Court filings: District Court, memorandum brief in support of motion to disqualify Judge Susan Webber Wright

This transcript was create using Optical Character Recognition (OCR) and may contain some errors. J:.a~;..~- DISTRICT COURT -~ Cl1N DISTRICT ARKANSAS IN THE UNITED STATES DISTR1CT COURT EASTERN DISTRJCT OF ARKANSAS NOV 16 2001 WESTER.i"l DIVISION LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. 1, ET AL :MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL !.",:~.;rv:: \~.1 : ~ ':17.~ ' r '- .. MEMORANDUM BRJEF IN SUPPORT OF MOTION TO DISQUALIFY JAMESw M By: cCORMACK, CLERK bi:Pc.!lRR' PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Disqualification of federal justices, judges and magistrates is governed in part by 28 U.S.C. 455, which provides as follows in subsection (a): Any justice,judge, or magistrate of the United States shall disqualify himselfin any proceeding in which his impartiality might reasonably be questioned. Inliljebergv. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100L.Ed.2d 855 (1988), the U.S. Supreme Court affirmed the disqualification of a trial judge who was a trustee of a university which had an interest in the case, notwithstanding the trial judge had no personal knowledge of the transaction at issue and did not attend a meeting of the trustees where the transaction was discussed. The Court held that scienter was not an element ofa 455(a) violation, stating that disqualification "does not depend upon whether or not the judge actually knew of facts creating an appearance of impropriety, so long as the public might reasonably believe that he or she -1- knew." 486 U.S. at 860. Commenting on the connection between the important public policy of confidence in the judiciary and the appropriate inquiry under 455(a), the Court stated: Id. at 864-865. The problem ... is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges. The very purpose of 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. Thus, it is critically important in a case of this kind to identify the facts that might reasonably cause an objective observer to question [the judge's] impartiality. Section 455(a) is not concerned with actual bias. "Disqualification is required ifareasonable person who knew the circumstances would question the judge's impartiality, even though no actual bias or prejudice has been shown." Gray v. University of Arkansas, 883 F.2d 1394, 1398 (8th Cir. 1989) ( citing United States v. Poludniak, 657 F .2d 948 (8th Cir. 1981 )). See also Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (stating that grounds for disqualification under 455(a) should be "evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance"). In United States v. Tucker, 78 F .3d 1313 (8th Cir. 1996), the Eighth Circuit reversed and remanded the dismissal of an indictment brought by the Independent Counsel against Governor Tucker and ordered that the case be reassigned on remand to a different judge. The Court relied upon "the high profile of the Independent Counsel's work and of this case in particular," together with newspaper articles establishing connections between the trial judge, the President and Mrs. Clinton and Governor Tucker. 78 F.3d at 1325. The Court cited 28 U.S.C. 2106 as authority for the reassignment order, but incorporated and applied the "appearance of impartiality" standard from 455(a). Id. at 1324. -2- In In re Boston's Children First, 244 F .3d 164 (1st Cir. 200 I), involving a challenge to - elementary school assignments based upon race, the First Circuit ordered the disqualification of the trial judge under 455(a) due to public comments on the case. In response to criticism that she had certified a class in prior litigation before resolving standing issues, but had failed to immediately certify a class in the pending case, the judge made the following statements to the local newspaper: In the [prior] case, there was no issue as to whether [the plaintiffs] were injured. It was absolutely clear every woman had a claim. This is a more complex case. 244 F.3d at 166. While making clear that there was no finding of actual bias or violation of ethical responsibilities by the trial judge, the Court noted that the school assignment program was a matter of significant local concern and that the judge's comments were reasonably open to misinterpretation. The Court further found that "a reasonable person might interpret [the judge's] comments as a preview of a ruling on the merits of petitioner's motion for class certification, despite the fact that defendants