Byers 8. Anderson Court Seattlen'acoma. Washington SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY AMY SBOBLOM, individually, DIANA NEFF, individually, LOU CABALLERO, individually, Plaintiffs, vs. No. 15-2-09687?7 SEA KING COUNTY, a political Subdivision of Washington State, Defendant. DEPOSITION OF DONALD NESEL (Volume II) TRANSCRIPT CONTAINS CONFIDENTIAL DESIGNATIONS October 31, 2016 Seattle, Washington Byers Anderson, Inc. Court One Union Square 2208 North 30th Street, Suite 202 600 University St. Tacoma, WA 98403 Suite 2300 {253} 627?6401 Seattle, WA 98101 {253) 383?4884 Fax (206) 340?1316 scheduling@byersanderson.com (800) 649-2034 Serving Washington's Legal Community since 1980 Donald Nesel October 31. 2016 Byers 81 Anderson Court SeattleITacoma. Washington APPEARANCES I EXAMINATION INDEX i For the PIaintisz:l_ A 2 EXAMINATION BY: PAGE NO. ?3 - 3Y5 . 3 Ms. Keys 5 Connelly Law Of?ces 1 2301 North 30m Street 2 W'me'baue' 8?4 Tacoma. Washington 98403 5 253.593.5100 5 253.593.0380 Fax 7 5 a 7 For the Defendant: 9 3 Steven H. Winterbauer Winterbauer 8. Diamond 9 1200 Fifth Avenue 1? EXHIBIT INDEX Suite 1700 12 EXHIBIT NO. DESCRIPTION PAGE NO. 10 Seattle. Washington 98101 13 Exhibit No. 3 18-page Second Declaration of Captain 6 206.676.8435 D.J. Nesel ?1 steven@winterbauerdiamond.con1 ?mmes?aah Davis Exhibit No. 4 2?page document titted Sheriff Urquhart 60 In pacta 15 conversations. Bates-labeled 14 801 2nd Avenue and Suite 800 A 15 ?5 98104 Exhibit No. 5 4-page timeline dated July 15, 2015?@mpadabcom 18 prepared by Tiffany Atwood 17 13 Also present: Diana Neff Page 2 Page 3 1 CONFIDENTIAL I BE lT REMEMBERED that on Monday. 2 2 October 31. 2016, at 506 Second Airenue. 33rd Floor. 3 Page 60; Line 22 Page 70; Line 25 3 Seattle. Washington 98104. at 1:14 before Michelle 4 Page 75; Line 1 Page 79; Line 10 4 D. Elam. Certi?ed Court Reporter. RPR. appeared DONALD 5 5 NESEL. the witness herein: 6 0 WHEREUPON. the following proceedings 7 7 were had. to witDONALD NESEL. having been first duly sworn by 12 12 the Certi?ed Court Reporter. 13 13 testi?ed as follows: 14 14 15 15 EXAMINATION 15 15 BY MS. KAYS: 17 17 0 Good afternoon. 15 73 A Good afternoon. 19 19 0 Captain Nesei. please state your first and last name and 20 2? spell both for the record. please. 21 21 A Donald Nose}, D-o-n-a-l-d, N-e-s-e-l. 22 22 And. Captain Neset. we've met before. obviously. 23 23 A Correct. 24 24 Ct This is a continuation of your deposition. and [wanted 25 25 to start out?rst with a topic area that we didn't Page 4 Page 5 2 (Pages 2 to 5) Donald Nesel October 31, 2016 Byers 8: Anderson Court ReporterledeoNideoconferencing Seattlefl'acoma. Washington i to this in your ?rst deposition have an occasion to 1 that - during the preliminary stage you're Just looking 2 conduct an llU investigation while the subject employee 2 at it and you're kind of going, no, the sky Is not black 3 was also under investigation for criminat misconduot? 3 and the earth is not felting out of its rotation. 4 Yes. 4 And. you know. it was either mental incapacity or 5 And you talked about kind of the ?rewall. if you will. 5 whatever. but you might stick it In the NIM for several 6 between the two investigations; correct? 5 reasons. One is to protect the officers and the Bifurcation of the administrative and criminal 7 citizens of King County because you say look. if this is inVestlgation. a going to happen often. it's their credibility. So it 9 Upon reading the ?rst tvvo paragraphs of Exhibit 4. 9 behooves you to kind of put it In the system. One way 10 Captain Anderson's notes documenting his conversation 10 or another.just get it in there. even if it's a NIM. 11 with Sheriff Urquhart and Mr. Mullinax. do you have an ?1 And I think so the first thing that comes to '2 impression as to whether or not the matter that came 12 mind is the fact that Jesse ls documenting this as an 13 toward from the FBI to Mr. should have been '3 ilU commander. It's telling me he's troubled by. I need investigated by liU? 1" to record this somehow because I'm told not to record 15 MR. DAVIS: Object to form. 15 It. which goes against what you are ordered to do as the 15 MR. WINTERBAUER: Object to form. ?3 llU commander. And i'm not saying in that busy office, 17 (By Ms. Kays) Go ahead. '7 which is overwrought with work. that things don't fail ?5 My opinion. it should have been investigated. Once ?3 off the plate and little things here or there. But 19 again, follow the rules the best we can. Put it into ?9 something like this where the FBI comes knocking on your 20 the preliminary. i think Jesse Anderson. who was the 20 door and says. hey - you need to take note of that. 21 IIU commander at the time. if I?m not mistaken - 21 And once again. we go back to that discussion we had 22 it's the second paragraph. 