Fairfield Ledger
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Neighbors Growing Together | Dec 7, 2016

Testimony continues in Watkins case

By RUSTY EBERT Ledger correspondent | Nov 28, 2016

MONTEZUMA – Testimony continued in Montezuma on November 21 in the trial of the State versus Abraham K. Watkins that will decide whether to remove the Van Buren County Attorney from office.
The trial was moved to Poweshiek County, closer to the Hampton home of Judge James Drew.
On Monday, Assistant County Attorney Virginia Barchman testified that Watkins was drunk during a felony trial in July and also about Watkins’ alleged inappropriate behavior in front of female employees. We will have details in future editions.
Drew last week ordered Van Buren County Auditor Jon Finney to provide the court and defense counsel a copy of the recordings made during two closed special sessions in August and September dealing with the possible removal issue.
The recordings were ordered not to be disseminated to the public without further court order, according to Drew. If possible, the recordings were to be provided to the court and defense counsel by November 18.
The Van Buren County Board of Supervisors held a special meeting November 2, just after county auditor Jon Finney finished testifying in the matter. Supervisors voted unanimously to waive the attorney-client privilege regarding Jon Swanson concerning the legal advice he gave the board in its closed session meetings on August 29, 2016, and September 19, 2016. Watkins was present at the November 2 meeting, but did not participate.
Watkins’ lawyer, Alfredo Parrish, asked the court for disclosure of the discussion held during the August 29 and September 19 meetings.
Several individuals were present during the September 19 closed session, including the supervisor’s attorney, Jon Swanson, investigator Thomas H. Miller, Van Buren County Sheriff Dan Tedrow and auditor Finney.
The minutes from the September 19 meeting state that, upon re-entering open session, the board “voted to allow counsel for the county to proceed as discussed in closed session.”
Parrish said that although closed-session discussion may be “non-discoverable” if the discussions are subject to attorney-client privilege, the state can’t assert privilege in this case.
“To begin, Mr. Swanson, the board’s attorney, also provided legal advice to Mr. Watkins regarding the subject of their removal action. To the extent Mr. Swanson divulged information he gleaned from Mr. Watkins to the board during the closed sessions, those communications should not be protected by the board’s attorney-client privilege. In order to establish whether Mr. Watkins’ own right to attorney-client privilege was violated by Mr. Swanson divulging to the board those communications, Mr. Watkins must be able to review the closed-session discussions.”
Swanson testified that he was working for the county and the supervisors, not for the county attorney’s office.
Parrish argued, “the presence of Mr. Finney destroyed the attorney-client privilege at the August 29 meeting and the presence of Mr. Finney, Mr. Tedrow and Mr. Miller destroyed the attorney-client privilege at the September 19 meeting.”
Parrish states “it was not necessary for Mr. Finney, Mr. Tedrow and Mr. Miller to be present during the closed sessions.” The presence of third parties “destroyed attorney-client privilege.”
Finney, as county auditor, takes notes of the meetings and taped both sessions.
Parrish asked for a “special master” to be appointed to review the closed session discussion and determine whether and to what extent the discussion was privileged.
The attorney-client privilege issue was made moot when supervisors voted to waive the issue at the November 2 special meeting.
According to F. Montgomery Brown, the state’s attorney, because the attorney-client privilege had been waived, the state had no objection to allowing Judge James Drew to listen to the tape recording of the closed session and provide copies of those tape recordings to the attorneys for the State of Iowa and Watkins, on the condition that no further recording or transcripts be provided to the public.
Watkins questions whether supervisors had the authority under Iowa code to file the removal petition.
Also, the court will consider a deposition by Alan Ostergren, Muscatine County Attorney, dealing with whether Watkins was under the influence of alcohol during the Gaylord trial last July.
The state alleges that Watkins was under the influence of alcohol during the trial.
According to testimony, Watkins was present for the trial, but much of the prosecution was done by his assistant, Virginia Barchman.