had not yet filed a response to that motion." Id. at 170. Assuming that the trial judge's comments in In re B?ston 's Children First reasonably could be understood as a preview of her ruling on class certification, the comments were, at the most, subtle and indirect. Indeed, in denying a petition for rehearing en bane, the Court acknowledged that disqualification was a close question on the facts before it and that disqualification under 455(a) . generally required a "case-by-case determination." Id. at 171 . Comparison \vith the instant case is instructive, however, because the comments of the Court as reported in the Arkansas Times article were neither subtle nor indirect. Just as in In re Boston's Children First, the Court's comments here addressed a case pending before her on a matter of significant public concern. Unlike In re Boston's Children First, the Court's comments appear to take direct aim at the soon-to-be-filed Compliance -3- Report, the issue of the LRSD's unitary status and the possible end of court supervision. There is hardly any need for interpretation with regard to the Court's intentions or expectations concerning the future progress of the case. The fact that the Court's meaning was reasonably clear to those present is indicated by the reported reaction. Some parents of public school children expressed "dismay" at the Court's remarks. Others received the same comments with "boisterous applause." Finally, subsequent developments in the case have given the LRSD reasonable grounds to believe that the Federal Monitor may have pre-judged the issue of unitary status and that, regardless of the Monitor's personal opinions and conclusions, the Monitor may have become an evidentiary source on the merits of unitary status through her ex parte communications with the Court. These facts have come to light through the events surrounding the Court's decision to allow the ODM monitors to function, not as a facilitating participant in the remedial process, as directed by the Revised Plan( 10), but as potential adverse witnesses. In addition to supporting the suggestion of an appearance of partiality under 455( a), the ex parte communications are separately disqualifying pursuant to 28 U.S.C. 455(b)(l) and Canon 3A(4) of the Code of Conduct for United States Judges, 175 F.R.D. 363, 367 (1998). In Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996), the Seventh Circuit disqualified a trial judge in litigation challenging the constitutionality of the Illinois mental health system. The Court found that at least one ex parte meeting betweei: the judge and the members of a court-appointed panel of mental health experts had addressed the merits of the case. The Court noted that the "discussions in chambers were calculated, material, and wholly unnecessary" and that two members of the panel had become partisan by their public criticisms of the state's mental health system. 93 F.3d at 259- 260. Compare Association of Mexican-American Educators v. State of California, 195 F.3d 465, -4- 493 (9th Cir. 1999) (finding no evidence that the district court had relied upon a court-appointed technical advisor as "a source of evidence"); and Liddell v. Board of Education of City of St. Louis, 105 F.3d 1208, 1211-1212 (8th Cir. 1997) (noting with approval a ruling by the district court that court-ordered negotiations between a settlement coordinator and the parties "would be confidential from the court and outside parties"). Significantly, the trial court in Edgar v. K.L. refused to allow the defendants to discover the content of the ex parte communications and invoked a "judicial privilege" with respect to them. The Seventh Circuit ruled: 93 F.3d at 258. The judge did not elaborate on the nature, extent, or legal support for his claim of "judicial privilege," but a phrase of that kind usually refers to the deliberative process. No privilege covers arrangement of administrative details ... To invoke a privilege is therefore to confess that the discussions covered the substance of potential testimony and the conduct of the litigation - and if this is not so in fact, it is nonetheless what we must assume, because no evidence in the record undermines the inferences naturally to be drawn from the outline for the September 7 meeting. Likewise, in the present case, the Court has invoked a privilege with respect to the ex parte conversations between the Court and the Federal Monitor and has prohibited the LRSD from discovering from the Federal Monitor the content of those conversations. The