22 before about transparency and accountability. 23 Yeah. he recommends. you know. let's NIM it. which is 23 A document that deesn?t go into a database and dies 24 put it on ?le. Put it in the database. And we would 1?4 with the holder or whoever created it. such as this. 25 have people many times come forward and ?le complaints 25 personal notes or whatever you want to call it. it's not Page E52 Page 63 1 appropriate. especially for the leader of our i against our department's number one representative. the 2 organization. no matter how farfetched her claim may or 2 sheriff. The office of the sheriff. 3 may not be. we don't know. 3 And to I guess If this (Indicating) is all there 4 But if there is any nexus between this person and 4 is to It for public record, what happens If she goes to 5 the sheriff forget the title. just between those two 5 the newspaper and says. tried to report this and it 6 people. you need to why did she come forward and make 6 get covered up." Or how do you respond to the 7 this accusation? i mean. this isn'tjust your. ?He 7 public? 8 yelled at me." He did something. 8 lrnean. we're getting killed around the nation 9 I mean. she's accusing him of a felony an 9 about not being transparent. not being accountable. And 10 egregious felony. And l'm thinking in my mind of all of 10 so how would you mentor to this saying, "We just blew ii the reasons you would say. hey. it doesn't need to go in 11 her off" and then there's no record whatsoever of any 12 the database or whatever. Was it already Investigated?l 12 kind of an investigation. Not even a MM. 13 So I was there for a couple years, orjust under a 13 At least the RIM you Would say. we took it into 14 couple years of. I had to audit the database fora few 14 account. We talked to the sheriff. He said. hey. he 15 years prior. was there when the sherifftook over as 15 has the ability to tell us what to do and say. hey 19 the sheriff. And I don?t evar recall this person?s name 13 and we put the notes and whatever this coming forward to ?le a complaint or having a 1?7 put it into a NIM so it?s there for pubilc disclosure if is preliminary done to atready ferret it out. which ?3 somebody wants to take a look at it. It's just 19 sometimes that's what happens. Something keeps coming 19 Can I ask you a hypothetical question. Captain Nesei. 20 back six months later when they are having a flare-up or 20 Remove the label of sheriff from the member that's 21 something and they say 21 accused in the context of these two paragraphs. if an 22 But I guess once again. I'll use the word 22 individual comes in and accuses a department member of 23 flabbergasted. I mean. this Is notjust a little 23 sexual assault. 24 anomaly. a little case. Hey, this is a serious 24 Under normal circumstances. would you not. in fact. 25 allegation. not Just against the sheriff personally. but 25 investigate that in Page 64 Page 65 17 (Pages 62 lo 65) Donald Nesel October 31, 2016 Byers 8: Anderson Court Seattien'acoma, Washington A Absolutely. i mean, unless there was some clear 1 This Is about as major of a complaint and criminal 2 documentation, like I said. from prior encounters that 2 one in nature, which you don't just hang up the phone 3 the complainant Is well known, it's already been 3 and say. that was taken care of. I'm not putting It In 4 investigated. it could be clearly shown that. you know, 4 any database. I'm not going to take the time or energy. 5 there's a problem of some kind or another but you 5 This is the one where verything on your desk gets 3 would still documentthat you did a preliminary to get 6 pushed to the side and you say. how are we going to deal 7 to that conclusion on this thing. 