Monegan lawyer responds to Petumenos report

Posted by Alaska_Politics

Posted: November 11, 2008 - 3:53 pm

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After the Daily News ran this editorial on investigator Tim Petumenos' less-than-convincing exoneration of Sarah Palin in Troopergate, we received this further critique of the report from Walt Monegan's lawyer, Jeff Feldman.

-- Matt Zencey, editorial page editor

FROM JEFF FELDMAN:

A close reading of the report issued by the investigator hired by the Alaska Personnel Board reveals a variety of errors and weaknesses. Some examples:

(1) The investigator's report omits discussion of and disregards substantial evidence, including multiple instances in which evidence seriously conflicted with statements made by the Governor (see discussion below)

(2) The investigator's report misapprehends the applicable law, and suggests that the relevant provision in the ethics statutes does not mean what, on its face, it says

(3) The investigator's report addresses only the direct evidence (and, at that, only some of the direct evidence). The report ignores critical circumstantial evidence. The law accords circumstantial evidence the same weight as direct evidence, so the absence of any analysis of the circumstantial evidence reflects a significant omission and weakness in the report. For example, the report ignores the number, sequence, timing, and content of communications by the Governor, her husband, her staff, and her cabinet officers to former Commissioner Monegan and others at the Department of Public Safety. But the fact that:
* Eight different individuals

* All of whom either were, worked for, or were related to the Governor

* Contacted Former Commissioner Monegan or other officials at the Department of Public Safety

* To complain about the fact that Trooper Wooten was still employed as a trooper

* More than three dozen times

* Over an 18 month period

* Frequently using the same words and relating the same stories and events

* And some of whom stated that they were speaking on behalf of the Governor

would reasonably permit an inference that the Governor knew of and/or directed their activities, notwithstanding assertions to the contrary by the Governor and her staff.

It is possible that a neutral fact-finder would find the denials by the Governor and others (the direct evidence) to be the most persuasive evidence on this point. But it's also possible (and some might say, much more likely) that a neutral fact-finder would conclude that the denials are contradicted and outweighed by the inference that reasonably can be drawn from the circumstantial evidence that the Governor knew of and /or directed the various communications to Commissioner Monegan by her staff and husband. On that basis alone, there was more than sufficient evidence for a finding of probable cause.

(4) The investigator's report leaves important dots unconnected by failing to consider the evidence as a whole and by misapplying the legal standard of "probable cause" (see above). Consider the following illustration: The fact that an individual has a one-way ticket from Bogata to Miami might not be deemed, in itself, suspicious. Nor the fact that the individual was traveling alone. Nor that he carried no baggage. Nor that he went to the bathroom on the plane every hour. Nor that he was sniffling a lot and had some odd white power on his pants. Nor that he was perspiring and shifting in his seat and looking around a lot. But, taken in the aggregate, a person reasonably could conclude that those circumstances combined to establish probable cause to believe that the individual was engaged in criminal behavior. The report by the Personnel Board's investigator suffers the weakness of looking at the evidence in isolation and, as a result, of failing to see the broader picture.

(5) Consider one example of how the investigator's report misapprehended the evidence and failed to address obvious conflicts between the Governor's testimony and other available and credible evidence:

Former Commissioner Monegan testified that the Governor called him in January 2007 to talk about Trooper Wooten. Governor Palin denied that the conversation occurred. Both individuals testified under oath. The existence of the two conflicting statements, alone, normally would suffice for a finding of probable cause, with the final determination as to which version was most credible to be by a neutral fact-finder made at a formal hearing. But there was additional evidence available on this issue, beyond the two sworn statements by Governor Palin and Commissioner Monegan.

In the last paragraph on page 31 of the report, the investigator for the Personnel Board accepts at face value the Governor's claim that the call to Commissioner Monegan never occurred; the investigator points to Todd Palin's testimony (also taken at face value) as confirming the fact that Mr. Palin had never talked to the Governor about his meeting with Commissioner Monegan. The investigator's report states:
"Governor Palin, in any event, has testified under oath that she was unaware that Todd Palin made these early 2007 inquires to Commissioner Monegan. Todd Palin confirmed that he did not discuss either the Monegan meeting or Commissioner Monegan's follow up call with the Governor at any time until the matter became the subject of scrutiny in 2008."