Judge of the Gaylord trial,  Joel Yates, testified that “nothing jumped out at him” that led him to believe that Watkins was intoxicated. However, Ostergren, President of the Iowa County Attorneys’ Association, said Watkins contacted him at the end of September and “admitted” being under the influence on the trial’s first day. Watkins wanted to discuss with Ostergren the removal petition that was filed by the State of Iowa and Van Buren County supervisors.
On redirect examination during his deposition, Ostergren answered a question from F. Montgomery Brown:
Q. Now, Abraham Watkins, did he admit to intoxication during some portion of a jury trial in Van Buren County, yes or no?
A. Yes.
On September 29,  he said he  received a phone call from Watkins which went to his voicemail and then he called him back a short time later and spoke to him.
Watkins began explaining to him the removal petition.
Q: What did he explain was going on?
A: What I understood from the conversation is that somebody, who I later learned was you (attorney F. Montgomery Brown) had been at his office and shown him an as yet unfiled petition and that what I took from it was that he had been asked to resign as county attorney on the spot and then was given time to think about it and he started going into an explanation as to what the allegations were.
Q. And do you remember what the allegations were as repeated by Mr. Watkins, the Van Buren County Attorney?
Ostergrens stated that the first two allegations were sexual harassment and conflict of interest.
Q. And then was there a third allegation that he discussed with you?
A. Yes, there was. He then said, “They say I was --- I’m intoxicated.” And he said, “I’ll admit about a month ago my drinking was out of control and Chris Kauffman took me to the emergency room, but I am fine now. They say I was drunk during a trial, but it was only during voir dire.”
Q. So did you take that statement to mean that he     admitted at least being under the influence of an alcoholic beverage during the voir dire process of a jury trial?
A. Yes.
Ostergren also testified that Watkins told him it was not underwear, but jogging shorts, that he wore when he appeared in front  of female employees.
Watkins’ attorney Alfredo Parrish said the defense team     “looked at” the shorts and “will present as evidence.”
Under cross examination, Ostergren was asked by Parrish:
Q. If you observed conduct that you thought was unethical and did not report it, would you agree that there is a possibility that that’s a violation of the ethical code in and of itself?
A. In broad strokes, yes. I mean, I know you’re supposed to report lawyers if you know that they violated the ethics rules.
Q. To your knowledge have you been told of a single report by any lawyer with regard to Mr. Watkins’ conduct to being reported to the ethics commission?
A. I don’t remember hearing anything about that from anybody, no. I don’t know one way or the other.
Ostergen also testified that as an elected official he reserves the right to set policy in his office that might be different from the county employee handbook, but he could not create a policy that permitted sexual harassment. He also stated that in his county, the county policy on sexual harassment is “sort of the default rule, as it is for my office.”
Parrish asked Ostergen if he had kept notes on the conversation he had with Watkins.
A: No. I wish I had. I didn’t have the presence of mind to pull out a notebook. As my mother told me, never to assume, but I assumed when I called Mr. Watkins back that it would be that kind of more routine thing.
After his phone conversation with Watkins, Ostergen then called Chris Kauffman.
“I  told him I had a very unusual conversation with Mr. Watkins and asked him what was going on.”
Parrish then asked him about the conversation he had with Watkins.
Q: When you indicate that you assume from what Mr. Watkins said to you that he had been intoxicated, drunk during part of a jury trial, did Mr. Watkins specifically say to you that he had been drunk during part of a jury trial?
A. In terms of quote, end quote?
Q. Yes.
A. No, he didn’t say it in those exact words. I don’t want to be cute here with your question, but, he did not use that exact phrasing. He said words to the effect of “They say I was drunk during the trial but it was just voir dire.”
He also said the board of supervisors did have a responsibility to deal with a sexual harassment claim.
“If sexual harassment is reported to the board of supervisors and we do nothing in response, can that trigger liability to the county as a whole, and if I understand your question to be that, then the answer is yes.”

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