7 with this? And you it might even have been one that 9 I mean. there was times - i've got to just put it 3 I would walk up to Mark Stockdale back then and say, 9 out there. There's times you're at people 9 "l'm not comfortable with this.? 10 calling in with little innocuous stuff like. want to 10 i mean. this says. "l'm responsible as the ?1 file a complaint against an officer who Is running radar i1 commander for all of the complaints In my manual." I. 12 in the driveway of my neighborhood and I've been told 12 I. E. And. yes. i report to the sheriff and he can 13 it's illegal to park your patrol car in the driveway In 13 order me, but obviously that's what Jesse Anderson is 14 the neighborhood when you're running radar." ?4 doing as the commander, feeling not comfortable to 15 Okay. Technically it's a complaint and maybe 15 where he has to do a separate off-thevrecord ?6 technically you shall put it into the system, but if you 1?5 documentation of something that he was ordered to do. 17 had to stop to put them all in there. you Would stop the 17 And he's, like. this is counter to what lam supposed to 13 system because we just didn't have the time and energy. ?5 do. 19 And I went down there to help rebuild that business 19 But once again. you got the general orders manual. 20 process, which in the long run was not accepted. It was 20 You got OLEO. The sheriff is a member of our 21 denounced. So I said, okay. 21 department. He's got a complaint against him. Is 22 But that's not a little fly-ln-the-ointment kind of 22 OLEO - are they aware of that? 23 complaint because. somebody in the neighborhood doesn't 23 Well. let me ask you this. Captain Nesel: You described 24 like the cop running radar on their street. You take 24 early on in our conversation here. this complaint that 25 care of it ef?ciently, quickly. 25 was lodged against you while you were working off duty Page 56 Page 6? 1 near CenturyLink. and you described that -- what, in 1 average officer. You would assign it to a criminal 2 your asseSSmenl. it should have been a fairly routine 2 detective, like many of the cases we have dealt with 3 taking care oi it. 3 during my tenure there. and you would hate that criminal 4 Instead. you were investigated and interviewed and 4 investigator go make contact with that of?cer and say, 5 OLEO was invited and Chief Deputy Pugei was present for 5 need to talk to you about this. We've got some 5 your interview. 6 accusations. Do you want a criminal attorney 7 Correct. For basically a very innocuous complaint that 7 representing you there?" 3 I knew in my mind - that wasn't going anywhere. In 5 And then based on that - in this case. Itwould 9 fact. I was asked when arrived, "Do you want your 9 probably be an SAU detective -- and get that 10 union rep?" 10 information. And then they would share that with IIU on 11 I go. I mean, I have nothing but the truth 11 a one-way bifurcated track. Share It with and say. ?2 to tell. What?s a union person or union representative 12 hey, this isn?t going anywhere. This has been disproven 13 going to do or an attorney sitting next to me. Once ?3 or this is whatever. Okay, then we'll take the 14 again, just tell the truth. The truth will set you 1? preliminary. We'll plgeonhole it accordingly. 15 free. lsald, "Get the video. Get the witnesses that 15 But to just poo-poo it away and say, no nobody 1'5 were there." 15 would be allowed to do this. I mean, none of the Flu 17 But yeah, it was kind of overkill having - on the 17 commanders. nobody. You're under the rules and 13 most minute of all complaints for somebody who doesn?t 13 regulations of the department. which says you take all 19 get a whole lot of complaintS. 19 of the complaints. 20 So yeah. you compare and contrast to the average 20 And like i said, there's de minimus ones where, you 21 of?cer had this come in. yeah. you?re going to assign a 1?1 know. it's just? but this is the whole other end of 22 criminal investigator to do all of the questioning and 22 the pendulum spectrum. You stop and somebody like FBI 23 go interview. 23 walks in and says. hey. 24 And in this case, when you have the sheriff - 24 Eyen with - and t'm not missing where they say 25 well. let?s take the sheriff out of it. Just the 25 they have their reservatlorts about her motivations and Page 68 Page 69 18 (Pages 66 to 69) Donald Nesel October 31, 2016 Byers 8. Anderson Court Seattlei'l'acorna. Washington credibility. Trust me, I have plenty of people call up 1 designation.) 2 where you kind of go. my God, okay. Put her on tape or 2 MS. KAYS: 629 of '16. 