Wednesday, March 31, 2010

Accusations fly in DeKalb case

Plaintiffs' lawyers file motion seeking default verdict, saying witnesses perjured themselves.
By R. Robin McDonald, Staff Reporter

Attorneys for four former county managers who are suing DeKalb County, its former CEO Vernon Jones and three members of
Jones' executive staff in a federal reverse race discrimination case have asked the presiding judge for a default verdict, claiming
that the defendants or members of their legal team have elicited false testimony, committed perjury and "attempted to corrupt the
judicial process" by engaging in fraud upon the court.

The motion—filed Tuesday morning on behalf of the suit's four plaintiffs—comes more than halfway through a trial before a six-
person jury in U.S. District Court in Atlanta.

County defense attorney Robert B. Remar said Tuesday morning that the defendants "categorically deny" the allegations, but he
withheld further comment until the defense team can file a written response.

The motion was filed a day after U.S. District Judge William S. Duffey Jr. canceled court Monday morning. During the break in the
trial, attorneys spent the day deposing one of the defendants in the case—former county Parks and Recreation director Marilyn
Boyd Drew—and the county's current director of purchasing and contracting, Kelvin Walton, the latter a potential witness,
according to the motion. Both Drew and Walton were asked if in violation of a court order, Drew had attempted to tip Walton off
about testimony heard during the trial.

The motion stated that in the wake of those depositions, "It is indisputable that either Drew or DeKalb's current director of
purchasing and contracting, Kelvin Walton, or both have perjured themselves with regard to a violation of the court's order of
sequestration in this case."

Duffey had ordered that witnesses not be allowed to hear other witnesses' testimony and had advised each witness not to discuss
testimony with anyone else in the case.

According to the motion, Drew, who testified last week, called Walton on Thursday night to alert him that his name had been
mentioned by John Drake, one of the plaintiffs in the case, when Drake testified Thursday. The motion lists a pattern of "litigation
misconduct" that in addition to the perjury allegations includes "the unexplained appearance and disappearance of vital personnel
documents at DeKalb's convenience"; the introduction into evidence of "tainted," and possibly fabricated, documents; "false and/or
misleading testimony" from defendant Richard Stogner; and bad faith delays in turning over evidence.

The motion asks for a default verdict "to act as a deterrent" to other governmental entities and public officials "who would use the
public's resources to cover up misconduct."

The motion singles out Drew's telephone call to Walton and her testimony when questioned about it Monday as particularly
egregious. In Walton's deposition, he said that Drew called him and "just mentioned that John Drake mentioned my name about a
position or something." Drake testified last Thursday afternoon.

Asked why Drew had called him, Walton replied, "I guess just letting me know just in case if I was called in [to court]," according to
the motion.

Drew denied that she had talked with Walton after Monday, March 22—the day the jury was selected and opening statements
were presented, according to the motion.

Drew said during her deposition that Walton had called her, but their conversation had been on the night of Monday, March 22
and that she had not talked with him since. Asked if she had called him after Drake testified, Drew said, "No, I did not. … I did not
talk to Mr. Walton after Mr. Drake's testimony. I did not talk to Mr. Walton after Monday."

"If Walton is to be believed, Drew called him during trial to put him on notice that his name had come up during Drake's testimony
on Thursday, March 25, and to let him know the nature of Drake's testimony concerning him," the motion states. "If Drew is telling
the truth, she did not call Walton after Drake's testimony. Accordingly, there is clear and convincing evidence that one of the two
perjured themselves as to Drew's attempt to tip off a potential county witness about testimony at trial."

The motion identifies as sanctionable conduct the appearance last week of two letters of reprimand that the county said it issued
to defendant Morris Williams and the county's Human Resources Director Joe Stone. During his opening statement, plaintiffs' lead
counsel Michael J. Bowers told the jury that the county had failed to take any disciplinary action against Stone or Williams for their
participation in a racially charged conversation in which the two discussed Jones' alleged objection to the promotions of four white
firefighters because of their race. That night, the county produced the letters of reprimand, which contradicted Bowers' assertions
to the jury.

