Down & Dirty

by Jake Tapper

  “Well, I relied on the facts that I received, yes,” Hengartner says meekly.

  “That’s all I have, Judge,” Beck says, as he glides back to his seat.

  Bartlit is so proud of Beck his eyes well with tears.

  It’s a pretty devastating moment, and Hengartner leaves the courtroom visibly rattled.

  I’ve seen it a million times in D.C.: Democrats can be so fucking sloppy.

  During a break, Terrell approaches Dexter Douglass. He likes Douglass and knows that Baker—who was friends and hunting buddies with Chiles—likes and respects him, too.

  “You ever get to Texas?” Terrell asks him.

  “Not much, Irv,” Douglass says. He’s very guarded.

  “Don’t you know about the Pennzoil-Texaco case, and which side I was on?” Terrell asks, smiling.

  The lightbulb goes off over Douglass’s head. “You were on the plaintiff’s side, weren’t you?” Douglass says. “So you’re not all bad, are you?”

  “No, I’m not all bad,” Terrell says.

  Douglass notes that Terrell has stayed pretty low-key with the media. “I haven’t seen you grabbing the microphone,” he says.

  “That’s true,” Terrell acknowledges. “I have seen people grab the mike, and it didn’t serve them very well.” He tells him a little about the Pennzoil case, how Jamail burned his friend, how he himself thought his shit didn’t stink for a spell there. Things have been OK on this case, though. Some of the Bush lawyers grouse when Barry Richard books himself on Larry King Live—he and King are old friends from Miami. And of course, there’s the tension with Bartlit, much of which goes on behind Bartlit’s back. But things are relatively serene.

  The conversation soon turns to Douglass’s Herefords,and cattle,and Boies.

  “You really got yourself a horse there,” Terrell says, motioning to the lead Gore lawyer.

  “That’s true,” says Douglass. “But my horse gets tired.”

  The Republicans get to call their witnesses now, and they start with Burton. At the front of the room, Sauls is rocking back and forth in his leather chair, his lips pursed like he’s about to whistle.

  Having been slammed by both sides in Palm Beach, Burton is embraced by the Republicans in Tallahassee. And why not? With his chad standard, Gore picked up only 174 votes, and under his leadership, the count wasn’t completed in time. Palm Beach could have blown everything for Bush. But with Burton, it’s pretty much blown over.

  Bartlit walks Burton through the evolving process by which they assessed ballots in West Palm: LePore, Carol Roberts, Dennis Newman, Ben Kuehne, LaBarga, Jackie Winchester, the 1990 standard, one-corner rule, two-corner rule, hanging chad, dimples, patterns of dimples, and on and on.

  “Basically three Democrats?” Bartlit says of the canvassing board.

  “Three people trying to do the best job they can, yes sir,” Burton replies.

  Boies, interestingly, doesn’t attempt to undermine the Palm Beach standard as too rigid in his cross-examination. Instead, he decides to try showing that Palm Beach found votes—legitimate, actual, real-life votes—in its hand recount, thus hoping that Sauls will include them even though they were a little late and also force the same standard on the 9,000 yet-tobe-hand-recounted ballots of Miami-Dade.

  Sauls wants to know more about the 1 percent recount, if there was any established rule as to when the results from it would necessitate a full county recount.

  “I felt not,” Burton says, “because, quite honestly, I think statistically to say that would mean nineteen hundred votes, that was incorrect…. I wanted to go about this in a more reasoned approach and analysis, and I wasn’t given that opportunity. And I guess since that day, I guess I’ve been the one accused of trying to block this recount, which is not the case.”

  “Absolutely not,” Sauls says. “I’ll have to salute you as a great American, as a matter of fact.”

  A great American? Boies thinks. OK, well, clearly Dexter’s right, Sauls is not inclined to rule for us.

  Even Burton thinks Sauls’s comment is “weird.” Commenting on what a witness was saying, giving his editorial take on it? “OK, whatever,” Burton thinks.

  He steps down. Outside the courtroom, Barry Richard approaches him. “I really want to get together when this is all over,” Richard says to him. “One Democrat to another.”

