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Critics cite delays in G-20 inquiry
Is there a 'concerted effort' to block probe of police?
Monday, August 09, 2010

Pittsburgh officials' efforts to restrict a Citizen Police Review Board inquiry and parry discovery requests in court cases appear to point to a coordinated effort to withhold details of police conduct during the G-20 summit last September, attorneys involved in the cases said.

"It all feels like there's a real concerted effort to obstruct any real investigation into what happened at G-20," said Witold Walczak, legal director for the American Civil Liberties Union of Pennsylvania, who is heading a federal lawsuit against the city's handling of summit protesters.

"Why is the city fighting so hard to block access?"

Defense attorney Jon Pushinsky, who represents a protester charged with resisting arrest in Oakland, had to seek a court ruling to obtain a police surveillance video because the Allegheny County district attorney's office refused to provide a copy. Generally, he said, such evidence is turned over without hesitation.

"I can only speculate why the commonwealth would take the position not to provide it. I would certainly hope the reason is not because the DA's office is trying to involve itself in civil litigation currently pending, or that might be filed, raising allegations city officers may have violated people's rights during the G-20 week," Mr. Pushinsky said.

City solicitor Daniel Regan said there's no coordinated effort to keep a lid on G-20 documents, and Dan Fitzsimmons, the chief trial deputy for the district attorney's office, said the city did not ask the prosecutors to withhold anything in Mr. Pushinsky's case.

Mr. Regan said the city, which has an insurance deductible of up to $25,000 per claim, must defend itself vigorously against civil lawsuits. Only one suit -- Mr. Walczak's federal case involving multiple defendants -- is pending. But Mr. Walczak said he sees more on the horizon.

The latest developments in the G-20 story unfolded last week, with the review board renewing its demand for police documents in a Common Pleas Court filing and City Council acceding to Mayor Luke Ravenstahl's proposal, made June 18, to replace five of the board's seven members.

Despite Mr. Ravenstahl's assertions to the contrary, some review board members and council members have said they fear the mayor's aim has been to stack the board with new members willing to halt its G-20 investigation.

Elizabeth Pittinger, the review board's executive director, who serves at the pleasure of board members, said she doesn't know how, if at all, her work might change under the newcomers.

Pittsburgh City Councilman Bill Peduto said city officials' treatment of the review board in recent months is troubling. Mr. Pushinsky said he believes it appears to be part of a broader legal strategy.

"My thought is they're trying to cover themselves," he said. "I think they realize some officers went overboard and that they are trying to avoid the liability that comes with violating people's rights."

The city and police department were widely criticized for mishandling G-20 protests, especially protests in Oakland that largely involved university students who said officers used unnecessary force on them and blocked dispersal routes after ordering crowds to break up.

In November, the review board requested arrest reports and documents on the police department's G-20 operations, partly so it could write a comprehensive G-20 report.

That led to the Common Pleas Court battle in which the city administration initially challenged the review board's power to do anything except investigate individual misconduct complaints. In March, Judge R. Stanton Wettick Jr. rejected that argument and ordered the city to turn over the documents.

On June 14, city lawyers made the rounds of council offices, asking members to pass a controversial resolution urging the review board to slow its G-20 investigation. Council passed the resolution the next day, with abstentions by Mr. Peduto and Councilmen Bruce Kraus and Doug Shields.

The resolution asked the review board to align its document requests with the discovery process in civil court or to withhold document requests until the statute of limitations for G-20 claims had expired. Ms. Pittinger was livid, saying council had no right to interfere in the board's work and that aligning board document requests with civil discovery could delay a G-20 probe for years.

Mr. Kraus said city lawyers were concerned that the city's insurance carrier might try to abrogate coverage for G-20 claims if the city didn't take all reasonable measures to assist its own defense -- such as trying to rein in the review board.

"They certainly said that would be a possibility," Mr. Kraus said.