Duffey had said that the production of the reprimands, which had May 2006 dates, after opening statements was "very hard to
understand and very hard to accept."
The motion suggests that, "[A]ssuming that the counseling letters were in fact created on May 30, 2006, the facts that 1) they were
created three weeks after Stone and Williams were deposed concerning the tape (months after the county became aware of the
tape); 2) they were not maintained in Stone and Williams' personnel files … and 3) they were not produced until it became
apparent they would bolster DeKalb's defense (as opposed to being used as an admission of wrongdoing) indicate that DeKalb
likely created those letters to use as trial exhibits in this litigation," the motion stated.

"To date, no one from the county has explained where the two documents were actually being kept (if anywhere) or why they had
not been produced."

On Tuesday, Duffey called the late production of the two reprimands and a request by the defense that he bar Bowers from
continually asking witnesses why they had not been turned over to the plaintiffs before the trial as both "disturbing" and "offensive
to the court."

"As has been characteristic of this case, the request presented to me by the defense is misleading and disingenuous," Duffey
said, identifying one of the statements in the defense motion as "flat out a misrepresentation to the court."

Duffey said that the defense had been asked for any disciplinary actions the county had taken regarding the defendants and that
the county had a duty to provide them during the pretrial litigation. "To think it was not important and not central to this case is
unbelievable," he said. "It is inconceivable to me the defense could have believed there wasn't a duty to supply the reprimands.
Even more disturbing is that you would come in here and ask for a limiting instruction."

The plaintiffs' motion also raised new questions about two reprimands issued to plaintiff Michael Bryant, a manager in the parks
and recreation department, after he joined the case. During her testimony last week, Drew said she did not write the reprimands,
which were issued under her name, "but merely contributed to them."

The plaintiffs' attorneys have suggested in court that the county law department may have written them. "Although DeKalb has
been asked repeatedly by plaintiffs counsel to identify who actually wrote the letters, neither Drew nor DeKalb have revealed the
author's identity," the motion states.

County attorney Lisa E. Chang, who was not the county attorney during most of the pretrial litigation in this case, has explained to
Duffey that the county did not place Bryant's formal response to the reprimands in his personnel file, despite his request that a
copy be kept there, but instead secured it in the law department.

In the motion, plaintiffs' attorneys also questioned why the county did not notify them that former County Attorney William J.
Linkous III had been called to jury duty on the date the trial opened, calling it "other evidence of bad faith" on the part of the
county.

"Linkous's presence in the jury pool was only discovered by plaintiffs upon reading the juror questionnaires, after Linkous had
spent the better part of the morning with the jurors," the motion states. "Remarkably, defendant Jones's counsel then sought to
take further advantage of the situation by referring to Linkous's race as evidence of non-discrimination in opening arguments."

During group voir dire of the jury pool, as Linkous repeatedly raised his hand to acknowledge that he knew the plaintiffs, the
defendants and attorneys in the case, Duffey had explained to the jury pool that Linkous was the former county attorney, but not
that he had worked for Jones.

Jones' attorney, Brent L. Wilson, told the jury during his opening statement that Linkous had worked for Jones as Wilson ticked off
a list of white department heads whom Jones, who is black, had appointed.

Duffey abruptly warned him in front of the jury that he was "stepping over the line."

Describing the ongoing alleged misconduct as "egregious," the motion argues that sanctions less severe than a default verdict
against DeKalb County and Drew "will not suffice."

"Taken as a whole, there is clear and convincing evidence that the county's and Drew's conduct in this litigation has crossed the
line between zealous defense and abusive litigation," it concludes.

The case is Bryant v. Jones, No. 1:04-CV-2462.

R. Robin McDonald
Staff Writer
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