Court's shielding of the ex parte conversations from discovery by the LRSD, while permitting the ODM monitors to testify as potential adverse witnesses against the LRSD, together with the statements attributed to the Federal Monitor concerning the merits of the case and the probable intentions or reactions of the Court to developments in the case, supports a reasonable inference that the conYersations addressed the merits of unitary status and were unfavorable to the LRSD. See also United States v. Craven, -5- 239 F.3d 91, 103 (1st Cir. 2001) (vacating a sentence influenced by the trial court's ex parte contacts - with a court-appointed expert, remanding for sentencing before a different judge, and noting that "it is difficult, if not impossible, for a judge, no matter how sincere, to purge that [ ex parte] information from her mind - and, equally, to maintain the perception of impartiality"). CONCLUSION For the foregoing reasons, and in order to rigorously maintain the appearance as well as the reality of impartiality in this important case in the public interest, the LRSD respectfully prays for the voluntary or mandatory disqualification of Judge Wright from further responsibility in the case and for the reassignment of this case to another judge of the District Court. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE & CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) Robert S. Shafer (#81141) First Commercial Bldg., Suite 2000 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 BY~ -6- CERTIFICATE OF SERVICE - I certify that a copy of the foregoing has been served on the following people by fax and mail on November 16, 2001: Mr. John W. Walker JOHNW. WALKER,P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagemeier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 C 'TE:-.iP'GWVicweMlrsd J wpd -7- 1 - 2 3 4 5 6 7 8 9 10 11 12 13 - 14 15 16 17 18 19 20 21 22 23 - 24 25 Page 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. CASE NO. 4:82CV00866SWW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT , ET AL NOV 1 6 ZOOi Vffi:~~ ~;; OESEGfiEGATiO~J MLl~liDRme PLAINTIFF DEFENDANTS ' INTERVENORS INTERVENORS * * * * * * * * * * * * * * * * * * * * * * * * * * * * ORAL DEPOSITION OF ANN MARSHA.LL (Taken November 14 , 2001) * * * * * * * * * * * * * * * * * * * * * * * * * * * * APPEARANCES : On Behalf of the Plaintiff MR. CHRIS HELLER and MR. CLAY FENDLEY Friday , Eldredge & Clark 400 West Capitol , Suite 2000 Little Rock , Arkansas 72201 2 3 4 5 6 7 8 9 10 II 12 13 )4 15 16 17 18 19 20 21 22 23 24 25 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 25 On Behalf of North Little Rock School District MR. J. ALLEN CARNEY Jack, Lyon & Jones 425 West Capitol, Suite 3400 Lirtle Rock, Arkansas 7220 I On Behalf of Intervenors Mrs. Lorene Joshua, el al MR. JOHN WALKER Attorney at Law 1723 Broadway Street Lirtle Rock, Arkansas 72201 ALSO PRESENT: JOY SPRINGER, TAMMY DOWNS INDEX TOPIC PAGE Stipulations 4 Witness Sworn In: Ann Marshall 5 Examination by Mr. Heller Examination by Mr. Walker Further Examination by Mr. Heller Further Examination by Mr. Walker Reporter's Certificate 133 Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 EXHIBITS 23 23 23 24 24 80 5 118 125 129 (Exhibits Attached Following Transcript.) Page2 Page 3 Page 4 I ANSWERS AND DEPOSITION OF ANN MARSHALL, a witness 2 produced at the request of the Plaintiff; taken in the 3 above-styled and numbered cause on Wednesday, the 14th 4 day of November, 200 I, before Jerry R. Lawson, CCR, a 5 Notary Public in and for Jefferson County, Arkansas, 6 commencing at 2:40 p.m., at the offices of Friday, 7 Eldredge & Clark, 400 West Capitol, Suite 2000, 8 Little Rock Arkansas 72201, pursuant to the agreement 9 hereinafter. se.t .fo.rt.h.. .... STIPULATIONS 10 II 12 IT IS STIPULATED AND AGREED BY and between the 13 parties through their respective counsel that the I 4 deposition of ANN MARSHALL may be taken for any and all I 5 purposes according to the Federal Rules of Civil 16 Procedure. 17 18 19 20 21 22 23 24 25 .......... I PROCEEDINGS 2 WHEREUPON, 3 Ai"lN MARSHALL, Page 5 4 having been called for examination by counsel for the 5 Plaintiff, and having first been duly sworn, was 6 examined and testified as follows: 7 EXM1INATION 8 BY l'v1R. HELLER: 9 Q. Would you tell us your name and address, please, 10 Ms. Marshall. 11 A. Ann Marshall, I RiYiera Circle, Little Rock, 12 Arkansas. 13 Q. Okay. And how are you employed? 14 A. I'm a desegregation monitor for Judge Susan Webber 15 Wright. 