Down & Dirty

by Jake Tapper

  That’s a bit harsh, but Marais does seem like a precision-oriented SOB, handily sneering at many Gore claims as bad science and incomplete research, repeatedly dissing Saturday’s testimony by Hengartner, implying that it was “slipshod and slapdash.” He also says that “it would be a factor to consider” that there were so many undervotes in Palm Beach because—as Beck hypothesizes—some voters were confused and “may have just thrown their hands up in the air and said, ‘I can’t figure this out; I’m not going to vote for any of these guys.’”

  “From a statistical point of view,” Beck concludes, “is there any valid basis for drawing the conclusion that people were in the Votomatic voting booths trying to vote for Al Gore, but they simply weren’t able to push the stylus through the chad?”

  “Absolutely none,” Marais says. Brrr!

  On cross-examination, Boies tries to slam Marais as the statistician equivalent of a hit man. He paints Marais as someone who makes a living out of killing the testimony of other statisticians at the behest of evil interests, claiming that whatever he’s hired to dismiss “does not meet your standards as to a thorough scientific analysis…. For example, you testified that certain statistical analyses that linked lead paint with injuries in children didn’t meet your standard for statistical scientific analysis, correct?”

  At this, Beck jumps up and objects.

  Boies “is trying to tar him,” Beck charges, asking Marais to discuss “a case Mr. Boies thinks would be unpopular with the public, and that doesn’t have any relevance here.” Beck asks Judge Sauls to direct Boies to stop dragging in other cases, to “admonish” Boies to take issue with Marais’s methods and his methods only. “Otherwise, all he’s doing is grandstanding,” Beck says.

  “Your Honor,” Boies says, “I’m not grandstanding.”

  But Sauls sustains the objection. Marais’s whoring for the lead paint industry is not relevant here.

  Beck objects again when Boies describes something Marais has said in a way Beck thinks is misleading. Boies allows that maybe he’s confused about the matter, but before Marais can clarify, Sauls jumps in and lays out all the arguments Marais had made.

  I wish I’d said it that well, Marais jokes.

  Sauls’s comments impress the hell out of Beck, and reassure him that the judge gets it. “If anybody thinks this guy is anything other than a sharp guy really paying attention, they’re wrong,”Beck thinks.“He’s paying more attention than anybody else in the courtroom to what’s being said on the stand.”

  Irv Terrell calls GOP Miami pol Tom Spencer to the stand. Spencer was an observer in Miami-Dade throughout the canvassing board’s fickle month, and he basically reads excerpts from hearing transcripts, establishes that Democratic judge King pushed for the recounts while independent Leahy didn’t want to do them at all. Spencer seems like a straight shooter, a friend of Leahy’s, and Terrell picked him to help tell the Miami-Dade story precisely because of that. Spencer says that there were lots of problems during the hand recount, that on November 19, “an entire tray of ballots from precinct two hundred fourteen… fell and splashed all over the floor and was picked up, and then put back in the tray in order.”

  And then comes Tom Spargo.

  Terrell had the Miami-Dade “intimidation” part of the case, and he privately considered it to be probably the Bushies’ ugliest moment. He spent the week talking to Miami-Dade GOP witnesses and, frankly, found a lot of them wanting. He especially needed someone to testify that hundreds of chad were spit out when the third machine sort was conducted to sort out the undervotes. Show some evidence that the process was off the rails, and maybe the near riot would be a bit more excusable. Tom Spargo was the only witness he had who could testify to this.

  Terrell has asked each of his three witnesses the question lawyers always ask: Is there anything— anything—in your background, anything at all, whether or not it’s true, whether or not it’s been misinterpreted, anything that I should know about that the other side can use against you? Because you’re about to go on national TV, and if there is anything, it will stain you forever. All three said no. Nothing there.

  Terrell has his suspicions about Spargo, but what can you do, he said he was clean. So he calls him to the stand, and Spargo testifies about the chad.

  When it’s time for Kendall Coffey’s cross-examination of Spargo, he doesn’t waste any time brandishing the blade.