  Beck brings a rubber expert before the court, Richard Grossman, technical director for the the Hammond Group’s Halstead Division, which manufactures “heat stabilizers and other additives for rubber and plastic composition.” But Zack points out that Grossman told him in yesterday’s deposition that he has never seen a Votomatic. He gets Sauls to go along with the thesis that Grossman can talk only about the composition of rubber—not the operation of the Votomatic—and when Beck even thinks about anything other than that, Zack objects over and over. To Sauls’s clear annoyance.

  “This is an expert, Mr. Zack,” Sauls says. “Overruled.”

  But Zack gets some points in on cross-examination—for what they’re worth, since Sauls seems to be showing his cards. Zack gets Grossman to acknowledge that he knows nothing about the maintenance of the rubber in the Votomatics. Soon it becomes pretty clear that Grossman doesn’t really have much to offer.

  The clock strikes 6:20 P.M. Sensing no end in sight, Sauls, weary, impulsively hammers it all to a close until Sunday morning, bright and early.

  The Gore attorneys are mixed on how the day went. Klain and Douglass think that the witnesses were inexperienced and pretty horrible. Boies thinks that it doesn’t really matter that much, the important evidence is the ballots, and they just need to get to the Florida Supreme Court. Zack has a more positive spin on it, of course. Brace was adequate, he thinks—better than Beck’s rubber guy!

  Of course, the onus is on what Beck has taken to derisively referring to as “the Gore legal team” to put on stellar witnesses. The Bush team has no obligation to prove a thing. They’re just here to waste time and lay groundwork for an appeal, which would waste more time. And they’re doing a swell job.

  Outside, the attorneys host dueling press conferences. Gore aides point to a Miami Herald analysis of the 175,000 discarded ballots from all over the state, somehow ending up with Gore winning Florida by 23,000 votes. The Herald analysis is ridiculous, assuming, as it does, that everybody voted successfully, assuming that everybody voted for president, that no one abstained.

  The Bush team tries to explain contesting procedures it filed earlier in the morning, challenging the election results in Volusia, Broward, and Seminole Counties. They say they did so because in order for Sauls to rule in Gore’s favor, the outcome of the election needs to be in question; by throwing these counties on the table, it will become clear that anything and everything can be disputed when you get down to it. It’s as if by making an even bigger mess, they’ll make the prospects of cleanup well nigh impossible.

  Meanwhile, the lovely little town of Tallahassee is hosting a parade and winter celebration. Citizens have a fun run, cheered on by spectators, while rides and treats and festive lights wow the town’s kids. As the town joins together to light the ceremonial Christmas tree, locals seem happily apathetic about the political and legal manipulations taking place only yards away.

  Immersing yourself in one state’s politics is like attending a Royal Family reunion: the incestuous relationships you come across are just staggering.

  You have Miami-Dade assistant county attorney Murray Greenberg, who attended junior high school with Barry Richard, who lost his primary race for attorney general to Jim Smith, whose law partner is Brian Ballard, whose sister is Palm Beach County commissioner McCarty, whose nemesis is Carol Roberts… and on and on…

  Holland & Knight attorney Steve Uhlfelder of Tallahassee embodies this web. Within a few days of the Election Night anticlimax, Uhlfelder—who served as counsel for the ’96 Clinton-Gore state campaign and was a member of Democrats for Bush this year—was called to work for Gore, for Bu
sh, and for ABC News. He chose the last. Uhlfelder is close with Jeb, whom a few years ago he introduced to his good friend Barry Richard. He’s a law partner of Richard’s wife, Allison Tant, ran the judicial retention campaign of both justices Lewis and Anstead; as a student at the University of Florida, he, Steve Zack, and Donald Middlebrooks met “Walkin’” Lawton Chiles at the Gainesville city limits; his dad was close friends with Carol Roberts and her husband when president of the Palm Beach synagogue Temple Israel. When he was at Steel Hector & Davis, he hired Donna Blanton, one of Katherine Harris’s attorneys; his wife, Miffie, and Jeb’s wife, Columba, take yoga together; he was counsel to Democratic governor Reubin Askew in ’78 and is GOP senate president John McKay’s business attorney now. And on and on.