16 Q. Would you review for us briefly your education. 17 A. I have an undergraduate from Hendrix College in 18 English. I have an advanced degree in volunteer 19 management from the Arkansas Public Administration 20 Consortium. I'm certified in planning and training 2 I with the Institute of Cultural Affairs. I'm a 22 certified master trainer with the National Association 23 of Partners in Education, which is headquartered in 24 Washington, D.C. 25 Q. Do you have any other certifications relating to 2 (Pages 2 to 5) Page 6 Page 8 1 the field of education? I Q. Prior to the time you assumed your position as the 2 A. Not that are current. 2 director of the Office of Desegregation Monitoring, 3 Q. Have you previously been certified in the field of 3 what was your highest salary, approximately? 4 education? 4 A. I don't recall. Are you saying as an associate in 5 A. Yes. 5 the -- 6 Q. What certifications did you hold? 6 Q. Well, let's say -- 7 A. English. 7 A. -- Office of Metropolitan Supervisor? 8 Q. Okay. And you're certified to teach English? 8 Q. -- before you went to work for the Office of the 9 A. Yes. 9 Metropolitan Supervisor, what was the highest paying 10 Q. And would you review briefly your employment 10 job you held? 11 history. 11 A. Probably coordinator of Volunteers in Public 12 A. How long do you want me to go -- how far would you 12 Schools and Partners in Education. 13 like for me to go back? 13 Q. And approximately what did that pay? 14 Q. Well, let's -- 14 A. I have no recollection, Chris. I could -- 15 A. Do you want me to start now and go backwards? 15 somewhere probably in the high 40's. I'm not sure. I 16 Q. Let's start at the beginning of the things related 16 It's been a long time. 17 to education. 17 Q. And do you recall what your beginning salary was 18 A. I taught English and science in Forrest City from 18 with the Office of Metropolitan Supervisor? 19 approximately 1 970 to 1972. I moved to Little Rock 19 A. No, I don't. :, 20 and was the -- no, I'm sorry, that's incorrect. I was 20 Q. Okay. Do you recall what your beginning salary 21 an order editor for Eaton Hoisting Equipment in 21 was as director of the Office of Desegregation 22 Forrest City for approximately a year and a half. Then 22 Monitoring? 23 I moved to Little Rock, and I was the first woman 23 A. I believe it was ninety-eight five in that -- 24 employed as an epidemiologist in the field of venereal 24 perhaps ninety-eight. I don't recall exactly. But 25 disease for the State Health Department. 25 that's close. Page 7 Page 9 l Then I joined the Little Rock School District as 1 Q. So, you've never ,vorked as a school administrator, 2 the coordinator of Volunteers in Public Schools. I was 2 principal or assistant principal or an)1hing like 3 in that position until approximately 1984, '85, when I 3 that? 4 was employed by the Arkansas Department of Education as 4 A. I've worked as an administrator in a school 5 a coordinator to de,elop the Arkansas School Volunteer 5 district by virtue ofmy emplo)ment, on the 6 Program. I remained in that position for about a 6 administrative salary scale, in Partners in Education; ,. 7 year. 7 but I have not been a principal or an assistant '; 8 I returned to the Little Rock School District as 8 principal. : 9 coordinator of Volunteers in Public Schools. Also 9 Q. Have you received any training from the Arkansas ,: 10 during that time, I was coordinator of Partners in 10 Department of Education related to their new ACT AP 11 Education. I was employed by Mr. Revelle as an 11 system and benchmark exams or Smart Start or anything 12 associate monitor in the Office of Metropolitan 12 related to that new state curriculum standards and 13 Supervisor beginning in 1989. '88 or '89. And since 13 benchmarks? 14 that time with the conversion of the office to the 14 A. Training -- can you be a little bit more specific? 15 Office of Desegregation Monitoring, I've been employed 15 Q. Well, was there any formal training that you 16 steadily, assuming the position of monitor in April of 16 attended to learn about the ACT AP standards or the 17 199 1. 17 benchmark exams? 18 Q. Okay. Did you teach in Forrest City for one year 18 A. I think the sessions that I attended would be more 19 or two years? 19 accurately called awareness sessions. To me, there is 20 A. Approximately a year and a half. 20 a distinction between awareness and training. But I 21 Q. Okay. And which school or school district did 21 did attend a session that wJs to begin to help people 22 you -- 22 understand what was coming. 