3 whatever and put him or her on tape and whatever. But 3 (Exhibit No. 5 marked for 4 this is serious business. You have to do some kind of 4 identi?cation.) 5 preliminary. 5 Cl {By Ms. Kays) So in reviewing Exhibit 4. paragraph 5 In my hypothetical where I said take the sheriffs name 6 dated 6129 of '16, and then also reviewing Exhibit 5. 7 out of the sexual assault allegation and just treat it 7 the Atwood memo dated July 15, 2015, I want general of?cer, now I want to clothe ?ip side. 3 couple of questions. 9 Do you believe that the sheriff should be held to 9 First of all. with respect to the backgrounding ?0 the same standard as every other of?cer in the 1? memo by Tiffany Atwood. i believe you testi?ed at your 1? departmentwhen it comes to an investigation? 11 ?rst deposition that with respect to the hiring process 12 MR. WINTERBAUER: Object to form. 12 at King County. that you used to be a participant in 13 THE WITNESS: Absolutely. 13 that. in either the commanders interview or captains 1" 0 (By Ms. Keys) Go ahead and answer. 14 interview? ?5 A Absolutely. 15 A That's correct. 16 i want to turn you to the third paragraph. if i could. ?3 And in conducting the captains interview for hiring. ?7 A The one on the back page? 17 Captain Nesel. did you have occasion to review the ?3 0 Oh, no. Sorry. This one here. 18 results of polygraph tests. or did you just look at a 19 A Okay. 19 memo or receive information from the backgrounding 2? 0 And have you reviewed that. sir? 20 detective? 21 A have. 2' MR. WINTERBAU ER: Object to form. 22 And let me ask you this. 22 0 (By Ms. Kays) Go ahead. 23 MR. We're looking at the entry 23 A So I had ?i was educated from when I went down there. 24 of 24 That was part of the responsibility, was to do kind of 25 (End of con?dential 25 the final interview. And so you reviewed the entire Page 70 Page 71 1 background package in electronic database, and 1 And they come back and say. well, they are going to 2 then you would then be debriefed by the background 2 be disqualified because they added more to it after they 3 detective on the applicant. 3 were warned about their background investigation being 4 And then they would come in and you would interview 4 complete. 5 them regarding anything you found in the background or 5 And so i would add on my llttie comment to the end 0 any questions orjust meet and talk with them and make 6 and say, "Hey, well, it?s nice to meet you. You're on 7 sure they were a good fit for your department. 7 your way down to take your polygraph. And after that 3 if they passed that interview, they basically were 8 there's your and your physical and you?re getting 9 getting a - what's the term they use. Like a 9 your conditional offer of hire, so to speak. 1? Provisionai letter for hire? 10 "if you pass all of that. you're good to go. But A Provisional hire. And usually the interview with me was 11 let me warn you, if you go down there and the 12 toliowed immediately they would walk down the hall ?2 polygrapher comes back and says you've disclosed more 13 and take a polygraph with our polygrapher. 13 items or there's issues that you're being deceitfui or 14 They were told, you know, if you go down there. 14 whatever about. it could cost you your application 15 you've already had your background. So It you start 15 process." 16 coming up -when the polygrapher starts asking you 16 And there would be times that occurred. They would 17 clari?cation questions - because it?s not like they 17 go down there and divulge somethin that was not 13 just put you on the machine and start asking away. "3 divulged in the background. They might hold out. 19 The person is an investigator themselves. They are 19 Sometimes they would go right out of my office, go 20 going to ask you lots of questions. clarifications way 20 right back over with Tiffany Atwood or Bobby Burrows an: 21 before they even get you onto the machine. 21 say, "Well. I've been thinking about this. Maybe I 22 So i would always warn them. after learning the 22 should divulge this." Sometimes they are the most 23 hard way when I ?rst came on as a captain down there, 23 innocuous thing. it's like, no big deaf. I suddenly 24 that they would go down there and start disclosing a 24 remember I stole a gun when was five years old and I 1?5 couple more things. 25 was afraid to throw that in at the end because it looked Page 72 Page 73 19 (Pages 70 to 73) Donald Nesel October 31, 2016