  “Good afternoon, Mr. Spargo, I’m Kendall Coffey, one of the attorneys for the vice president and senator. As I understand it, part of the thrust of your testimony this afternoon is to, in effect, discredit, if you can, the reliability and integrity of some of the processes that were used by Supervisor Leahy and the staff, correct?”

  “I only testified, I believe, to what I observed but I, all right—”

  “Isn’t it true,” Coffey asks, “that the last time you were on the witness stand on matters of reliability and integrity in an election scenario, you took the Fifth Amendment nineteen times?”

  Terrell’s on his feet even before Coffey’s sentence is completed. “This is what you call your basic bushwhack,” Terrell says. “He knows it’s not proper. He’s coming in to embarrass him, and I suggest he tender whatever evidence he’s got. I think it’s irrelevant.”

  “Your Honor, I have background information which I think goes to the reliability of the witness,” Coffey responds.

  Sauls calls the attorneys back to his chambers to talk about this.

  Spargo’s a New York GOP hack, counsel to lame politicos with short shelf lives, like Lt. Gov. Betsy Ross and Republican-turned-Democrat-turned-unemployed congressman Michael Forbes, back in Forbes’s first incarnation. In the Empire State, Spargo’s known for trafficking in the ridiculous, like a 1990 lawsuit against then-governor Mario Cuomo for claiming his family’s Queens home as his voting residence, though the governor, of course, primarily resided at the governor’s mansion in Albany. Or his 1998 suit on behalf of defeated attorney general Dennis Vacco against newly elected Democratic attorney general Eliot Spitzer, in which Spargo alleged, but never remotely proved, that fifty thousand illegal aliens voted on Election Day. He’d been counsel to the state GOP until he resigned in 1990 under investigation of an ethics commission. This involved the role, if any, that he played in a 1985 campaign-financing scandal that funneled cash from the developers of a Poughkeepsie mall to local officials. After Spargo failed to submit to questions about the alleged political payoffs, a state supreme court justice issued a warrant for Spargo’s arrest. This was lifted when Spargo agreed to testify before a State Commission on Government Integrity investigation, though his testimony was hardly forthright, as he did, indeed, invoke the 5th Amendment nineteen times.

  In a trial held on a normal schedule, it’s likely that neither Hengartner nor Ahmann, nor Brace, nor—especially—Spargo would have been called to testify. But this is fast-track, baby.

  Sauls, Coffey, Terrell, Richard, and Klock spill into the hallway behind Courtroom 3-D.

  Terrell is furious. He notices the conspicuous absence of Boies and Douglass.

  “We believe that this witness is subject to impeachment,” Coffey says, outlining Spargo’s sketchiness, most notably the times he pleaded the 5th Amendment.

  “Might I ask counsel a question?” Terrell fumes. “When did this occur?”

  I think it was ten or eleven years ago, Coffey says.

  “Was he convicted of a crime?” Klock asks.

  “It’s showing a propensity to refuse to provide candid testimony in matters involving elections,” Coffey says.

  “As counsel for Governor Bush,” Terrell says, “at least in the state of Texas—Mr. Richard and Your Honor will speak for the state of Florida—that’s not admissible.” Since he was never convicted of anything, certainly not of a felony, and this all happened more than ten years ago, none of it is admissible in a court of law.

  “It’s the same in Florida,” Barry Richard says.

  “It’s improper,�
� Klock says. “I’m surprised.”

  Sauls sustains the objection.“Anything further as to that,” he says to Coffey, “and we’re going to have a hearing on contempt tomorrow morning.” Sauls marches back to the bench.

  “And if there’s anything else like that,” Terrell warns him, “I’ll move for contempt on you.”

  Coffey shrugs. “You’ve gotta do what you’ve gotta do.”

  “Listen to me, counsel,” Terrell whispers. “You will be damaging yourself if you continue. What you heard out there and in here is mild compared to what I’m going to say about you if you keep going like that.”

  They reenter the courtroom. Terrell approaches Spargo and whispers to him. “He will not be asking you any more questions like that,” he says. “You’re doing great, you’re doing well as a witness. Keep hanging in there.”

  Then: “Tom, there’s something I must know, and you must tell me: is there anything else?”