  On Saturday night, December 2, the Uhlfelders and the Richards go out to eat at the Governor’s Club. Soon, of course, the straight-laced Richard announces that he has to call it a night. “I’m really tired; I need to go home to prepare for tomorrow,” the attorney says.

  It’s a nice night; the town’s Jingle Bell Run is in full operation. And, in keeping with the nature of state politics, after they bid Barry and Allison adieu, whom should they stumble upon but David Boies, holding an empty wine bottle in one hand on his way back to the Governor’s Inn.

  “Hey, Steve,” Boies says, having met him through his commentary work for ABC News. “What’s going on?”

  Boies says that he’s returning from a great dinner at the Silver Slipper with Zack. As a connoisseur of wines, he enjoyed the bottle he’s holding and didn’t want to forget the vintage.

  “Let’s have some more!” Uhlfelder says. At the Governor’s Inn, they do.

  Uhlfelder tells Boies that his team seems pretty disorganized; he’d spoken to Gore attorney Deeno Kitchen earlier, and Kitchen said that he didn’t quite know who was in charge. They talk about Microsoft, about civil rights; Boies, on his third or fourth screwdriver, says that he doesn’t quite get why the Bushies are putting up such a stink about counting the Miami-Dade undervotes—he’s not even sure that Gore would gain votes there, when all is said and done.

  Uhlfelder studies Boies. He likes him. Thinks he’s one of the most honest and open people he’s ever met. But he also wonders if Boies is the kind of guy who has to be all things to all people. He’s boozing it up with him tonight, he’s been interviewed on TV every morning. And then, of course, there’s that court case.

  Sunday morning, back in Miami, Zack’s colleague Altman is still looking into John Ahmann’s stylus patent when she finally finds the U.S. Patent and Trademark Office’s Web site.

  Bingo.

  The Bush team’s star witness—there to reassure Judge N. Sanders Sauls that everything was totally cool with the punch-card ballot devices—holds two patents for instruments designed to vastly improve said devices. And in order to secure the patents, Ahmann slammed the original voting machines he was in the courtroom to laud. Ahmann’s deposition before the patent office reads like Zack had written it himself.

  Altman, a registered Republican who voted for Gore, is pleased with her discovery. But she’s even more worried about how she can deliver this information to Zack, who’s already in the Tallahassee courtroom. Zack’s cell phone is off. Its mailbox is full.

  Altman frantically calls Berger’s law firm on Monroe Street in Tallahassee. She faxes the information to them and begs them to rush it over. Jessica Briddle, a Gore recount-committee staffer, grabs the material and sprints down Monroe Street to the courthouse. Near the elevators, she gives it to Jeremy Bash, who gives it to Gore attorney Andrew Shapiro.

  In the courtroom, while Ahmann is being sworn in, someone—Zack’s still not sure who—puts the file on his lap with the typed note Altman had sent: “Steve, urgent, read now.”

  Zack does.

  Beck, meanwhile, is doing direct examination of the bolo tie–clad Ahmann, who says that “it punches real easy….I seriously doubt that the voter would be unable to push through on a normal voting device.”

  As for the theory that chad buildup under Gore’s name prevented people from voting for him, Ahmann says,“I do not believe it’s possible…. I know no way that could happen.”

  What about if, as Zack yesterday pointed out can happen, the device hadn’t been cleaned out in a decade?

  “I would first say, no,” Ahmann says, “but then that would also depend on whether you had an election every week, or if you only had an average of two or three elections a year….In order to fully fill it up,you could go fifty years.”

  In Miami, Altman isn’t even sure if Zack has gotten her fax. She’s watching the trial on MSNBC, but it has switched to a commercial break or different programming or something. So she switches to C-SPAN. Zack’s on his feet now, cross-examining Ahmann.

  “Would it be relevant to you to know that the machines purchased by Palm Beach County had an inferior plastic, a harder plastic?” Zack asks.

  “It’s not unusual that when a manufacturer puts out a product that the initiation of that product might not be perfect,” Ahmann says. “When IBM first came out with its Votomatic, it had to be reworked, and that’s when I got involved.”

  Zack smiles. “I really appreciate your mentioning that,” he says, trotting out Ahmann’s October 27, 1982, patent application.