23 A. Forrest AcadeJT.y. 23 Q. Do you know whether or not ADE offers any formal 2-l Q. -- teach in? 24 training related to the implementation of ACT AP, the 25 A. It was Forrest /..cademy. It was a private school. 25 benchmark exams or the curriculum standards? .. 3 (Pages 6 to 9) Poge 10 1 A. Yes, they do for the -- for the State's teachers 2 and administrators. 3 Q. Has anyone in your office received such training? 4 A. I believe that Gene Jones has attended sessions. 5 Q. How would you describe your relationship with 6 Judge Wright? 7 A. She's my supervisor. 8 Q. Do you ever see Judge Wright socially? 9 A. As far as -- ,veil, I see her at lunch. We share 10 lunch. She's in -- it's her custom to take staff 11 members to lunch for their birthdays, and I'm asked to 12 join that. She and I attend the same church; and so we 13 occasionally will see each other at services, although 14 she tends to go to the early service and I tend to go 15 to the later one. 16 Q. Okay. Have you been to her home or has she been 17 to your home? 18 A. I was -- she's never been to my home. I was in 19 her home approximately maybe eight or nine years ago. 20 It's been a long time. 21 Q. And has Judge Wright ever been to your offices? 22 A. She's been to the new offices one time, to see 23 them. And before that in our old offices when we were 24 over at the River l\larket, she was also there one time, 25 to see -- just to see what we've done with the space. Poge 11 l 2 Q. Besides your office and her chambers, what places have you been together with the judge? 3 A. To lunch. Q. Do you consider Judge Wright to be a friend? A. A colleague. 4 5 6 Q. Do you .ever discuss family or personal matters 7 with her? 8 A. Well, I think that the judge was clear yesterday 9 that what passes between us is privileged. So, I guess IO I would hesitate to go there. 11 Q. Well, I'm not asking you what may have been said 12 in that regard but only whether or not you and the 13 judge have such discussions. 14 A. 1n general terms. She has a school-age child and 15 I have school-age children. So, comments in a general 16 nature. 17 Q. Did she discuss with you her decision about 18 whether or not to put her child in private school? 19 MR. W Al.KER: Objection -- 20 A. No. 21 MR. W Al.KER: -- to that. I don't think 22 23 24 25 that would be a proper subject for inquiry, and l would just flag that for presentation to the judge for inquif}'. And I would suggest to you -- I'm not Page 12 1 telling you what to do, because I'm not 2 representing you. But I would suggest to you 3 that's not within the scope of what she told 4 Chris that he could talk about. 5 THE REPORTER: She told what? 6 rvm.. WALKER: Chris that he could inquire 7 into. 8 THE REPORTER: Thank you. 9 NIB.. HELLER: Well, unless I heard 10 incorrectly -- 11 A. I said "no." 12 Q. (By Mr. Heller) Have you ever asked the judge for 13 legal or personal advice on any matters? 14 A. Never. 15 Q. Have you ever made any public appearances with her 16 or worked on any speeches for her or anything like 17 that? 18 A. I don't know ifwe are where we're supposed to be; 19 but I certainly don't llllnd telling you, no. 20 Q. How would you define your job? 21 A. Hard. 22 Q. Could you give us the expanded version? 23 A. Sometimes harder than others. My role is to 24 assist the Court in monitoring the school case. 25 Q. And how do you go about that? P,ge 13 I A. Well, a number of approaches. Primarily we 2 monitor in three main modes. We review a number of 3 documents that are produced by the school districts, 4 some on a routine basis, others may be exceptional in 5 nature. We make visits to the schools, and we -- we 6 observe. We look around. And thirdly, we will talk to 7 individuals. Sometimes those people call us, 8 unsolicited phone calls. But those are the three 9 primary modes by which we collect information. IO Sometimes we will target a specific topic by 11 virtue of perhaps a provision in the desegregation 12 plan, an issue that has become prollllnent by one means 13 or another. And then oftentimes we will make a formal 14 written report to the Court. And, of course, you've 15 had -- you've seen a number of those documents. 16 Q. What's the purpose of assisting the Court in 17 monitoring a school case? 18 A. To enable the Court to fulfill -- 19 MR. WALKER: Justa -- 20 A. -- its charge. 21 MR. \V ALKER: -- moment. I'm going to 22 object to that, too. That -- that is 23 something that the Court can only determine 2 and the Court of Appeals and that 's already 25 specific:illy reduced to writing. 