges of ignoring court-imposed deadlines, destroying evidence, failing to maintain evidence and delaying discovery in the matter.

The response filed on Monday from attorneys Dan Grossman (top photo left), Greg Nevins (top photo right) and Gerald Weber says the city makes no attempt to explain or rebut allegations about the deletion of mobile phone data and computer backup tapes, the failure to produce email archives, the disappearance of notes about the raid and continued delays in the discovery process.

The court filing asks U.S. District Court Judge Timothy Batten to order the city to pay for forensic restoration of the missing data and records as well as fees and expenses incurred by attorneys for the plaintiffs due to the discovery violations. The attorneys also hint that Batten should consider additional sanctions for the city’s refusal “to produce responsive items, supplement discovery, follow the instructions of the Court, and be honest with the Court in their brief and affidavits.”

“Rather then refute the factual assertions and legal arguments made by Plaintiffs in the present motion, Defendants’ Response ignores some of the most important issues completely, and offers red herring defenses,” according to the Nov. 1 court filing. “The Defendants’ refusal to follow this Court’s simplest instructions, and their frequent misleading statements to the Court, suggest that nothing but the strongest order will compel them to comply with discovery.”

imageThe wrangling comes as Mayor Kasim Reed (bottom photo) continues to publicly discuss the lawsuit, first in an Oct. 21 appearance at the Atlanta Executive Network in which he talked about his frustration with the lawsuit overshadowing LGBT accomplishments in his administration and again Oct. 28 when he told the Stonewall Bar Association that he’s forming a commission to tackle it. But since taking office in January, Reed has rebuffed an attempt to settle the lawsuit.

On Oct. 25, former Mayor Shirley Franklin said mistakes were made in the raid, which took place during her administration.

The Nov. 1 brief also says the city refuses to produce the boots and undercover attire used by police officers during the September 2009 raid so plaintiffs can link the gear to specific officers.

“Certain Plaintiffs have provided descriptions of unique boots worn by individual officers who committed particular acts, and these Plaintiffs should be allowed to identify Defendants by any means available to them, including examination of their boots,” according to the Nov. 1 filing.

Several patrons of the bar during the raid later complained of officers physically and verbally abusing them and filed complaints with the Atlanta Police Department’s internal affairs unit and the Atlanta Citizen Review Board. The Atlanta police investigation remains open, while the review board has called for sanctions against several officers involved in the raid.

The latest court filing, similar to the one filed by attorneys in early October, details specific examples of evidence in the case that apparently went missing after Batten ordered the city to produce it during discovery, including cell phone messages and photos from police officers at the raid:

Defendant Jeremy Edwards’ phone contains 755 contacts in the address book and his phone activity shows that he sends and receives dozens of text messages per day. Yet when Edwards provided his phone to the APD examiner on September 3, 2010, it did not contain a single text message dated before August 24, 2010; all messages prior to that date had been deleted. Edwards sent messages to fellow officers during the Raid, including one which said: “Our Sgt is wanting to make as many cases as possable (sic).” That message is one of many that were deleted from Edwards’ phone. Edwards’ phone also contained 131 photographs, but the two photographs taken just prior to a photo taken during Raid had been deleted.

Defendant Kelly Collier was one of the two Vice sergeants in command of the Raid. Sgt. Collier’s phone contains 427 contacts in the address book, many of which included five, six, or seven fields of data. According to Plaintiffs’ expert, such a phone book suggests the owner is a heavy user of his mobile phone, but Defendant Collier’s phone did not contain a single text message dated before August 25, 2010; all previous messages had been deleted. Collier’s phone also contained 181 photographs, but seven photographs taken during the period that included the Raid were deleted.

Lt. Scott Pautsch is the commander of the Red Dog unit. His BlackBerry contains 326 address contacts, showing that he is a heavy phone user, but only five text messages were found on his phone, all dated on or after August 26, 2010. Even more damning, at least two messages specifically related to this case (dated August 26, 2010 and September 2, 2010) were deleted before Defendant Pautsch provided his phone to the APD examiner on September 3, 2010. Copies of these messages were found on the phones of other Defendants but were missing from Pautsch’s phone. In other words, Defendant Pautsch both created and then deleted messages about this case after being informed of the Court’s order to produce his phone for examination.

Defendant Bennie Bridges’ was the Vice Investigator in charge of the Eagle investigation. His city-issued BlackBerry contained 40 messages dated between August 28 and September 3, 2010 (an average of about six per day), but only four messages before August 28, 2010. One of those four messages was dated September 30, 2009, showing that his phone was in use during the month of the Raid and capable of storing messages that old. Plaintiffs’ expert concluded that Defendant Bridges deleted text messages on his city issued BlackBerry sometime after August 28, 2010.

Defendant John Brock was one of the two Vice sergeants in command of the Raid. His city-issued BlackBerry contained a photograph taken in September 2009, showing that his phone was in use during the month of the Raid. The phone contains 305 names in a meticulously maintained address book and indicates that Sgt. Brock sends and receives an average of 13 text messages per day, but Sgt. Brock’s phone did not contain a single text message before August 4, 2010. Plaintiffs’ expert concluded that “at least eleven months of text messages were deleted.”

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