But in making this finding, the investigator's report ignores an e-mail that the Governor sent to Former Commissioner Monegan on February 7, 2007, shortly after the date of the disputed phone call. In her February 7 e-mail, the Governor expressed her concern about the Wooten situation in terms that unequivocally establish: (1) the Governor's knowledge that Commissioner Monegan already knew of her own concerns, and (2) the Governor's knowledge that Todd Palin had already directly informed Commissioner Monegan of her family's concerns. The Governor's February 7 email states:

"Just my opinion - I know you know I've experienced a lot of frustration with this issue. I know Todd's even expressed to you a lot of concern about our family's safety after this trooper threatened to kill a family member - ..."

If the January phone call never occurred (as the Governor claimed in her deposition testimony), how did the Governor know on February 7 (when she sent her email) that Commissioner Monegan already knew of her frustration? And if the Governor truly was unaware of any contacts between Commissioner Monegan and Todd Palin, how could she claim to know that Mr. Palin had expressed the family's concern to Commissioner Monegan?

Even though the e-mail seriously undermines the Governor's denial of the January phone call and directly refutes her claim that she knew nothing of Todd Palin's communications with Former Commissioner Monegan, the report by the Personnel Board's investigator all but ignores the e-mail's contents. This omission and others like it raise a question whether the report reflects a careful and critical examination of all available evidence designed to discover the truth or merely a hasty review aimed at meeting an election-eve deadline.

(6) An example of another conflict left unaddressed by the investigator's report: The Governor claimed at one point that Todd Palin complained to her so frequently about the handling of the Wooten matter that she had to tell him to stop. How does that square with the contention in her deposition testimony that she was completely unaware of Mr. Palin's activities?

(7) An example of another conflict left unaddressed by the investigator's report: At page 13, the report states that the Palins met with representatives of the Alaska State Troopers in November of 2006, shortly after the Governor's election, and expressed their concern that Trooper Wooten presented a "security threat." The Personnel Board's investigator apparently accepted their statements about this discussion as true, without any acknowledgement or consideration of the substantial evidence to the contrary.

At page 44 of his report, Mr. Branchflower (the investigator for the Alaska Legislative Council) described the sworn testimony of Gary Wheeler, a witness who should possess substantial credibility by virtue of his position and longevity as an state trooper since 1981 assigned to protect to Governor of Alaska. No one has suggested that Mr. Wheeler has any motive or bias in connection with this matter. Mr. Wheeler recalled the November 2006 meeting the Palin's described, but he recalled it quite differently. Mr. Wheeler stated that he asked the Palins "whether they perceived any threats from any individual or were afraid of any individual" and that he received a negative response. Oddly, the Personnel Board's investigator did not interview Mr. Wheeler, himself. While the report states that the Personal Board's investigator carefully considered all of the testimony that Mr. Branchflower gathered and made available to the Personnel Board, the omission of this significant conflict in the evidence and the absence of reference to Mr. Wheeler's testimony strongly suggests the contrary.

(8) The Personnel Board's investigator criticized Mr. Branchflower for not interviewing certain witnesses, most notably the Palins. Putting aside for a moment the obvious observation that the only reason Mr. Branchflower did not talk to the Palins is because they refused to make themselves available to him, the criticism is misplaced because the personnel Board's investigator also failed to talk with a number of critical individuals -- including Audie Holloway and John Glass of the Alaska Department of Public Safety, both of whom were critical fact witnesses. Some individuals who were not contacted by the Personnel Board's investigator were direct recipients of communications about Trooper Wooten from the Governor or her husband and would have contradicted testimony provided by the Palins and relied on by the Personnel Board's investigator. John Glass, for example, testified that he told Todd Palin that Trooper Wooten had already been penalized for his actions [Branchflower Report, page 63]. But the Personnel Board's Report states that Todd Palin claimed that "he did not learn from anyone" that there was any consequence of significance imposed on Wooten, and the Report omits entirely that there was credible sworn testimony that directly contradicted that claim.

In light of these and other errors and omissions, there is substantial reason to question the conclusions drawn by the Personnel Board's Report.

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