  “Irv, I’m so sorry I didn’t tell you before,” Spargo whispers, repentant.

  “I know,” Terrell says. “But I must know, you must tell me.”

  “No, that’s it,” Spargo says. “I’m so sorry.”

  But Coffey’s not done yet. He has a photograph of Spargo actually demonstrating—clapping and chanting—at Miami-Dade on Wednesday, November 22. He asks him about various hypocrisies of GOP tactics in Miami-Dade—that Martinez tried to get a court order to stop the separation of undervotes from the rest of the pack, for instance, and only days later, Republicans protested when the canvassing board went to the nineteenth floor to separate the undervotes that hadn’t yet been separated.

  Richard leans over to Terrell, who’s still enraged, and tells him about the stripper Coffey bit back in ’96. Terrell is horrified. He looks at Coffey like he’s an animal. Terrell becomes worried that he’s so mad, he’ll say something about Coffey’s incisors to the court, or to the press. But he doesn’t.

  Soon enough, Coffey’s done with Spargo. Terrell, of course, does not take the opportunity to ask him any more questions.

  When his rage subsides, Terrell will wonder why Coffey raised the issue in such a clumsy way. He could have pointed out that Spargo is the only one who supposedly saw the thousands of chad spilling out, pointed out that the court is being asked to take Spargo’s word for it. He could have talked to him about his word, about how a man’s word relies upon his ethics, principles, and beliefs, asked him if he’d ever been accused of being unethical. Then Spargo would either have had to admit it or lie about it, and Terrell would have had to object, putting an end to it with the world—and Sauls—perhaps believing the worst.

  Not only was Coffey’s tactic unethical, Terrell thinks, it was bad lawyering.

  During a break, the Bushies regroup a bit. Beck approaches Terrell.

  “You know, not everything goes perfectly,” Beck jokes. “Sometimes your guy endorses hand recounts,” he says.

  Terrell smiles. “Sometimes he pleads the Fifth Amendment.”

  Bartlit feels that he has a bang-up case on Broward to present, but Ginsberg and Terwilliger want to end it. They don’t need to push for much more of a case, they don’t need to put on many more witnesses.

  Bartlit disagrees. He’s gonna roast Gunzburger. And Lee, to a lesser extent. He has damning quotes of Gunzburger talking about voting her conscience instead of a standard, and he has Rosenberg ready to assail her. Plus, Bartlit says, if they lose in the Florida Supreme Court, they should be prepared to put the Broward ballots back in play. But even Beck thinks that they should quit while they’re ahead. The Gore case is weak. The Bushies are winning. Who knows how many Ahmanns and Spargos are lurking in their witness lists?

  The last quarter or so of the trial is full of quiet and minor developments. Marc Lampkin gives his testimony, alleging that when Leahy and his team began sorting out the undervotes on Wednesday, the ballots were damaged. * And, as one member of the Bush legal team later tells me, Lampkin, an African-American, is also there to show the country that the GOP isn’t entirely made up of white Presbyterians.

  Twenty-year Nassau County supervisor of elections Shirley King comes next; none of the Gorebies want to cross-examine a sweet little old lady, so Dexter Douglass gets the job. He already knows the Nassau case is hopeless—he told Boies as much after reviewing the facts. “They’re not going to throw those ballots out,” he said. “I hope you didn’t really bet your law license on this one.”

  Soon the Gorebies try to introduce the ballots as evidence. Terrell objects. The ballots have been through all sorts of “reshuffling,” he says. And the Gorebies never even proved “through any witness the authenticity of those ballots, they didn’t call Supervisor Leahy, they didn’t call anybody from Miami-Dade to actually put those ballots before Your Honor in an appropriate way.”

  Sauls agrees that the reshuffling argument is understandable if the Gore team wants to argue for the ballots’ “utilization”—that is, to count them, to handle them, to show that there are votes in them thar boxes. But to admit them into evidence isn’t that big a deal. A few of the “real people” intervenors get up and speak; Hengartner returns to try to clear his name, but rebuttal testimony isn’t supposed to be about “rehabilitat(ing) your witness that has been impeached,” Klock objects.