4 (Pages IO to I 3) Page 14 Page 16 I Now, if there is another purpose that I had - I'm -- that's been so long. But I started to - 2 Ms. Brown -- Marshall has identified and 2 say I think that it was perhaps based on that of the 3 reduced to writing and the Court has agreed 3 Metropolitan Supervisor, but I don't have direct 4 on and it's pretty clear, then I don't think 4 knowledge of that. : 5 that there would be any objection to her 5 Q. Okay. Do you know -- so, are you saying that this ,; 6 answering that. But other than that, I think 6 job description you're referring to was in existence ,, 7 that that's a question properly -- a question 7 when you assumed the office? I, 8 more properly directed to the Court. 8 A No, not the same job description. It was 9 Q. (By Mr. Heller) Let me tell you this, Ms. Brown, 9 certainly modified after the Eighth Circuit's ruling, 10 since I believe that before we went on the record -- IO and -- and I don't have any direct knowledge. 11 I'm sorry, Ms. Marshall -- before we went on the 11 Q. Okay. How is your job described in that 12 record, you said you had not been deposed before, 12 document? 13 correct? 13 A I haven't looked at it in years, and I didn't ,, 14 A. I don't ever remember having been deposed. 14 review it for today. I didn't anticipate that ,; 15 Q. Okay. Well, the way this works is Mr. Walker can 15 question. 16 make objections for the record, but you will still be 16 Q. Is it a document that Judge Wright has approved in 17 required to answer the question unless you personally 17 any way, to your knowledge? " 18 decide not to. But he's not your lawyer. 18 A. As far as I know, it's -- it came from her 19 MR: W Al.KER: That's right. 19 office. 20 A. I understand that. 20 Q. Have you ever discussed your job description with : 21 Q. (By Mr. Heller) I suppose he can advise you not 21 Judge Wright? 22 to answer a question, but it's up to us whether or not 22 A Years ago when I was hired, yes. 23 to do that, so -- 23 Q. Has your job description changed over the years? 24 A. Well, I really don't -- 24 A You mean the written document? 25 MR. WALKER: Ms. Marshall -- 25 Q. Well, first the written document, has that -- when - Page I 5 Page 17 1 A. -- !mow the protocol. 1 is the last time the wTitten document was changed? 2 MR. WALKER: -- I would -- I would ask 2 A. I don't know that it has changed. 3 on that kind of question you recess the 3 Q. Has it changed in the last five years, to your 4 deposition to let the Court answer that 4 knowledge? 5 question or be directed, because you're not 5 A. I don't believe so. 6 represented by counsel. But you have to -- 6 Q. Do you ever have discussions with Judge Wright 7 of course, like he says, you have to exercise 7 about exactly what your job is and what you're trying 8 your own choice. 8 to accomplish? './ 9 A. I do know that the judge is available should we 9 A Well, certainly we'd discuss what it is that my IO need a ruling; but candidly, this is a new procedure 10 job is. She is my supervisor, and I report to her. I I for me and I don't understand the -- I don't know the 11 Q. Well, can you relate any discussions you've had 12 protocol. 12 about what your job is with Judge Wright? 13 Q. (By Mr. Heller) Well, my only question is that 13 A No. I guess perhaps I don't understand your 14 you described your job as assisting the Court in 14 question. I'm not trying to be coy. I'm just trying 15 monitoring the school case; and my question is: To 15 to understand what you're saying. 16 what end? What's the -- what's the purpose of that 16 Q. Well, I'm trying to understand what the 17 work? 17 understanding is between you and Judge Wright about 18 A. In order to supply information to the parties and 18 what your job is. And if it's accurately described in 19 to the Court th:it can be helpful. particularly in 19 a written job description, if you can tell me about 20 promoting compli:ince with the commitments that the 20 that; or if it's not, you can tell me about whatever 21 parties have made. 21 discussions you've had with the judge. 22 Q. Okay. Do you have a written job description? 22 A. I believe that it's correctly embodied in the job 23 A. I do. 23 description. And I don't ha\e th:it with me, but it's - 24 Q. Where did that come from? 24 something that's availabh::. 25 A. I believe that it was a modification of what 25 Q. \V ell, is there an)1hing that you recall about it .... .. S (Pages 14 to 17) Page 18 Page20 1 or can relate now about the understanding between you 1 disqualify the Court. 