At a June 18 hearing, the board asked that police Chief Nathan Harper be held in contempt of court, saying the documents turned over after the March ruling were so heavily redacted as to be worthless. Judge Wettick did not rule immediately but scheduled a hearing on the matter for Aug. 26.

While Ms. Pittinger was in court that day, Mr. Ravenstahl announced his plans to replace five board members and reappoint the other two to new terms. Council confirmed the nominees last week, along with a bill clarifying the nominating process.

But some council members, including Mr. Peduto, still wrestled last week with the question of whether the reconstituted board would try to sabotage the G-20 investigation.

"I will say that the actions the administration has taken in the past few months regarding [the review board] are beyond uncommon. They're unprecedented," Mr. Peduto said.

The ACLU's Mr. Walczak represents the Seeds of Peace Collective, an organization that brought a bus to Pittsburgh to provide food and water for G-20 protesters. Collective members, claiming they were repeatedly harassed by city officers, sued the city and various police officials and officers. A handful of other organizations also joined the suit.

The most contentious issues in that suit at present involve the number of defendants and pace of discovery.

In May, Chief U.S. District Judge Gary L. Lancaster rejected the city's request to remove three officers as defendants. The city, calling claims against the officers frivolous, appealed to the 3rd U.S. Circuit Court of Appeals. That appeal is pending.

In June, the city asked the judge to stay discovery until the appeals court reached its decision on the three officers. When Judge Lancaster declined, the city appealed that matter to the 3rd Circuit, too.

While Mr. Walczak expressed frustration with the delay, Mr. Regan said the officers shouldn't be subjected to discovery unless they're going to remain defendants. Alternatively, Mr. Regan said, Mr. Walczak can get the discovery process moving again now by agreeing to drop the officers from the case.

Mr. Pushinsky represents Franklyn Smith, 59, who was charged with resisting arrest, failure to disperse and obstructing highways during one of the Oakland protests. He is one of 12 criminal defendants whose cases are still pending.

Another 87 defendants from protests around the city were sentenced to perform community service, nine pleaded guilty to summary offenses, 20 were convicted of summary offenses, seven had cases dismissed by a judge and nine had charges withdrawn by prosecutors.

A prosecutor notified Mr. Pushinsky of a surveillance video of Schenley Plaza the night of Mr. Smith's arrest. He said it didn't show Mr. Smith's arrest, just the tenor of the evening's events.

When Mr. Pushinsky went to the prosecutor's office to pick up the video, he said assistant district attorney Kevin Chernosky cued it up and started playing it. After about 45 minutes, Mr. Pushinsky said he needed to leave and asked for a copy to take with him.

Mr. Chernosky refused, Mr. Pushinsky said.

"The DA's office provided no explanation for treating the videos of that night any differently than any other information routinely turned over," Mr. Pushinsky said.

At a hearing before Common Pleas Judge David R. Cashman, Mr. Chernosky told the judge only that the video was not "material to the incident." He didn't explain why it was acceptable for Mr. Pushinsky to view it in the office, but not take a copy with him.

"Our reason to resist turning it over was twofold: It wasn't material, and he was given access to it, and would be given further access to it," Mr. Fitzsimmons, the chief trial deputy, said later.

The prosecutor added that it's not unusual to allow a defense attorney to inspect video evidence but not receive a copy.

"The decision to resist production of the material was not prompted in the least by anyone from the city," Mr. Fitzsimmons said.

But Mr. Walczak, who foresees dozens of civil claims related to G-20 being filed in the next several weeks, said he fails to see how the delaying tactics across the board aren't related.

And if they are, he continued, what is the reasoning?

"None of this really makes sense as a national security measure," he said. If the delay is simply a way to try to avoid liability "and spare themselves embarrassment, that's not sufficient justification."

Paula Reed Ward: pward@post-gazette.com or 412-263-2620. Joe Smydo: jsmydo@post-gazette.com or 412-263-1548.

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First published on August 9, 2010 at 12:00 am