  Soon— YAWN, it’s like 10 P.M.—it’s time for closing arguments. Douglass thanks Sauls for the expeditious way he ran the case—finishing up even before Zack’s schedule would have had them done—and Boies stands up, one last chance to work his magic before the skeptical judge.

  He’s a fascinating guy, occasionally mesmerizing in the legal arena, just as a gifted thespian, or talented tennis player, can be. But his case has not felt, at least to me in the stands, all that strong. Hengartner and Brace were duds; disgraced in one instance, discredited in the other. Sauls has seemed underwhelmed by the Boies magic that has worked so well on us in the media and on judges like Thomas Penfield Jackson in the Microsoft case. And whether or not Boies Klain is shooting for the Florida Supreme Court as an endgame, the Sauls case is important both for PR purposes as well as to establish a record that the SCOTUS and its frisky conservative justices—like, say, Scalia—might want to poke around in.

  It just doesn’t feel like they’ve made their case. Not even a bit. And the fact that they never tried to get all 175,000 undervotes and overvotes counted has caused a complete erosion of support for the “count every vote” charge among reporters, many of whom would like to know who actually won the presidency, as crazy as that sounds.

  Instead, Boies talks about Nassau County, hoping to make the convincing case that Douglass never managed. “The statutory direction is that when you have a discrepancy, you pick the mandatory machine recount” number, not the count from Election Night. The Nassau canvassing board could have recounted the ballots again; it didn’t. It just relied on what Harris of all people told them to do.

  “The court heard Judge Burton, called by the defendants, testify that they had been able to identify the clear intent of the voters,” Boies says. “There is no evidence in the record that suggests that those two hundred fifteen votes are not legal votes that need to be included.” The fact that they were two hours late is no reason to keep them out of the final vote tally, he says. Of course, they weren’t two hours late, they were actually three days late. And there weren’t 215 net Gore votes from Palm Beach, there were 174.

  “He says, ‘Well, maybe there are some votes there, maybe there are some people who intended to vote. But it’s too late, and that’s that,’” Boies says of Richard, characterizing this euphemistically as a “bad things happen” argument. “With respect, Your Honor, Florida statute and Florida case law do not permit the court to say, ‘Well, we’re simply going to ignore the will of the voter.’”

  As for Miami-Dade, Boies continues, whether you believe the bumbling Nicolas Hengartner or the creepy Laurentius Marais, the canvassing board there “was able to discern the clear intent of the voter in between
one-fourth and one-fifth of all the ballots that the machine could not read…. So what needs to be done with these nine thousand ballots? We think the answer is obvious. They need to be counted. They need to be reviewed.”

  What about counting all the ballots statewide? “I challenge them to cite the case that says that,” Boies says, “because the statute doesn’t say that.” The contest statute asks us to prove that there are legal votes that haven’t been counted, Boies says. “And we’ve done that.”

  Richard’s turn. Two weeks ago, he says, the Florida Supreme Court ruled, in Palm Beach v. Harris, that “the decision whether to conduct a manual recount is vested in the sound discretion of the board.” Well, the Miami-Dade, Palm Beach, and Nassau County canvassing boards exercised their discretion responsibly. And no one has proven otherwise. “I kept waiting for a witness to come in here and testify that there was a problem somewhere in this state, and that the problem was of sufficient magnitude to overturn the county anywhere,” Richard says. That witness never showed up.

  Boies is misreading the statute he cites for Nassau County, Richard says. The statute “is not about the difference between the first machine count and the second machine count, it’s talking about the distinction between the machine count and the returns that were submitted” to the canvassing board. “A voter can’t come into court and say, ‘I forgot to go to the polls on Election Day,’ and say, ‘You need to give me another chance.’ And the voter can’t say, ‘I went to the wrong precinct and voted the wrong place; let me vote again,’” Richard pleads. “Why is it any different when a voter walks into the booth and either fails to read the instructions properly or, if he can’t read them or she can’t read them, fails to ask the personnel who are available for such person to help, and votes wrong?…The voter has some obligation to do it right.”