2 with Judge Wright about what your job is? 2 MR. HELLER: You are not required to sit 3 MR. WALKER: Well, let me say one other 3 here. 4 thing. As I understand it, this is about to 4 MR. WALKER: So, I suggest that we 5 get information in preparation for the 5 recess the hearing and call the judge. I 6 hearing on Monday. It is not to deal with 6 suggest we do that. \ 7 the question of disqualification, since 7 MR. HELLER: There's no reason to. : 8 Mr. Heller was not ambitious enough, if -- if 8 MR. WALKER: Ms. Brown, do you mind -- 9 courageous enough to make a motion to recuse 9 Ms. Marshall, do you mind doing that? 10 the Court. 10 THE WITNESS: Well, actually considering 11 So, I ask, Ms. Brown, that you limit 11 what J'ye just told you, this varies 12 your questions or -- or that you call the 12 considerably from what I had been given to I 13 judge to see whether your questions should be 13 undermnd by you yesterday. So, perhaps ., 14 limited to matters that relate to the 14 that will be best thing to do. < :: 15 evidentiary hearing that is set for the 19th 15 MR. WALKER: The deposition notice says :; 16 and the 20th. 16 one thing and what Mr. Heller said in court 17 lfhe wishes to challenge the Court and 17 is another thing, and they both have to be 18 her authority based on her personal 18 taken together. And the Court -- 19 relationship with you or anything else, 19 MR. HELLER: You're absolutely 20 he'll have ample time beyond the time to 20 incorrect. I pointed out to the Court that 21 prepare that we are supposed to be spending 21 you were ,,Tong when you suggested that I 22 getting prepared for this hearing on Monday. 22 wanted ro take these depositions about what 23 MR. HELLER: Well, if you'll read the 23 their testimony might be. I pointed out in 24 deposition subpoena, it's limited to matters 24 court -- and it will show up in the 25 concerning Ms. Bro,m's relationship to the 25 transcri pt -- that we specifically asked to Page 19 Page 21 1 Court, not what her testimony might be on I take these depositions concerning the 2 Monday. And that's what we intend to 2 communications benveen the Court and the ' 3 pursue. 3 monitor's office. 4 A. From our conversations yesterday, Chris, what I 4 MR. \VALKER: Well, that's concerning the 5 understood you intended to ask me was about documents 5 hearin g on Monday: and she said very clearly 6 that I had shared with the Court, which I've prepared. 6 on the issues that are before the Court on -- ' 7 Any other area, I have not reviewed. 7 on Monday and Tuesday, she can only -- := 8 Q. (By Mr. Heller) Okay. Well, I -- and I 8 Ms. Bro\\11's -- or i\ls. Marshall's testimony 9 understand that, and I'm just asking you for as much as 9 can only relate to the issues that she told IO you can remember about these issues. And we're 10 us both that we could present. 1 l certainly going to talk about the documents, but our 11 THE WITNESS: Well, I'm happy to share 12 purpose is to talk about the communications generally 12 what documents I found, Chris; but my " 13 and the relationship generally between your office and 13 understanding was that that was the thrust of 14 Judge Wright. 14 your inquiry. And since I don't -- I'm not 15 MR. WALKER: Well, let us -- I would 15 represented by any counsel and I'm not eager 16 like to suggest that we recess the hearing 16 to be in the middle of a disagreement between 17 and call the judge. My understand is that we 17 you two. maybe the best thing would be to 18 weren't to be wasting time on matters that 18 call Jud ge Wright. 19 the Court is not going to be addressing at 19 MR. HELLER: Well, let's -- before we do ' 20 this hearing. Even t11ough she said you could 20 that, let's at least take a look at the 21 depose her, I don't t11ink I w:mt to be 21 documents that you\e brought with you in 22 sitting in a room listening to you take the 22 response to the deposition subpoena. 23 time that we're supposed to be spending 23 A. Two that l\e sent to the Court -- and these 24 preparing for tri:il on the 19th :ind 20th, 24 actually went 10 Julie, and I sent those today :ind they 25 trying to -- for you to tind ways to try to 25 ,vere the comrnunic:ition that -- thank you, Tammy -- I 6 (Pages I 8 lo 21) Pge 22 I got from you, saying that the documents still weren't 2 ready, so I informed Julie. Whether those were shared 3 with the judge, I truly do not know. But I did send 4 them to the Court, because we're responsible for 5 organizing the documents and I can't get my work done 6 without them, so I notified my boss