  Klock objects on behalf of Katherine Harris. Of course; shouldn’t the lawyer for the chief elections officer of the state try to hide problems with the Votomatic from the court? I guess this one thinks so.

  “Overruled,” Sauls says.

  Zack starts to read his patent application back to Ahmann.

  “Could I have a copy of whatever documents are being read from?” Beck asks.

  Now it’s Zack who can cockily say, “I only have one copy.”

  Zack continues quoting the application.

  “The material typically used for punch board and punch card voting can and does contribute to potentially unreadable votes because of hanging chad or mispunched cards.

  “If chips are permitted to accumulate between the resilient strips, this can interfere with the punching operations and, occasionally, it has been observed that a partially punched chip has been left hanging onto a card, after the punch was withdrawn, because the card supporting the surface of the punch board had become so clogged with chips as to prevent a clean punching operation. Incompletely punched cards can cause serious errors to occur to the data processing operation utilizing such cards.”

  Zack next questions Ahmann about his stylus patent, which Ahmann says was designed to “align better” than the styluses used in Miami-Dade County.

  “We wanted to reduce template wear, which will keep the stylus on the chad, so that they have clean punches rather than gouges, or pinholes, or hacking chad,” Ahmann says.

  In his final question, Zack asks him about the need for manual recounts after elections “when you have hanging chads… lots of them because machines aren’t tearing them off correctly.”

  To which Ahmann replies, “You need either reinspection or a manual recount if you have that situation, yes, you do.”

  Precisely the opposite of what the Bush team wants him to say.

  “Any redirect?” Sauls asks Beck.

  Ahmann is now a witness who might say anything, Beck thinks. Sure, what Ahmann said will have limited, if any, impact on Sauls, but Beck knows this is a big PR loss. Time to pull out.

  “No, Your Honor,” Beck says.

  In Miami, Altman is loving it.“The person had gone up on the stand and said X, when in fact, in a sworn deposition before the U.S. patent office, he had said Y,” she’ll later say. “Lawyers dream about impeaching someone that way.”

  Though GOP attorneys are quickly dispatched to the TV cameras to compare the old punch card–ballot devices with other fully functional though not quite cutting-edge machinery—windshield wipers without the “blink” mechanism, for example, or black-and-white televisions—members of the Gore legal team are clearly delighted with Ahmann
’s testimony. And TV pundits start saying that maybe things have finally shifted Gore’s way.

  After Ahmann’s testimony, a beaming Zack leaves the courtroom during a break and gushes to the media. “We feel that’s it,” he says. “It goes to the fact that there was a problem with the machines. And it proves that in a close vote, you gotta hand-recount the vote.”

  In the court administrator’s office, Ginsberg approaches Beck.

  “Did you know about the patent?” he asks.

  “I knew about the patent, but I hadn’t seen this document,” Beck says. “I don’t think it’s going to be a significant deal, though.”

  Beck explains: Whether John Ahmann thinks hand recounts are a good idea in a close election makes for good television, he says. But it will mean absolutely nothing to Sauls, who’s trying to decide whether these county canvassing boards abused their discretion—discontinuing the hand recount in Miami-Dade or applying a more rigorous standard in Palm Beach. Yes, it’s going to be played as a big deal in the press, and everybody’s going to be saying that John Ahmann flipped us on this key point. I know it’s going to be played as a Perry Mason moment—especially because Boies and Zack are good at manipulating the press—but I also know it’s not going to impress Sauls at all.

  Ginsberg nods his head. “Yeah, you’re probably right,” he says.

  The day goes on. Beck calls to the stand William John Rohloff, the Broward County cop Scherer found who claims that on Election Day he placed the stylus over Gore’s chad and withdrew it because he just couldn’t bring himself to vote for Gore. Rohloff now fears that he left a dimple that the Broward County canvassing board may have erroneously deemed a Gore vote. It’s probably safe to say that voters like Rohloff are about as common as a day Katherine Harris avoids eyeliner, but the point is that the Republicans have found him, and here he is.

  Laurentius Marais has a teddibly erudite-sounding South African accent and a distant, callous bearing; when he steps up to testify, the temperature in the room drops 10 degrees. Douglass passes a note to Miami-Dade County attorney Murray Greenberg that Marais “would fit right in with the Third Reich.”